Tag Archives: Section 230

Congress Active with Broadband Bills

We’re near the end of the year, and Congress is recessed until the new year. That hasn’t stopped Congress from introducing interesting new bills related to broadband. Any bill introduced in the first year of Congress is not automatically carried over to the second year session, but I assume these new bills are meant for deliberation in 2026.

Support for Non-Deployment Funds. Senators Roger Wicker (R-MS) and Shelley Moore Capito (R-WV) introduced the Supporting U.S. Critical Connectivity and Economic Strategy and Security for BEAD Act. This legislation would authorize States to use any remaining BEAD non-deployment funds that were not used to build infrastructure. The bill directs NTIA to give these funds to States to support functions like enhancing public safety, improving network resiliency, strengthening national security, and developing a qualified workforce for emerging technologies. This is a major issue since non-deployment has grown to over 21 billion, which is half of the $42.5 billion BEAD funding.

To some degree, this law feels redundant because it reiterates the same use of non-deployment funds that was directed in the original IIJA legislation that created BEAD. The need for this bill is only an issue because NTIA has been referring to the monies not used for broadband deployment as ‘savings’, which they want to return to the U.S. Treasury. If enacted, this would be Congress’s way of emphasizing that it meant what was written in the original law. If enacted, it also means that a lot more of the BEAD funding could have been used to build fiber and other long-term technologies instead of going to satellite broadband.

Expand Mental Telehealth. Representatives Andrea Salinas (D-OR) and Diana Harshbarger (R-TN) reintroduced the bipartisan Home-Based Telemental Health Care Act. If enacted, the legislation would expand access to telehealth services, including mental health and substance use care. The legislation is aimed at rural Americans who have barriers to in-person care, especially for individuals working in the farming, fishing, and forestry industries.

The legislation would create a new grant program that would provide funding for mental health and substance use care for people living in designated Health Professional Shortage Areas. The grants would be managed by the Department of Health and Human Services in consultation with the U.S. Department of Agriculture. Funding could be used to expand telemental health services, including providing broadband access and devices to use telehealth technology. The grants would also explore the feasibility of expanding the program to in-person services. The bill authorizes $10 million in grants for fiscal years 2025 through 2029.

Sunset Section 230 Immunity. Senators Lindsey Graham (R-SC), Dick Durbin (D-IL), Chuck Grassley (R-IA), Sheldon Whitehouse (D-RI), Josh Hawley (R-MO), Amy Klobuchar (D-MN), Marsha Blackburn (R-TN), Richard Blumenthal (D-CT), Ashley Moody (R-FL), and Peter Welch (D-VT) introduced the Sunset Section 230 Act. The legislation would repeal Section 230 of the FCC rules two years after the date of enactment. Section 230 was created in 1996, as a part of the Communications Decency Act. The purpose of Section 230 is to grant limited immunity to online platforms for user-generated content. Section 230 also shields online platforms from any damages from good-faith efforts to moderate or block objectionable content.

The stated purpose of the new legislation is to allow the public to hold platforms accountable for allowing illegal content, child exploitation, and misinformation, based on the underlying premise that the big web platforms currently have near-immunity for damages that arise from their “profits over people” operating model. This is going to be a controversial law, and opponents of the legislation argue that the law will stifle free speech, force platforms to over-censor to avoid massive lawsuits, harm small online platforms, and fail to address underlying issues of harmful content amplification by big tech.

 

The FCC and Section 230

One of the oddest areas of law under the jurisdiction of the FCC is 47 U.S.C. § 230. This is the law that shields ISPs and social media platforms from liability for content created by users. Since this law falls under the FCC’s jurisdiction, it means that the FCC has a role in regulating the Internet and the large companies that operate there. That is far outside the scope of everything else the FCC does.

Congress clearly intended to give the authority to regulate Section 230 to the FCC. The Telecommunications Act of 1996 included section V, which was titled The Communications Decency Act of 1996 that included the new language for Section 230. When Congress placed Section 230 law into the Communications Act, it was clear that it wanted the FCC to oversee the nascent Internet that was just starting to reach public awareness. The FCC’s jurisdiction over Section 230 was bolstered by two Supreme Court Decisions authored by Justice Antonin Scalia—AT&T Corp. v. Iowa Utilities Bd. in and City of Arlington v. FCC, in 2013.

The most important provision of Section 230 says, “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.” It further says that no “provider or user of an interactive computer service shall be held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

The term “interactive computer service” is commonly understood to include websites that host or moderate content generated by others, such as social media platforms. It also covers a wide range of other content like comments made by readers in online newspapers, customer reviews of products on Amazon, and anywhere else where the public gets to express an opinion on the web.  Section 230 has been used to shield online platforms against most civil suits that are based on what users say. Without Section 230, social media sites would be subject to lawsuits from those who find any content to be unacceptable. It’s not a stretch to say that the Internet, as we know it, could not function without the protections provided by Section 230.

Section 230 is very much in the political news these days. There were 25 bills introduced in Congress over the last two sessions to modify Section 230 language. The bills look at a range of different topics. One set of proposed regulations would provide more protection for children online. The Senate recently passed the Kids Online Safety Act which would create a duty of care for online platforms to take steps to protect young users. If passed by the House, this would be the most significant online safety statute since the Children’s Online Privacy Protection Act in 2000.

Other proposed laws deal with content moderation by online platforms. Republican lawmakers are asking for less content moderation to fight what they believe is bias and censorship of conservative views. Bills from Democratic lawmakers want platforms to take a more active role in removing disinformation.

Congress has also been discussing how to deal with content generated by AI. When Section 230 law was written in 1996 there was no concept that computers could direct generate content. It’s not clear that AI content has or should have the same kinds of protections afforded to human users. There has already been numerous examples of AI generating controversial content.

There is even a movement in Congress to kill Section 230, with the thought that a repeal would force lawmakers to get serious about creating a modern replacement law. In the current environment, lawmakers are not only squabbling with each other about these issues but have to contend with intense lobbying by big tech companies that resist any changes to Section 230.

To anybody who follows the FCC, the idea of the agency getting involved in these kinds of messy controversies seems alien to the rest of its mission statement. But since issues related to content moderation are heating up, and it’s likely the FCC will get pulled into the fray.

Can the FCC Regulate Facebook?

At the urging of FCC Chairman Ajit Pai, the FCC General Counsel Tom Johnson announced in a recent blog that he believes that the FCC has the authority to redefine the immunity shield provided by Section 230 of the FCC’s rules that comes from the Communications Decency Act from 1996.

Section 230 of the FCC rules is one of the clearest and simplest rules in the FCC code:  “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“.

In non-legalese, this means that a web companies is not liable for third-party content posted on its platform. It is this rule that enables public comments on the web. All social media consists of third-party content. Sites like Yelp and Amazon thrive because of public post reviews of restaurants and products. Third-party comments are in a lot more places on the web such as the comment section of your local newspaper, or even here on my blog.

Section 230 is essential if we are going to give the public a voice on the web. Without Section 230 protections, Facebook could be sued by somebody who doesn’t like specific content posted on the platform. That’s dangerous because there is somebody who hates every possible political position.  If Facebook can be sued for content posted by its billions of users, then the platform will have to quickly fold – there is no viable business model that can sustain the defense of huge volumes of lawsuits.

Section 230 was created when web platforms started to allow comments from the general public. The biggest early legal challenge to web content came in 1995 when Wall Street firm Stratton Oakmont sued Prodigy over a posting on the platform by a user that accused the president of Stratton Oakmont of fraud. Stratton Oakmont won the case when the New York Supreme Court ruled that Prodigy was a publisher because the platform exercised some editorial control by moderating content and because Prodigy had a clearly stated set of rules about what was allowable content on the Prodigy platform. As might be imagined, this court case had a chilling impact on the burgeoning web industry, and fledgling web platforms worried about getting sued over content posted by the public. This prompted Representatives Rob Wyden and Chris Cox to sponsor the bill that became the current Section 230 protections.

Tom Johnson believes the FCC has the authority to interpret Section 230 due to Section 201(b) of the Communications Act of 1934, which confers on the FCC the power to issue rules necessary to carry out the provisions of the Act. He says that when Congress instructed that Section 230 rules be added to FCC code, that implicitly means the FCC has the authority to interpret the rules.

But then Mr. Johnson does an interesting tap dance. He distinguishes between interpreting the Section 230 rules and regulating companies that are protected by these rules. If the FCC ever acts to somehow modify Section 230, the legal arguments will concentrate on this nuance.

The FCC has basically been authorized by Congress to regulate common carriers of telecommunications services as well as a few other responsibilities specifically assigned to the agency.

There is no possible way that the FCC could ever claim that companies like Facebook or Google are common carriers. If they can’t make that argument, then the agency likely has no authority to impose any obligations on these companies, even should it have the authority to ‘interpret’ Section 230. Any such interpretation would be meaningless if the FCC has no authority to impose such interpretations on the companies that rely on Section 230 protections.

What is ironic about this effort by the FCC is that the current FCC spent a great deal of effort to declassify ISPs from being common carriers. The agency has gone as far as possible to wipe its hands of any responsibility for regulating broadband provided by companies like AT&T and Comcast. It will require an amazing set of verbal gymnastics to somehow claim the ability to extend FCC authority to companies like Facebook and Twitter, which clearly have zero characteristics of being a common carrier while at the same time claiming that ISPs are not common carriers.

Can the FCC Regulate Social Media?

There has been a lot of talk lately from the White House and Congress about having the FCC regulate online platforms like Facebook, Twitter, and Google. From a regulatory perspective, it’s an interesting question if current law allows for the regulation of these companies. It would be ironic if the FCC somehow tried to regulate Facebook after they went through series of legal gyrations to remove themselves from regulating ISPs for the delivery and sale of broadband – something that is more clearly in their regulatory wheelhouse.

All of the arguments for regulating the web companies centers around Section 230 of the FCC rules. Congress had the nascent Internet companies in mind when the wrote Section 230. The view of Congress was that the newly formed Internet needed to be protected from regulation and interference in order to grow. Congress was right about this at the time and the Internet is possibly the single biggest driver of our current economy. Congress specifically spelled out how web companies should be viewed from a regulatory perspective.

There are two sections of the statute that are most relevant to the question of regulating web companies. The first is Section 230(c)(1), which states, “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.”

This section of the law is unambiguous and states that an online platform can’t be held liable for content posted by users. This would hold true regardless of whether a platform allows users free access to say anything or if the platform heavily moderates what can be said. When Congress wrote Section 230 this was the most important part of the statute, because they realized that new web companies would never get off the ground or thrive if they have to constantly respond to lawsuits filed by parties that didn’t like the content posted on their platform.

Web platforms are protected by first amendment rights as publishers if they provide their own content, in exactly the same manner as a newspaper or magazine – but publishers can be sued for violating laws like defamation. But most of the big web platforms don’t create content – they just provide a place for users to publish content. As such, the language cited above completely shields Facebook and Twitter from liability, and also seemingly from regulation.

Another thing that must be considered is the current state of FCC regulation. The courts have given the FCC wide latitude in interpreting its regulatory role. In the latest court ruling that upheld the FCC’s deregulation of broadband and the repeal of net neutrality, the court said that the FCC had the authority to deregulate broadband since the agency could point to Congressional laws that supported that position. However, the court noted that the FCC could just as easily have adopted almost the opposite position, as had been done by the Tom Wheeler FCC, since there was also Congressional language that supports regulating broadband. The court said that an agency like the FCC is only required to find language in Congressional rules that support whatever position they take. Over the years there have been enough conflicting rules from Congress to give the FCC a lot of flexibility in interpreting Congressional intent.

It’s clear that the FCC still has to regulate carriers, which is why landline telephone service is still regulated. In killing Title II regulation, the FCC went through legal gymnastics to declare that broadband is an ‘information service’ and not a carrier service.

Companies like Facebook and Google are clearly also information services. This current FCC would be faced with a huge dilemma if they tried to somehow regulate companies like Facebook or Twitter. To do so would mean declaring that the agency has the authority to regulate information service providers – a claim that would be impossible to make without also reasserting jurisdiction over ISPs and broadband.

The bottom line is that the FCC could assert some limited form of jurisdiction over the web companies. However, the degree to which they could regulate them would be seriously restricted by the language in Section 230(c)(1). And any attempt to regulate the web companies would give major heartburn to FCC lawyers. It would force them to make a 180-degree turn from everything they’ve said and done about regulating broadband since Ajit Pai became Chairman.

The odds are pretty good that this concept will blow over because the FCC is likely to quietly resist any push to regulate web companies if that means they would have to reassert jurisdiction over information service providers. Of course, Congress could resolve this at any time by writing new bills that would explicitly regulate Google without regulating AT&T. But as long as we have a split Congress, that’s never going to happen.

Section 230 and the Internet

Scale_of_justice_2_newOne of the most important laws affecting the Internet that you’ve probably never heard of is Section 230 of the Communications Decency Act of 1996. The law provides immunity from liability to anybody that publishes information generated by others.

It is this law that holds Facebook harmless for content posted by its users, or protects a newspaper that allows comments on its article. The law shields web companies from liability from things posted by their users. Without this law social media couldn’t exist since somebody would attack a company like Facebook over something they didn’t like posted by one of their billion users.

This law has already been tested a number of times by various lawsuits and the law has always prevailed. For example, AOL was sued a number of times in the early days of the web for carrying defamatory statements or false customer profiles – all posted by its users. There are similar laws in Europe and Australia.

But there is a current lawsuit attacking Section 230 that is getting traction in the courts – and this has web companies worried. The case is Hassel vs. Bird and is being adjudicated in San Francisco. In the case, Ava Bird hired Dawn Hassel as an attorney to support her in a slip-and-fall case. But then Bird basically disappeared and so Hassel dropped the case.

But Bird subsequently sued her lawyer for damages and also posted a defamatory and erroneous review about the lawyer on Yelp. The courts agreed with the lawyer and awarded her damages, and Hassel then asked the court to have the defamatory review removed from Yelp. And that’s where Section 230 came into play.

Yelp was not listed as a party to the case and is refusing to remove the bad review claiming that it would create a bad precedent and is violation of Section 230 rules. They argue that to remove the review would be to admit wrongdoing and would create a liability to Hassel. Yelp appealed the ruling, but the California appeals court sided with the first ruling and ordered Yelp to remove the review.

Yelp’s legal arguments center around the fact that they were not named as a defendant in the original suit. If they had been, they could have been heard in court before being ordered to take down the defamatory posting. They argue that they have been blindsided and never got their day in court.

Yelp is appealing the case to the California Supreme Court and has been supported in amicus briefs by the whole web industry from Google, Facebook, Twitter, Microsoft, and many other smaller web services along with numerous newspapers.

These companies all argue that user-generated content and social media are how Americans communicate today. By definition there are people that don’t like what other people have to say, certainly witnessed during this political season. And without the protection of Section 230, companies that allow user commentary and content would eventually be driven out of business by becoming embroiled in countless lawsuits.

From a practical standpoint you can understand the lawyer’s concern. She successfully won a case against somebody that defamed her, and yet part of that slander is still available to all on the Yelp site. But the flip side of that is that if Yelp agrees to take down the defamatory posting then they are open to suit by Hassel by having admitted some responsibility for the process.

It’s not hard to picture what happens if Yelp loses this case. Web companies will not be able to take a chance on negative information and a site like Yelp would probably delete all negative reviews – which would invalidate what they do for a living. And social media sites like Facebook probably couldn’t function at all, because almost everything posted there – from skinhead websites through pictures of puppies – offends somebody.

I’m sure that the average person doesn’t appreciate the underlying laws and precedents that allow the web to function the way it does today. If even one of these basic linchpins is removed then the whole thing could come tumbling down, or at worst could morph into something we wouldn’t recognize or like. I don’t think any of us want a web where the corporate lawyers at each web company decide what content is or is not safe for them to carry.