Section 230: Platforms, Plain Meaning, and Projecting the Rulemaking Process to Come
For the past few years, Republicans and Democrats have found little to agree upon, however, there is widespread bipartisan support for reforming one area of internet law: Section 230 of the Communications Decency Act and its immunity shield for online internet platforms.[1]
Both candidates of the 2020 Presidential Election supported reexamining the law and its protections[2] , as do many Congressional leaders across the aisle.[3]
Over the summer, the President signed an Executive Order directing his administration to clarify the law.[4] The Department of Commerce filed a petition for rulemaking in July 2020.[5] In October 2020, Chairman Ajit Pai of the Federal Communications Commission (FCC) communicated that his agency would thereby initiate the rule making process as directed.[6]
Just days before the Chairman Pai’s announcement, the effort to reexamine Section 230 picked up additional momentum when Facebook and Twitter slowed the spread of an explosive and potentially politically sensitive news story across their respective networks.[7]
Coincidentally, the Senate Committee on Commerce, Science, and Transportation had voted earlier in the month to subpoena the CEO’s of Twitter, Facebook and Alphabet, and had scheduled a hearing for Wednesday, October 28th.[8]
Given the recent events, the hearing was politically charged, and largely focused each party’s grievance with the networks.[9] Little if any progress was made to resolve fundamental questions of how the law should be both reformed and further interpreted.[10]
So what does Section 230 actually say?
Effectively, its “Good Samaritan” provision immunizes the platforms from civil liability for actions taken by its users[11] and again for actions which the platforms take in good faith to moderate content.[12] The provision is only a few sentences in length, and is posted in full below.
(c) Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker
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.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A) 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; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[13]
The language seems straightforward and clear. So what exactly does the FCC have in mind?
According to the FCC’s General Counsel, the rulemaking process intends “to clarify the scope of the Section 230 immunity shield.”[14]. Specifically, the process intends to address two questions: (1) “[w]hat constitutes an action ‘voluntarily taken in good faith’ to restrict access to material?”[15] and, (2) what constitutes material that can be excluded as “otherwise objectionable”?[16]
Looking at how the agency evaluates good faith in other contexts may provide clues on this first question. In 2000, the agency set forward the Good Faith Retransmission Consent Negotiation Rules to govern negotiations between broadcasters and television service providers to air (or ‘retransmit’) their content.[17] The rules set forth a two-part test to determine whether negotiations were being conducted in good faith. [18]First, the agency provided a list of procedural standards the broadcasters were required to abide by, where failure to do so constituted a per se breach of the good faith obligation. Then the agency provided for a fact based evaluation on a “totality of the circumstances” basis to determine whether the good faith obligation was breached. [19]
A similar two-part test would work well with the FCC’s vision for reform. The procedural standards could easily be adopted to the current landscape, and establish basic operational requirements of the platforms. For example, the FCC could adopt language such as “a platform may not remove content without communicating how the content violates its terms of service” or “a platform must respond in reasonable time and with reasonable detail to appeals of content moderation.” Effectively, the FCC has an opportunity to establish a baseline of norms across the industry and increase the transparency through which platforms operate. A list of per se violations, followed by a totality of the circumstances evaluation would provide a robust process to ensure “good faith”, and would still afford platforms the immunity shield which has proven essential to their viability.[20]
As for the objectionable determination, there are few clues available. Much of the FCC’s existing guidance on content will be duplicative,[21] as the “Good Samaritan” provision already covers material considered to be “obscene, lewd, lascivious, filthy, excessively violent, harassing[.]”[22] Without relevant agency action to look to, there is little foresight into how the rulemaking process will clarify the language.
So how will this be resolved? It depends on the results of the November 2020 Presidential Election.
The President has the authority to designate the Chairman of the FCC, and a new President will likely do so, considering that the importance this topic has taken.[23] A new Chairman may scrap the rule making process, or have a different vision for its proposed regulations. As recently as 2017, the current Chairman reversed a widely debated rule promoted under the leadership of the previous Obama Administration.[24]
With a Biden Administration on the way, it’s unclear how the FCC will proceed. House Representatives have asked the agency to “stop work on all partisan or controversial items currently under consideration” but it is unclear whether this applies to the work on Section 230, given the bipartisan support previously mentioned.[25] Considering that bipartisan support, a more robust good faith determination test is likely on its way, as well as further clarity into what the agency considers “otherwise objectionable” content. [26]
Change is certainly coming, and although the form it will take is uncertain, it is clear that Section 230 will likely look very different in the years ahead.
Footnotes
