FCC Lays Out Why It Can Kill Section 230 and Further Cripple the Internet

US regulator, the FCC, is making the case for why it has the authority to kill another pillar of a free and open Internet: section 230.

Donald Trumps war on the Internet is continuing despite being so close to the election. In 2017, after seizing control of the Federal Communications Commission (FCC), Republican’s killed network neutrality in a partisan 3-2 vote. At the time, the FCC argued that it doesn’t have authority to regulate Internet companies and repealed the common sense rules.

Critics rightfully pointed out that the results would be devastating for the Internet. ISPs could effectively pick winners and losers by zero rating competition to death. Supporters of the Internet killing move argued that it would increase investments and jobs. Nearly four years later and we are already seeing the results. After repealing network neutrality, AT&T responded by slashing jobs and cutting investment. The ISP then began implementing fast lanes which signaled the beginning collapse of the open Internet in the US. The erosion is slow, but it is already taking root in the country.

Republican’s aren’t done yet with their efforts to destroy the Internet. They are targeting Section 230 which is a law that helps protect free speech online. This came about after Impeached US president, Donald Trump, lied on Twitter by saying that mail in voting leads to voter fraud. When Twitter put a flag on his Tweet, finally doing something that resembles enforcing the rules, Trump threw a temper tantrum and openly mused about shutting down Twitter. After the typical total meltdown over the little flag, Trump signed an executive order the next day ordering the killing of Section 230.

Section 230 is, of course, a law that protects online platforms from liability. If a user posts something illegal, then the platform isn’t automatically liable. Instead, the platform simply needs to react in a reasonable fashion if it receives a complaint about it. This has allowed free speech to flourish online.

Naturally, Trump doesn’t understand any of this and is trying to gut the law. This under the guise that killing Section 230 would protect free speech (which we all know would have the opposite effect). The real reason is that it’s a very short-sighted act of personal revenge on Twitter. Many, understandably, panicked about the situation and wondered if this means the end of the Internet as they know it. Drew Curtis of Fark commented on the situation saying that he is basically waiting and seeing what the FCC does in response to the executive order.

Now, we know that the FCC is actively attempting to follow through with this. According to CNET, the FCC is making the case that they have the legal authority to regulate Internet companies and move forward with killing Section 230:

The Federal Communications Commission’s top lawyer explained in a blog post Wednesday why he thinks the agency has the legal authority to write regulation that reinterprets the law giving social media companies legal protection from content posted by their users.

The post, written by FCC General Counsel Tom Johnson, is in response to an announcement last week from FCC Chairman Ajit Pai that the regulator has decided to move forward on a proposal to address the legal liability protections that Facebook, Twitter and other social media companies have, a move that could hold them accountable for moderation of content on their platforms.

Johnson writes “the scope of the Section 230 immunity shield must be interpreted by someone… the only question is whether the FCC or a federal court will do the interpreting.”

Johnson laid out why he thinks it’s clear that the FCC has this authority. Specifically, he cited US Supreme Court precedent and the FCC’s jurisdiction over writing regulation based on the Communications Act as the authority the agency needs to enact the changes. He also added that if the FCC narrows the protections afforded social media companies, it “would simply allow private parties to bring lawsuits, as appropriate, under other sources of federal and state law.”

You might be thinking, “Wait, I thought the FCC said they don’t have authority during the network neutrality debate.” Indeed. This major flip-flop didn’t go unnoticed. Mike Masnick of Techdirt is calling Pai a hypocrite in response:

For years, FCC Chair Ajit Pai has insisted that the thing that was most important to him was to have a “light touch” regulatory regime regarding the internet. He insisted that net neutrality (which put in place a few limited rules to make sure internet access was fair) was clearly a bridge too far, and had to be wiped out or it would destroy investment into internet infrastructure (he was wrong about that). But now that Section 230 is under attack, he’s apparently done a complete reversal. He is now happy to open a proceeding to reinterpret Section 230 to place a regulatory burden on the internet. This is because Ajit Pai is a hypocrite with no backbone, and no willingness to stand up to a grandstanding President.

The key parts of his statement:

“Members of all three branches of the federal government have expressed serious concerns about the prevailing interpretation of the immunity set forth in Section 230 of the Communications Act. There is bipartisan support in Congress to reform the law. The U.S. Department of Commerce has petitioned the Commission to ‘clarify ambiguities in section 230.’ And earlier this week, U.S. Supreme Court Justice Clarence Thomas pointed out that courts have relied upon ‘policy and purpose arguments to grant sweeping protections to Internet platforms’ that appear to go far beyond the actual text of the provision.

“As elected officials consider whether to change the law, the question remains: What does Section 230 currently mean? Many advance an overly broad interpretation that in some cases shields social media companies from consumer protection laws in a way that has no basis in the text of Section 230. The Commission’s General Counsel has informed me that the FCC has the legal authority to interpret Section 230. Consistent with this advice, I intend to move forward with a rulemaking to clarify its meaning.

“Throughout my tenure at the Federal Communications Commission, I have favored regulatory parity, transparency, and free expression. Social media companies have a First Amendment right to free speech. But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.”

This is bullshit. And what’s worse is that Pai knows it’s bullshit. And he’s still doing it. Because he’s a coward. He saw what happened when his fellow Commissioner Mike O’Rielly — who was effectively fired for daring to point out that the 1st Amendment blocked forcing internet websites to carry his propaganda — and Pai folded like a cheap suit.

Pai is wrong in almost everything he says above. The FCC has no jurisdiction over internet websites. Previous lawsuits have already held that. Furthermore, the FCC has no jurisdiction over Section 230, which was explicitly written to deny the FCC any authority over websites. The FCC has no power to reinterpret the law.

The final paragraph is the most ridiculous of all. He is correct that social media companies have a 1st Amendment right to free speech. And Section 230 as was written and properly and regularly interpreted by dozens of court decisions — none of which the FCC has ever said a word about — helps guarantee that right is not diminished through frivolous, bogus, and mis-directed litigation. That Pai would ignore all of that to keep a whiny President happy should tarnish Pai’s legacy much more than his dismantling of net neutrality. The fact that he now goes back on everything he has ever said in the past about the FCC and regulations on the internet is just the fetid, rotten cherry on top of a giant pile of bullshit that he has created over the years.

For all the bluster about how Republicans are all about less government, lower taxes, this is a massive government power grab with Republican’s at the helm.

Perhaps the surprising thing in all of this is the timing of all of this. With the election less than two weeks away, the FCC is moving forward with taking a sledge hammer to a second pillar to a free and open Internet. Probably the only saving grace for Republican’s is the fact that 52 million American’s have already cast their ballots. So, for those voters, the decision to continue the Republican’s war on the Internet won’t make a difference thanks to the vote already being cast. This is a minor consolation because, as we’ve seen in past elections, a couple thousand votes can tip the balance of power in a critical state. So, it’s, by no means, decisive, but it is a factor on things.

If anything, the results of the election can have a huge impact on this issue. If Trump gets voted out, then there is a very real possibility that Democrats can finally theoretically wield enough power to finally put a stop to all of this madness. Otherwise, a Trump win will continue to push the country into the abyss with this being another aspect of the continuing decline of America.

Drew Wilson on Twitter: @icecube85 and Facebook.

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