Law professors and advocacy groups consider Friday’s 2-1 5th U.S. Circuit Court of Appeals decision upholding Texas social media law HB 20 in NetChoice v. Ken Paxton an outlier with uncertain effects on social media platforms, but they widely expect the matter to go to the Supreme Court. “This is far from over; there are a lot of hurdles between here and this law taking effect,” said Tech Freedom Internet Policy Counsel Corbin Barthold Monday during a livestreamed panel on the decision. “It is really unclear how platforms could continue to function,” said Blake Reid, director-University of Colorado Samuelson-Glushko Technology Law & Policy Clinic. Plaintiff NetChoice declined to comment on whether it will appeal the case.
Section 230
A potential legislative proposal from Sens. Lindsey Graham, R-S.C., and Elizabeth Warren, D-Mass., that would create a new tech regulator (see 2209120059) is dividing the Senate.
“Holding Big Tech accountable” will be one of House Commerce Committee Republicans’ top priorities if their party wins a majority in the chamber in the November election, ranking member Cathy McMorris Rodgers, R-Wash., said during a Thursday Punchbowl News event. “We need to hold Big Tech accountable” in a bigger way than has happened during this Congress, Rodgers said: She supports “narrowing [Communications Decency Act] Section 230 protections, especially for the larger companies” that have been “bad actors,” so “they can be held accountable” for censorship. Rodgers touted Republicans’ Big Tech Censorship and Data Task Force and language in House Commerce’s stalled (see 2209010066) American Data Privacy and Protection Act (HR-8152) that “would protect” personal information for users under age 17. The GOP also aims to ensure “small companies and innovators can still have access” to a “free internet” so “they can compete,” she said. Rodgers cited TikTok and Snapchat as among the worst actors in the tech space. She cited TikTok’s “impact on kids” and the “amount of data” that app collects that’s “being stored in China or used in China.” She criticized Snapchat over instances in which young people have had access to drugs, often laced with fentanyl, using the app (see 2110260070). Snapchat and TikTok didn’t comment. Rodgers said her shorter-term goals include ensuring language to temporarily extend the FCC’s spectrum auction authority past Sept. 30 makes it into a planned continuing resolution to fund the federal government past that date (see 2209090053). The House already “did our work” by passing the Spectrum Innovation Act (HR-7624), which would renew the FCC’s authority for 18 months (see 2208090001), she said: “It would be unfortunate” if the agency’s existing authority expires and “I don’t believe anyone wants to see that” happen.
Policymakers should remove special legal protections for tech platforms under Communications Decency Act Section 230, increase algorithm transparency and set clear data collection limits, the White House said Thursday, outlining principles for enhancing competition and tech accountability.
Tech and antitrust staffers on the Senate Commerce and Senate Judiciary Committees top the list of potential successors to FTC Commissioner Noah Phillips, former officials and industry representatives told us.
Australia’s High Court correctly acknowledged that facilitating access to online content shouldn't “give rise to liability” for the facilitator, Public Knowledge said Wednesday. The High Court ruled Wednesday in Google v. Defteros that Google isn’t a publisher of sites it links. A “hyperlink is merely a tool which enables a person to navigate to another webpage,” the High Court wrote, overturning a Supreme Court of Victoria ruling saying Google is a publisher for linking news articles. The decision “provides additional strength for promoting a free and open internet where a diversity of views can flourish,” PK Government Affairs Director Greg Guice said. PK noted the concurring opinion raised an “interesting issue” on whether protection should be extended to paid content between Google and third parties. PK has “argued that such business dealings should be outside the scope of Section 230 protections because when the parties promoting content have a financial incentive to amplify the number of people who view said content, these parties should also have an incentive to more carefully examine the content they are promoting,” said Guice.
MindGeek and its adult video hosting site Pornhub materially contributed to the child sexual abuse materials on the site, and that makes it a content creator not entitled to Communications Decency Act Section 230 protections, plaintiffs told the U.S. District Court in Los Angeles Monday. In their opposition (docket 2:21-cv-04920) to MindGeek's motion to dismiss their suit (see 2205240029), the plaintiffs -- all of whom allegedly were juvenile subjects of sex trafficking and abuse videos hosted on the site -- said the MindGeek defendants knowingly benefited from their participation by soliciting, curating, modifying and reuploading illegal content. Counsel for the defendants didn't comment.
Blue state New York could soon join red states Texas and Florida in seeking to regulate social media companies. Despite opposition by tech and civil liberties groups, Gov. Kathy Hochul (D) is expected to sign a measure, passed Thursday by the Senate and Wednesday by the Assembly, to require social platforms to provide reporting mechanisms for hateful conduct. Also, the Assembly was expected to vote later Thursday on a Senate-passed measure that could make New York the first state with a digital right-to-repair law.
The tech industry and state officials were waiting Friday for a potential Supreme Court decision that could prove significant for social media content moderation practices. Various court decisions issued throughout the week raised questions about interpretation of Communications Decency Act Section 230 that some want the Supreme Court to settle.
A 5th U.S. Circuit Court of Appeals ruling last week against the SEC could have implications for FCC enforcement actions and the powers of administrative law judges like the FCC’s ALJ Jane Halprin, but it is too early to be sure how the ruling against the SEC applies to other agencies, said academics and communications attorneys in interviews. Based on that Jarkesy v. SEC decision, U.S. Supreme Court rulings and a pair of cases currently before SCOTUS, the outlook for ALJs at federal agencies -- including the FCC -- “looks a little shaky,” said Jeffrey Lubbers, an administrative law professor at American University. “I’d be surprised if this decision is the final word,” said former FCC General Counsel Tom Johnson, now with Wiley.