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Chairman Pai: FCC to Address Social Media Immunity Under Section 230

Here’s big news for social media companies and other operators of online forums. Chairman Pai today agreed to pick up the Trump administration’s request for “clarity” around the immunity granted to providers of interactive computer services under Section 230 of the Communications Decency Act.

That section provides, in pertinent part:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230).

And while the section reads in a seemingly straightforward manner–at least as compared to the TCPA– Chairman Pai noted “serious concerns” being expressed by members of “all three branches” of the federal government as a basis for the FCC to “clarify” the section.

Here is the full statement from Chairman Pai:

Members of all three branches of the federal government have expressed serious concerns about the prevailing interpretation of the immunity set forth in Section 230 of the Communications Act. There is bipartisan support in Congress to reform the law. The U.S. Department of Commerce has petitioned the Commission to ‘clarify ambiguities in section 230.’ And earlier this week, U.S. Supreme Court Justice Clarence Thomas pointed out that courts have relied upon ‘policy and purpose arguments to grant sweeping protections to Internet platforms’ that appear to go far beyond the actual text of the provision.

As elected officials consider whether to change the law, the question remains: What does Section 230 currently mean? Many advance an overly broad interpretation that in some cases shields social media companies from consumer protection laws in a way that has no basis in the text of Section 230. The Commission’s General Counsel has informed me that the FCC has the legal authority to interpret Section 230. Consistent with this advice, I intend to move forward with a rulemaking to clarify its meaning.

Throughout my tenure at the Federal Communications Commission, I have favored regulatory parity, transparency, and free expression. Social media companies have a First Amendment right to free speech. But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.

Meanwhile Commissioner Carr weighed in with glowing support for the Chairman’s announcement. His statement reads, in part:

Moving forward at the FCC will bring much-needed clarity to Section 230 and close the loopholes that Big Tech has exploited. These reforms will promote ‘a forum for a true diversity of political discourse,’ as Congress envisioned when it passed Section 230, without limiting the First Amendment rights of any speaker.

We’ll keep an eye on this.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 289
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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

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