TR Daily NTIA Asks FCC to Clarify ‘Good Faith,’ Other Issues in Section 230
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Monday, July 27, 2020

NTIA Asks FCC to Clarify ‘Good Faith,’ Other Issues in Section 230

Pursuant to an executive order issued by President Trump in May, the National Telecommunications and Information Administration today submitted a petition for rulemaking to the FCC, asking it to clarify the provisions of section 230 of the Communications Decency Act of 1996.

Section 230 provides liability protections for Internet intermediaries such as Facebook, Inc., Twitter, Inc., and Internet service providers from being treated as the publisher of third-party content when they remove content for being illegal, violating their terms and conditions, or as objectionable for other reasons.

The petition seeks clarification of the circumstances under which Internet intermediaries are entitled to the liability protections and for clarification of when a provider is considered to be acting in “good faith.”

In addition to the directive to NTIA to submit the petition to the FCC, the executive order called for the attorney general to propose legislative language to change section 230, and for the Federal Trade Commission—which is an independent agency not subject to administration directives—to “consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce, pursuant to section 45 of title 15, United States Code. Such unfair or deceptive acts or practice may include practices by entities covered by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices” (TR Daily, May 28).

Specifically, the petition filed by NTIA asked the FCC to clarify “(i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(a) may also not be able to claim protection under subparagraph (c)(1); (ii) the conditions under which an action restricting access to or availability of material is not ‘taken in good faith’ within the meaning of subparagraph (c)(2)(A) of section 230, particularly whether actions can be ‘taken in good faith’ if they are (A) deceptive, pretextual, or inconsistent with a provider’s terms of service; or (B) taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard; and (iii) any another proposed regulation that NTIA concludes may be appropriate to advance the policy described in subsection (a) of E.O. 13925, to impose disclosure requirements similar those imposed on other internet companies, such as major broadband service providers, to promote free and open debate on the internet.”

NTIA urged the FCC to “[c]larify 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” and to “[s]pecify y 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.”

It also asked that the FCC “[p]rovide 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.’”

In addition, NTIA asked the FCC to “[s]pecify that ‘responsible, in whole or in part, for the creation or development of information’ in the definition of ‘information content provider,’ 47 U.S.C. § 230(f)(3), 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.”

Finally, NTIA asked the FCC to “[m]andate disclosure for internet transparency similar to that required of other internet companies, such as broadband service providers.”

In a statement, FCC Commissioner Jessica Rosenworcel said, “The FCC shouldn’t take this bait. 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.”

In a statement Jamie Susskind, vice president–policy and regulatory affairs at the Consumer Technology Association, said, “We welcome conversations around the best ways to protect free speech, to ensure the U.S. remains a leader in innovation and technology investment. However, these conversations should follow the appropriate process: Congress makes legislation, which is then sent to the President. The President's May 28th executive order creates new laws for the FCC to follow. We strongly urge the administration to reconsider its current approach and facilitate conversations about free speech and the First Amendment through the appropriate channels.” —Lynn Stanton, [email protected]

MainStory: FederalNews FCC NTIA InternetIoT

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