As directed by President Trump’s Executive Order on Preventing Online Censorship (EO) – the subject of our earlier advisory – the National Telecommunications Information Administration (NTIA) has now filed its anticipated petition at the FCC addressing online service providers’ immunity under Section 230 of the Communications Decency Act.

The EO’s stated purpose is to prevent restrictions on political debate on communications platforms, and the EO sought to limit the immunity that “interactive computer services” (such as social media platforms and websites that allow the posting of consumer reviews and comments) currently enjoy from civil and state criminal liability under 47 U.S.C. Section 230 for content posted by third parties.

One of the specific directives contained in the EO is for NTIA to file within 60 days a petition for rulemaking with the Federal Communications Commission requesting that the FCC expeditiously propose regulations to clarify (1) the interplay between the interaction between subparagraphs (c)(1) and (c)(2) of Section 230; (2) the conditions under which an action restricting access to or availability of material is not “taken in good faith”; and (3) any other regulations NTIA considers necessary to include.

On July 27, 2020, NTIA met its deadline, submitting this petition for rulemaking.

Petition for rulemaking filed with the FCC

Interplay between Subparagraphs (c)(1) and (c)(2) of Section 230

NTIA posits that the liability protection under Section 230(c)(1) arises from the “information” posted by “another information provider” and those other information providers’ editorial judgments. It goes on to argue that the Commission must clarify that Section 230(c)(1) “has no application to any interactive computer service’s decision, agreement, or action to restrict access to or availability of material provided by another information content provider or to bar any information content provider from using an interactive computer service.” In short, NTIA contends that liability protection only extends to information posted by third parties on a social media platform.

Section 230(c)(2), on the other hand, focuses on immunizing interactive computer services where they act 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.” NTIA argues that the descriptors in Section 230(c)(2) refer to only those materials which were deemed “otherwise objectionable” in 1996 and for which there was already regulation – regulation which Section 230 was supposed to supplement. In other words, NTIA contends that Section 230(c)(2) protects interactive computer service providers only for their actions to remove “obscene, violent, or other disturbing matters” posted by third parties.

Overall, the petition encourages the FCC to adopt rules that sharply limit Section 230’s protections by cabining immunity to only those instances where interactive computer service providers removed “obscene, violent, or other disturbing” content posted by third parties, as judged by 1996 standards – not merely where content is removed or moderated for reasons that the provider considers to be “otherwise objectionable.” As discussed in greater detail below, NTIA claims that the Commission must also clarify standards it deems too subjective to enforce properly.

“Taken in good faith”

As in its proposals on the relationship between subparagraphs (c)(1) and (c)(2), the petition also urges the Commission to adopt rules to attempt to narrow prior judicial interpretations of Section 230’s references to actions “taken in good faith.” Section 230(c)(2)(A) gives broad leeway to providers to take down or restrict access to content that the provider “considers to be . . . otherwise objectionable,” although only for such actions “taken in good faith.”

The petition for rulemaking argues that the good faith standard enshrined in Section 230(c)(2)(A) is too subjective and must be more clearly defined. For example, it urges the Commission to adopt a rule to limit the scope of actions “taken in good faith” to only situations where the provider:

  1. restricts access to or availability of material or bars or refuses service to any person consistent with publicly available terms of service or use that state plainly and with particularity the criteria the interactive computer service employs in its content-moderation practices, including by any partially or fully automated processes, and that are in effect on the date such content is first posted
  2. has an objectively reasonable belief that the material falls within one of the listed categories set forth in 47 U.S.C. § 230(c)(2)(A)
  3. does not restrict access to or availability of material on deceptive or pretextual grounds, and does not apply its terms of service or use to restrict access to or availability of material that is similarly situated to material that the interactive computer service intentionally declines to restrict and
  4. supplies the interactive computer service of the material with timely notice describing with particularity the interactive computer service’s reasonable factual basis for the restriction of access and a meaningful opportunity to respond, unless the interactive computer service has an objectively reasonable belief that the content is related to criminal activity or such notice would risk imminent physical harm to others.

None of these conditions is mentioned in the plain language of the statute. If the Commission adopted this proposal, it would attempt a significant change of the scope of Section 230 protections as they have been applied to date by courts.

Disclosures

The NTIA petition also calls on the FCC to mandate disclosures for Internet transparency for social media platforms – an approach similar to how it treats broadband service providers. NTIA argues that Sections 163 and 257 of the Communications Act provide the FCC with authority to mandate disclosures from social media platforms. Section 163 authorizes the Commission to review competition-related issues, and Section 257 requires the FCC to examine market barriers in the provision of telecommunications and information services – including interactive computer services like social media platforms. The FCC relied on Section 257 in imposing certain transparency requirements in its 2018 Restoring Internet Freedom Order.

What’s next

In the past, the FCC has cited Section 230 as support for a “light touch” approach to other aspects of Internet regulation, but the agency is not expressly mentioned in Section 230, nor has it attempted to interpret the particular subsection at issue here. As of this writing, it is unclear whether the FCC will even begin to seek comment on these proposals, let alone adopt new rules. Importantly, and in contrast to NTIA’s mandate to submit the petition within 60 days, the FCC – an independent agency – faces no deadline for acting on the petition and is under no obligation to initiate a rulemaking.

Moreover, FCC leadership is currently divided on how to proceed. On one hand, Commissioner Brendan Carr has expressed views consistent with the EO and is quoted several times throughout NTIA’s petition. Once it was published, Carr said that he “looks forward to reviewing and acting expeditiously on the petition.” On the other hand, Commissioner Jessica Rosenworcel said in a statement that while social media can be frustrating, “turning [the FCC] into the President’s speech police is not the answer.” Commissioner Geoffrey Starks described the petition’s proposals “troubling” and called on the Commission to “act quickly to end this unfortunate detour and get back to the critical work of closing the digital divide.”

Appearing before the Senate Committee on Commerce, Science, and Transportation in June, Chairman Pai was circumspect about how the Commission may act upon receiving the petition; his testimony acknowledged that this debate is important, but he merely committed to review the petition once filed. Recently re-nominated and confirmed Commissioner O’Rielly adopted a similar approach, tweeting that the President “has the right to seek FCC review of statute’s application. As a conservative, I’m troubled voices are stifled by liberal tech leaders. At same time, I’m extremely dedicated to First Amendment which governs much here.” It appears that as of now there is no consensus at the FCC on whether and/or how to respond to the petition for rulemaking.

Given the politically charged nature of the petition and only a short runway to the 2020 presidential election, coupled with the FCC’s authority to defer acting on the petition until a later date, whether the FCC acts on this petition in the near term will likely depend on which party takes the White House in November.

Conclusion

The NTIA petition invites the FCC to enter into uncharted territory. The Commission has never before issued a purportedly authoritative interpretation of Section 230 immunity – a provision that has been interpreted by numerous courts. If the FCC seeks formal comment on the petition, it is reasonable to expect that commenters will engage on whether the Commission has the authority to issue binding rules under Section 230 and whether courts would owe deference to the FCC’s interpretation. The FCC’s eventual decision on whether to proceed with a rulemaking may very well be dictated by the outcome of the November elections.