230 of the Federal Communications Commission and the Communications Act

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The Trump administration once again tried to force social media platforms to serve it. This time, the Trump administration tried to use the Federal Communications Commission (FCC) to use Section 230 rules to prevent websites from censoring content in a biased way against conservatives. Although this provision was originally designed to prevent FCC intervention-and a few years ago, the FCC itself did not take regulatory measures on the Internet based on this, but it seems that the agency intends to make new attempts.

The FCC came up with this intention because after Twitter and Facebook deleted an untrustworthy report on Hunter Biden from the New York Post, Trump and many conservatives urged that, To punish Twitter and Facebook. Trump once again asked for the repeal of Article 230, and the Republican-led Senate is also preparing to issue a subpoena to Twitter CEO Jack Dorsey, accusing the company of interfering in the election.

The next day, FCC Chairman Ajit Pai announced that his agency would “make rules to elaborate” the meaning of Article 230. According to the existing Article 230, Internet platforms such as Facebook and Twitter are not required to bear legal responsibility for content posted by platform users. In other words, if someone slanders you on Twitter, you can sue that Twitter user, but not the Twitter platform. This 25-year-old legal provision is the basis for the existence of Internet websites relying on third-party content. This rule also allows websites to censor content according to their needs. This is also a source of anger for conservatives-when Facebook bans them, YouTube blocks them, or Twitter adds fact-checking tags to their tweets, they yell that they are being Intentionally reviewed.

Trump has been particularly dissatisfied with this in recent months, because various platforms are cracking down on the false information he spreads. In May, he even issued an executive order requiring the FCC to formulate rules to prevent websites from censoring content based on the so-called “anti-conservative” bias. Today, this purpose is also the basis of the FCC’s current actions.

230 of the Federal Communications Commission and the Communications Act

FCC is not a thought police

But legal experts-former FCC commissioners and FCC employees-don’t think the FCC can regulate the Internet in this way.

“I don’t think the FCC has the right to be the thought police on the Internet platform,” said former FCC chairman Tom Wheeler (Tom Wheeler). Wheeler was the previous chairman of Ajit Pai, and he himself did not have a good opinion of the 230 rule.

He also added: “A major feature of the Trump administration is love to perform. They ran out, beat their chests, and said that we want to do these things for Article 230, and we have to do these things for the digital divide. But that is That’s it, it’s not a real policy. There is a difference between performance and facts.”

Pai said that the FCC’s general counsel Thomas M. Johnson (Thomas M. Johnson Jr.) told him that the FCC has the jurisdiction to interpret Section 230. But when asked about the source of this judicial power, FCC spokesman Brian Hart said: “We have no comment on this at this time.”

Johnson subsequently issued a statement, citing Article 201(b) of the Communications Act, stating that “if necessary,” the FCC may “make the above rules and regulations when implementing the communications law in the public interest”. Many people believe that section 201(b) only applies to public operators. And, in fact, this provision belongs to the second part of the “Communication Law”-“Public Operators”, that is, entities that provide “telecommunications services”, such as telephone companies.

However, Johnson’s interpretation of Article 201(b) is that it should apply to all content covered by the Communications Act, including social media companies of course. However, the fact is that in 2017, the FCC had stated that its classification of broadband Internet as a telecommunications service under Title II was “misleading and has legal loopholes”.

Wheeler said: “Article 201(b) belongs to the second part of the Communications Act. Pai has worked hard to explain that Internet service providers (ISPs) are not subject to the second part of the regulations. If the ISP If you are not bound by the second article, how do you now say that ISP is subject to the second article again?”

In 2019, when there were rumors that the president intended to issue an executive order requiring the FCC to supervise Section 230 regulations, Harold Feld, senior vice president of Public Knowledge, an open Internet advocacy organization, once stated that this was a ” Bad idea”, he doesn’t think the FCC has the right to do so.

Kate Ruane is a senior legislative adviser to the American Civil Liberties Union. Ruan said in the statement: “The FCC cannot use its own whims to amend Congress’s bills. Article 230 is essential to protecting freedom of expression on the Internet. The FCC has no right to modify this provision, especially in ways that undermine freedom of expression. Modify the regulations.”

The intention of Article 230 is to prevent FCC from intervening

“Article 230 of the Communications Act does not give the FCC interpretation power or, more importantly, rule-making power at all,” said Gigi Sohn, an outstanding researcher at the Georgetown Institute of Technology Law and Policy Research. “Facts The purpose of previous legislation was the opposite.” From 2013 to 2016, Thorne also served as Wheeler’s legal counsel.

Senator Ron Wyden (Ron Wyden) and former Representative Chris Cox (Chris Cox), who proposed this rule, said they wrote the law specifically to prevent the FCC from having the power to interfere.

As early as 1995, when the “Communications Regulations Act” was designed, people had a series of discussions around the FCC’s Internet regulatory responsibilities. Wyden and Cox believe that FCC regulation will hinder Internet innovation and development.

At that time, Cox delivered a speech in the House of Representatives, stating that Article 230 “will become a policy of the United States, that is, we do not want the federal government to intervene in the supervision of online content-we do not want to see a “Federal Computer Commission” such Things, let a group of bureaucrats manage the Internet.” Cox continued: “If the FCC is to supervise the Internet, it will prevent or at least slow down the pace of technological development. It will threaten the future of the Internet.”

In 2017, Ajit Pai himself agreed with this. When the FCC abolished net neutrality, Ajit Pai, who was already the chairman of the FCC, invoked Article 230, that is, US policy stipulates that federal regulations or state regulations should not interfere with the development of the Internet. It is recommended to adopt a “point-to-stop approach.” , Rather than “the onerous rules that stifle innovation and hinder investment.”

Thorne said that because of this, the FCC will have to overturn its own decision in order to obtain the power to act on Article 230. Of course, under the management of Ajit faction and the Trump administration, such operations have long become a typical FCC anti-regulatory routine.

In this regard, Johnson said in his statement that “all these opinions do not involve” whether the FCC has the right to interpret Article 230 “this core issue”, and even if the FCC interprets Article 230, it is only ” Clarify legal standards” instead of making rules. Johnson also admitted that although the FCC had acted in accordance with Section 230 when it was abolishing net neutrality, the FCC “does not have to rely on” the provision here and can use Section 201(b) in its interpretation. In short, Johnson believes that the FCC can purposefully choose applicable regulations and ignore other regulations.

230 of the Federal Communications Commission and the Communications Act

future development

If the FCC really decides to establish new rules for Article 230, then the FCC needs the approval of a majority of its five-member committee. Obviously, Ajit faction is on the support side, and his colleague Brendan Carr is also on the same camp. Democrats Geoffrey Starks (Geoffrey Starks) and Jessica Rosenworcel (Jessica Rosenworcel) objected. The vote of the last committee member will be decisive. Right now, Republican member Michael O’Rielly has stated that he does not approve of regulating Article 230 in this way. But last month Trump nominated Nathan Simington to replace Michael O’Reilly. Simington obviously also supports FCC regulation 230. It is no wonder that Trump will nominate Simington.

After that, it may take weeks or months to publish new rules. It has taken nearly five months from Trump’s signing of an executive order calling on the FCC to take action to the FCC’s decision to formulate new rules. Given that the general election is imminent and Trump may lose his re-election, then both branches of the legislature may be under the control of the Democratic Party. In this way, the executive order issued by the Trump administration and the interpretation of the FCC will hardly have any results.

But what if Trump is re-elected? In this case, how will things develop? Even if Trump wins the election, what he expects may not happen, or in other words, it will not happen so soon. Congress can still overturn FCC regulations, and if both the Senate and House of Representatives are Democrats in the majority, Congress overturns FCC regulations is almost beyond doubt. Although the Democratic Party is not satisfied with the provisions of Article 230, their focus is mainly on ending the exemption protection of websites for child sex trafficking and child sexual abuse content. Changing the section 230 content censorship policy has become a partisan issue-the Republicans want to enact new regulations to oppose section 230 and condemn censorship on social media platforms. Obviously, it is unlikely that the Democrats will agree with the Republicans.

If Congress does not refute the FCC’s new regulations, then the next step depends on the court’s attitude. Usually, a department will resort to court before refusing to accept a law until it must accept the law. At present, many organizations have invoked the “First Amendment” and sued the Trump administration for the aforementioned administrative order on the grounds of violation of regulatory policies. Litigation may result in an injunction, which prevents any provision from taking effect until the court decides.

In the past, the court’s rulings tended to favor Article 230. But at least one judge seems to have expressed a different opinion. Supreme Court Justice Clarence Thomas (Clarence Thomas) recently stated that he believes that the court’s understanding of Article 230 is incorrect and that the protection against liability provided by the provision seems to be too broad. However, what he said when the court refused to hear a case related to Article 230, reflected that most judges are not very interested in reconsidering Article 230.

So, how likely is the FCC to help Trump realize an Internet that does not fact-check his tweets? The answer is that it is unlikely and the road ahead is long. However, by creating momentum, the Trump administration is already approaching its own goal: hours after Ajit Pai’s statement, Twitter changed its platform rules. The next day, you can see the New York Post report again on the platform.

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