The FCC may wait a bit before taking up any NTIA petition for rulemaking to clarify the scope of the tech industry’s liability shield (see 2005290058), observers predicted in interviews this week. The Association of National Advertisers said it’s ready to defend marketers’ interests if threatened. A tech industry representative and academics told us President Donald Trump’s executive order last week sets a dangerous precedent and could compromise independent agencies.
Section 230
FCC Chairman Ajit Pai questioned Twitter’s policies, as the platform for a second day flagged President Donald Trump’s tweets (see 2005280060). Pai asked Friday whether tweets from Iran Supreme Leader Ali Khamenei violate platform rules about glorifying violence, rules that Twitter cited in flagging Trump.
President Donald Trump signed an executive order Thursday that would remove liability protections for online platforms that censure or edit content (see 2005270016). There would be a role for antitrust agencies and the FCC, whose commissioners reacted along party lines to the EO. “We’re here today to defend free speech from one of the greatest dangers,” Trump said, claiming tech monopolies have “unchecked power” to censor and restrict human interaction.
The House Homeland Security Committee will focus more on encryption and locked phones, House Intelligence and Counterterrorism Subcommittee Chairman Max Rose, D-N.Y., said Wednesday. During a subcommittee webcast, he said he doesn’t “love” the idea of terrorists communicating through encrypted platforms and police not having immediate access to such an alleged criminal's phone after an attack.
Facebook should take a hands-off approach to content moderation, FCC Commissioner Brendan Carr told us in arguing the company's new oversight board injects political bias and lets the platform avoid responsibility. Carr criticized the board in a series of tweets, calling it Facebook "speech police" and arguing most members have left-leaning bias. Facebook and several board members didn’t comment Tuesday.
Without Section 230, frivolous lawsuits would create an insurmountable cost of doing business, and companies like Yelp wouldn’t exist, Senior Vice President-Public Policy Luther Lowe said during an interview with C-SPAN's The Communicators, to have been televised over the weekend. If Google and Facebook didn’t exist, there wouldn’t be such scrutiny on Section 230 of Communications Decency Act, he said. He suggested lawmakers think of other public policy tools to address the abuse of dominance, saying Yelp opposes any “radical approach” to CDA 230: “It is an axiomatic, foundational necessity for the internet as we know it to exist.” Because of COVID-19, all Yelp employees are working remotely, he said, saying the biggest industry impact is on small businesses. Lowe wants more meaningful relief for small businesses in Congress’ relief packages, anticipating a multi-month, devastating impact.
The 9th U.S. Circuit Court of Appeals' ruling for Google and its YouTube subsidiary in Prager University's lawsuit (see 2002260046) leaves open the broader issue of how courts will treat online platforms as speakers, Wiley lawyers Megan Brown, Boyd Garriott and Jeremy Broggi blogged Wednesday for the Washington Legal Foundation. The Supreme Court's Manhattan Community Access v. Halleck decision left the door open to the court finding sufficient state action in future First Amendment cases, they said. With doctrine unsettled, some platforms are focusing on self-regulation, they said. They said the Communications Decency Act's Section 230 immunity could go away in the face of bipartisan criticism and DOJ saying it's looking at ways of paring it back.
If Congress won’t pass Section 230 legislation for combating child exploitation (see 2003090065), the alternative is a liability protection carve-out, Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., told reporters Wednesday after a committee hearing. He introduced legislation with Sen. Richard Blumenthal, D-Conn., Senate Judiciary Committee ranking member Dianne Feinstein, D-Calif., and Sen. Josh Hawley, R-Mo., that would alter the Communications Decency Act section. Companies would have to comply with best practices for filtering child abuse content or face lawsuits from victims. The legislation would establish a commission of government officials, industry representatives and experts to certify best business practices.
The Senate Intellectual Property Subcommittee will explore site blocking as a form of internet piracy prevention, Chairman Thom Tillis, R-N.C., told us Tuesday after a hearing. Ranking member Chris Coons, D-Del., said he’s “open to it,” and it needs to be weighed against the speech concerns.
Section 230 of the Communications and Decency Act may need to be revisited, suggested Deputy Attorney General Jeffrey Rosen. A quarter century after enactment, 230 immunity "has not always been a force for good, particularly in light of some of the extraordinarily broad interpretation given to it by some courts," DAG Rosen told a Free State Foundation conference Tuesday. He listed some criteria to consider in such revamp efforts.