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With the US election coming up, when better to petition regulators for a controversial way to chill online speech?

Guess what? Literally everyone thinks this is a terrible idea

The US Department of Commerce (DoC) has formally asked the Federal Communications Commission (FCC) to review a critical law that provides blanket liability to online platforms such as Google and Facebook.

The “petition for rulemaking” filed [PDF] by the National Telecommunications and Information Administration (NTIA), an arm of the DoC, on Tuesday asks the FCC to “clarify” the rules surrounding Section 230 of the Communications Decency Act, which substantially shields websites from legal action relating to the content users share on those platforms. It pretty much protects things like Facebook, Twitter, Reddit, Google, and so on, from being sued for whatever their netizens get up to via their systems, plus or minus some caveats.

That section has been the target of attention from politicians of all stripes in recent years over concerns that tech giants need to take greater responsibility for the user-generated content spread via their services. But the NTIA petition has caused a storm of protest from both sides of the political landscape.

“This is a terrible idea,” said the president of right-leaning think-tank The Institute for Policy Innovation (IPI), Tom Giovanetti. “This is essentially a request for the FCC to reinstate the Fairness Doctrine for websites. The Fairness Doctrine would have made Fox News, Rush Limbaugh, Sean Hannity, and Mark David illegal. Ronald Reagan got rid of it, and conservative media flourished as a result.”

“This is pure, and unconstitutional, political theater,” said right-leaning tech policy think-tank Tech Freedom. “The FCC is not legally required to respond to the NTIA’s petition, nor should it.”

Join the queue

In fact, everywhere you look, you can find extensive and highly critical analyses from tech policy experts, including associate director at the International Center for Law and Economics Kristian Stout; Berkeley law professor Tejas Narechania; and non-profit Public Knowledge’s Harold Feld.

The content of the petition also left many less than impressed. “The analysis of alleged ambiguities in Section 230 is just embarrassingly wishful thinking on NTIA's part,” summed up University of Colorado law professor Blake Reid in an analysis. TechFreedom even argued it violates the First Amendment.


Section 230 authors despair of Trump, Barr, Biden, US Congress’ aggressive ignorance of critical tech law


And that’s before you even get to the FCC’s own commissioners. Jessica Rosenworcel called it “an invitation from the President for the FCC to help chill online speech and organize it in his favor,” adding: “We need to reject this loud and clear.”

Fellow commissioner Geoffrey Starks said in a statement that “the rules NTIA has proposed are ill-advised, and the Commission should dispose of this Petition as quickly as possible… Among other substantive problems, NTIA seems to have failed to grasp how vast and diverse the ecosystem of interactive computer services is… I continue to believe that these rules reflect the President's attempt at retaliation and intimidation - at the very time when social media companies' decisions could impact his own electoral future.”

Ah, Carr

Pretty much the only support for the petition is FCC Commissioner Brendan Carr who prides himself on being outspoken, often on matters where there is little agreement. Carr wrote an op-ed for Newsweek on Monday in which he tied today’s petition over Section 230 to a broader issue of concern over the concentration of power of Big Tech that will be covered in a highly anticipated hearing in front of a House Judiciary subcommittee on Wednesday.

Facebook's Mark Zuckerberg, Amazon CEO Jeff Bezos, Apple CEO Tim Cook, and Google CEO Sundar Pichai are due to give testimony at the hearing.

“Today, Big Tech offers a black box,” Carr wrote. “After Google manipulates search results, a small business can see its web traffic drop precipitously overnight for no apparent reason, potentially flipping its outlook from black to red. On Twitter, social media posts are left up or taken down, accounts suspended or permanently banned, without any apparent consistency. Out of the blue, YouTube can demonetize someone who risked his capital and invested his labor to build an online business.”

When it came to the actual petition that he will now have to consider, however, Carr has but one suggestion: “One idea is to let consumers turn off the bias filters. Right now, Facebook and Twitter bring in outside ‘fact checkers’ (read: political actors) to provide their takes on your posts. Why not let the consumer decide? If you want MSNBC, Fox News or any other entity to filter your feed, click that box. If you want an unfiltered, Wild West timeline, choose that option.”


As for the actual petition itself, it calls on the FCC to “make clear when online platforms can claim Section 230 protections if they restrict access to content in a manner not specifically outlined under the Act.”

DoC secretary Wilbur Ross was quoted as saying: “Many Americans rely on online platforms to stay informed and connected, sharing their thoughts and ideas on issues important to them, which can oftentimes lead to free and open debate around public policies and upcoming elections… 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.”

In the meantime, on Twitter, Donald Trump complained again about how unfairly he was being treated on the same platform: “So disgusting to watch Twitter’s so-called ‘Trending’, where sooo many trends are about me, and never a good one. They look for anything they can find, make it as bad as possible, and blow it up, trying to make it trend. Really ridiculous, illegal, and, of course, very unfair!”

Shortly after, the hashtags #TrumpleThinSkin and #ThePresidentIsACrybaby hit the top spots of the very same Trending section. ®

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