Exactly a week after the presidential and congressional elections, the government official who would replace outgoing FCC Commissioner Mike O'Rielly would get a nominations hearing. The announcement came about three hours after the agency said it would push forward on an NPRM on clarifying the meaning of Communications Decency Act Section 230, as we reported in an earlier news bulletin. O'Rielly's renomination was withdrawn after he voiced some concern about any FCC ability to reinterpret the section.
The FCC intends to move forward with a rulemaking to clarify the meaning of Communications Decency Act Section 230, Chairman Ajit Pai said Thursday. He said the FCC’s general counsel told him the agency has the “legal authority to interpret Section 230.” Pai cited bipartisan concerns about “prevailing interpretation” of Section 230 immunity, a bipartisan desire to revise the law, and Supreme Court Justice Clarence Thomas’ statement asking the high court to review the statute.
The Supreme Court declined Tuesday to hear Enigma Software v. Malwarebytes, which alleges anticompetitive behavior by a cybersecurity rival (see 2006150054). Justice Clarence Thomas issued a statement in agreement, saying the high court should consider reviewing Communications Decency Act Section 230’s language in an “appropriate case.” Malwarebytes claimed Section 230 immunity after Enigma sued. Enigma alleged Malwarebytes “engaged in anticompetitive conduct by reconfiguring its products to make it difficult for consumers to download and use Enigma products.” Thomas noted SCOTUS hasn’t interpreted Section 230 in the 24 years since its enactment: “Many courts have construed the law broadly to confer sweeping immunity on some of the largest companies.” He argued justices “should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.” Extending the immunity “beyond the natural reading of the text can have serious consequences,” Thomas wrote. Before allowing immunity from civil claims for “knowingly hosting illegal child pornography” or “for race discrimination,” the court should “be certain that is what the law demands.” FCC Commissioner Brendan Carr said Thomas’ statement “strengthens the case for reform,” tweeting that it “explains how a couple of sweeping and questionable court decisions have expanded Big Tech’s protections far beyond the terms of Section 230 itself.” Attorneys for the companies didn’t comment.
Fox News pundit Tucker Carlson criticized what he views as Senate Republicans’ reluctance to consider FCC nominee Nathan Simington before the Nov. 3 election. President Donald Trump named Simington, an NTIA senior adviser, last month as his pick to replace Commissioner Mike O'Rielly (see 2009150074), whose term expired. Senate Commerce Committee Chairman Roger Wicker of Mississippi and other Republicans have been meeting with Simington (see 2009300022), but the committee hasn’t scheduled a hearing. “Republicans still control the Senate, so you would imagine they would be busy confirming the president’s nominees while they’re still able to” before the election, Carlson said on his Thursday TV show. “But they’re not. In some cases, they are blocking conservatives from getting appointments,” including Simington. If “you’re worried about the unchallenged power of Big Tech -- and you should be -- you ought to support Simington’s appointment” because of his involvement in writing Trump's executive order directing NTIA to petition for FCC regulations defining the scope of Communications Decency Act Section 230, Carlson said. “But Senate Republicans do not support it. They are sitting on his nomination. They are hoping instead they’ll be able to confirm” a nominee from Democratic presidential nominee Joe Biden “next year” if he wins the election. Trump “complained about this, including on Twitter” (see 2010070053), “but they’ve ignored it,” Carlson said. “Remember that next time you hear Republicans in Washington pretend that they care about free speech, pretend that they’re going to do something about the shocking abuse of the tech monopolies.”
Democratic presidential nominee Joe Biden, if he wins the Nov. 3 election, is likely to be “very receptive” to coming legislation from House Antitrust Subcommittee members to implement recommendations from their Tuesday report on competition in the digital economy, subpanel Chairman David Cicilline, D-R.I., said Wednesday. The report called for bills to institute structural separation and line of business restrictions to address alleged abuse of market power by Google, Facebook, Amazon and other major tech companies (see 2010060062).
Congress should consider legislation including structural separation and line of business restrictions to address abuse of market power in the digital economy, House Antitrust Subcommittee Democratic staff recommended in a long-awaited report Tuesday. Republicans didn’t sign on but released their own report. Recommendations include prohibition of self-preferencing, portability requirements, mandating that platforms provide due process before taking action against market participants, and amendments to the Clayton, Sherman and FTC acts.
The Senate Commerce Committee unanimously voted Thursday to issue subpoenas to Facebook, Google and Twitter for testimony from CEOs Mark Zuckerberg, Sundar Pichai and Jack Dorsey (see 2009250037). The vote was a “big, bipartisan signal to Big Tech,” Chairman Roger Wicker, R-Miss., told us, saying there’s agreement that Communications Decency Act Section 230 is “overdue for a makeover.” During Thursday’s executive session, Democrats suggested the hearing be held after the November election to avoid any influence over platform election content.
Expect the House Antitrust Subcommittee to release its report on Big Tech next week, Chairman David Cicilline, D-R.I., told us after Thursday’s final hearing on the matter. House Judiciary Committee Republicans planned to introduce legislation to amend Section 230 and limit liability protections for platforms making “editorial decisions,” ranking member Jim Jordan, R-Ohio, announced at the hearing.
The Senate Judiciary Committee should reject Chairman Lindsey Graham’s, R-S.C., Section 230- and copyright-related legislation, advocates wrote the committee Wednesday before Thursday’s markup (see 2009290065). Access Now, the Center for Democracy & Technology, Electronic Frontier Foundation, New American’s Open Technology Institute and Public Knowledge signed. The Online Content Policy Modernization Act (S-4632) “would discourage social media companies from taking down or fact-checking disinformation,” said CDT CEO Alexandra Givens. “We need social media companies to be taking more action against election misinformation, not less.” CTA, the Computer and Communications Industry Association, EFF, Engine, Re:Create and the R Street Institute signed a separate letter in opposition.
A bipartisan pair of senators introduced legislation Tuesday to amend Communications Decency Act Section 230 and require platforms to report illegal drug sales and other illicit activity. Tech industry and privacy advocates oppose the bill. Experts raised issues with proposals aimed at amending industry’s liability shield, in interviews.