FCC Can Act on CDA S. 230 Platform Rules: NTIA Chief, FCC's Carr
First Amendment objections to FCC control of internet platforms under Communications Decency Act Section 230 are “truly a red herring, designed to obscure whose rights are being violated,” Adam Candeub, acting NTIA administrator, said in an FCBA webinar Thursday. President Donald Trump withdrew Mike O’Rielly's renomination to another term on the FCC after the commissioner expressed such concerns (see 2008210055). Other speakers slammed the Trump move to exercise more control over the internet, calling it an abuse of power. Commissioner Brendan Carr said he’s ready to move ahead on rules.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
The commission argued that its authority to police the network was limited under Section 230 in the 2017 restoring internet freedom order, but the net neutrality ruling focused on 230 (b) and didn’t address 230 (c), under which the administration sought action here, Candeub responded to our question. “We’re talking about different parts of Section 230,” he said. “Section 230 (b) is a bunch of policy statements, some of which can be argued one way or another, but they lack … actual legal power,” he said: “That’s not the same as Section 230 (c).”
As the internet took off, “there was a serpent in the garden,” Candeub said. “There were challenges in keeping the forum free, as well as friendly to families and children,” which led to passage of the CDA in 1996, he said. Candeub said the FCC has all the authority it needs under case law to approve rules.
Candeub didn’t really answer the question on the net neutrality repeal, said Gigi Sohn of the Georgetown Law Institute for Technology Law & Policy. The FCC said “it did not have authority to adopt conduct rules for ISPs and transparency rules to the edge,” she said. The agency “has its own precedent that it has to overcome,” she said. Sohn noted “the irony or hypocrisy of using the language in 230 … to abdicate its oversight over ISPs.” The FCC can change its mind, “but it has an awful lot of precedent and strong language, including some strong language in dissents," she said, "that it would have to overcome.”
Carr said he has often been asked how he can square his views on platform rules with those on net neutrality. Carr also noted the prior order dealt with 230 (b). “That’s more hortatory, it’s policy, it’s not a grant of rulemaking authority,” he said: “Here, we’re talking about an entirely different provision.”
The question before the FCC is “can you interpret the words in 230 (c) and give those words meaning, which is a very different legal exercise than can you use 230 (b) as a hook to impose substantive rules that are outside of 230 entirely,” Carr said. The fight three years ago wasn’t about throttling or blocking but about whether utility rules should apply to ISPs, he said: “The conduct that we see by internet providers is drastically different than the conduct that we see by big tech. The reason for some kind of rules that would rein in big tech has much more purchase with me.”
“There’s no role for the FCC” in Section 230, Sohn said. To say the FCC can impose transparency rules for platforms “doesn’t make sense within the context of the entire structure and purpose” of the act, she said: “That’s something that courts will look at as well in determining if an agency … deserves Chevron deference.”
Carr said the FCC has the authority to act and shouldn’t wait for direction from Congress. “The case law in this is actually very clear,” he said. “Of all the arguments that are out there,” the legal standing argument is one of the weakest, he said.
“In no small part due to Section 230, the U.S. has really become a global leader in innovation,” said Jamie Susskind, CTA vice president-policy and regulatory affairs. Imposing restrictions on social media platforms “makes us more like China and other authoritarian governments that are not as friendly towards free speech and innovation as the U.S. has been,” she said. Susskind was a Carr aide.
Section 230 revisions shouldn’t happen “in the aftermath of a presidential executive order because [Trump] was mad at one social media company, with the FCC becoming the arbiter of free speech in America,” said Avery Gardiner, Center for Democracy & Technology general counsel: “It’s just a terrible idea.” Gardiner noted Trump acted two days after Twitter marked two of his tweets as possibly containing misinformation. “Both the petition and executive order say that they’re for free speech, but that is a pretty thin veneer,” she said. The group sued to block the executive order. The White House didn’t comment.
O’Rielly lost his job over the issue, Sohn said. “I actually think if Trump had not stabbed him in the back, he would have voted for an NPRM because he’s such a good soldier.” If Trump is reelected, “hell, yeah” the FCC will move forward but doing so before the election would be difficult, she said: “They’d have to be rushing like crazy.” Chairman Ajit Pai controls the agenda and has been “extraordinarily muted,” she said.
“I’m ready to move forward,” Carr said, noting the comment cycle just closed. “The calendar is a little bit tight.”