President Trump’s attempt to punish social-media websites for alleged anti-conservative bias moved ahead this week as his administration formally asked the Federal Communications Commission to initiate a rulemaking process.

Trump’s executive order in May instructed the National Telecommunications and Information Administration (NTIA) to petition the FCC for new rules. The NTIA filed that petition with the FCC yesterday.

The petition’s summary quotes Ben Franklin as saying, “[w]hoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech,” and claims that social-media websites like Facebook and Twitter are threatening free speech in the US. “[S]ocial media and its growing dominance present troubling questions on how to preserve First Amendment ideals and promote diversity of voices in modern communications technology,” the petition says. “Social media’s power stems in part from the legal immunities granted by the Communications Decency Act of 1996.”

As Trump ordered, the NTIA asks the FCC to issue a new interpretation of Section 230 of the Communications Decency Act that would limit social media platforms’ legal protections for hosting third-party content when the platforms take down content they consider objectionable. The NTIA petition says that Twitter “suppressed the speech of an American politician for ‘glorifying violence’ while permitting that of a foreign politician glorifying violence to pass without action” and, as evidence, links to a story about Twitter adding a content warning to a Trump tweet.

The petition approvingly quotes Republican FCC Commissioner Brendan Carr as saying that Twitter “punishes speakers based on whether it approves or disapproves of their politics,” while citing an Ars Technica article on Carr’s comments. The petition also points to a Fox News article about a Republican congressional candidate “accusing Facebook of ‘censorship’ after the social media giant took down a campaign video that shows her holding an AR-15 rifle and warning Antifa to ‘stay the hell out of northwest Georgia,'” and to an American Conservative opinion piece titled “Google Blacklists Conservative Websites.”

For further reading, Techdirt wrote an analysis debunking claims that Google discriminated against conservative sites. The claim that social-media sites discriminate against conservatives has been called a “myth” by the Columbia Journalism Review. Even the conservative American Enterprise Institute has repeatedly cast doubt on claims of social-media bias against conservatives.

The NTIA petition cites a few examples of alleged bias but says that, “unfortunately, few academic empirical studies exist of the phenomenon of social media bias.”

FCC shouldn’t be Trump’s “speech police”

The FCC’s two Democrats criticized the NTIA petition, with Commissioner Jessica Rosenworcel saying, “The FCC shouldn’t take this bait. While social media can be frustrating, turning this agency into the president’s speech police is not the answer. If we honor the Constitution, we will reject this petition immediately.”

Democrat Geoffrey Starks said that the NTIA’s petition “has not made the case that Congress gave the FCC any role here. Section 230 is best understood as it has long been understood: as an instruction to courts about when liability should not be imposed.” Starks further said the petition “reflect[s] the president’s attempt at retaliation and intimidation—at the very time when social media companies’ decisions could impact his own electoral future.”

Carr reiterated his support of the Trump petition and wrote a Newsweek op-ed arguing that “a handful of corporations with state-like influence now shape everything from the information we consume to the places where we shop.”

Carr’s willingness to take action against social-media websites isn’t necessarily shared by the rest of the FCC’s Republican majority. FCC Republican Michael O’Rielly last month said he has “deep reservations” that the FCC has authority to act as Trump directed. Chairman Ajit Pai has questioned Twitter’s moderation decisions but has not taken a public position on Trump’s social-media crackdown. Pai did not carry out Trump’s call in 2017 to revoke broadcast licenses from stations whose news coverage Trump disliked.

From platform to publisher

The NTIA petition urges the FCC “to clarify ambiguities in section 230 so as to make its interpretation appropriate to the current Internet marketplace and provide clearer guidance to courts, platforms, and users.”

Section 230 provides legal protection for platforms that block and screen offensive material by stating that providers of interactive computer services cannot be “treated as the publisher or speaker of any information provided by another information content provider.” Among other things, the Trump-administration petition asks the FCC to define “information content provider” more broadly to include platforms that make “editorial decisions that modify or alter content.” That could convert Facebook and Twitter from “interactive computer services” to “information content providers,” limiting their legal protections when they block or screen content.

The petition also urges the FCC to issue transparency rules requiring an online service to “publicly disclose accurate information regarding its content-management mechanisms as well as any other content moderation, promotion, and other curation practices of its interactive computer service.”

“Monumental waste of the FCC’s time”

Pai could simply decide not to act on the petition.

“It’s a shame that the FCC is being put in this position: legally, the FCC doesn’t have to dignify this petition with a response, but the political pressure to put it out for comment will be overwhelming,” TechFreedom General Counsel James Dunstan said. TechFreedom is a libertarian-leaning think tank that has consistently opposed new regulations on broadband providers and websites. Dunstan continued:

The petition is a monumental waste of the FCC’s time: it garbles both statutory interpretation and constitutional law. Both the executive order and petition seek to have the FCC collapse the three clearly distinct immunities in Section 230, and overlay a ‘good faith’ proof requirement that exists in only a narrow part of the statute. Applying a ‘good faith’ standard (whatever that means) to difficult content moderation decisions would eviscerate the critical function of Section 230: The law was written (by a Republican congressman) to shield websites not only against ultimate liability but also against being sued for content uploaded by third parties. Section 230 works because it allows websites to resolve such lawsuits via a motion to dismiss, without having to go through discovery, a motion for summary judgment, and a trial. Under the administration’s reinterpretation of the law, websites would face what one leading Republican judge called ‘death by ten thousand duck-bites.’ Ironically, only the largest social media sites could possibly survive this crushing liability.

Pai has said that the “debate is an important one” and that the FCC “will carefully review any petition for rulemaking.” As Dunstan noted, the FCC would seek public comment on the petition if Pai initiates a formal rulemaking process.

“Hypocrisy” after net neutrality repeal

Consumer-advocacy group Free Press called the petition “legally dubious” because Trump “cannot direct the FCC to put words in a statute that weren’t there before, nor suddenly give the agency authority to regulate Internet platforms.” The petition is also “a truly brazen act of hypocrisy” because “the administration that rejected net neutrality protections for broadband providers’ carriage of websites and other Internet content is attempting to regulate platforms and speakers instead—mandating protections for the president’s speech on other people’s websites,” Free Press Senior Counsel Gaurav Laroia said. Pai’s FCC eliminated the Obama-era net neutrality rules in a December 2017 vote.

Andrew Jay Schwartzman, senior counselor at the Benton Institute for Broadband & Society, said that “the FCC has no authority to interpret Section 230, and even if it did, the rule that Trump wants is utterly incompatible with the plain language of the statute. Even though this petition is going nowhere, its mere existence violates the First Amendment. It is a transparent attempt to intimidate social media platforms into advancing Trump’s agenda.”

While FCC Democrats opposed Trump’s order, Laroia wrote that it’s unfortunate that Trump’s “sycophants at the FCC like Commissioner Carr, who like to wrap themselves in First Amendment principles, have been enthusiastic cheerleaders for this direct call to turn the FCC into the president’s speech police.”

https://arstechnica.com/?p=1694740