|NTIA is asking the FCC to interpret Section 230 in a way that would reduce the liability protection of social media companies with the goal of pressuring these companies to reduce moderation of conservative viewpoints .|
The Trump Administration has proceeded with a step in implementing its executive order (EO) to regulate social media platforms for alleged violations of freedom of speech through a clarification of 47 USC 230 (aka Section 230). At issue is the liability shield companies like Twitter, Facebook, and others enjoy in federal law to most claims for content posted by third parties that the Trump Administration is arguing has been misconstrued both from Congress’ original intent and the plain language of the 1996 law. Moreover, the Trump Administration and many Republicans claim some of these companies are actively censoring conservative viewpoints unfairly and in violation of Section 230 and imply First Amendment rights are being violated, too. Many on the left are also unhappy with how Section 230 seems to be insulating large technology companies from legal responsibility to take down what they see as violent and extremist content, especially white supremacist material and untrue claims. The EO that set this proceeding into motion had been rumored for more than a year, possibly as leverage over Twitter and Facebook so they would not moderate conservative content. Lending credence to this view is the fact that the EO was hurriedly issued after Twitter fact checked two of President Donald Trump’s untrue claims about mail voting.
Following the directive in the EO, on 27 July, the Department of Commerce’s the National Telecommunications and Information Administration (NTIA) filed a petition with the Federal Communications Commission (FCC), asking the agency to start a rulemaking to clarify alleged ambiguities in 47 USC 230 regarding the limits of the liability shield for the content others post online versus the liability protection for “good faith” moderation by the platform itself.
The NTIA asserted “[t]he 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…[and] urges the FCC to promulgate rules addressing the following points:
- 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.
- 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.
- 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.”
- Specify 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.
- Mandate disclosure for internet transparency similar to that required of other internet companies, such as broadband service providers.
NTIA argued that
- Section 230(c)(1) has a specific focus: it prohibits “treating” “interactive computer services,” i.e., internet platforms, such as Twitter or Facebook, as “publishers.” But, this provision only concerns “information” provided by third parties, i.e., “another internet content provider”68 and does not cover a platform’s own content or editorial decisions.
- Section (c)(2) also has a specific focus: it eliminates liability for interactive computer services that act in good faith “to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
The FCC has discretion in whether it will accede to the NTIA’s petition that it conduct this rulemaking. If the agency determines action is justified by the petition, it could either start a notice and comment rulemaking with a proposed rule being released for comment or it could merely issue a final rule. If the FCC decides the NTIA’s petition does not require agency action, it must notify the NTIA why it is rejecting its petition.
It is possible the FCC will prove receptive to the NTIA petition and start a rulemaking that may or may not conclude before the election or a potential Biden Administration in January. The agency will need to process and analyze the likely voluminous comments and arguments that will be submitted under FCC rules on the NTIA’s petition. It may also be the case that the agency is privately not receptive to the Trump Administration’s arguments and slow walks the process. The agency could sidestep this petition in a number of ways. First, its regulations provide “[p]etitions which are moot, premature, repetitive, frivolous, or which plainly do not warrant consideration by the Commission may be denied or dismissed without prejudice to the petitioner.” Second, the agency may be able to argue with justification it is working through the numerous comments and legal ramifications. Thirdly, there is at least one lawsuit pending to enjoin action on the EO that the agency could use as justification for not immediately acting.
Executive Order 13925, “Preventing Online Censorship” was issued in late May after Twitter factchecked two of his Tweets regarding false claims made about mail voting in California in response to the COVID-19 pandemic, Trump signed the long rumored EO seen by many as a means of cowing social media platforms. Given that the First Amendment to the United States Constitution guarantees freedom of speech in relation to government action, it is not clear how Twitter would be considered a government agency and therefore subject to the First Amendment.
Twitter’s first factchecking of Trump’s tweeting occurred when he made false claims about California’s plan to mail ballots to registered voters, and, not as the President claimed, to all residents of California. On 26 May, Trump tweeted across two Tweets:
There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent. Mail boxes will be robbed, ballots will be forged & even illegally printed out & fraudulently signed. The Governor of California is sending Ballots to millions of people, anyone….. ….living in the state, no matter who they are or how they got there, will get one. That will be followed up with professionals telling all of these people, many of whom have never even thought of voting before, how, and for whom, to vote. This will be a Rigged Election. No way!
On 27 May, Twitter added “a label to two @realDonaldTrump Tweets about California’s vote-by-mail plans as part of our efforts to enforce our civic integrity policy. We believe those Tweets could confuse voters about what they need to do to receive a ballot and participate in the election process.”
In the next day after Twitter added this label, word began to leak from the White House that a long rumored executive order regarding Section 230 of the Communications Decency Act was being prepared for the president’s signature. And, late in the day on 28 May, after a day of reporting on the EO by media, Trump did indeed sign the “Executive Order on Preventing Online Censorship,” which asserted
Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor content and silence viewpoints that they dislike. When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct. It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher that is not an online provider.
Consequently, the EO directs that “all executive departments and agencies should ensure that their application of section 230(c) properly reflects the narrow purpose of the section and take all appropriate actions in this regard.”
In addition to tasking the NTIA to file a petition with the FCC, the EO directed other agencies to act. Elsewhere in the EO, it is provided that the head of each federal agency must review their online spending and then report to the Office of Management and Budget (OMB). The Department of Justice would then “review the viewpoint-based speech restrictions imposed by each online platform identified in the [reports submitted to OMB] and assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.”
The Federal Trade Commission (FTC) must consider whether online platforms are violating Section 5 of the FTC Act barring unfair or deceptive practices, which “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.”
Of course, the House’s FY 2021 Financial Services and General Government Appropriations Act (H.R. 7668) has a provision that would bar either the FTC or FCC from taking certain actions related to EO. It is very unlikely Senate Republicans, some of whom have publicly supported this Executive Order will allow this language into the final bill funding the agencies.
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