As the President mandated back in May, the Commerce Department has petitioned the FCC to clarify the circumstances under which social media platforms can be regulated over their treatment of third-party content given their general legal immunity.
That filing was at the direction of President Donald Trump's May 28 executive order, an attempt to prevent what the President and other Republicans have called suppression of conservative speech by Silicon Valley.
"Social media and its growing dominance present troubling questions on how to preserve First Amendment ideals and promote diversity of voices in modern communications technology," said the NTIA petition. "Social media’s power stems in part from the legal immunities granted by the Communications Decency Act of 1996." Adding: "[L]arge online platforms appear to engage in selective censorship that is harming our national discourse."
FCC Commissioner Brendan Carr, who has welcomed the petition and says Big Tech needs regulating, even got a mention in the petition. "Commissioner Brendan Carr has remarked, “there’s no question that [large social media platforms] are engaging in editorial conduct, that these are not neutral platforms.”
As to the FCC's authority to regulate internet content, which has always been a thorny issue, the petition sees it clearly: "[T]he Communications Act (Act) [in sec. 201(b)] empowers the Commission to 'prescribe such rules and regulations as may be necessary in the public interest to carry out this chapter. Under this authority, the FCC should promulgate rules to resolve ambiguities in Section 230," it says. The fact that Sec. 230 was added after 201(b) is immaterial, says NTIA, adding: "Neither section 230’s text, nor any speck of legislative history, suggests any congressional intent to preclude the Commission’s implementation."
“Many Americans rely on online platforms to stay informed and connected, sharing their thoughts and ideas on issues important to them, which can oftentimes lead to free and open debate around public policies and upcoming elections,” said Secretary of Commerce Wilbur Ross in a statement. “It has long been the policy of the United States to foster a robust marketplace of ideas on the Internet and the free flow of information around the world. President Trump is committed to protecting the rights of all Americans to express their views and not face unjustified restrictions or selective censorship from a handful of powerful companies.”
The order made no secret of the President's goal, which was to get at alleged anticonservative bias online. "When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.... We must seek transparency and accountability from online platforms," the order said.
Facebook CEO Mark Zuckerberg has told Congress that he understands the concerns about Silicon Valley's liberal bias, but says he does not think it is systemic, and certainly not at his company.
The petition filed by NTIA, the President's chief telecommunications policy adviser, is directed at Sec. 230 of the Communications Decency Act, which provides websites like Facebook and Google immunity from civil liability for most of the third-party content they host on their sites.
""Congress intended section 230 to address this difficult liability problem, but nothing in the law’s history, purpose or text allows for the conclusion that internet platforms should avoid all responsibility for their own editing and content-moderating decisions," NTIA says.
Republicans argue that some social media platforms have exploited that immunity to quell speech they disagree with.
NTIA's petition says the FCC should "use its authorities to clarify ambiguities in section 230 so as to make its interpretation appropriate to the current internet marketplace and provide clearer guidance to courts, platforms, and users."
"NTIA urges the FCC to promulgate rules addressing the following points:
1. "Clarify the relationship between subsections (c)(1) and (c)(2), lest they be read and applied in a manner that renders (c)(2) superfluous as some courts appear to be doing.
2. "Specify that Section 230(c)(1) has no application to any interactive computer service’s decision, agreement, or action to restrict access to or availability of material provided by another information content provider or to bar any information content provider from using an interactive computer service.
3. "Provide clearer guidance to courts, platforms, and users, on what content falls within (c)(2) immunity, particularly section 230(c)(2)’s “otherwise objectionable” language and its requirement that all removals be done in “good faith.”
(Perhaps to give the FCC some extra regulatory skin in the game, the petition asks the FCC to clarify the "excessively violent" web content Sec. 230 allows edge providers to remove with impunity as content that "is likely to be deemed violent and for mature audiences according the FCC’s V-chip regulatory regime and TV Parental Guidance," as well as material that "constitutes or intends to advocate domestic terrorism or international terrorism.")
4. "Specify that 'responsible, in whole or in part, for the creation or development of information' in the definition of 'information content provider,' includes editorial decisions that modify or alter content, including but not limited to substantively contributing to, commenting upon, editorializing about, or presenting with a discernible viewpoint content provided by another information content provider."
5. "Mandate disclosure for internet transparency similar to that required of other internet companies, such as broadband service providers."
Subparagraph (C)(2)(A) is the part of the act that "provides immunity from civil liabilities for information service providers that remove or restrict content from their services" they deem "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected," as long as they act "in good faith" in this action."
NTIA argues that early court rulings upholding Sec. 230's expansive liability protections are based on "early platforms and outdated technology."
"The problem of overly expansive interpretations for section 230 is not merely hypothetical," it says, then cites a series of complaints that mirror those by conservatives claiming a liberal Silicon Valley bias. "Tens of thousands of Americans have reported, among other troubling behaviors, online platforms 'flagging' content as inappropriate, even though it does not violate any stated terms of service; making unannounced and unexplained changes to company policies that have the effect of disfavoring certain viewpoints; and deleting content and entire accounts with no warning, no rationale, and no recourse."
Citing Carr again (and again) the petition says the commissioner has observed that "social media such as Twitter 'punis[h] speakers based on whether it approves or disapproves of their politics.' One can hardly imagine a result more contrary to Congress’s intent to preserve on the internet “a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”
And again, Carr is cited for his description of Twitter's moderation policy as “free speech for me, but not for thee.”
The President's executive order appeared triggered in part by Twitter's flagging of his comments about "when the looting begins, the shooting begins," as violating its violence policy.
Hill and FCC Democrats have warned the FCC to steer clear of the petition. For his part, FCC chairman Ajit Pai has said that the FCC would seriously review any petition by the Commerce Department for action on social media regulation.
“The Section 230 petition provides an opportunity to bring much-needed clarity to the statutory text," said Carr after the petition was filed. "And it allows us to move forward in a way that will empower speakers to engage in ‘a forum for a true diversity of political discourse,’ as Congress envisioned when it passed Section 230."
“Section 230 confers a unique set of benefits on social media companies and other ‘providers of interactive computer services.’ It gives them special protections that go beyond the First Amendment rights that protect everyone in this country. Congress passed this provision back in the 1990s to address the limited content moderation practices employed by Internet sites like the then-popular Prodigy and CompuServe messaging boards. In doing so, Congress sought ‘to encourage the development of technologies which maximize user control over what information is received’ and to ‘preserve the vibrant and competitive free market that presently exists,’ as several of Section 230’s provisions state. Empowering users to engage in their own content moderation is thus at the core of Section 230," Carr said.
"The FCC shouldn’t take this bait," said Rosenworcel of the petition's filing. "While social media can be frustrating, turning this agency into the President's speech police is not the answer. If we honor the Constitution, we will reject this petition immediately.”
“The rules NTIA has proposed are ill-advised, and the Commission should dispose of this Petition as quickly as possible. As a threshold matter, NTIA has not made the case that Congress gave the FCC any role here," said Commissioner Geoffrey Starks. "Section 230 is best understood as it has long been understood: as an instruction to courts about when liability should not be imposed.
“The proposed rules themselves are troubling. Among other substantive problems, NTIA seems to have failed to grasp how vast and diverse the ecosystem of interactive computer services is. Every comment section on the Internet would be subject to scrutiny. Imposing intermediary liability on those services—or creating an environment in which those services have an incentive not to moderate content at all—would prove devastating to competition, diversity, and vibrant public spaces online.
“I continue to believe that these rules reflect the President’s attempt at retaliation and intimidation—at the very time when social media companies’ decisions could impact his own electoral future. This dark cloud over online free speech will cast a lingering shadow on our elections. The FCC should act quickly to end this unfortunate detour and get back to the critical work of closing the digital divide. "
“Even if there were a role for the FCC, adopting these rules now would be a terrible idea."
"Like most petitions for rulemaking filed with the FCC, this one is unlikely to be granted and certainly not in the form submitted," said Andrew Jay Schwartzman, senior counselor, Benton Institute for Broadband & Society. "The FCC has no authority to interpret Section 230, and even if it did, the rule that Trump wants is utterly incompatible with the plain language of the statute.
"Even though this petition is going nowhere, its mere existence violates the First Amendment. It is a transparent attempt to intimidate social media platforms into advancing Trump’s agenda."
“The demand that the FCC take on the role of ‘Ministry of Truth’ is designed to pressure social media companies to bias content moderation decisions in the Administration’s political favor," said Computer & Communications Association President Matt Schruers. "While digital services are busy fighting online misinformation and foreign influence during a pandemic and ahead of an election, it is disappointing to see the Administration instead doubling down on an obviously unlawful Executive Order.”
“It’s a shame that the FCC is being put in this position: legally, the FCC doesn’t have to dignify this Petition with a response, but the political pressure to put it out for comment will be overwhelming,” said James E. Dunstan, TechFreedom General Counsel, in a statement. “The Petition is a monumental waste of the FCC’s time. It garbles both statutory interpretation and constitutional law. Both the Executive Order and Petition seek to have the FCC collapse the three clearly distinct immunities in Section 230, and overlay a ‘good faith’ proof requirement that exists in only a narrow part of the statute. Applying a ‘good faith’ standard (whatever that means) to difficult content moderation decisions would eviscerate the critical function of Section 230...."
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.