August 8, 2020

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Commerce Dept. Petitions FCC to Issue Rules Clarifying CDA Section 230

The currents around the Communications Decency Act just got a little more turbulent as the White House and executive branch try to reel in the big fish of CDA reform.

On July 27, 2020, the Commerce Department submitted a petition requesting the FCC initiate a rulemaking to clarify the provisions of Section 230 of the Communications Decency Act (CDA). Unrelated, but part of the same fervor in Washington to “rein in social media,” the leaders of the major technology companies appeared before the House Judiciary Antitrust Subcommittee at a hearing yesterday, July 29, 2020, to discuss the Committee’s ongoing investigation of competition in the digital marketplace, where some members inquired about content moderation practices. Moreover, last month, a pair of Senators introduced the PACT Act, a targeted (but still substantial) update to the CDA (and other CDA reform bills are also being debated, including a bill to carve out sexually exploitative material involving children from the CDA`s reach).

Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. §230, is regularly cited as the most important law supporting the Internet, e-commerce and the online economy. Yet, the CDA has been regularly criticized since the landmark Zeran decision over twenty years ago. With the continued presence of hate speech, revenge porn, disinformation and other objectionable content on online platforms, the cries for limiting CDA immunity have gotten more strident in recent years.  The criticism surrounding the CDA hit a fever pitch on May 28, 2020 when the President weighed in on the issue by signing an Executive Order attempting to curtail legal protections under Section 230. While the Executive Order was roundly labelled as a political theater – and is currently being challenged in court as unconstitutional – it notably directed the Justice Department to submit draft proposed legislation (i.e., a CDA reform bill) to accomplish the policy objectives of the Order. Now, pursuant the same Executive Order, the Commerce Department has requested the FCC write rules that would limit the scope of CDA immunity and place potentially burdensome compliance requirements on many providers that host third party content.

While a deep dive in the 57-page Commerce Department petition (or whether the FCC even has the legal authority to issue such rules in this area) is beyond the scope of this post, its reform proposals can be broken down into several areasIn brief, the Commerce Dept. has asked to FCC to:

  • Clarify the relationship between the more well-known §230(c)(1) “publisher” immunity for hosting third-party content and the lesser-utilized §230(c)(2) “Good Samaritan” immunity for filtering of objectionable content, lest they be read and applied in a manner that renders §230(c)(2) superfluous.

  • Amend the statute to specify that §230(c)(1) has no application to any provider`s decision to restrict access to content or terminate user accounts.

  • Provide clearer guidance on what content would be deemed “objectionable content” within §230(c)(2) and when removals are done in “good faith” (including proposing that filtering decision taken contrary to terms of service or without an adequate notice or process should fall outside the CDA).

  • Modify the language that defines under what circumstances a provider becomes an “information content provider” as per 47 U.S.C. § 230(f)(3) (“responsible, in whole or in part, for the creation or development of information”), and clarify when a provider`s content moderation practices take it outside of the protections of the CDA. The proposal requests that such providers should lose CDA protection when, for example, they make editorial decision that modify or alter content, “including but not limited to substantively contributing to, commenting upon, editorializing about, or presenting with a discernible viewpoint content provided by another information content provider.”

  • Mandate disclosure for internet transparency similar to that required of other internet companies, such as ISPs.

Taken as a whole, is this petition simply more wishful thinking? Might this petition be another prod to Congress to pass some sort of CDA reform? Do many of such petition`s proscriptions run contrary to the First Amendment? If any rules are issued, will court challenges block their immediate implementation?

One thing in the petition everyone can agree on is that “times have changed” since the CDA was passed in 1996, highlighted by the growth of social media and e-commerce platforms, and the use of AI and automated measures to filter out harmful content that violates site policies. Many people believe that the CDA needs some sort of “recalibration” (to borrow the petition`s language), but also believe that it should be Congress`s job to make such changes.  However, there is a beautiful simplicity in the “26 words that created the internet” and it is difficult to enact anything more than surgical amendments without jeopardizing the CDA`s central protections that enable the vibrancy of the internet. As we’ve stated before, whatever the approach, it will not be easy, particularly since Congress has recently had trouble reaching consensus on technology-related and privacy-related legislation. Moreover, beyond any reforms, it is certain that any amendments will spur more litigation surrounding third party content.  As the debate rolls on, this is likely not the last development we will see this summer.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 212

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About this Author

Jeffrey D Neuburger, Proskauer Rose Law Firm, Technology Attorney
Partner

Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise, combined with his professional experience at General Electric and academic experience in computer science, makes him a leader in the field.

As one of the architects of the technology law...

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