What the administration says: “For a long time, the policy of the United States has been to foster a robust Internet marketplace for ideas and the free flow of information around the world,” Commerce Secretary Wilbur Ross said in a statement. “President Trump is committed to protecting the rights of all Americans to express their views and not face unjustified restrictions or selective censorship by a handful of powerful companies.”
Trump’s executive order of May 28 had asked the Commerce Department, in consultation with the Justice Department, to file this petition within 60 days. It is part of Trump’s broader crackdown on what he has termed the Silicon Valley censorship of conservative views, largely focused on the prized liability protections enshrined in a 1996 statute known as Section 230 of the Act. of Communications Decency.
Section 230 protects internet companies from liability for content posted by users of their platform, but it also gives them a wide margin to moderate that content.
Trump issued his order after denouncing Twitter’s decision to add fact check tags to tweets in which claims had been made about vote-by-mail fraud.
What the petition asks for: The executive branch requests the FCC to present rules that address various aspects of the interpretation of the 1996 statute. It asks the FCC to “[m]an internet transparency disclosure similar to that required by other internet companies, such as broadband service providers. “The FCC now applies such transparency requirements to internet providers as part of net neutrality protections, but have never tried to do the same with social media platforms
“The FCC should use its authorities to clear up ambiguities in section 230 to make its interpretation appropriate for today’s Internet marketplace and provide clearer guidance to courts, platforms and users,” said the 57-page petition. of the National Telecommunications Department of the Department of Commerce. and Information management.
Among the questions: specify that Section 230 does not apply to the “decision, agreement or action of Internet companies to restrict access or availability of material provided by another information content provider or to prevent any content provider information use an interactive computer service. ” Asks the FCC to provide “clearer guidance” on what content guarantees liability protection and the nature of content moderation in good faith.
The petition is signed by Douglas Kinkoph, the acting head of NTIA. The Commerce agency has lacked a Senate-confirmed chief for over a year, without a new nominee leader.
And here come the legal questions: But the FCC’s role here is highly controversial given its lack of authority over social media companies at the center of the debate and the historical questions surrounding any speech-related regulation, questions that could make the real power of any action of the commission is legally doubtful.
FCC President Ajit Pai has not said how he can initiate regulation, as requested by the order. Many who follow the issue expect the agency to collect rounds of public comment before acting. As the head of an independent agency, Pai does not have to abide by any administrative directive.
Political pressure abounds, and to advance any eventual proposed reinterpretation of Section 230, Pai will require the support of at least two of his four colleagues.
“The importance of disclosure to our communications networks cannot be underestimated,” said the NTIA petition, which upheld the FCC’s authority. “President Pai recognizes that democracies must demand transparency and ensure the proper functioning of essential communication networks.”
The tech industry is vehemently opposed to Trump’s crackdown.
“The demand that the FCC assume the role of ‘Ministry of Truth’ is designed to pressure social media companies to skew content moderation decisions in favor of Administration policy,” said Matt Schruers, who Represents technology companies as head of Computer & Communications Industry Association, in a statement. “While digital services are busy battling misinformation online and foreign influence during a pandemic and before an election, it is disappointing to see the Administration duplicate an obviously illegal executive order.”
Where the commissioners fall: The two FCC Democrats reject the idea of a commission role, and Republican Commissioner Mike O’Rielly has questioned whether the legislators who drafted the 1996 provision intended to grant any authority to the agency.
“The FCC should not bite the hook,” Jessica Rosenworcel, the commission’s Democrat, said Monday. “While social media can be frustrating, turning this agency into the president’s police speech is not the answer. If we honor the Constitution, we will reject this request immediately.”
Republican Commissioner Brendan Carr, meanwhile, has enthusiastically echoed Trump’s rhetoric about the alleged bias of the tech industry, saying the presence of the statute in the telecommunications law gives the agency a hook to provide interpretive guidance. He advocates imposing transparency regulations on tech companies and raised the idea that consumers can turn off verifying that online platforms apply. The president’s son Donald Trump Jr. retweeted Carr on Monday when the commissioner shared his new op-ed, not the first time he landed on the first family’s radar this year.
The NTIA petition quotes Carr’s own words in making accusations about the bias of online platforms. Social media giants have denied any systemic bias.
“Unfortunately, there are few academic empirical studies on the phenomenon of bias on social media,” notes the NTIA petition.
Although some Senate Republicans are putting pressure on Pai to act, he has avoided saying much of anything. “I can assure you that we will review it carefully,” the agency chief said simply to Republicans in a letter released Friday. FCC spokesman Brian Hart said the same thing when asked for comment Monday.
