The FCC asserts its authority to rule on Section 230 social media protections

Republican politicians are pushing for reforms to Section 230, which protects internet platforms from liability for the content they host, and they want the FCC to help.

When the US communications regulator signalled its willingness to do so after Twitter and Facebook were accused of electoral interference last week, many questioned its legal prerogative. In response, the FCC’s General Counsel, Thomas Johnson, blogged to reassert its authority to interpret Section 230.

As you would expect from a lawyer the blog is lengthy, impenetrable and torturous for anyone with a normal attention span. Thankfully he summarises his position early. “Simply put, the FCC has the authority to interpret all provisions of the Communications Act, including amendments such as Section 230,” wrote Johnson.

Where things seem to get convoluted are around the word ‘interpret’. The FCC is not, itself, a law-making body. As a regulator its job is to enforce existing law, but that can get tricky when it’s phrased in an excessively vague and ambiguous way. Section 230 is one such bit of badly written law and the need to clarify it is given urgency by the increasingly censorious behaviour of the big internet companies that dominate cyberspace.

Section 230 protects internet platforms such as Facebook and Twitter by separating them from publishers, such as, for the purpose of legal liability for what they publish. The digital public square enabled by social media just wouldn’t work if every comment had to go through an editing process, which would be almost impossible to operate at scale anyway.

The problem is that those platforms are increasingly editing what they host, just in an apparently selective and biased way. For that reason this matter has become politically charged. US conservatives feel they are edited more harshly than liberals, as the opposing team is called over there for some reason. Hence Republicans and their supporters want to revise the protections offered by section 230 and Democrats don’t.

Pretty much everything is politically partisan in the US, even the FCC. It has three Republican-appointed commissioners and two Democrat-appointed ones and they tend to adopt adversarial positions according to their faction. Hence we have FCC Commissioner Rosenworcel sending out tweets like the one below.

Whether or not the FCC is being asked to police speech by President Trump is a separate discussion, but no objective observer can deny that internet platforms have become much more active in censoring their content in recent years. The question at the heart of Section 230 reform concerns whether that behaviour should disqualify them from legal protection. That’s what the push to clarify its wording seeks to answer and opposition to that should be interpreted as an endorsement of continued social media censorship.

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