Senate Majority Leader Mitch McConnell, R-Ky., set up a potential vote later this week Tuesday on S-5085, a measure that would repeal Communications Decency Act Section 230 and increase the amount of COVID-19 stimulus payments. He began the process to get the bill onto the Senate calendar in advance of floor action. McConnell teased the bill earlier that day when he said the chamber will "begin a process" this week "to bring ... into focus" President Donald Trump's renewed call to repeal or revamp Section 230. Trump cited the issue Sunday after signing (see 2012280052) the FY 2021 appropriations and pandemic aid omnibus bill (HR-133). Trump later urged lawmakers to "get rid of" Section 230 and "don't let Big Tech steal our Country." The House voted 322-87 Monday to override Trump's veto of the conference FY 2021 National Defense Authorization Act (HR-6395), an action he took partly because the measure lacked Section 230 language (see 2012230081). HR-6395 includes other telecom and tech provisions (see 2012040043), including ones to hinder Ligado’s L-band plan, and it has the text of the Spectrum IT Modernization Act (HR-7310/S-3717). The Senate is also expected to hold an override vote Wednesday night.
Section 230
President Donald Trump signed the FY 2021 appropriations and COVID-19 aid omnibus bill (HR-133), which includes broadband funding and other telecom and tech policy provisions (see 2012210055). Trump’s signing Sunday came after he raised objections to parts of the measure last week (see 2012230078). He continued to criticize it in his signing statement, saying he’s “demanding many rescissions.” Congress “has promised” Communications Decency Act Section 230, “which so unfairly benefits Big Tech at the expense of the American people, will be reviewed and either be terminated or substantially reformed,” Trump said. “Big Tech must not get protections of Section 230!” It’s not clear what review Trump was referencing. Both chambers are to vote this week to override Trump’s veto of the conference FY 2021 National Defense Authorization Act (HR-6395). He disapproved in part because it didn’t include language to repeal Section 230 (see 2012230081). The almost $7 billion in broadband funding included in HR-133 will promote "more ubiquitous deployment of secure high-speed broadband services," Free State Foundation Senior Fellow Andrew Long blogged Saturday.
President Donald Trump's Wednesday veto of the conference FY 2021 National Defense Authorization Act (HR-6395) sets up likely veto override votes early next week, with the House expected to reconvene Monday. Trump cited the measure’s lack of language to repeal Communications Decency Act Section 230, an issue that clouded the measure’s prospects just before passage earlier this month (see 2012020068). It includes other telecom and tech provisions (see 2012040043), including ones to hinder Ligado’s L-band plan, and it has the text of the Spectrum IT Modernization Act (HR-7310/S-3717). “Your failure to terminate the very dangerous national security risk of Section 230 will make our intelligence virtually impossible to conduct without everyone knowing what we are doing at every step,” Trump said in his veto message to Congress. HR-6395 “fails even to make any meaningful changes to” Section 230, “despite bipartisan calls for repealing that provision. Section 230 facilitates the spread of foreign disinformation online, which is a serious threat to our national security and election integrity. It must be repealed.” Both chambers approved HR-6395 by margins far above the threshold needed to overturn Trump’s disapproval. Trump “made it clear that he does not care about the needs of our military personnel and their families” by vetoing HR-6395, said House Armed Services Committee Chairman Adam Smith, D-Wash., in a statement. The bill “passed with overwhelming, veto-proof support in both the House and Senate, and I remain confident that Congress will override this harmful veto.” Lawmakers sought several times this year to revamp Section 230 (see 2012100072), including via the withdrawn Online Content Policy Modernization Act (S-4632). Industry officials are watching whether FCC Chairman Ajit Pai will seek a vote on a declaratory ruling on Section 230 before he leaves office, though he didn’t announce plans Wednesday to seek action on any items at the commission’s Jan. 13 meeting (see 2012230065).
Contrary to expectations, FCC Chairman Ajit Pai decided not to seek action on any items at the Jan. 13 commissioners’ meeting (see 2012210051). Pai on Wednesday released a meeting agenda that lists five panels updating commissioners on various parts of the FCC’s work. The meeting will be Pai’s last as chairman. Industry officials said Pai’s strategy means he can highlight the work he has done while avoiding complaints or letters from Congress that he must stop doing anything major.
Sen. Mark Warner, D-Va., and three other senators urged the Trump administration Friday to stop using tech liability protection language akin to Communications Decency Act Section 230 in a U.S.-U.K. trade agreement and future agreements. House Consumer Protection Subcommittee Chair Jan Schakowsky, D-Ill., and Rep. Greg Steube, R-Fla., seek a wider ban on Section 230-like language in future trade agreements as part of an FY 2021 appropriations omnibus package that was under negotiation Friday. Congress was expected that night to have approved a two-day continuing resolution to continue funding the federal government while talks continue. The amendment would prevent the Office of the U.S. Trade Representative from “giving more handouts to big tech companies by blocking any Ambassador from continuing to promote this misguided and misapplied law in any future trade negotiations,” Schakowsky and Steube wrote colleagues. “Congress can and should debate about Section 230 and how it has enabled platforms to turn a blind eye as their platforms are used to facilitate discrimination, cyber-stalking, terrorism, online frauds, and more,” Warner and the other senators wrote U.S. Trade Representative Robert Lighthizer. “We urge USTR to refrain from including this provision in this and future free trade agreements until that debate has concluded.” They’re “optimistic that a new trade agreement with the United Kingdom will ensure fair, balanced, and reciprocal trade. But we want to note that we have concerns with the inclusion of safe harbor language modeled on” Section 230. “Including a safe harbor clause in any future trade agreements will further allocate more power to companies at the expense of individuals,” the senators said. The other senators signing were Richard Blumenthal, D-Conn.; Chuck Grassley, R-Iowa; and Rob Portman, R-Ohio.
Privacy rules for companies like Zoom are “becoming clearer,” though work remains, said Josh Kallmer, head-global public policy. “Privacy is an incredibly complex subject, and there are some very complex pieces of the law out there around the world and a very interesting debate happening” in the U.S., he said on C-SPAN's The Communicators. The show was to have been telecast over this weekend.
In a media market where broadcasters and MVPDs are far more regulated than booming streaming competition, Congress should consider expanding FCC forbearance authority to cover the video market including broadcasters and MVPDs, Chairman Ajit Pai told the Media Institute Tuesday. He said government should "fundamentally rethink the very concept of media ownership regulation."
Republican senators are watching closely to see how the FTC and state enforcers apply antitrust standards to digital platforms in lawsuits against Facebook (see 2012090062). Some senators offered skepticism in interviews about a potential Facebook breakup and the forced sale of WhatsApp and Instagram, as requested by the FTC. The agency is in a far different position than when it allowed the Instagram and WhatsApp deals, legal experts told us, while drawing comparisons to the Microsoft case in the 1990s.
FCC Chairman Ajit Pai is thought unlikely to press forward on a declaratory ruling on Communications Decency Act Section 230, industry and agency officials said, though FCC Democrats are watching closely. Commissioner Brendan Carr urged limited action Thursday (see 2012100074). Nathan Simington was picked as the next Republican commissioner largely because of his stance on Section 230. But for Pai, the downside would likely outweigh the benefits of acting, officials said.
Commissioner Brendan Carr supported quick FCC action providing clarity on Communications Decency Act Section 230, in a news conference after the commissioners' meeting Thursday. While a rulemaking proceeding couldn’t be completed while Republicans still control the FCC, the agency will be under Republican control through Jan. 20. The Senate approved Republican Nathan Simington Tuesday, largely based on his stance on the issue (see 2012080067). A deadlocked 2-2 FCC would be unlikely to overturn a late declaratory ruling, industry experts said. “I would certainly welcome the commission moving forward on Section 230 reform,” Carr said. “The debate about whether there should be reforms of Section 230, whether the status quo has it exactly right, that debate is effectively over,” he said: “There is now bipartisan agreement, broad and deep, that the status quo isn’t working.” The big question is when speech is taken down by a platform pursuant to First Amendment rights, “does that takedown fall within the extra protections you get with 230 or not?” he said. “That’s a question that’s a narrow one” and one “the FCC can and should address.” The focus should be on 230(c)(2), which covers civil liability, rather than (c)(1), which covers the treatment of a publisher or speaker, he said. The FCC shouldn’t be “the speech police,” he said. “I don’t see a path to the FCC forcing people to carry speech.” Carr cited a series of tweets from TechFreedom Senior Fellow Berin Szoka on an interpretive order as a likely path to FCC action before Chairman Ajit Pai leaves. The FCC and Democratic commissioners didn't comment. Commissioners Jessica Rosenworcel and Geoffrey Starks have opposed FCC action. "The FCC should reject NTIA’s proposals and focus on bridging the digital divide,” Starks said in September testimony before the House Commerce Committee. Congress is exploring legislation on the liability shield (see 2012100072).