LOS ANGELES—This week the Trump administration, on the heels of his executive order in May, requested via the National Telecommunications and Information Agency—a branch of the Commerce Department—that the Federal Communications Commission review Section 230 of the 1996 Communications Decency Act.
The CDA serves as the foundation of online free expression.
Section 230 allows free expression online by specifically protecting internet platforms and providers from legal responsibility for the content of user posts. But the law has recently come under scrutiny from both sides of the aisle in Congress, with a series of new bills aimed at rolling back the protections afforded by Section 230.
The new NTIA document calls on the FCC to alter Section 230 in a way that requires platforms to engage in “good faith” content moderation, or face a loss of the Section 230 liability protections. But some who oppose the proposed bills say what the NTIA is asking would be unconstitutional.
“There’s no way for the FCC, the FTC, or any court to decide what constitutes ‘good faith’ content moderation,” said James E. Dunstan, general counsel for the online rights group TechFreedom, in a statement. “It would require the government to examine the content of Internet speech, which the First Amendment clearly forbids.”
Dunstan called the NTIA request “a monumental waste of the FCC’s time.”
In addition, according to an analysis by Mike Masnick of TechDirt, the request would also be unconstitutional because the FCC has no authority to interpret or rewrite laws passed by Congress. Only courts may interpret the law in any legally binding way, and only Congress has the authority to revise Section 230, or any federal law.
The FCC, Masnick notes, has also surrendered its authority to regulate the internet. When the current, Republican-led FCC voted to repeal net neutrality regulations in 2017, the repeal reclassified the internet as an “information service,” rather than a “telecommunications service.” The change transfers authority over the internet to the Federal Trade Commission, which has very limited ability to regulate online speech.
As with net neutrality, the current FCC remains divided along partisan lines over the proposed Section 230 rollback.
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