NTIA Says FCC Can Regulate Social Media Using Section 230

The FCC has power to regulate social media, and the First Amendment supports the Trump administration’s petition for rulemaking, NTIA replied Friday (see 2009020064). The commission can require disclosure of information services under the Communications Act, and courts have ruled “search engines, browsers and internet social media precursors such as chat rooms are information services,” wrote acting Director Adam Candeub. He asked to grant its petition for Communications Decency Act Section 230 rulemaking.

The First Amendment protects platforms’ ability to remove whatever content they wish, but Section 230 “only protects removals for the explicitly enumerated categories of speech that are harmful to children, and only when platforms act in ‘good faith,’” NTIA commented. It said the petition doesn’t ask the FCC to regulate speech but to clarify Section 230’s original intent of providing special legal exemptions to interactive computer services: “Nothing in the Petition prescribes or limits what anyone or any platform can say or express.”

“Gutting” the section will harm American innovation and “allow other nations to surpass the U.S. in global tech leadership,” CTA said, urging the FCC to deny the petition. China would benefit the most from undermining 230, because it ranks second behind the U.S. in owning companies valued at more than $1 billion, it said: The statute has led to “unprecedented American innovation.”

This law doesn’t protect just the tech industry, wrote the Computer & Communications Industry Association, asking the FCC to decline issuing regulations. CCIA dismissed the claim this industry plays by radically different rules than other industries. ISPs like Comcast have “regularly relied upon Section 230 in litigation,” CCIA said: Bookstores, phone companies, broadcasters and cable companies also “have extensive common law and First Amendment immunities from liability for materials they carry.”

Congress was clear the intent wasn't to create new regulatory authority for any independent agency, said Sen. Ron Wyden, D-Ore., and ex-Rep. Chris Cox, R-Calif, Section 230 co-author. The portion doesn’t “invite agency rulemaking,” unlike other provisions in Title II of the Communications Act, they wrote. They urged the commission to decline the petition.

NTIA’s petition is “grounded in a fundamental misunderstanding of today’s internet ecosystem,” the Internet Association replied, asking the FCC to deny the filing. The petition mischaracterizes users’ ability to “express themselves online,” IA said: NTIA argues users are limited to a “few large social media companies to express themselves online.” The agency doesn’t “complain about a lack of avenues for certain viewpoints to be expressed online, but rather about an alleged lack of access to specific private platforms,” IA wrote: The petition is more about expressing certain views on specific platforms regardless of platform policies.

The section “confers no authority upon the FCC to adopt interpretive regulations under it,” NetChoice replied. Concluding the FCC has authority here would be difficult to reconcile with the net neutrality order.