Taking too long? Close loading screen.
Connect with us

World

What the FCC can and can’t do to Section 230

Published

on

Open Sourced logo

The Trump administration is once again trying to force social media platforms to do its bidding. This time, the Federal Communications Commission (FCC) has been tapped to use a law called Section 230 to prevent websites from moderating content in a way that many conservatives believe is biased against them. Despite the law being designed to prevent FCC intervention — and the FCC itself using that as justification not to regulate the internet just a few years ago — it appears the agency is going to try.

This comes after Trump and many conservatives have called for Twitter and Facebook to be punished after the platforms suppressed links to the New York Post’s questionably sourced story about Hunter Biden. This prompted another all-caps demand from Trump to repeal Section 230 and the Republican-led Senate to prepare to subpoena Twitter CEO Jack Dorsey, accusing the company of election interference.

The very next day, FCC Chairman Ajit Pai announced that his agency would “move forward with a rulemaking to clarify” the meaning of Section 230, which gives internet platforms like Facebook and Twitter immunity from lawsuits over content their users provide. That is to say, if someone defames you in a tweet, you can sue the Twitter user but not Twitter itself. This 25-year-old law is what allows websites that rely on third-party content to exist at all. It also allows those sites to moderate that content as they see fit, which has been a source of ire for conservatives who believe they are being censored when Facebook bans them, YouTube demonetizes them, or Twitter appends fact-checks to their tweets.

Trump has been particularly upset about this in recent months, as platforms have cracked down on the misinformation he spreads. In May, he went so far as to issue an executive order calling for the FCC to come up with rules that would prevent websites from moderating content based on a perceived anti-conservative bias, which is the basis for the FCC’s actions now.

The FCC isn’t the thought police

But legal experts — former FCC commissioners and staff among them — don’t think the FCC is allowed to regulate the internet in this way.

“I don’t think the FCC has the authority to be thought police over platforms,” former FCC Chairman Tom Wheeler, Pai’s predecessor and no fan of Section 230 himself, told Recode.

Wheeler added: “The Trump administration practices government by performance. They come out and they beat their chests and they say we’re gonna do this on 230, and we’re gonna do that on the digital divide. But it’s chest-pounding, not policy. There’s a difference between showbiz and substance.”

Pai said in his statement that the FCC’s general counsel, Thomas M. Johnson Jr., told him that the FCC has the legal authority to interpret Section 230 but didn’t elaborate on how. Johnson did not respond to a request for comment from Recode on how he reached that conclusion. When asked the same question, FCC spokesperson Brian Hart told Recode, “We don’t have anything to add at this point.”

It’s likely the FCC will use the justification presented by the National Telecommunications and Information Administration (NTIA) in its petition to the FCC. The NTIA cited Section 201(b) of the Communications Decency Act, of which Section 230 is part, which says that the FCC may “prescribe such rules and regulations as may be necessary in the public interest to carry out this chapter.” But, as experts have pointed out, Section 201(b), as written, applies only to common carriers — that is, entities that provide “telecommunications services,” like phone companies — and not internet service providers (ISPs) like Verizon or Comcast.

“201(b) is inside Title II of the Communications Act, and Pai has gone out of his way to say that ISPs are not subject to Title II,” Wheeler said. “If the ISPs are not subject to Title II, how in the world can you make the stretch that those that transmit over the ISPs are subject to Title II?”

Harold Feld, senior vice president at open internet advocacy group Public Knowledge, said in 2019 — when an executive order commanding the FCC to regulate Section 230 was just a rumor — that this was both a “bad idea” and that he couldn’t see any way that the FCC had the authority to do it.

“The FCC cannot rewrite acts of Congress to suit its whims,” Kate Ruane, senior legislative counsel at the American Civil Liberties Union, said in a statement. “Section 230 is critical to protecting free speech online and the FCC has no authority to change it, especially not in ways that will undermine free expression.”

Section 230 was designed to prevent FCC interference

“There’s nothing in Section 230 of the Communications Decency Act that gives the FCC authority either to interpret it or, even more importantly, set rules,” said Gigi Sohn, a distinguished fellow at the Georgetown Institute for Technology & Law Policy who was counselor to Wheeler from 2013 to 2016. “In fact, the legislative history is completely to the contrary.”

The law’s bipartisan co-authors, Sen. Ron Wyden and former Rep. Chris Cox, have said they intentionally wrote the law to prevent the FCC from having this authority in the first place.

Back in 1995, when the Communications Decency Act was being considered, there was some debate over what the FCC’s role in regulating the internet should be. Wyden and Cox thought FCC oversight would be a barrier to internet innovation and development.

As Cox said in the House at the time, Section 230 “will establish as the policy of the United States that we do not wish to have content regulation by the federal government of what is on the internet — that we do not wish to have a ‘Federal Computer Commission’ with an army of bureaucrats regulating the internet.”

He continued: “If we regulate the internet at the FCC, that will freeze or at least slow down technology. It will threaten the future of the internet.”

That’s a vision that Pai himself agreed with back in 2017 when the FCC, under his chairmanship, repealed net neutrality, citing Section 230 as justification for taking a “light-touch approach” to “burdensome regulation that stifles innovation and deters investment.”

Because of this, Sohn said, the FCC would essentially have to reverse its own decision — one that has become emblematic of the FCC’s anti-regulatory approach under Pai and the Trump administration — in order to make the case that it has any authority over Section 230 at all.

What happens next

If the FCC does decide to try to make rules for Section 230, it will need the majority of the five-person commission to agree on them. Pai is clearly in favor, and fellow commissioner Brendan Carr is, too. Democratic commissioners Geoffrey Starks and Jessica Rosenworcel are not. That leaves the fifth commissioner as the deciding vote. Right now, that’s Republican Michael O’Rielly, who has signaled that he is not in favor of regulating Section 230 in this way. But it could soon be Nathan Simington, who Trump nominated last month to replace O’Rielly. And Simington appears to be in favor of regulating Section 230 through the FCC, which is likely part of why Trump nominated him in the first place.

After that, it will probably take several weeks or months to issue those rules. It’s already taken nearly five months between Trump’s executive order calling for its action for the FCC to get to this point. Depending on how the election goes, Trump may no longer be in office and the Democrats could control both branches of the legislature, in which case executive orders and FCC interpretations under the Trump administration will almost certainly come to an end.

But let’s say that Trump does win the election — what then? There’s still no guarantee that what Trump wants to happen will happen, or that it would happen anytime soon. Congress can overturn FCC rules, and it likely would if it has a Democratic majority in both houses. While Democrats have their own problems with Section 230, those have mostly focused on eliminating immunity protections for websites that feature child sex trafficking and child sexual abuse images. Changing Section 230’s content moderation policies has become a partisan issue — Republicans are the ones writing bill after bill opposing Section 230 and decrying perceived censorship on social media platforms — and that makes it much less likely that Democrats will pick up the Republicans’ cause.

If Congress doesn’t reject the FCC’s rules, then it’ll be up to the courts, which has become the norm for an administration that refuses to accede to laws until it absolutely has to. A number of organizations already have sued the Trump administration over the executive order, citing First Amendment and regulatory policy violations. And that litigation will likely come with injunctions that prevent any regulations from taking effect until the courts can rule on them.

“This is going to be tied up in litigation forever and a day,” Sohn said.

Courts have typically ruled in Section 230’s favor, but there’s at least one judge who seems to feel differently: Supreme Court Justice Clarence Thomas recently said that he thinks courts have gotten Section 230 wrong, and the protection from lawsuits its provides has been granted too liberally. But he said this in the court’s denial to hear a case about Section 230, which indicates that the majority of justices aren’t interested in reconsidering Section 230 right now.

So how likely is it that the FCC will be the one to make Trump’s dreams of an internet that doesn’t put fact-checks on his tweets come true? Not very, and certainly not anytime soon. But the administration has already gotten its way just by threatening to do so: Twitter changed its rules a few hours after Pai issued his statement. The next day, it allowed the Post story on the platform.

Open Sourced is made possible by Omidyar Network. All Open Sourced content is editorially independent and produced by our journalists.


Help keep Vox free for all

Millions turn to Vox each month to understand what’s happening in the news, from the coronavirus crisis to a racial reckoning to what is, quite possibly, the most consequential presidential election of our lifetimes. Our mission has never been more vital than it is in this moment: to empower you through understanding. But our distinctive brand of explanatory journalism takes resources. Even when the economy and the news advertising market recovers, your support will be a critical part of sustaining our resource-intensive work. If you have already contributed, thank you. If you haven’t, please consider helping everyone make sense of an increasingly chaotic world: Contribute today from as little as $3.

Source

Continue Reading
Advertisement
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

World

The US broke its record for the highest number of new coronavirus cases in a day

Published

on

The United States broke its record for the highest number of confirmed coronavirus cases reported in a single day on Friday, an alarming sign that what some epidemiologists are calling a “third wave” of infections is spreading at breakneck speed as winter approaches.

According to the New York Times, by the end of the day on Friday, at least 85,085 cases were reported across the country — about 10,000 cases more than the previous same-day high on July 16.

Public health experts have long warned that uneven compliance with social distancing guidelines, inadequate contact tracing programs, and premature reopenings of indoor venues were creating conditions for a resurgence of virus transmission after its summer peak, and that is what appears to be happening now.

A bar graph showing the US case totals for each day, going back to March 3. A red trend line goes across the top of the bars, peaking first in early April at around 35,000 cases, falling to just over 20,000 in early June, spiking to around 70,000 in July, falling to around 40,000 in September, and rising again to about 60,000 in October. The Covid Tracking Project

The new case numbers also show that the geographic spread is wider than during past spikes. According to an internal report produced on Thursday for officials at the Department of Health and Human Services, and obtained by the Washington Post, more than 170 counties across 36 states have been designated rapidly rising hot spots. And 24 states have broken single-day records of new cases in the past two weeks, the Post reports.

Also concerning is that in the past month there has been a 40 percent rise in the number of people hospitalized for Covid-19 infections. Deaths have not surged so far, but epidemiologists have pointed out that there can be a significant time lag between a surge in cases and deaths tied to that surge.

“Today’s cases represent infections that probably happened a week or two ago,” Boston University epidemiologist Eleanor Murray told Vox’s Dylan Scott in July. “Today’s deaths represent cases that were diagnosed possibly up to a month ago, so infections that were up to six weeks ago or more.”

Saturday, President Donald Trump downplayed the record number of new reported cases on Twitter, and incorrectly claimed that cases were up only because testing ability is up.

But public health experts have pointed to state-level policies on distancing and contact tracing as a key driver of the current uptick. Moreover, the high rates at which coronavirus tests are coming back positive in many states — a key data point for estimating the true spread of the virus — and the surge in hospitalizations are signs that the new wave is not just a result of testing capacity. As Vox’s German Lopez has explained, a high positivity rate actually suggests that not enough tests are being done to track and contain spread in a given area.

Murray, the epidemiologist at Boston University, told the Washington Post that the wide geographic range of the new wave will make it difficult to move health care workers to hot spots. Previous spikes were concentrated in certain communities, allowing medical professionals from less affected areas to be moved to deal with outbreaks. But the breadth of the current outbreak could tax US health care capacity in a manner that has not been seen before.

And Murray also pointed out that this wave is more dangerous that the two that preceded it, because it started from a higher point of infections.

“We are starting this wave much higher than either of the previous waves,” she told the Post. “And it will simply keep going up until people and officials decide to do something about it.”

Experts have warned about a third wave for a while

Medical professionals, epidemiologists and many public health officials have long pointed out the risk of a third wave.

As Vox’s German Lopez wrote in early October, experts warned that a third wave looked likely in light of the fact that the virus was never really suppressed nationally, and that premature reopening, encouraged most aggressively by Trump and Republican governors, would simply accelerate its spread:

Consider Florida. Last month, the state reopened bars and, more recently, restaurants, despite the high risk of these indoor spaces. After Florida previously opened bars, in June, experts said the establishments were largely to blame for the state’s massive Covid-19 outbreak in the summer. As Florida reopens now, it has roughly two to three times the number of Covid-19 cases that it had in early June, and its high test positivity rate suggests it’s still likely missing a lot of cases. The state is fanning its flames while its most recent fire is nowhere near extinguished.

This is, in effect, what much of the country is doing now as it rushes to reopens schools, particularly colleges and universities, and risky indoor spaces. Coupled with recent Labor Day celebrations, experts worry that’s already leading to a new increase in Covid-19 cases.

Experts have pointed out that Trump’s persistent agenda to downplay the dangers of the virus — and his suggestions that the news of a third wave is a media conspiracy designed to throw the election in Democrats’ favor — could intensify the problem as the virus is made into an increasingly partisan issue. The president has repeatedly failed to take responsibility for the troubled US pandemic response, including at the second presidential debate. He has instead blamed China and Democrats for the country’s problems, while leaving it to individual states to create plans to lower the rate of infection.

Some states have had more success in reducing infection than others, but none have managed to eliminate spread altogether. And more worrying still is that cold weather and flu season have yet to fully settle in many states as winter approaches.

The good news is that we know how to counteract further spread.

“None of the ideas to prevent all of this are shocking or new,” Lopez recently wrote. “They’re all things people have heard before: More testing and contact tracing to isolate people who are infected, get their close contacts to quarantine, and deploy broader restrictions as necessary. More masking, including mandates in the 17 states that don’t have one. More careful, phased reopenings. More social distancing.”


Help keep Vox free for all

Millions turn to Vox each month to understand what’s happening in the news, from the coronavirus crisis to a racial reckoning to what is, quite possibly, the most consequential presidential election of our lifetimes. Our mission has never been more vital than it is in this moment: to empower you through understanding. But our distinctive brand of explanatory journalism takes resources. Even when the economy and the news advertising market recovers, your support will be a critical part of sustaining our resource-intensive work. If you have already contributed, thank you. If you haven’t, please consider helping everyone make sense of an increasingly chaotic world: Contribute today from as little as $3.

Source

Continue Reading

World

Melania Trump to vote on Election Day, first lady’s spokeswoman says

Published

on

President Donald Trump speaks during a campaign rally at Pickaway Agricultural and Event Center on October 24 in Circleville, Ohio.
President Donald Trump speaks during a campaign rally at Pickaway Agricultural and Event Center on October 24 in Circleville, Ohio. Evan Vucci/AP

Shortly after Ohio State defeated Nebraska on the opening weekend of Big Ten college football, President Donald Trump took credit for the return of the conference’s season. 

“And it’s great to be back in Ohio to celebrate the return of Big Ten football with a big victory today for the Buckeyes,” Trump told the crowd Saturday at a rally in Circleville, Ohio, just outside of Columbus. 

“So then I had an idea, I said I’m gonna get it open if it’s shutdown, that’s what happened,” Trump said. “And I worked hard to bring back Big Ten and I got together with your commissioner, he did a good job, and we got it back, and today you won your football game and you were very happy about it.”

Trump repeatedly pressured the conference to play football this fall, which it ultimately decided to do. However, it’s unclear how much influence the President’s pressure had on that decision despite him taking credit for it. 

CNN’s Harry Enten wrote earlier that Trump obviously saw a political opportunity with concern to the Big Ten. There’s a reason he focused most of his attention on the Big Ten suspending play, as opposed to the many other conferences that did. Most of those other conferences aren’t based in swing states.

And Trump wasn’t alone. Biden also made ads showing empty college football stadiums due to the coronavirus with the blame landing at Trump’s feet.

Source

Continue Reading

World

Poland had some of the strictest abortion laws in Europe. They just got even stricter.

Published

on

Poland’s highest court on Thursday banned abortions due to fetal defects, a ruling that further narrows reproductive rights in a country with some of the most conservative abortion laws in Europe.

On Friday, protestors took to the streets and clashed with police in several major cities across Poland to demonstrate against what reproductive rights advocates say is effectively a near-total ban on abortions.

The Polish constitutional tribunal found that abortions in cases where “prenatal tests or other medical indications indicate a high probability of severe and irreversible fetal impairment or an incurable life-threatening disease” violate the right to life.

The only remaining reasons someone can get a legal abortion in Poland now are in the case of rape, incest, or when the mother’s life is in danger. According to CNN, around 98 percent of legal abortions in Poland are conducted due to fetal defects.

Dunja Mijatović, the human rights commissioner for the Council of Europe, condemned the ruling and deemed it a “sad day for women’s rights.”

“Removing the basis for almost all legal abortions in Poland amounts to a ban and violates human rights,” she tweeted. “Today’s ruling of the Constitutional Court means underground/abroad abortions for those who can afford and even greater ordeal for all others.”

The decision prompted fierce protests in many cities. In the capital of Warsaw, protesters gathered outside the house of Jarosław Kaczyński, the leader of Poland’s right-wing ruling party, holding signs that read, “You have blood on your hands.” After protesters clashed with riot police, a Warsaw police spokesperson said on Friday that 15 people had been arrested and the police had filed 89 motions in court.

More protests are expected throughout the weekend. “In a few days, hell for women will begin in this country,” reads the Facebook event description for a protest planned this weekend in the city of Gdańsk, according to the Guardian.

Further restricting abortion isn’t likely to be a popular move

Over 100 conservative and nationalist lawmakers asked the constitutional tribunal last year to consider the legality of abortion in the case of fetal defects, something they’ve framed as “eugenic” abortion.

Critics say that the governing Law and Justice (PiS) party has undermined judicial independence and packed the constitutional tribunal with partisans who will rule in favor of its political programs.

Political analysts say that the timing of the decision might reflect that tribunal’s desire to help buttress the PiS party’s political interests, particularly at a time when its governing coalition with a smaller, hard-right party is in a state of crisis.

“It’s PiS trying to score points with the far right,” Marta Lempart, an activist with Polish Women’s Strike, a grassroots movement focused on abortion rights, told Politico Europe.

The court’s ruling does not appear to be in sync with public opinion. “Although Poland is one of Europe’s most staunchly Roman Catholic countries, opinion polls suggest there is a clear majority against making the abortion law stricter,” BBC reported.

Former Polish Prime Minister Donald Tusk tweeted: “Throwing the topic of abortion and a ruling by a pseudo-court into the middle of a raging pandemic is more than cynical.”

Women’s rights organizations in Poland say that the actual number of abortions performed every year is far larger than the official numbers show — many are conducted illegally within Poland or legally in neighboring countries.

While the official number of abortions last year was 1,100, Lempart estimated that Poles conducted 100,000 to 150,000 abortions, either illegally within the country or across the border in neighboring countries with less stringent regulations on abortion.

The new ruling could push illicit abortions even further underground by making it an even rarer and more strictly regulated act — and that in turn could potentially make them more expensive.

“Safe abortion will effectively be accessible only to women who can afford it,” Lempart told Politico Europe. “Others will look for cheaper and therefore more dangerous options.”


Help keep Vox free for all

Millions turn to Vox each month to understand what’s happening in the news, from the coronavirus crisis to a racial reckoning to what is, quite possibly, the most consequential presidential election of our lifetimes. Our mission has never been more vital than it is in this moment: to empower you through understanding. But our distinctive brand of explanatory journalism takes resources. Even when the economy and the news advertising market recovers, your support will be a critical part of sustaining our resource-intensive work. If you have already contributed, thank you. If you haven’t, please consider helping everyone make sense of an increasingly chaotic world: Contribute today from as little as $3.

Source

Continue Reading

Trending