A rewrite of the basic provisions of Section 230 of the Communications Decency Act (CDA)... The US Department of Justice last month revealed...
The US Department of Justice last month revealed proposals to weaken legal protections for online platforms, adding further pressure on large technology companies. The measures call for a reversal of the immunities offered to websites on content published by their users, a law passed in 1996 when the internet was still in its infancy, which largely protects companies from liability for users' publications.
As a result, the National Telecommunications and Information Administration (NTIA), an agency of the Commerce Department, issued a 55-page proposal Monday evening that calls for the Federal Communications Commission (FCC) to rewrite Section 230 of the Communications Decency Act.
Instead of protecting social platforms when they moderate users' messages, which is what the law does, the FCC would transform the 1996 law to hold them accountable for crimes such as Twitter's trendy topic lists, which Trump called on Monday "truly ridiculous, illegal and of course, very unfair.
So disgusting to watch Twitter’s so-called “Trending”, where sooo many trends are about me, and never a good one. They look for anything they can find, make it as bad as possible, and blow it up, trying to make it trend. Really ridiculous, illegal, and, of course, very unfair!— Donald J. Trump (@realDonaldTrump) July 27, 2020
Complaints by the president and his supporters that social networks have suppressed their speech date back to before Trump's victory in 2016. But they have increased this year as Twitter has begun to apply its rules to the president's Twitter feed.
After Twitter tagged a 26 May presidential tweet with the label "Find out the facts about absentee ballots" without any justification, claiming that absentee voting would be "substantially fraudulent," Trump responded with an executive order on 28 May calling for a rewrite of the basic provisions of the CDA in its section 230.
These provisions provide immunity from civil (not criminal) liability to providers and users of an "interactive computer service", such as the one hosting your messages, for "any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers obscene, lewd, lascivious, dirty, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected".
As with online services, a service may decide that messages supporting Trump (or Joe Biden or Vladimir Putin) are contrary to its rules, and you may not sue for it.
Congress passed this law after the online network Prodigy lost a lawsuit brought by Stratton Oakmont. The brokerage company got the court to hold the pioneering service liable for messages from users attacking its pump and dump systems because Prodigy, in moderating its forums, chose what appeared on them.
Rather than forcing online services to adopt a hands-off attitude, section 230 of the CDA encourages them to moderate content. The NTIA proposes to limit their immunity to moderation of pornographic, violent or harassing content. All other forms of moderation would be subject to a list of measures such as documentation of moderation rules and "timely notification" of users who violate them.
A site that "endorses, edits, recommends or promotes" user messages, for example, Twitter's trendy topics, would also become responsible for them.
Two free trade group analysts from the Washington area have questioned the whole proposal. "If the president thinks this law should be changed, he should push Congress to do so. He can't let the FCC do that," said Neil Chilson, senior researcher in technology and innovation at the Charles Koch Institute. Jennifer Huddleston, director of technology and innovation policy at the American Action Forum, noted that Republicans generally oppose government mandates on content, going back to the fairness doctrine that the FCC applied to radio and television until 1987. "It was the removal of the fairness doctrine that largely allowed conservative talk radio to emerge as a force," she said.
The NTIA document argues that sites like Facebook and Twitter are not like Prodigy in that they function as public places, but noted that the courts have repeatedly rejected this line of thinking.
Opening up social platformsto defamation suits would also worsen the situation for smaller sites. "Big companies will have higher legal costs as a result, but a small business can find it much harder to get started," said Huddleston. Chilson called the weakening of the CDA 230 a "blessing for trial lawyers and class action lawyers.
The NTIA petition hides behind the principles of free speech, but the First Amendment also protects companies like Twitter when they tag tweets. Huddleston noted this contradiction: "In order to protect First Amendment rights, you have what is potentially a greater challenge to First Amendment rights by having the government dictate how platforms can and cannot moderate.
In addition to neglecting the First Amendment, the NTIA document does not address the issue of pushing the FCC to regulate applications. "I don't see an example of where they've done this before," said Harold Feld, vice president of Public Knowledge, a Liberal think tank. He pointed out how many Republicans opposed the FCC preventing Internet service providers from filtering content, but now support the FCC preventing social sites from doing the same, calling it a "complete reversal. The Republicans who matter most are the three FCC members who can accept or reject the NTIA petition. Their past statements suggest that they are opposed to more government regulation.
The evidence continues to mount. We need less government control of the Internet, not more. https://t.co/724RcttKY4— Brendan Carr (@BrendanCarrFCC) January 14, 2020
FCC Chairman Ajit Pai has denounced the net neutrality rules as a plan to "regulate the Internet". In 2017, he responded to Trump's request that the FCC begin revoking broadcast licenses by saying, "The FCC under my leadership will defend the First Amendment. Commissioner Mike O'Rielly said similar things about net neutrality and wrote in 2018 that the FCC should keep social media and other applications "an arena without FCC regulation". Commissioner Brendan Carr tweeted in June that the internet "certainly doesn't need much government control" and reiterated in January that "we need less government control over the internet, not more".