Free Speech Under Seize?

President Donald Trump, very recently, called out Twitter and Facebook after the social media platforms removed /suppressed links to an alleged article in the New York Post on Hunter Biden, Democrat candidate Joe Biden’s son. The Republican-led Senate also subpoenaed Twitter CEO Jack Dorsey, accusing the company of interfering in the U.S. elections. 

Soon after, Federal Communications Commission (FCC) Chairman Ajit Pai announced that the commission would “move forward with a rulemaking to clarify” the meaning of Section 230 (of the Communications Decency Act. This Section accords internet biggies like Facebook and Twitter immunity from lawsuits over content posted on their websites by third-party users. To facilitate this, the Senate Commerce Committee has even scheduled a fast-track confirmation hearing to fill an upcoming open seat on the FCC. Mr. Trump’s nominee is Nathan Simington, a Republican and a long-time telecom lawyer. 

SOCIAL MEDIA PLATFORMS UNDER FIRE

The New York Post's story was based on emails supposedly obtained from a laptop Mr. Hunter left at a repair shop in Delaware last year. Twitter limited the article's reach, stating a policy against distributing hacked material. After the attempted move to subpoena Mr. Dorsey, Twitter stated that it would no longer remove posts with hacked material unless it has been shared by the hackers or others working with them personally, and will resort to labelling tweets to provide context instead. 

In May, Mr. Trump issued an executive order calling for the FCC to reinterpret the rules that disallow websites from moderating content, based on a perceived anti-conservative bias. Democrats have had their own issues with Section 230, especially concerning websites that display child pornography and child trafficking. The Republicans, on the other hand, decry the censorship that they face allegedly when news favourable to them is debarred as fake news by partial social media platforms. 

Executives from Google, Facebook, and Twitter testified before a U.S. Senate panel on content moderation practices. Democrats picked on the timing of the hearing since it was held just a week before the election. The hearing itself reached nowhere as instead of focussing on Section 230, it got diverted on other issues like anti-trust policies and misinformation on voting.

FCC AND SECTION 230 

The FCC enjoys jurisdiction over broadband access, fair competition, radio frequency use, media responsibility, public safety, and homeland security. In 2015, the FCC reclassified internet access as a telecommunications service, thereby bringing it within its ambit. The internet has been classified as Title I, where services are subject to fewer regulations. Title II services (designed for the basic ‘common carrier’) are subject to tighter regulation. The courts in October 2019, after Mozilla vs FCC, ruled that while the FCC has the right to reclassify internet service as Title I, it cannot prevent local governments from enforcing stricter regulations. 

Section 230 is the backbone regulation for the internet, and governs the internet companies as platforms and not publishers. It had come under threat through two Bills in 2018 — the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA) — through which platforms would be deemed responsible for prostitution ads posted by third parties. While neither of the Bills was passed, it did emphasise that there was a need to look at how to restrict potentially harmful content through Section 230. This gave fresh impetus to the ongoing debate between free speech on the internet and stronger regulations to curb its misuse.

CONTESTING FCC'S JURISDICTION 

Section 230’s bipartisan co-authors, Sen. Ron Wyden and former Rep. Chris Cox, wrote the law to prevent the FCC from having such a regulatory authority in the first place. Former FCC Chairman Tom Wheeler, Mr. Pai’s predecessor, stated that “I don’t think the FCC has the authority to be [the] thought police over platforms”. However, Mr. Pai countered this quoting the FCC’s general counsel, Thomas M. Johnson Jr., who said the commission, has the legal authority to interpret Section 230, without elaborating on how.

Some experts opine that the FCC could use the justification present in the National Telecommunications and Information Administration (NTIA). The NTIA cites Section 201(b) of the Communications Decency Act, of which Section 230 is a part. However, others say that Section 201(b) applies only to common carriers — i.e. those classified under Title II by the FCC— and not internet service providers (ISP). 

If the FCC does decide to amend the rules of Section 230, it will need the majority of the five-person commission to agree on it. Mr. Pai and fellow commissioner Brendan Carr are in favour, while Democratic commissioners Geoffrey Starks and Jessica Rosenworcel are not. That leaves the fifth commissioner as the deciding vote, which could be the present Republican Michael O’Rielly (who has signalled that he is not in favour of regulating Section 230) or Mr. Simington in the future, who appears to be in favour of regulating Section 230.

Justice Clarence Thomas of the U.S. Supreme Court issued a lengthy statement in a case this year that Section 230 is due for review. A bipartisan bill was introduced by Conservatives in June 2020 titled the 'Platform Accountability and Consumer Technology Act' (PACT Act), which requires internet platforms to issue public statements on their policies and to publish quarterly public reports that summarise their actions for that quarter. The proposed bill would also eliminate the platforms' Section 230 protections. On behalf of the Trump administration, the Department of Justice sent draft legislation to Congress to reform Section 230, calling for transparency and open discussion.