Wilson: FTC Has Consumer Protection Role in Content Moderation

The FTC shouldn’t police speech, but it can enforce whether platforms are honoring terms of service through content moderation and Communications Decency Act Section 230 activity, FTC Commissioner Christine Wilson said Friday. Speaking on a Free State Foundation webcast, she said Section 230 blanket immunity is an intrusion into the market with a significant impact on competition.

Section 230 court interpretations have gone beyond what Congress intended, Wilson said. The FTC’s role isn’t to police speech, she noted. FCC Commissioner Brendan Carr and others have said agencies can take a “light-touch” approach to these issues. If platforms are going to share detailed disclosures about content moderation policies, then the FTC can enforce violations of those disclosures, Wilson said, arguing sharing will lead to more transparency and more informed consumer purchasing.

The First Amendment protects moderation decisions, said Commissioner Noah Phillips. It’s unclear how an agency, as a consumer protection matter, would evaluate whether a platform is politically biased, he added: It begs a lot of political evaluation, and that’s not what the FTC does. The bottom line, he said, is that Congress should be encouraging more speech, not less.

Wilson previously said she's potentially open to a Magnuson-Moss privacy rulemaking if congressional inaction continues (see 2102120046). Phillips said Friday he doesn’t support such a rulemaking, which Democrats have shown interest in. Privacy legislation involves difficult tradeoffs, and Congress, not the FTC, should decide those, he said. A federal privacy law is needed, but it’s difficult to see a Mag-Moss proceeding resulting in federal preemption, he added.

Wilson acknowledged a Mag-Moss rulemaking wouldn’t be “ideal,” or even the second- or third-best solution. But Congress is failing to act, and maybe the FTC can take a “small step” to gather input from stakeholders, she said. That could provide some guardrails for industry and transparency for consumers, she said.

Acting Chair Rebecca Kelly Slaughter told the House Antitrust Subcommittee Thursday the FTC should consider withdrawing vertical guidelines issued under then-Chairman Joe Simons. The guidelines received a 3-2 vote, with Slaughter and Commissioner Rohit Chopra dissenting. Phillips and Wilson said Friday the guidelines shouldn’t be withdrawn.

It's an interesting proposal since there was agreement at Thursday’s hearing that antitrust needs clearer rules, said Phillips. He noted he’s open to new approaches and hearing evidence from Slaughter about another vertical merger guideline proposal. But without that, there’s no reason to bring down the vertical merger guidelines, he said. They're based on decades of empirical research and retrospective analysis, said Wilson: Each transaction needs to be evaluated on its own merits, and the guidelines provide a road map for doing that.

The commissioners were asked about a legislative proposal from Senate Antitrust Subcommittee ranking member Mike Lee, R-Utah, that would consolidate antitrust enforcement under DOJ. Starting from scratch, Congress probably wouldn’t create two antitrust agencies, but this is the system now, said Wilson. She noted the FTC has unique tools that have had a lot of success in antitrust enforcement. Phillips acknowledged there’s friction and uncertainty with two antitrust agencies and said those issues should be smoothed out.

Wilson discussed the FTC’s unsuccessful antitrust case against Qualcomm (see 2010280058), in which DOJ opposed the commission. The case should be viewed as an outlier, she said, since staff was operating on autopilot with the chairman recused and a split 2-2 commission. “This situation is so unusual that it is unlikely to reoccur and should not form the basis for modifying the structure of federal antitrust enforcement,” she said: It’s important for U.S. agencies to speak with one voice.