Despite becoming law more than 25 years ago, Section 230 of the Communications Decency Act has become a hot topic in the lead-up to the 2020 presidential election — and now the FCC has decided to give the matter a closer look.
Section 230 became effective in 1996 and is designed to shield “interactive computer service” providers from liability for comments posted by third parties on their platforms. So, if someone defames FCC Chairman Ajit Pai on Twitter, he can sue the person who wrote the tweet but not Twitter itself, for example. The text reads, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Critics of Section 230, including President Donald Trump, have argued this gives “big tech” (Facebook, Google, etc.) too much power and allows them to “censor” what’s posted on their sites without recourse.
“As elected officials consider whether to change the law, the question remains: What does Section 230 currently mean? Many advance an overly broad interpretation that in some cases shields social media companies from consumer protection laws in a way that has no basis in the text of Section 230,” said Pai in a Thursday statement, which is posted in full below. “Social media companies have a First Amendment right to free speech. But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.”
Pai also nodded to comments made earlier this week by U.S. Supreme Court Justice Clarence Thomas after the high court declined to review a matter involving the statute, in which the justice lamented courts “reading extra immunity” into the text. So, after conferring with the FCC’s general counsel, Pai decided “to move forward with a rulemaking to clarify its meaning.”
Though the FCC chair claims there is “bipartisan support” to reform the law, backlash to the announcement was swift — even from within his own office. FCC Commissioner Jessica Rosenworcel wrote on Twitter, “The FCC has no business being the President’s speech police.”
Section 230 co-author Sen. Ron Wyden (D-OR) also responded to Pai’s comments. “The FCC does not have the authority to rewrite the law, and Ajit Pai can’t appoint himself commissioner of the speech police,” said Wyden on Twitter. He linked to a 22-page document on behalf of himself and co-author, former U.S. Representative Chris Cox, that asks the commission to decline to commence a rulemaking.
“Our intent in writing this law was to keep the FCC out of the business of regulating websites, content moderation policies, and the content of speech on the internet,” they write. “The Petition asks the Commission to reverse more than two decades of its own policy by becoming, at this late stage in the life of Section 230, its regulatory interpreter. … To reach this perverse result, the FCC would ‘clarify’ the words of Section 230 in ways that do violence to the plain meaning of the statutory text.”