The Communications Decency Act, passed in 1996, provides that an “interactive computer service” cannot be treated as the publisher or speaker of third-party content. In essence, this keeps a website from being sued if a user posts something that is deemed illegal content. There are exceptions for the violation of federal criminal law which shield social media and other technology platforms from facing liability for the user posted content. However, in recent years the law has become more and more controversial.
President Donald Trump recently signed an Executive Order that tasks the National Telecommunications Information Administration (NTIA) to petition the Federal Communications Commission (FCC) to open a rulemaking proceeding to determine under what circumstances a provider of an interactive computer service that filters content not expressly found in 47 U.S.C. § 230(c)(2)(A) can avail themselves of the protections afforded under section (c)(1). The rulemaking must also consider the conditions under which an action restricting access to or availability of material is not “taken in good faith.”
This begs the question “what role does the FCC play in the administration of section 230?” The answer comes as a surprise to few. The FCC has relatively little authority to administer, change, or clarify the statutory language that surrounds Section 230.
In 2018, the FCC reclassified broadband as an information service under Title I of the Telecommunications Act. In doing so, the Commission surrendered its ability to regulate internet service providers. While the Commission has retained authority of telecommunications carriers and those that offer both broadband and telecommunications services, the Commission has explicitly stated that broadband information access services are outside of the Commission’s regulatory purview. If the Commission has shed its responsibility to regulate the “tubes” through which the internet flows, how then, are they to regulate what flows through those tubes?
It is important to note that, in April 2020, the Commission denied a request by the organization Free Press to investigate the spread of COVID-19 misinformation during White House broadcasts. The Commission has already decided that it does not wish to join the debate surrounding online content moderation. Any action on their part would directly counter the precedent they have sought to set in the past.
FCC Commissioners are divided on this issue. For instance, Commissioner Jessica Rosenworcel noted that this order could potentially turn the FCC into the “speech police,” whereas, on the opposite side Commissioner Brenden Carr noted “I think given what we’ve seen over the last few weeks, it makes sense to let the public weigh-in and say ‘is that really what Congress meant” when they passed and provided those special protections.’”
Chairman Pai is correct that this debate is an important one, one that can have far reaching and potentially disastrous results if the government begins to dictate what can and cannot be said online. As Professor Eric Goldman pointed out, there is no clear answer whether the FCC or FTC will do as the President asks. Congress has not delegated its authority on Section 230 and the FCC has taken every step it could to say that it has no interest in regulating the internet.
To answer the question I posed at the outset of this article, the FCC has a limited role to play. Considering that Chairman Pai was concerned of the FCC turning into the “Department of the Internet” in 2015 when the Obama administration was considering stricter internet regulations, he cannot now break with agency precedent and become exactly that.