Pai: FCC Intends to Move Forward With CDA S. 230 Rulemaking

The FCC intends to move forward with a rulemaking to clarify the meaning of Communications Decency Act Section 230, Chairman Ajit Pai said Thursday (see 2010150067). He said the FCC’s general counsel told him the agency has the “legal authority to interpret Section 230.” The announcement drew backlash from Democratic commissioners and praise from NTIA and Commissioner Brendan Carr. Republicans on Capitol Hill welcomed a potential rulemaking.

With no proposed rulemaking apparently yet before commissioners, the regulator might not formally launch the NPRM until after the election. The FCC declined to comment.

Pai cited bipartisan concerns about “prevailing interpretation” of Section 230 immunity, a bipartisan desire to revise the law, and Supreme Court Justice Clarence Thomas’ statement asking the high court to review the statute (see 2010130044). Pai noted Thomas’ comment 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.” Social media companies have “a First Amendment right to free speech,” Pai wrote. “But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.”

“The timing of this effort is absurd,” said Commissioner Jessica Rosenworcel in a statement. “The FCC has no business being the President’s speech police.”

“We’re in the midst of an election,” tweeted Commissioner Geoffrey Starks, calling President Donald Trump's executive order (see 2009220049) “politically motivated and legally unsound.” The FCC “shouldn’t do the President’s bidding here,” Starks said.

NTIA applauded the announcement: "The FCC clearly listened to the thousands of Americans who expressed their frustrations with the practices of major social media platforms.”

Carr

“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,” Carr said. Commissioner Mike O’Rielly, whose concern on any FCC action on Section 230 was seen as the reason for the withdrawal of his nomination, was the only commissioner not to comment.

The FCC has the authority to take action on Section 230, either through a rulemaking or a declaratory ruling, Carr said in an interview on C-SPAN’s The Communicators recorded before Pai’s announcement. He again said he sees Section 230 revision as “light-touch regulation” similar to what the FCC imposed on ISPs. Conservative opposition to proposals to revise Section 230 are indicative of a break among conservatives between those Carr called “abject corporatists” and those who don’t favor a “no-touch” approach. “Additional scrutiny is needed,” Carr said. “We’ve never had an institution in history with as much power as big tech.”

Carr didn’t indicate he expected action soon -- he listed it as among his priorities for 2021. The agency was conducting its usual process with the 230 item, he said then. “I don’t know when we’ll move forward in terms of timing,” he said.

Commission officials told us Thursday afternoon no draft item on changes to Section 230 had been circulated.

Under the FCC’s usual schedule, items for the agency’s November meeting will be announced before Election Day, but the vote would take place two weeks later, on the Nov. 18 meeting date. It's difficult for the agency to draft proposals quickly while crafting them carefully to withstand legal challenges, an FCC official said, suggesting a quickly thrown-together draft would likely indicate an item that isn’t expected to last.

The timing of Pai's announcement struck one free-market lawyer as curious. R Street Institute Resident Fellow-Technology and Innovation Jeffrey Westling worries about the proceeding being used "as a means to point fingers at the companies" with the election looming, he said regarding technology platform oversight. "I want to make sure that we are not allowing bad policy to creep in just because of the election," he said of the FCC. There may be insufficient time for the NPRM to be circulated to commissioners and voted on before Nov. 3, Westling told us. With the FCC's two current Democrats and O'Rielly appearing to have concerns about moving forward, Westling noted Pai lacks sufficient votes for any eventual order.

Hill Reacts

Sen. Marco Rubio, R-Fla., urged Pai before the announcement to “proactively engage in the rulemaking process” based on the NTIA petition, citing Facebook's and Twitter’s Wednesday “decision to censor accounts, posts, and content based on” a New York Post article on Hunter Biden (see 2010140064). “Regardless of whether social media companies ‘provide context’ or wait for ‘third-party fact checking partners’ it is abundantly clear that companies like Twitter and Facebook are playing the role of publisher,” Rubio wrote Pai Thursday. “It is time to reexamine Section 230. Platforms that engage in editorial activity must no longer be treated as neutral hosts, and freedom of speech, press, and viewpoint diversity must be protected.”

Sen. Josh Hawley, R-Mo., formally invited Facebook and Twitter Thursday to testify before the Senate Judiciary Crime and Terrorism Subcommittee “before” the Nov. 3 election on their handling on the New York Post article. Sen. Marsha Blackburn, R-Tenn., later tweeted that Senate Judiciary plans to vote next week to subpoena testimony from Twitter CEO Jack Dorsey. She said she also plans to ask Dorsey and Facebook CEO Mark Zuckerberg about the incident during a planned Oct. 28 Senate Commerce Committee hearing (see 2010010042).

“Corporations are forbidden from contributing anything of value -- financial or otherwise -- to support the election of candidates for public office,” Hawley said in Thursday letters to Dorsey and Zuckerberg. “This hearing will consider potential campaign law violations arising from” the Wednesday actions. Hawley that day sought a Federal Election Commission investigation of whether the platforms’ actions were in-kind contributions to Democratic nominee Joe Biden’s campaign.

House Commerce Committee Republicans look forward to working with the FCC and stakeholders to “clarify the intent of the law,” said ranking member Greg Walden, R-Ore., Communications Subcommittee ranking member Bob Latta, R-Ohio, and Consumer Protection Subcommittee ranking member Cathy McMorris Rodgers, R-Wash. “Time and time again we’ve seen big tech companies refuse to be transparent about their practices and too often unfairly censor right of center voices. This must stop. Twitter, Facebook, and others should take a long, hard look at the policies that determine what they suppress on their platforms.” They suggested a double standard with the New York Post story and questioned whether platforms should be treated as publishers: “Should Section 230 protections apply to platforms who act as publishers?” Latta urged House Commerce Committee Chairman Frank Pallone, D-N.J., and House Communications Subcommittee Chairman Mike Doyle, D-Pa., to hold a hearing on the matter.

House Judiciary Committee ranking member Jim Jordan, R-Ohio, pressed Dorsey to explain the incident, citing Twitter's decision to also block a link from committee Republicans to a news release reposting the story. "Twitter’s intervention to stop the dissemination of election-related information in a way that helps" Biden’s "candidacy raises serious questions about election interference and reinforces the fact that Big Tech is biased against conservatives," Jordan said in a letter to Dorsey. "Twitter’s explanation appears to be an after-the-fact rationalization for its election interference and censorship." Twitter’s "decision to censor the link to an official" congressional website "shows that Twitter may censor any American, anywhere, at any time," Jordan said.

Industry Reaction

The Internet Association was among few companies or technology associations to react to the news.

The FCC lacks "authority to make the changes proposed in the NTIA’s petition because they conflict with the plain language of Section 230," said IA Deputy General Counsel Elizabeth Banker. "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.”

Those declining to comment or not replying to our requests included NCTA and USTelecom, plus Amazon, Apple, Facebook, Google, TikTok and Twitter. The White House didn't reply to our query.

The FCC doesn’t have authority to issue “binding pronouncements” on Section 230, said Free Press Senior Policy Counsel Gaurav Laroia in a statement: An “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.”

Public Knowledge agreed the FCC doesn’t have the authority to clarify Section 230. If Pai's rulemaking is “at all informed by the NTIA petition, it is likely to be fatally flawed in other ways, as the NTIA insists on an interpretation of the statute that is contradicted by the plain meaning of the words that Congress enacted, and, in fact, that contradicts itself,” said Legal Director John Bergmayer.

There’s a difference between the FCC interpreting Section 230 provisions and the agency taking enforcement action based on the statute, said Free State Foundation President Randolph May in a statement, suggesting Pai agreed with the FSF’s comments on the matter. Any “action that has the effect of narrowing Section 230’s broad grant of immunity doesn’t necessarily violate the First Amendment,” he added.

The Center for Democracy and Technology was disappointed to “see the FCC get drawn further into the partisan political games” about Section 230 ahead of the election. The petition “is the product of an unconstitutional Executive Order that seeks to chill the fight against disinformation and to coerce social media sites into moderating content according to the President's wishes,” said CDT Free Expression Project Director Emma Llanso. “The FCC does not have the authority to issue rules reinterpreting Section 230, much less to do the wholesale rewrite of the statute that the President seeks.”

The Computer & Communications Industry Association also commented.