FCC Chairman Ajit Pai has decided to ask the public for its thoughts on an attempt initiated in Trump in May to water down certain protections that arguably led to the creation of the modern internet economy. The nakedly retaliatory order seems to be, legally speaking, laughable, and could be resolved without public input — but the FCC wants your opinion, so you may as well give it to them.
Section 230 essentially prevents companies like Facebook and Google from being liable for content they merely host, as long as they work to take down illegal content quickly. Some feel these protections has given the companies the opportunity to manipulate speech on their platforms — Trump felt targeted by a fact-check warning placed by Twitter on his unsupported claims of fraud in mail-in warning.
To understand the order itself and see commentary from the companies that would be affected, as well as Senator Ron Wyden (D-OR), who co-authored the law in the first place, read our story from the day Trump signed the order. (Wyden called it “plainly illegal.”)
For a bipartisan legislative approach that actually addresses shortcomings in Section 230, check out the PACT Act announced in June. (Sen. Brian Schatz (D-HI) says they’re approaching the law “with a scalpel rather than a jackhammer.”)
More relevant to the FCC’s proceedings, however, are the comments of sitting commissioner Brendan Starks, who questioned the order’s legality and ethics, likening it to a personal vendetta intended to intimidate certain companies. As he explained:
The broader debate about Section 230 long predates President Trump’s conflict with Twitter in particular, and there are so many smart people who believe the law here should be updated. But ultimately that debate belongs to Congress. That the president may find it more expedient to influence a five-member commission than a 538-member Congress is not a sufficient reason, much less a good one, to circumvent the constitutional function of our democratically elected representatives.
Incidentally, Starks may be who Pai is referring to in a memo announcing the commentary period. “I strongly disagree with those who demand that we ignore the law and deny the public and all stakeholders the opportunity to weigh in on this important issue. We should welcome vigorous debate—not foreclose it,” Pai wrote.
This may be a reference to Commissioner Starks’s suggestion that the FCC address the order quickly and authoritatively: “If, as I suspect it ultimately will, the petition fails at a legal question of authority, I think we should say it loud and clear, and close the book on this unfortunate detour,” he said. After all, public opinion doesn’t count for much if the order has no legal effect to begin with and the FCC doesn’t even have to consider how it might revisit Section 230.
Whatever the case, the proposal is ready for you to comment on it. To do so, visit this page and click, in the box on the left, “+New Filing” or “+Express” — the first is if you would like to submit a document or evidence in support of your opinion, and the second is if you just want to explain your position in plain text. Remember, this information will be filed publicly, so anything you put in those fields — name, address, and everything — will be visible online.
To be clear, you’re commenting on the NTIA proposal that the FCC draw up new rules regarding Section 230, which the executive order compelled that organization to send, not the executive order itself.
As with the net neutrality debacle, the FCC does not have to take your opinion into account, or reality for that matter. The comment period lasts 45 days, after which the item will likely go to internal deliberations at the Commission.