How Trump got the FCC involved in his war against Twitter

President Donald Trump dashed the Federal Communications Commission to regulate Facebook, Twitter, and other social media companies. That would be a new task for the independent agency, and it is unclear whether its republican leadership will take on the role. After all, the agency removed the protection of network neutrality in 2017 so that it does not have to regulate broadband companies such as Comcast and Verizon.

Trump made the request on Thursday when he signed an executive order Designed to evade the legal liability protection that social media companies currently have for user-posted content. The order followed Twitter’s decision to label two Trump tweets via mail-in-voting that contained “possibly misleading information.”

The president asks the FCC for a review Section 230 of the Communications Decency Act, the law that gives social media companies their legal protection. The president wants rules that the agency can use to investigate complaints that social media companies discriminate against certain speeches on their platforms.

Trump’s action comes from both liberals and conservatives complaining about how social media companies moderate content on their platforms. Conservatives, led by the president, claim that their speech is censored by Twitter, Facebook, and other social media sites, an allegation that companies deny. Liberals say they are equally concerned about the rampant flow of disinformation, including foreign interference in the 2020 presidential election and hate speech.

Any role in social media surveillance will be uncomfortable for the FCC, which has proven anti-regulation under Ajit Pai, its Trump-appointed chairman. It is unclear whether the FCC is authorized to make calls about whether social media companies play fairly. And it is certain that every FCC action will be challenged in court.

Not surprisingly, the FCC’s Democrats break away from their Republicans. Commissioner Jessica Rosenworcel, a democrat, said the command “is not the answer” while Brendan Carr, a Republican, called the executive order “welcome messages”. Pai, a Republican, did not flip his hand and said: “This debate is important” and is committed to carefully reviewing all requests to change the rules.

Here’s what you need to know about the FCC’s potential role in social media regulation.

You mentioned section 230. What is it and why should the FCC check this?

Section 230 is a provision of the Communications Decency Act, which was passed in 1996. It is considered the most important law to protect freedom of speech on the Internet.

The provision essentially protects companies hosting user-created content from complaints about contributions to their services. The law not only protects Internet service providers such as AT&T, Comcast and Verizon, but also social media platforms such as Facebook, Twitter and Google.

Section 230 is not a general protection. There are exceptions to federal crimes or intellectual property claims. A company could continue to be held accountable if it knowingly allows users to post illegal content.

The law provides comprehensive protection for social media companies to help them decide how to restrict content and what content to restrict. This means that social media platforms cannot be sued if they remove or leave content.

Why did the legislator think this was a good idea?

By eliminating the liability risk, Section 230 has enabled companies to experiment. Without them, Twitter and Facebook would almost certainly not exist, at least not as they do now. And not only large companies benefit from the law. Non-profit organizations have also benefited from this.

“Without Section 230, we would not have Wikipedia,” said Ernesto Falcon, senior legal adviser to the Electronic Frontier Foundation, and referred to the online encyclopedia, which is maintained by volunteers.

Many experts say that the law has enabled the Internet to develop into a medium in which ideas and political discourse can flow freely. According to section 230, online communities could experiment with moderating content, Falcon said. Without this protection, companies would not be able to take care of moderation, which would probably lead to even more offensive, wrong or misleading online content. (We know it’s hard to believe!)

OK. I get it. Section 230 has contributed to the growth of the Internet. But there have to be some problems, right?

Yes, and some politicians are demanding that it be lifted or changed. Democrats are most concerned about getting large social media companies to eliminate hate speech, harassment, disinformation, and terrorist content. Republicans claim that social media companies are censoring conservative viewpoints.

Former Vice President Joe Biden, the supposed Democratic presidential candidate, argued in January that social media companies deserve no protection because they knowingly allow false information on their platforms.

In a (n Interview with the editors of the New York TimesBiden called for “230” to be revoked immediately. “It spreads falsehoods that they know are wrong,” said Biden, “and we should set standards, much like Europeans do with privacy. “

Republicans such as Sens. Josh Hawley from Missouri and Ted Cruz from Texas, as well as Rep. Paul Gosar from Arizona, have since called for legislative changes. They claim that social media companies have worked to silence conservative voices. There is no evidence that the claim is true.

What does Trump’s Executive Order require from the FCC?

At the heart of Trump’s executive order is the claim that social media sites censor conservative viewpoints that they disagree with. Trump wants the FCC to set rules that clarify the parameters of the good faith efforts that online businesses must make pursuant to Section 230 when deciding whether to delete or change content.

Section 230 protects social media platforms and other online businesses from liability for “voluntary measures that are voluntarily taken in good faith to limit access to or availability of material that the provider or user deems to be obscene, otherwise indecent, lascivious, dirty, excessively violent, harassing, or harassing to consider whether such material is constitutionally protected or not. “This would include deleting posts or attaching a label to a post, indicating that this may be wrong, even if the first change would protect the post against state censorship.

Does the FCC have the authority to make rules restricting Section 230?

Most experts say that if the agency imposed rules on section 230, the FCC would likely be challenged in court. There is no language in the law that empowers the FCC or any other federal agency to adopt rules that limit the ability of an online company. Only questions are raised about who can be sued for what reasons. Therefore, any FCC action would likely be challenged on the grounds that the agency had exceeded its authority.

Can the President direct the FCC to take action or set new rules?

No. The FCC is an independent federal agency. Although the agency’s commissioners are appointed by the president, the FCC does not take instructions from the executive. Instead, it gets its authority from Congress. This means that the FCC would only be able to pass rules restricting or clarifying Section 230 if Congress passed a law giving it that power.

To be clear, the President’s Executive Ordinance takes this into account. The order is carefully worded to instruct the commercial department to ask the FCC to consider a petition asking them to issue new rules. It does not instruct the agency to do so. This means that the FCC can review the request and simply refuse to create rules.

Doesn’t the FCC have the authority to ensure that TV or radio content is fair and balanced? Why can’t it do that for the online world?

In fact, the FCC has had no fairness doctrine since 1987, according to which license holders have to represent conflicting perspectives on controversial or political issues. But even if there was such a policy for television and radio, the FCC would not be able to apply the same rules to social media companies because it has no authority to regulate those companies.

In fact, the current FCC under the Trump administration explicitly cited section 230, in which Congress’s intention to keep the Internet unregulated is used as an argument for lifting the Obama-era rules on net neutrality that imposed the regulation of broadband providers .

It would be very difficult for Pai and the other Republicans in the FCC to argue that the agency should regulate social media companies if it deprives the agency of its authority to regulate broadband companies like Comcast or Verizon, says Gigi Sohn, a distinguished employee from the Georgetown Law Institute for Technology Law and Policy.

If the FCC has even established rules, what is the executive order about?

Son argues that Trump’s executive order isn’t about getting the FCC to do anything. It’s about intimidation. She says it works. Facebook has not flagged any of Trump’s posts for accuracy, and Facebook’s CEO Mark Zuckerberg has told the media that the social media giant doesn’t want to be an “arbitrator of the truth,” so plans to stay away from the problem.

“It’s not about getting a legal argument about who has the authority to regulate these companies,” said Sohn. “It’s about playing the referee so Trump can use social media platforms five months before the election.”