FCC to Revisit Section 230 - Controversial Timing

Federal Communications Commission (FCC) Chairman Ajit Pai has declared his plans to initiate a revision of Section 230 of the Communications Act. This section notably provides internet platforms with limitations on legal responsibility for the content posted by their users. Commissioner Rosenworcel characterized the timing – directly following expressions of disapproval from conservative groups regarding Twitter and Facebook’s actions to reduce the visibility of an article concerning Hunter Biden – as “inappropriate.” However, this move doesn't automatically equate to the stringent measures the Trump administration had previously indicated it favored.

Chairman Pai articulated in a public statement that “representatives from all divisions of the federal government have voiced substantial worries regarding the current understanding of the protections outlined in Section 230,” and that there is widespread agreement on the need to modify the legislation – with multiple proposed bills already being evaluated to achieve this.

The central point of contention revolves around the legal safeguards afforded to platforms as they determine which content to permit and which to remove. Some maintain that these platforms are unequivocally shielded by the First Amendment (which is the current legal interpretation), while others contend that certain content moderation decisions represent infringements upon users’ freedom of expression.

While Pai refrains from directly referencing specific recent events where internet platforms have faced accusations of exhibiting political bias, it is reasonable to assume that these instances – along with the repeated calls from President Trump for the “elimination” of Section 230, a crucial component of a comprehensive legal framework – influenced this decision.

A lengthy process with a ‘regrettable diversion’

Efforts to modify Section 230 have actually been underway for a number of years, with discussions about the law’s boundaries and the FCC’s understanding of its relevant responsibilities openly held by those involved in drafting the original legislation, offering valuable perspectives on its original goals and existing weaknesses.

During June, Commissioner Starks voiced his disapproval of White House pressure to re-examine the FCC’s interpretation of the law, asserting that First Amendment safeguards are well-established and President Trump’s executive order “appears to conflict with these fundamental principles.” Nevertheless, he suggested the FCC give the request for reconsideration serious attention.

“And should the petition, as I anticipate it will, ultimately be unsuccessful due to a legal question of authority,” he stated at the time, “I believe we should state this definitively and put an end to this regrettable diversion. We should strive to prevent the upcoming election period from being influenced by a pending process that, in my view, could be used to pressure private entities.”

The latter portion of his statement appears particularly insightful considering the Chairman’s decision to initiate proceedings just under three weeks before the election, following a move by Twitter and Facebook to utilize their rights as private platforms to limit the spread of articles that, as Twitter later clarified, demonstrably violated their policies regarding the publication of personal data. (The New York Post article contained screenshots of unredacted documents featuring what appeared to be Hunter Biden’s private email address and phone number, among other details.)

“This is precisely what I was hoping to avoid,” Commissioner Starks conveyed to TechCrunch. “We should have acted promptly and dismissed the NTIA petition. Now that voting has commenced, the president is attempting to influence the process, and this announcement will likely be perceived by many as an effort to assist him.”

Commissioner Rosenworcel expressed her views directly, stating “The timing of this undertaking is unreasonable. The FCC has no role in acting as the president’s censor.”

Given the timing and the practical impossibility of achieving any substantial outcome before the election—rule-making procedures require a minimum of several months—Chairman Pai’s announcement can be reasonably interpreted as a clear signal to internet platforms. It is important to emphasize that the FCC possesses limited regulatory authority over these platforms.

Foregone conclusion

The Chairman communicated his intended result directly in the announcement, stating, “Numerous individuals put forward an excessively wide-ranging understanding that, in certain instances, protects social media firms from regulations designed to safeguard consumers in a manner unsupported by the wording of Section 230… Social media businesses possess a First Amendment entitlement to freedom of expression. However, they do not have a First Amendment right to an exclusive protection not afforded to other news organizations, like newspapers and television networks.”

It remains uncertain whether the FCC will participate in overseeing how these companies utilize this right, but it is evident that Pai believes the agency should, and does not believe it currently does. Given the current political alignment of the FCC, with a 3-2 majority favoring the Conservative side, it can be suggested that this rule-making process is virtually predetermined; the net neutrality situation demonstrated that these Commissioners are prepared to disregard and distort information to validate their preferred outcome, and there is no indication this rule-making will differ.

The procedure will unfold in a similarly lengthy and transparent fashion as previous instances, meaning a large volume of public comments may once again demonstrate the FCC’s tendency to disregard the views of the public, specialists, and legislators when deciding to create or abolish its functions as it deems appropriate. Prepare to submit your comments to the FCC, but there is no immediate need for strong protest – it is likely this rule-making will not be available in draft form until after the election, at which time the momentum behind this effort to re-evaluate the law to align with the administration’s preferences may shift.