The debate over whether Section 230 needs to be updated is an important one. But the proper venue for that debate is in Congress. Not only does the FCC lack the legal authority to regulate internet platforms, doing so would be at odds with the precedent it set when repealing net neutrality rules.
In its escalating effort to punish social media companies, the Trump Administration has enlisted the Federal Communications Commission (FCC) to do its bidding.
After Twitter labeled one of President Donald Trump’s tweets about alleged voter fraud from mail-in ballots as misleading, he was quick to accuse the platform of censorship and election interference. Just days later, on May 28th, Trump issued an executive order that he claimed was necessary to rein in anti-conservative bias on online platforms like Twitter and Facebook. The order tasked the FCC with “clarifying” the law that promotes free speech online. But not only does the FCC lack the legal authority to interpret the law, doing so would be at odds with its own recent precedent deregulating the broadband market and repealing the agency’s 2015 network neutrality rules.
The law targeted by the order is Section 230 of the Communications Decency Act. This short law does two critical things to promote free speech on the internet: first, the law states that online platforms big and small—ranging from YouTube and Facebook to Reddit and Wikipedia—aren’t liable for content created or uploaded by their users. In other words, they are not considered “publishers” of third-party content. Second, Section 230 allows those online providers to moderate or block any third-party content “in good faith” that it finds to be “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.”
Pursuant to Trump’s executive order, the National Telecommunications and Information Administration (NTIA), an agency housed in the Department of Commerce, filed a petition for rulemaking with the FCC. Among other things, NTIA’s petition asks the FCC to interpret Section 230 in a way that would both greatly widen online platforms’ liability for third-party content by expanding the definition of “publisher” and limit the categories of content that online providers are allowed to remove by effectively removing the catch-all phrase “otherwise objectionable” from the law.
NTIA’s proposed interpretation of Section 230 would be a death blow to a law that is critical to the growth of the internet as we know it. Shrinking platforms’ immunity or limiting the content a platform would be permitted to moderate would lead to countless lawsuits against platforms. While Big Tech companies like Facebook and Google could likely survive the deluge of litigation, smaller companies and nonprofits that host content could not. The combination of these two changes would be to punish platforms for “over” moderating and also punishing platforms for “under” moderating. This would effectively eliminate all platforms for user-generated content. The result would be to turn the internet into broadcast and cable TV.
Despite the troubling outcomes of these changes, the FCC lacks the authority to interpret Section 230. Congress did not give the FCC any role in interpreting the law, or, importantly, in adopting rules to implement that interpretation. Section 230 concerns liability for various torts as litigated between private parties. The FCC has no role—only the parties and state and federal judges do.
Indeed, the legislative history of Section 230 makes clear that Congress didn’t want the FCC to have any role with regard to Section 230 or with regulating online platforms. Both of the law’s authors, Senator Ron Wyden and former Representative Christopher Cox, were adamant about this. As Rep. Cox stated during the House floor debate:
“Some have suggested, Mr. Chairman, that we take the Federal Communications Commission and turn it into the ‘Federal Computer Commission’…. [This bill] will establish as the policy of the United States that we do not wish to have content regulation by the Federal Government of what is on the Internet …. If we regulate the Internet at the FCC, that will freeze or at least slow down technology. It will threaten the future of the Internet. That is why it is so important that we not have a ‘Federal Computer Commission’ do that.”
But the plain language and legislative history of Section 230 are not the only hurdles to FCC authority here. The federal courts have been clear that when the FCC seeks to regulate content, as it would in this case, Congress must give it express authority. Just as important, it is not at all clear that regulation of the content, applications, and services that make up the Internet are even within the FCC’s jurisdiction. The FCC is empowered to regulate only “communication by wire or radio.” Neither the FCC, nor the courts, have ever found that online platforms fall within that definition.
Another hurdle to the FCC regulating online platforms is its own precedent. In its 2017 Restoring Internet Freedom Order, the FCC repealed the 2015 net neutrality rules and abdicated its oversight over the broadband market based on Section 230’s language that set out a finding that “[t]he Internet and other interactive computer services have flourished, to the benefit of all Americans with a minimum of government regulation,” and a policy of “preserving a vibrant and competitive free market […] for the Internet, unfettered by Federal or State regulation.” The FCC can’t simultaneously forswear authority over internet access providers—which fall squarely under its subject-matter jurisdiction and which it had regulated in one way or another prior to the 2017 Order—and also claim it has authority to regulate online platforms nearly 24 years after Section 230 was passed.
The FCC has already sought public comment on NTIA’s petition, and after a pressure campaign from the White House and conservatives seeking to punish “Big Tech,” Chairman Ajit Pai announced last week that he will ask his fellow commissioners to vote for a notice of proposed rulemaking that will likely seek the changes NTIA requests. One of those commissioners, Mike O’Rielly, had his renomination pulled by the White House after questioning the wisdom of this proceeding — both on authority and First Amendment grounds.
The debate over whether Section 230 needs to be updated is an important one. But the proper venue for that debate is in Congress, not at the FCC, and not because of coercion from the Trump White House.