Under current legal authority, can the Federal Communications Commission or any federal agency write rules to compel private Internet platforms such as social media companies to allow users to have access to any and all information they seek? Under the First Amendment, the answer is almost certainly not.
But can the FCC alter current legal precedents that effectively shield Internet platforms from most liability for content uploaded by third parties? Under Section 230 of the Communications Act, the answer is almost certainly “Yes.”
Internet platforms are private companies and generally are free to promote content they approve and to block content they don’t. This control of information flows by platforms frustrates some Americans who seek access to information that is either blocked or difficult to find. In their frustration, some Americans seek assistance from the federal government to gain access more easily to lawful information.
But under the First Amendment, our government cannot compel private conduct in matters of speech. Only in an Orwellian dystopia could a government dictate what a private company may say and may not say.
Even constitutionally protected speech is not without legal peril. Threats of private litigation for libel, slander, and countless other torts would give many Internet users and platforms pause before speaking.
To encourage the development of the Internet, Congress passed Section 230 of the Communications Act in 1996 to limit the liability of “interactive computer services”--often considered Internet platforms such as social media sites. Section 230 protects interactive computers services in two ways. The services are not liable for the following: (1) passively publishing content uploaded by third parties (230(c)(1)); and (2) limiting access to material they consider to be “objectionable” (230(c)(2)).
Practically every other section of the Communications Act has specific rules promulgated by the FCC. No rules have been written under Section 230 in the past 28 years, and, in their absence, the courts have interpreted the statutory language directly.
The FCC likely has authority to write regulations under Section 230
A threshold question is whether the FCC even has legal authority to write rules under Section 230. Opponents of such rules say: “No.” In 2020, the general counsel of the FCC explained why the agency has clear authority to write regulations for interactive computer services under Section 230. The reasoning is sound.
Less clear is whether writing rules under Section 230 is a good idea. Rules that compelled speech or prohibited speech by Internet platforms would likely run afoul of the First Amendment. Other possible rules that limited the safe harbor protection of Section 230 would create new risks for interactive computer services. At the very least, social media platforms and other interactive computer services could face substantial new risks of liability.
Opponents of new Section 230 rules would have at least three strong rhetorical arguments. First, the FCC for 28 years under the leadership of Democrats and Republicans has chosen not to write rules under Section 230. Second, the Internet has flourished with American global leadership without Section 230 rules. Third, it may seem optically strange for a Republican FCC to be the first to impose new regulations.
The FCC would have several options to write rules under Section 230
At the core of Section 230 is subsection (c)(1): “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.” Until recent years, most social media sites passively posted third-party content equally available to all users and quite reasonably qualified for the safe harbor. Today, most social media platforms create a highly personalized platform experience with search algorithms to emphasize specific content over other content. The FCC could examine whether these algorithms create content, and in the process lose Section 230(c)(1) protections. It seems difficult to explain how these targeted algorithms are not content creation.
Another path available to the FCC, and one highlighted by designated Chairman Brendan Carr, is to examine and to define the “good faith” standard under Section 230(c)(2) by which interactive computer services limit access to content.
A different path under Section 230(c)(2) would be for the FCC to define a series of adjectives: “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” Most jurisprudence under Section 230 has focused on “objectionable,” but it is unclear whether it can be interpreted in isolation.
Still another approach the FCC could take is to regulate under 230(d) the notification of customers of interactive computer services of “parental control protections” that “are commercially available that may assist the customer in limiting access to material that is harmful to minors.” A casual review of major social media sites finds none provides users with such information about technologies that are “commercially available,” of which there are many.
Other federal agencies such as the Federal Trade Commission could challenge the business practices of interactive computer services. Few users care to read the “Terms of Use” or the “Privacy Policy” of social media sites. Most candidly state that most user information is retained, much is transferred to third parties, and sites use algorithms to target users with individualized content. Despite the troubling warnings, users flock to these platforms.
Balancing the benefits and costs of regulatory remedies
Regulations are costly: to individual users, to the businesses directly regulated, and the American economy as a whole. Practically all of the largest corporations in the world today are American corporations directly or indirectly related to the Internet. Few were around a generation ago; none was around two generations ago. In the span of a generation, America has spawned the most valuable corporations and markets in the world, the most wealth in the world, and America has generously shared the Internet and related technologies with all of the world.
American businesses lag global competitors in most industries. The Internet is one exception, and quite possibly the most important to the American—and to the global—economy.
The benefits of American Internet and wealth creation are shared by rich and poor alike. Little more than a generation ago, according to World Bank data, much of the world’s population lived at a bare subsistence level. Today, fewer than 10 percent of the world’s population is at a subsistence level. The economic transformation of one generation of billions of people to become substantially better off than their parents is almost certainly the greatest advancement in welfare in human history. The Internet and related technologies were a large part of that transformation.
None of this is to say that the federal government should fail to enforce laws or should allow misconduct to flourish. Section 230 is no exception. But new regulations under Section 230 should be clearly targeted to have much greater benefits than costs. In the Internet sector, the cost of getting regulations wrong is enormous. The challenge for the FCC is whether it can write rules with benefits exceeding costs in the Internet sector. That is a tall order.
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