The Commerce Department petitioned the Federal Communications Commission on Monday to narrow the liability protections of online companies, as President Donald Trump directed in May in what he pitched as a crackdown on anti-conservative bias.
Monday's petition includes a request that the FCC impose a regulatory requirement on social media companies, even though the agency doesn't regulate them.
The FCC is an independent agency outside Trump's direct control, although he has nominated its five members.
What the administration says: “It has long been the policy of the United States to foster a robust marketplace of ideas on the Internet and the free flow of information around the world,” said Commerce Secretary Wilbur Ross in a statement. “President Trump is committed to protecting the rights of all Americans to express their views and not face unjustified restrictions or selective censorship from a handful of powerful companies.”
Trump's May 28 executive order had called on the Commerce Department, in consultation with the Justice Department, to file this petition within 60 days. It’s part of Trump’s broader crackdown of what he has dubbed Silicon Valley censorship of conservative viewpoints, centered in large part on the prized liability protections enshrined in a 1996 statute known as Section 230 of the Communications Decency Act.
Section 230 shields internet companies from liability over content that their platform users post but also gives them broad leeway to moderate that content.
Trump issued his order after denouncing Twitter's decision to append fact-checking labels onto tweets into which had made claims about fraud in mail-in balloting.
What the petition asks: The executive branch is requesting the FCC to come up with rules addressing several aspects of interpreting the 1996 statute. It asks the FCC to "[m]andate disclosure for internet transparency similar to that required of other internet companies, such as broadband service providers." The FCC now applies such transparency requirements on internet providers as part of net neutrality protections, but it has never attempted to do the same to social media platforms.
"The FCC should use its authorities to clarify ambiguities in section 230 so as to make its interpretation appropriate to the current internet marketplace and provide clearer guidance to courts, platforms, and users," said the 57-page petition from the Commerce Department's National Telecommunications and Information Administration.
Among the asks: Specify that Section 230 doesn't apply to internet companies' "decision, agreement, or action to restrict access to or availability of material provided by another information content provider or to bar any information content provider from using an interactive computer service." It asks the FCC to provide "clearer guidance" on what content warrants protection from liability and the nature of good faith content moderation.
The petition is signed by Douglas Kinkoph, the acting head of NTIA. The Commerce agency has lacked a Senate-confirmed head for more than a year, with no new leader nominated.
And here come the legal questions: But the FCC’s role here is hotly contested given its lack of authority over the social media companies at the heart of debate and historical questions surrounding any speech-related regulation — questions that could make any commission action’s actual power legally dubious.
FCC Chairman Ajit Pai has not said how he may go about kicking off a rulemaking, as the order requests. Many following the issue expect the agency will collect rounds of public comment before acting. As the head of an independent agency, Pai doesn't have to abide by any administration directives.
Political pressures abound, and to advance any eventual proposed re-interpretation of Section 230, Pai will require support from at least two of his four colleagues.
"The importance of disclosure to our communications networks cannot be underestimated," said the NTIA petition, which defended the FCC's authority. "Chairman Pai recognizes that democracies must require transparency and to ensure the proper function of essential communications networks."
The tech industry vehemently opposes Trump's crackdown.
"The demand that the FCC take on the role of ‘Ministry of Truth’ is designed to pressure social media companies to bias content moderation decisions in the Administration’s political favor," said Matt Schruers, who represents tech companies as the head of the Computer & Communications Industry Association, in a statement. "While digital services are busy fighting online misinformation and foreign influence during a pandemic and ahead of an election, it is disappointing to see the Administration instead doubling down on an obviously unlawful Executive Order."
Where the commissioners fall: The FCC’s two Democrats both reject the idea of a commission role, and GOP Commissioner Mike O’Rielly has questioned whether the lawmakers who crafted the 1996 provision intended any grant of authority for the agency.
"The FCC shouldn’t take this bait," said Jessica Rosenworcel, the commission's senior Democrat, Monday. "While social media can be frustrating, turning this agency into the President's speech police is not the answer. If we honor the Constitution, we will reject this petition immediately."
Republican Commissioner Brendan Carr, meanwhile, has enthusiastically echoed Trump’s rhetoric surrounding alleged tech industry bias and said the statute’s presence in telecom law gives the agency a hook to give interpretative guidance. He advocates imposing transparency regulations on tech companies and floated an idea that consumers be able to turn off the fact checking that online platforms apply. Donald Trump Jr., the president's son, retweeted Carr on Monday as the commissioner shared his new op-ed — not he first time he's landed on the first family's radar this year.
The NTIA petition cites Carr's own words when making allegations about the bias of online platforms. Social media giants have denied any systemic bias.
"Unfortunately, few academic empirical studies exist of the phenomenon of social media bias," the NTIA petition notes.
Although some Senate Republicans are pushing Pai to act, he has avoided saying much of anything. “I can assure you that we will carefully review it,” the agency chief simply told Republicans in a letter released Friday. FCC spokesperson Brian Hart said the same when asked for comment on Monday.