Section 230 – the liability shield that more or less prevents websites, such as Twitter and Facebook, from being sued in the US for their users’ content – is going to survive the Trump era despite furious last-ditch efforts by the President.
On Monday, the FCC put out a “tentative” agenda for its January meeting that included no mention of reviewing the legislation despite a determined push by outgoing President Donald Trump to have the watchdog produce new rules – and the last-minute approval of a new FCC commissioner in an effort to drive the issue forward.
The failure to appear on the FCC agenda follows a decision by both halves of Congress last month to push ahead with a critical military budget bill, despite the President threatening to veto it unless a repeal of Section 230 was included. There's also the tiny little issue of the FCC not necessarily holding the authority to clarify Section 230, which is part of the Communications Decency Act passed by lawmakers, in any meaningful way. The regulator insists it does.
The political maneuvering to alter the small but crucial section of legislation began in May when Trump issued an executive order complaining bitterly about social media giants and insisting on “new regulations under Section 230 of the Communications Decency Act to make it that social media companies that engage in censoring or any political conduct will not be able to keep their liability shield.”
The order came two days after Twitter started applying warning labels to some of the President’s most misleading tweets.
So the games begin
The executive order was itself toothless but after persistent pressure from the White House, the US government's Department of Commerce formally asked the FCC two months later to review Section 230. The request was widely derided, and the federal regulator was urged to refuse to consider it.
But FCC boss Ajit Pai, who owed his job to Trump, ignored the experts and his own commissioners, and agreed to run a consultation on the issue; a consultation that quickly descended into farce thanks to the President and congressional Republicans turning what is a serious and complex topic into a black-and-white partisan issue, eliciting comments from the general public that had little to do with reality.
When Republican FCC commissioner Mike O’Rielly had the audacity to criticize the idea of the watchdog creating rules for Section 230, something he said had serious First Amendment implications, his renomination process was abruptly dropped. Again, the President was thought to be behind the decision.
After the election, which Trump lost decisively, reform of Section 230 fell briefly off the agenda. But then came a determined push to get a replacement for O’Rielly in place on the FCC's panel of commissioners before the end of the year and, notably, the person put up for the job was Department of Commerce staffer Nathan Simington.
It turned out that it was Simington who had largely drawn up the Department of Commerce’s request to the FCC to take a look at Section 230, as well as pushed it internally. In his confirmation hearing, Simington refused to say if he would recuse himself from a Section 230 vote, resulting in a Democratic conviction that the only reason Simington was there at all was to push through a Trump-ordained change to online platform liabilities.
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Despite the furious objections of Democrats, Simington’s confirmation was pushed through by Senate Republicans and so everyone was expected to see Section 230 make an appearance at the January FCC meeting.
But the release of the agenda this week, combined with the desperate effort to attach its repeal to the military bill, points to the ebbing away of authority of the President that has long been called the “lame duck” period between an outgoing American leader and their replacement.
As such, America appears to have side-stepped rushed and poorly thought-through changes to this important piece of legislation. Not that Section 230 will escape the spotlight for long: there remains a focus on Big Tech and its actions, and lawmakers on all sides are looking at changing Section 230 as a way to force the organizations to take greater responsibility for the content that appears on their platforms – the content from which they make their vast fortunes thanks to accompanying advertising.
The issue will be taken up again this year, hopefully with greater consideration given to any changes. The biggest initial concern in that discussion will be the fact that President-elect Biden’s only stated position on it is that it should be scrapped altogether, something that both halves of Congress have already made plain that they don’t agree with. ®