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Here’s Trump’s Plan To Regulate Social MediaRob PegoraroContributorMediaI cover the problems and possibilities of our tech and media systems.
WASHINGTON, DC – MAY 28: U.S. President Donald Trump speaks in the Oval Office before signing an … [+]
President Trump is still mad at Twitter
-0.7%, and now his Commerce Department has asked the Federal Communications Commission to write rules to stop social-media platforms from being mean to him.
The 55-page proposal released Monday night by the National Telecommunications and Information Administration, a Commerce agency, would have the FCC rewrite Section 230 of the Communications Decency Act.
Instead of protecting social platforms when they moderate users’ posts—what the law actually says—here the FCC would transmogrify that 1996 statute to hold them liable for such offenses as the Twitter trending-topics lists that Trump called Monday “Really ridiculous, illegal, and, of course, very unfair!”
Complaints by the president and his supporters that social networks have suppressed their speech predate Trump’s 2016 victory—powered in part by Trump’s use of Twitter and Facebook.
But they have escalated this year as Twitter has begun applying its rules to the president’s Twitter feed.
After Twitter applied a “Get the facts about mail-in ballots” label to an evidence-free May 26 presidential tweet saying mail-in balloting would be “substantially fraudulent,” Trump responded with an executive order May 28 calling for a rewrite of CDA 230’s core provisions.
They offer immunity from civil (not criminal) liability to providers and users of an “interactive computer service”—as in, any that hosts your posts—for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
As in, an online service can decide posts supporting Trump (or Joe Biden or Vladimir Putin) are against its rules, and you can’t sue over that.
Congress passed that law after the online network Prodigy lost a lawsuit brought by Stratton Oakmont. The corrupt brokerage dramatized in the Leonardo diCaprio movie The Wolf of Wall Street got a court to hold the pioneering service liable for user posts attacking its pump-and-dump schemes because Prodigy moderating its forums meant it chose what appeared there.
Instead of forcing online services to take a hands-off atitude, CDA 230 encourages them to moderate content.
The NTIA proposes to limit their immunity to moderating pornographic, violent or harassing content. All other curation would be subject to a checklist of such measures as documentation of moderation rules and “timely notice” to users found violating them.
A site that “vouches for, editorializes, recommends, or promotes” user posts—see, for instance, Twitter trending topics—would also become liability for them.
Two analysts at Washington-area free-market groups questioned the entire proposal.
“If the president thinks this law should be changed, he should push Congress to do that,” said Neil Chilson, senior research fellow for technology and innovation at the Charles Koch Institute. “He can’t have the FCC do that.”
Jennifer Huddleston, director of technology and innovation policy at the American Action Forum, noted that Republicans usually oppose government mandates over content, going back to the Fairness Doctrine the FCC enforced for radio and TV until 1987.
“It was the Fairness Doctrine removal that largely allowed conservative talk radio to emerge as a force,” she said.
The NTIA document argues that the likes of Facebook and Twitter aren’t like Prodigy in that they function as public squares, but she noted that courts have rejected that line of thought multiple times.
Opening social platforms to defamation lawsuits would also leave smaller sites worse off.
“Large companies are going to have increased legal costs as a result, but a small company may have a much harder time getting off the ground,” said Huddleston.
Chilson called weakening CDA 230 “a boon to trial lawyers and to class-action lawyers.”
The NTIA petition cloaks itself in free-speech principles, but the First Amendment also protects companies like Twitter when they label tweets.
Huddleston noted the contradiction: “In order to protect First Amendment rights, you have what is potentially a bigger challenge to First Amendment rights by having the government dictate how platforms can and cannot moderate.”
Beyond neglecting the First Amendment, the NTIA document doesn’t address the problem of pushing the FCC into regulating apps.
“I can’t think of an example where they’ve ever done this,” said Harold Feld, senior vice president at Public Knowledge, a liberal think tank.
He recalled how many Republicans opposed the FCC blocking internet providers from filtering content but now support the FCC preventing social sites from doing the same, calling it “this complete reversal.”
The Republicans that matter most are the three on the five-member FCC, who can accept or reject the NTIA petition. Their past statements suggest they oppose more government regulation.
FCC chair Ajit Pai decried net-neutrality rules as a plan to “regulate the Internet.” in 2017, he responded to Trump’s demand that the FCC start revoking broadcast licenses by saying “The FCC under my leadership will stand for the First Amendment.”
Commissioner Mike O’Rielly said similar things about net neutrality and wrote in 2018 that the FCC should keep social-media and other apps “an FCC regulatory-free arena.”
Commissioner Brendan Carr tweeted last June that the internet “certainly doesn’t need Big Government control” and reiterated in January that “We need less government control of the Internet, not more.”
Monday night, Carr said he welcomed the NTIA petition.
As Feld put it: “This is, to quote Hamilton, the world turned upside down here.”