NTIA Follows Trump's Unconstitutional Order To Request The FCC Review Section 230

from the there-are-problems dept

As we mentioned on Friday, on Monday, the NTIA followed through on a key part of Trump's executive order on Section 230, asking the FCC to weigh in on interpreting the law. Everything about this is crazy. The NTIA request was almost certainly written by a recently hired lawyer who has spent the last couple of years attacking Section 230. He's also the same lawyer who sued Twitter on behalf of a white supremacist, and when I had reached out to him over email to ask him how that made sense under 230, insisted to me that Section 230 was a narrow statute that only applied if it was about protecting children. I can't say for sure, but my email exchange with him suggested to me that he was wholly unaware of Section 230 prior to me asking about it. Either way, that case failed spectacularly, and Adam Candeub has spent the past two years attacking 230 on various panels. And now he's deputy secretary at NTIA in charge of this issue.

The petition to the FCC is performative nonsense, just like the Executive Order that preceded it. The FCC has no authority over internet edge providers. It has no authority to interpret Section 230. That's for the courts. And if Congress doesn't like how the courts have interpreted the law, then it's on Congress to change the law. The FCC has literally no authority at all to deal with this issue. And, you would think that since we're living in an era where the current FCC, under Chair Ajit Pai, has been literally giving away whatever authority the FCC actually has regarding the area it does have oversight concerning (namely internet access providers), that it would take a similar hands off approach to the NTIA request. Unfortunately that doesn't seem likely.

Pai has remained basically silent on this issue since the executive order came out. His fellow Republican Michael O'Rielly has suggested it's probably unenforceable gibberish. However, the third Republican on the Commission, Brendan Carr, has spent the last few months gloating and tweeting Trumpian nonsense about how "big tech" is censoring conservatives and something must be done (that this is 100% diametrically opposed to his views on regulating broadband access providers is not something he thinks you should concern yourself with -- this is a Trumpian world we're living in and so all that seems to matter regarding regulatory control is which companies you like and which you don't like).

Carr published a hilariously ridiculous plan to regulate big internet companies in Newsweek to coincide with the NTIA petition, which he knew was coming. He claims -- hilariously incorrectly -- that the success of big internet is not because of the free market, which he as a good Republican has to pretend to support, but rather through "crony capitalism" like... Section 230. In fact, he flat out misleads everyone in claiming that Google abused its power to shut down the comments of The Federalist because it's a conservative publication. Carr ignores that Google did the same thing to us, even though he knows they did it to us, because I told him about it and he follows me on Twitter.

But to argue that 230 is crony capitalism is to ignore facts (apparently, a Carr specialty). Section 230 does not favor any particular company. It applies equally to all websites, including small ones. Indeed, our empirical study showed that 230 helped create more competition, not less.

On the Democratic side, Commissioner Jessica Rosenworcel seems to be alone in being willing to call bullshit on this ridiculous NTIA petition:

Section 230 has been called “the twenty-six words that created the internet,” and it has helped free expression flourish online for decades. Like most things with the internet, it has its supporters and detractors. It has those who want to see it continue in its current form and others who want to adjust it to reflect the realities of the current digital age. But if you look far and wide, you won’t find a community that believes having the FCC use Section 230 to regulate speech online is the way to go.

Still, the Administration is insisting. Remember, at the highest level of our government we’ve had rants about social media bias and accusations that certain companies are stifling speech. But the First Amendment is not present to protect the President from media. It’s present to protect media from the President. Nonetheless, those rants eventually found their home in an Executive Order—which brought this issue to the FCC.

As a Commissioner, I don’t think we should take the bait. While social media can be frustrating, turning the FCC into the President’s speech police is not the answer. The FCC needs to reject this effort to deploy the federal government against free expression online. In fact, if we honor the Constitution, we will do so immediately.

I worry my colleagues at the FCC won’t. I also worry that this petition is not just about changing the law. Because any legal expert worth their salt will tell you that changing the law like this is not the job of a regulatory agency like mine. It’s the job of Congress. I think the NTIA knows that. But even just proposing something like this has consequences. Governments that threaten to chill speech can discipline private sector actors without changes in law ever becoming necessary. So what we have here is an invitation from the President for the FCC to chill online speech and organize it in his favor. We need to reject this loud and clear.

Kudos to Commissioner Rosenworcel for being willing to speak out so clearly and forcefully on this silly dog and pony show for an insecure President. It's too bad that the Commissioners on the other side of the political spectrum haven't been willing to say things this clearly, and you have someone like Carr who seems all too willing to suck up to the President on this unconstitutional attack on free speech.

And it is unconstitutional. Our post last week dug into the many, many reasons why it's unconstitutional, but at the simplest level it's this: it's an attempt to pressure internet companies to leave up speech that is supportive of the President, no matter how false or how dangerous that content might be. That's not what the government is supposed to be doing.

The NTIA's petition reads like it was written in an alternate universe that is divorced from reality. It pretends that the FCC needs to regulate speech to protect free speech, which is not how any of this works. The petition misrepresents the law, the same way that Trumpists have been misrepresenting Section 230 in court, including this silly claim:

These platforms function, as the Supreme Court recognized, as a 21st century equivalent of the public square.

And then it has a footnote pointing to the Packingham ruling ignoring that that ruling is saying simply that the government cannot pass laws that kick people offline, and does not say that companies can't kick racists and assholes off of their own platforms. Indeed, in the more recent Halleck case, the Supreme Court made it abundantly clear that it does not consider social media to be a state actor subject to such regulations. For NTIA to pretend otherwise is ridiculous, and shows just how biased this petition is.

As for the specific requests, it wants the FCC to do the following:

  • clarify the relationship between 230(c)(1) and (c)(2);
  • explain the meaning of “good faith” and “otherwise objectionable” in section 230(c)(2);
  • specify how the limitation on the meaning of “interactive computer service” found in section 230(f)(2) should be read into section 230(c)(1); and,
  • explicate the meaning of “treated as a speaker or publisher” in section 230(c)(1).
Again, none of these are within the FCC's authority, and even if they were they have no binding or persuasive power at all. The courts have already ruled on these issues for the most part, and there's little to clarify here. If Congress was upset about the court's interpretations, it's had nearly 25 years to clarify and it has not. There is no role here for the executive branch, let alone an independent agency tasked with overseeing broadband access and public spectrum, not regulating the internet.

The FCC should listen to Rosenworcel and tell the administration "that's not our job, and you shouldn't even ask."

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Filed Under: ajit pai, brendan carr, donald trump, executive order, fcc, free speech, jessica rosenworcel, michael o'rielly, ntia, section 230


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 28 Jul 2020 @ 1:46pm

    Sorry, all of you, it is in none of your respective bailiwicks. Have a nice day.

    reply to this | link to this | view in chronology ]

    • icon
      Khym Chanur (profile), 28 Jul 2020 @ 1:54pm

      Re:

      Then whose bailiwick is it?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Jul 2020 @ 2:17pm

      Re:

      Apparently, we have been told by an internet expert that only experts are allowed to comment on aything.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 30 Jul 2020 @ 1:37am

      Re:

      Ah, government business isn't the bailiwick of the citizenry?

      True enough...if you live in China or North Korea. The OP, however, was about events in the US where there's a piece of paper starting with "We, The People..." which emphatically states that government business is indeed the bailiwick of the citizenry.

      I guess you must be writing from a country where that simply isn't true.

      reply to this | link to this | view in chronology ]

  • icon
    arp2 (profile), 28 Jul 2020 @ 2:38pm

    It isn't Unconstitutional, until it is...

    Meaning, there's a reason that Trump has stuffed the courts with minions. The lower courts will allow the FCC's crappy decisions to stand and if we're very lucky, SCOTUS will weigh in and state it is Unconstitutional. But until then, we'll might have to live with a crappy ruling from the Federal Circuit.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Jul 2020 @ 8:05pm

      Re: It isn't Unconstitutional, until it is...

      Tho alot of the lower courts have ruled in favor of Section 230 so far.

      reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 29 Jul 2020 @ 9:13am

      Re: It isn't Unconstitutional, until it is...

      ...the entire point is that the FCC doesn't have that authority, the courts do. Saying "the courts are going to allow it" doesn't contradict that point.

      reply to this | link to this | view in chronology ]

  • icon
    evilhamsterman (profile), 28 Jul 2020 @ 2:47pm

    Go ask Wyden and Cox what it means

    If their intent is to clarify what Congress intended with Section 230, there is no need to have the FCC or anyone else attempt to clarify it. The authors of Section 230 are still alive and well. Wyden is even still a Senator.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Jul 2020 @ 3:11pm

      Re: Go ask Wyden and Cox what it means

      Both Wyden and Cox have recently (within the last couple of months) written pieces on 230. Both of them have made clear that it's working as intended.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 28 Jul 2020 @ 3:16pm

      'Bah, what would the bill's authors know?'

      It is crystal clear that those claiming that 230 wasn't meant to be used as it is, and was really meant to mean something completely different do not care in the slightest what the original authors of the bill intended, all they care about is what they want it to say and they will lie without hesitation or shame to anyone who is crazy enough to listen about what they want it to say, all the while claiming that that's what it's supposed to say or even does.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Jul 2020 @ 3:17pm

    The silver lining for the Pai

    I’ve got a good feeling that this petition is ultimately a nonstarter. I do not like Ajit Pai, but the only silver lining that he has in this situation is that he is probably the worst person to be given this order. He is a Republican, yes, but he’s also a liberatiran. And as we know, a libertarian is infamously anti-regulation. He’s also a former lawyer for Verizon and largely supports those broadband companies.

    So seeing him be so quiet on this situation is indeed odd. Any other Republican that took Pai’s position would bootlick the president’s foot and follow his bizarre executive orders. But not Pai. He just does nothing. Keep in mind, this isn’t a resounding approval of Pai. He still left net neautrality in a coma. He’s still a bootlicker for companies. I just find it amusing that of the president wants the media be regulated and choose the most reluctant person to do that.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 28 Jul 2020 @ 3:22pm

    Still waiting for an honest argument...

    And the streak continues unbroken I see, where the only way to attack 230 is to lie about it and make use of other grossly dishonest tactics in an attempt to undermine it or make people believe incorrect things about it. At this point those attacking it might as well just come out and admit that they hate the idea that assholes on their side face penalties for their actions and they'd really like to change that, but as that would require honestly I guess that's too much to expect.

    On the 'plus' side should the worst come to pass and these idiots actually manage to cripple or do away with 230 I look forward to the screams of anger and cries of 'That's not what we wanted!' as it blows up in spectacular fashion in their faces, because the only way they will win the war is to lose the battle.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 28 Jul 2020 @ 5:13pm

    Trump says...

    But my executive orders are very good. The people covered by section 230 are bad people, very bad people. We need to stop them to make America great again. Beautiful executive orders, very good.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Jul 2020 @ 5:33pm

    The silver lining for the Pai

    I’ve got a good feeling that this petition is ultimately a nonstarter. I do not like Ajit Pai, but the only silver lining that he has in this situation is that he is probably the worst person to be given this order. He is a Republican, yes, but he’s also a liberatiran. And as we know, a libertarian is infamously anti-regulation. He’s also a former lawyer for Verizon and largely supports those broadband companies.

    So seeing him be so quiet on this situation is indeed odd. Any other Republican that took Pai’s position would bootlick the president’s foot and follow his bizarre executive orders. But not Pai. He just does nothing. Keep in mind, this isn’t a resounding approval of Pai. He still left net neautrality in a coma. He’s still a bootlicker for companies. I just find it amusing that of the president wants the media be regulated and choose the most reluctant person to do that.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Jul 2020 @ 2:14am

      Re: The silver lining for the Pai

      He’s also a former lawyer for Verizon and largely supports those broadband companies.

      Who are also a TV company, and have no need of section 230. However, some of their competition, like YouTube do benefit from section 230, so Verizon will be happy to see it go. After all their cable business does not rely in user generated content or comments, while that is what YouTube thrives on.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Jul 2020 @ 6:14pm

    This is actually rather odd. I have been a follower/user of the internet since the thing was created, and will state that in all those years, I have never seen more ultra-right hatred filling that space than I have in the just last few years. If bad comparisons were to be allowed, I would expect that hatred to be oozing out the sides of the web, like spray-in insulation applied to excess. Still, not enough, eh?

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 28 Jul 2020 @ 11:04pm

      Re:

      "I have never seen more ultra-right hatred filling that space than I have in the just last few years"

      They've always been there, they just got shut down when they decided to poke their head outside of Stormfront, and no right-minded person would ever venture where they hide. The issue is a very simple one - unfiltered social media attracted the cockroaches, and now that they're being fumigated the bugs are whining that they don't like their hole any more.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 29 Jul 2020 @ 2:22am

      Re:

      "...in all those years, I have never seen more ultra-right hatred filling that space than I have in the just last few years."

      It's always been around but there are plenty of reasons why the average old fart who's watched the net grow might not have seen them much.

      One reason is, as PaulIT has it, that back in the day they spent their time in closed echo chambers, like Stormfront. Then came social media - and you could spot them there, every now and then if you watched the comment fields of topics likely to have attracted the interest of passing neo-nazis.

      The reason they're really up in arms now? With a few burning race riots like Rodney King, Charlottesville and Ferguson every sleeping mild-mannered liberal who thought they were living the american dream had to sit up and realize "Racism? Is that still a thing?". You could argue that when "racism" once again became a debated issue naturally the good old boys in the KKK and other white supremacy groups felt compelled to step up to the plate and defend their..."way of life".

      But racism is just part of it. After 9/11 when the US civil rights got broken and largely discarded in the aftermath it wasn't just minorities getting hit any more. It was everyone. The questions wasn't just whether black was oppressed by white any longer - it became a question on whether anyone was going to effectively have the rights set out in the constitution. Whether the country was still "free".

      And that's why the white supremacists and fascists are so desperately screaming. They need to drown out an ever increasing majority of angry and upset citizens who feel the nation they now live in isn't the one they grew up thinking they lived in. Racism is part of it, but it's become the common cause of everyone else who grew up believing that they lived in a nation governed by laws and inalienable rights.

      In that rising general awareness the living space and habitat of the hating bigot has rapidly shrunk. They aren't welcome or tolerated in ever more places.

      They know they've slowly but inexorably been losing ground. Can't be a bigot online, get tossed out of FPS games for using racial, ethnic or gender slurs. Have their egos bruised by not being allowed to think of LGBTQ-people as "deplorables"...
      And then came Trump. A man willing to acknowledge them as "very fine people". Who likes treating women as dick holsters. Who'd never trust a black man to handle money. Their kind of guy.
      No wonder they've become strident, gleeful and loud. Trump might not make a decent Führer for many of them, but quite a few of his closest yes-men certainly are.

      reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 29 Jul 2020 @ 12:05am

    The petition misrepresents the law, the same way that Trumpists have been misrepresenting Section 230 in court, including this silly claim: These platforms function, as the Supreme Court recognized, as a 21st century equivalent of the public square.

    While it's a lie to say that any single one of these platform is a "public square," what is the public square is internet platforms as a whole -- and section 230 ensures that every opinion and position has free and equal opportunity carve out a niche for its own free speech soapbox free from government interference.

    What fascist liars like the ones who made the bolded quote want, however, is to eliminate this free marketplace of ideas; to unconstitutionally compel platforms to carry unwanted speech - making everything homogeneous rather than diverse. Putting the regime's fascist thumb on the scales, festering the kind of false balance that creationists, fossil fuel shills, white supremacists, and other reality-challenged idiologies love.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 29 Jul 2020 @ 12:26am

      Re:

      It is the same old story - they claim to be trying to make free speech possible. All they're really trying to do is remove it for everyone else, because they know that given actual freedom, virtually nobody would want to talk to them.

      "making everything homogeneous rather than diverse"

      Well, that is consistent with their other actions, given that it's usually white supremacists and other groups afraid of diversity that are complaining about 230.

      reply to this | link to this | view in chronology ]

    • identicon
      Joe, 31 Jul 2020 @ 11:01am

      Re:

      Deplatforming is the name of the game now. Apparently it's OK to deny people the right to run a competing service if it refuses to bow down to the people that created a need in the first place. Granted, I agree that it's a overt effort to try to force everyone to allow things they can't stand on their platforms. If people hadn't been brigading on every single platform across the Internet, these people would have been happy to just use another one. Instead, name-you-controversial-content (pron, political, religious/antireligious/whatever) gets banned to the point where going "bwoke" is a new joke the kids use to describe a site that went full censor mode. It's a very vocal minority making sure that we can't have anything but the extremes. I have to laugh at sites that cater _only_ to the far left/right. I wouldn't want to be a member of of them!

      reply to this | link to this | view in chronology ]

      • icon
        Toom1275 (profile), 31 Jul 2020 @ 4:33pm

        Re: Re:

        [Asserts facts not in evidence]

        reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 2 Aug 2020 @ 10:05pm

        Re: Re:

        "Deplatforming is the name of the game now"

        That¡s the preferred name, but the "game" of free market forces, combined with the ability to enforce the right of entry to private property and for a community to set rules of conduct on those premises have not changed.

        "Apparently it's OK to deny people the right to run a competing service if it refuses to bow down to the people that created a need in the first place"

        Citation needed. There's nothing stopping competing services from existing, and in fact many do. They just fail to attract larger audiences (so long as you ignore the ones that have done that).

        "I have to laugh at sites that cater only to the far left/right. I wouldn't want to be a member of of them!"

        Almost nobody does, which is why they're trying to force normal people to host speech they don't want to be associated with.

        reply to this | link to this | view in chronology ]

  • icon
    sumgai (profile), 29 Jul 2020 @ 12:42pm

    That's just like #45, he thinks that he can issue orders to private persons, and they'll be followed slavishly. Sorry, pal, no can do. Even if you stacked very person on the Supreme Court with your golfing buddies, the Constitution and its Amendments will still carry the day. IOW, neither you, Congress, nor the courts can dictate how a private party may conduct a conversation, whether it's private or public. And doubly sadly for you, companies and corporations have long since been declared to have the same status as a naturally born person (citizen of the USA or otherwise), which confers upon them the same rights (and duties).

    What is so farcical that I don't know if I should curse or cry, is that what #45 wants to do is exactly the same thing as what he's claiming that social media companies are already doing - controlling what appears on their systems. Jesus Christ on a jumped-up Pogo stick, how I wish that ignorance was painful.

    reply to this | link to this | view in chronology ]


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