TR Daily Pai to ‘Move Forward’ to Clarify Meaning of CDA Section 230
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Thursday, October 15, 2020

Pai to ‘Move Forward’ to Clarify Meaning of CDA Section 230

FCC Chairman Ajit Pai today announced that he intends "to move forward with a rulemaking" to clarify section 230 of the Communications Act, as amended by the 1996 Communications Decency Act, which provides protections for social media platforms and other Internet intermediaries for third-party content and for attempting to policy such content. He indicated he opposes "special immunity" denied to newspapers and other media outlets.

President Trump issued an executive order in the spring that, among other things, directed the National Telecommunications and Information Administration, a unit of the Department of Commerce that advises the president on telecom and information policy issues, to seek clarification from the FCC of section 230 (TR Daily, May 28). In the summer, NTIA filed a petition with the FCC seeking 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" (TR Daily, July 27).

In a statement released today, Chairman Pai said, "Members of all three branches of the federal government have expressed serious concerns about the prevailing interpretation of the immunity set forth in Section 230 of the Communications Act. There is bipartisan support in Congress to reform the law. The U.S. Department of Commerce has petitioned the Commission to ‘clarify ambiguities in section 230.’ And earlier this week, U.S. Supreme Court Justice Clarence Thomas pointed out that courts have relied upon ‘policy and purpose arguments to grant sweeping protections to Internet platforms’ that appear to go far beyond the actual text of the provision [TR Daily, Oct. 13].

"As elected officials consider whether to change the law, the question remains: What does Section 230 currently mean? Many advance an overly broad interpretation that in some cases shields social media companies from consumer protection laws in a way that has no basis in the text of Section 230. The Commission’s General Counsel has informed me that the FCC has the legal authority to interpret Section 230. Consistent with this advice, I intend to move forward with a rulemaking to clarify its meaning," Chairman Pai continued.

"Throughout my tenure at the Federal Communications Commission, I have favored regulatory parity, transparency, and free expression. Social media companies have a First Amendment right to free speech. But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters," he added.

FCC Commissioner Brendan Carr issued statement supporting Chairman Pai’s announcement. He said, "Section 230 reform is long overdue. The status quo isn’t working. That is why I have called for the FCC to take action and do our part to rein in Big Tech. Chairman Pai is right that the FCC has legal authority to interpret Section 230, and I applaud his leadership in announcing the FCC will move forward with clarifying the statute."

Commissioner Carr added, "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.

"Flash forward over 20 years, and the content moderation practices employed by the Internet giants of today bear little resemblance to the activities Congress had in mind when it passed Section 230. And a handful of court cases have drastically expanded the scope of Section 230, adding immunities found nowhere in the statutory text, as Justice Thomas explained in a statement just this week," he continued.

"Moving forward at the FCC will bring much-needed clarity to Section 230 and close the loopholes that Big Tech has exploited. These reforms will promote ‘a forum for a true diversity of political discourse,’ as Congress envisioned when it passed Section 230, without limiting the First Amendment rights of any speaker. I commend Chairman Pai for his leadership on this issue, and I look forward to the FCC taking expeditious action," Commissioner Carr concluded.

In a much briefer and much more critical statement, Commissioner Jessica Rosenworcel said, "The timing of this effort is absurd. The FCC has no business being the President’s speech police."

Many observers have noted that President Trump’s executive order followed hard on the heels of a decision by Twitter to place a fact-checking label on tweets by the president stating that mail-in voting will lead to "fraudulent" ballots and "a rigged election."

In a statement, Rep. Mike Quigley, (D., Ill.), said, "The only thing consistent about the Republican-controlled FCC’s approach to internet regulation has been their commitment to enabling President Trump’s irresponsible online behavior. The FCC has spent the past four years ignoring their responsibility for regulatory decisions that protect Americans, but on the eve of an election, Chairman Pai has decided to intervene only to contradict the First Amendment for President Trump’s benefit. As Chairman of the Appropriations subcommittee with jurisdiction over FCC, I must call out this ridiculous behavior for what it is—a desperate and inappropriate attempt to weigh in on the election to help Donald Trump."

Earlier today, before Chairman Pai made his announcement, Sen. Marco Rubio (R., Fla.) released a letter he had sent to the FCC Chairman urging the agency to "reexamine" section 230, noting the recent decisions by Facebook and Twitter "to censor accounts, posts, and content related to a New York Post article on the foreign business dealings of Hunter Biden, the son of former Vice President Joe Biden [see separate story], [which make] clear this is a problem that can no longer be ignored."

Groups representing industry stakeholders and public interest groups issued critical statements as well.

Internet Association Deputy General Counsel Elizabeth Banker said, "The constitution guarantees freedom of speech, not freedom of reach. The First Amendment protects every private enterprise’s ability to set and enforce rules for acceptable content on their services. The FCC also lacks the authority to make the changes proposed in the NTIA’s petition because they conflict with the plain language of Section 230. Only a fundamental change to the First Amendment, not to Section 230, would achieve the goal of the NTIA’s petition, and that is clearly beyond the FCC’s reach."

Incompas Chief Executive Officer Chip Pickering said, "Congress, not the FCC, has authority over Section 230 and has been extremely active in that conversation. While we don’t doubt the intentions of Chairman Pai and others, there is simply not a sufficient record of support at the FCC that warrants Commission involvement at this time. Even the original authors of Section 230 said the FCC has no role to play in the law’s interpretation and have warned against the risks to small businesses and start-ups online."

Computer & Communications Industry Association President Matt Schruers said, "Retaliating against companies enforcing their Terms of Service by initiating regulatory proceedings is not how democracies are supposed to work. There is broad consensus on the importance of moderating online content, and most would agree it is particularly critical amid an election and a pandemic. Being a political figure isn’t a free pass to break digital services’ content rules."

Free Press Senior Policy Counsel Gaurav Laroia said, "With this announcement, the Pai Doctrine gets clearer and clearer. He declares himself a champion of the First Amendment and claims he doesn’t want heavy-handed internet regulation—then pushes policies that stifle free expression online. In this case, the Pai Doctrine would expose websites to liability if they remove any of President Trump’s lies or provide any context to such disinformation."

Mr. Laroia added, "The FCC has no authority to issue binding pronouncements on Section 230. Its effort to make the platforms liable for their editorializing or content takedowns makes no sense. No one, from Trump on down, has the right to be carried on Facebook, Twitter or any other website—and those websites have a First Amendment right to disassociate themselves from speech they disapprove of. And without underlying unlawfulness there’s nothing for Trump or anyone else to sue over if Twitter takes down a post."

He continued, "The real goal of the Trump FCC here is to engage in political retaliation against protected speech and editorializing. … The FCC is proposing nothing less than a Fairness Doctrine for Facebook, and a must-carry regime for fraudsters, propagandists, bigots, charlatans and those in power who inspire, provoke and promote them."

However, Free State Foundation President Randolph May supported the Chairman’s announcement.

"It looks like FCC Chairman Ajit Pai agrees with the comments that the Free State Foundation submitted to the Commission contending that the agency possesses the authority to clarify the meaning of some of Section 230’s terms and that it may be able to do so consistent with the First Amendment. In our comments, we emphasized that there is a difference between the FCC providing its interpretation as to the meaning of Section 230’s provisions, for whatever weight the courts then may decide to give to the agency’s interpretation, and the FCC taking enforcement actions pursuant to Section 230. And we emphasized that any action that has the effect of narrowing Section 230’s broad grant of immunity doesn’t necessarily violate the First Amendment. There is an important distinction, for purposes of the First Amendment application, between protecting a content provider’s, say Twitter’s, right to decide what to carry or delete, and granting such content provider immunity from suits for all of its content moderation decisions. I’m pleased, but not surprised, that Chairman Pai appreciates these points regarding the First Amendment and the Commission’s legal authority," Mr. May said. —Lynn Stanton, [email protected]

MainStory: FederalNews FCC InternetIoT

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