FCC Plans to Clarify Big Tech’s Section 230 Legal Shield

October 20, 2020

Federal Communications Commission Chairman Ajit Pai is looking to move forward with rulemaking to “clarify” the scope of Section 230, the legal shield for tech companies such as Facebook, Google and Twitter.

Section 230 protects the likes of Facebook, Google and Twitter from being held liable for their users’ posts. The law was passed in the early days of the world wide web as part of the Communications Decency Act. Washington power brokers are trying to revise the law to deal the massive influence of big tech.

Federal Communications Commission Chairman Ajit Pai issued the following statement today on Section 230 of the Communications Act:

“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.”

FCC Commissioner Carr issued the following statement in support of Chairman Pai’s announcement:

“Section 230 reform is long overdue. The status quo isn’t working. That is why I have called for the FCC to take action and do our part to rein in Big Tech. Chairman Pai is right that the FCC has legal authority to interpret Section 230, and I applaud his leadership in announcing the FCC will move forward with clarifying the statute.

“Section 230 confers a unique set of benefits on social media companies and other ‘providers of interactive computer services.’ It gives them special protections that go beyond the First Amendment rights that protect everyone in this country. Congress passed this provision back in the 1990s to address the limited content moderation practices employed by Internet sites like the then-popular Prodigy and CompuServe messaging boards.

“Flash forward over 20 years, and the content moderation practices employed by the Internet giants of today bear little resemblance to the activities Congress had in mind when it passed Section 230. And a handful of court cases have drastically expanded the scope of Section 230, adding immunities found nowhere in the statutory text, as Justice Thomas explained in a statement just this week.

“Moving forward at the FCC will bring much-needed clarity to Section 230 and close the loopholes that Big Tech has exploited. These reforms will promote ‘a forum for a true diversity of political discourse,’ as Congress envisioned when it passed Section 230, without limiting the First Amendment rights of any speaker.

“I commend Chairman Pai for his leadership on this issue, and I look forward to the FCC taking expeditious action.”

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