The White House’s potential draft executive order directing the FCC and the FTC to police social media content moderation blatantly violates the First Amendment and is likely to face years of legal battle, representatives from the tech industry and academia told us. Days before President Donald Trump’s proposal emerged, senators from both parties said the tech industry’s content liability shield, which the draft order seeks to modify (see 1908090053), needs re-examining.
Section 230
After years of work, the 3.5 GHz citizens broadband radio service band appears ready to open for business, as early as next month, FCC Commissioner Mike O’Rielly told us. O’Rielly predicted an FCC decision soon on the C band, and said the agency may not need to review CBS' buy of Viacom. O’Rielly insisted relations have improved among commissioners.
ASPEN, Colo. -- DOJ likes its chances of prevailing with its structural remedies on T-Mobile's buy of Sprint and a divestiture to Dish Network, said Antitrust Division head Makan Delrahim in an interview after a Technology Policy Institute Q&A. About a dozen states sued to block the deal. Also at TPI, Delrahim confirmed his department and several states are probing tech issues. He wouldn't object to a look by others at Communications Decency Act Section 230.
ASPEN, Colo. -- Heightened policymaker and public scrutiny of the tech industry doesn't amount to a full-scale backlash, panelists generally agreed (see page 2). That may change as skepticism increases, one tech critic told a Technology Policy Institute audience. Since potential antitrust changes to perceived tech problems could take many years, if not a decade-plus, don't look for remedies there, TPI was told Monday.
Beto O’Rourke supports amending the tech industry’s content liability shield to combat online hate speech and related violence, the Democratic presidential candidate said in a plan released Friday. He envisions amending Section 230 of the Communications Decency Act to “remove legal immunity from lawsuits for large social media platforms that fail to change their terms of service” or implement systems designed to remove hateful content. Large platforms would be required to adopt terms of service banning content that incites or engages in “violence, intimidation, harassment, threats, or defamation targeting an individual or group based on their actual or perceived race, color, religion, national origin, ethnicity, immigration status, gender, gender identity, sexual orientation or disability.” O’Rourke targets the right problems, said Free Press Action Senior Policy Counsel Carmen Scurato, but his vague proposal could weaken Section 230 and impair platforms’ ability to moderate. The campaign didn’t comment.
Social media companies should continue addressing violent online extremism and helping at-risk individuals without compromising free speech, a White House spokesperson said Friday. The comments came after a White House staff-led meeting between senior administration officials and company representatives (see 1908080051). The conversation focused on “how technology can be leveraged to identify potential threats, to provide help to individuals exhibiting potentially violent behavior, and to combat domestic terror,” the official said. “We urge internet and social media companies to continue their efforts in addressing violent extremism and helping individuals at risk, and to do so without compromising free speech.” Meanwhile, industry advocates blasted a summary of a draft executive order reported by CNN that apparently envisions directing the FCC and the FTC to address political censorship on social media. President Donald Trump in July directed his administration to explore all regulatory and legislative methods “to protect free speech” and constitutional rights (see 1907110066). The White House in May solicited evidence of anti-conservative bias by tech platforms (see 1905200036). The contemplated executive order “would transform the FCC and FTC from consumer protection agencies into regulators of online speech,” said TechFreedom President Berin Szoka. “Ironically, the same people screaming about ‘censorship’ by private companies would empower regulators to decide what kinds of online speech should and shouldn’t be taken down.” The White House shouldn’t hamstring efforts to curb online extremism “with politically motivated and likely unconstitutional executive orders about viewpoint neutrality,” said Computer & Communications Industry Association CEO Ed Black. The reported draft order is troubling on several levels, said Public Knowledge CEO Chris Lewis. He cited First Amendment violations, a disregard for the independence of federal agencies and an apparent attempt to unilaterally limit Section 230 of the Communications Decency Act. “In the past we have had a bipartisan consensus from FTC and FCC commissioners that they are not interested in regulating speech or content on the internet,” he said. The president can’t unilaterally change Section 230, Center for Democracy & Technology Free Expression Project Director Emma Llanso said: “There is no legal requirement that social media companies apply any sort of ‘neutrality’ when they decide to remove content.”
NBC Universal Television Alternative Studio names Toby Gorman, ex-Magical Elves, president ... President Donald Trump appoints National Counterterrorism Center Director Joseph Maguire acting director-national intelligence (see this section, July 30); Deputy DNI Sue Gordon resigning ... Digital Entertainment Group elects to board for terms expiring July: Erol Kalafat, Amazon Studios; Pedro Gutierrez, Microsoft; and Cheryl Goodman, Sony Electronics.
U.S. Trade Representative Robert Lighthizer shouldn’t include certain copyright infringement liability protections for online platforms in trade deals, the Free State Foundation blogged Thursday. FSF cited the “ineffective” Section 512 of the Digital Millennium Copyright Act covering a notice and takedown process for when online service providers receive limited liability protection for hosting infringing content and activity. “Congress needs to reexamine Section 512 as a matter of modernizing U.S. domestic law to reduce illegal copyright infringement,” before including it in trade deals, wrote FSF. It cited a similar request for Section 230 of the Communications Decency Act from the House Commerce Committee (see 1908060064).
U.S. Trade Representative Robert Lighthizer shouldn’t include Section 230-like protections in trade deals, given ongoing policy discussions about the tech industry's liability shield, House Commerce Committee Chairman Frank Pallone, D-N.J., and ranking member Greg Walden, R-Ore., wrote Tuesday.
Weakening Silicon Valley’s content liability protections potentially discourages platform moderation and emboldens extremists on unfiltered websites like 8chan, said progressive and libertarian tech observers Monday. Public Knowledge CEO Chris Lewis and TechFreedom President Berin Szoka warned government against intervening in speech moderation, discussing 8chan's role in the weekend’s mass shootings.