FTC Chair Lina Khan’s open meeting approach is drawing the ire of some Senate Republicans. Judiciary Committee ranking member Chuck Grassley, R-Iowa, told us he stands by his vote for Khan’s confirmation. Last week, Sens. Marsha Blackburn, R-Tenn.; John Cornyn, R-Texas; Thom Tillis, R-N.C.; Cynthia Lummis, R-Wyo.; and Bill Hagerty, R-Tenn., wrote Khan expressing concerns about the “FTC’s level of transparency.” They drew attention to the lack of opportunity for public comment leading to recent party-line votes (see 2107210061 and 2107010081).
Section 230
Latham & Watkins adds videogames, software, telecom and other IP expert Anthony Sammi from Skadden as partner, Litigation & Trial Department and global vice chair, Intellectual Property Litigation Practice ... Alteryx taps David Colberg, ex-Palo Alto Networks, as vice president-global government affairs and public policy ... Hired by SAP: Emily Coyle, ex-Ernst & Young, joins the software maker as senior director-U.S. government affairs and head-U.S. cybersecurity and privacy policy ... Blockchain Association taps CTA's Curtis Kincaid as director-communications.
House Commerce Committee Republicans released Wednesday 32 discussion drafts aimed at holding “Big Tech accountable by improving transparency and content moderation accountability, reforming” Communications Decency Act Section 230, “promoting competition, and preventing illegal and harmful activity.” Committee Republicans want “Big Tech to be transparent, uphold American values for free speech, and stop their abuse of power that is harming our children,” said ranking member Cathy McMorris Rodgers of Washington. The drafts include one from McMorris Rodgers and House Judiciary Committee ranking member Jim Jordan, R-Ohio, to amend Section 230 to “remove liability protections for companies who censor constitutionally protected speech on their platforms, require appeals processes, and transparency for content enforcement decisions.” Jordan in June previewed plans for the legislation in response to House Judiciary advancement of Big Tech competition measures he saw as a bid at pursuing “radical” antitrust policy (see 2106240071). House Communications Subcommittee ranking member Bob Latta, R-Ohio, proposes amending 230 “to remove liability protections from companies that act as Bad Samaritans and knowingly promote, solicit, or facilitate illegal activity.” Former House Commerce Chairman Fred Upton, R-Mich., seeks to remove liability protections for actions the FTC takes against a company. Rep. Dan Crenshaw, R-Texas, proposes barring companies from blocking or preventing access to lawful content, along with degrading or impairing access. Rep. Billy Long, R-Mo., wants to require companies disclose how they develop their content moderation policies. Additional content moderation measures target revenge porn, child porn and doxxing. A bid by Rep. Markwayne Mullin of Oklahoma would require edge providers contribute to USF. Senate Commerce Committee ranking member Roger Wicker of Mississippi and other committee Republicans propose the FCC explore such a requirement (see 2107210067).
The prospect of an FTC privacy rulemaking is facing a partisan divide in the agency and on Capitol Hill. House Commerce Committee ranking member Cathy McMorris Rodgers, R-Wash., and House Consumer Protection Subcommittee ranking member Gus Bilirakis, R-Fla., told us the agency shouldn’t issue a rule because it’s a legislative issue Congress needs to fix.
The federal government can’t force companies to “censor or publish speech to comport with its view of the truth,” American Civil Liberties Union Senior Legislative Counsel Kate Ruane in an emailed statement Tuesday. She made the comment in reaction to the Biden administration’s announcement that it’s reviewing Communications Decency Act Section 230 and social media company accountability for misinformation. The government can’t “be trusted to label ‘truth’ or ‘fiction’ any more than Facebook or Twitter,” said Ruane. “The First Amendment protects people -- and social media companies -- from legal risk for misinformation, but also for information that is thought to be false and later turns out to be true. That’s essential.”
The House Appropriations Committee advanced increased CPB funding Thursday along party lines. The committee was considering legislation early Thursday evening that would boost NTIA, Patent and Trademark Office and other Commerce Department agencies' appropriations. The committee advanced its FY 2022 Department of Homeland Security funding bill earlier this week, which included $2.13 billion for the Cybersecurity and Infrastructure Security Agency (see 2107130056).
President Donald Trump’s lawsuits against Facebook, Google and Twitter (see 2107070065) raise “an interesting argument” about when a private entity becomes a state actor subject to First Amendment restraints, FCC Commissioner Brendan Carr said Thursday. Supreme Court precedent establishes that a private entity effectively becomes a state actor when “sufficiently coordinating with government actors,” Carr said during an FCBA event: “We’ll see how that case plays out.” And there are examples of affirmative, anti-discrimination obligations placed on private entities that involve public accommodation law, said Carr. He described a spectrum of speech obligations for cases involving data roaming and cable’s must-carry provisions. It can be argued that social media companies are in the realm of the cable must-carry cases, he said. It’s time for Congress to close the gap between tech platforms’ corporate power and the lack of accountability, he argued. “Reform” for Communications Decency Act Section 230 is one “important piece,” he said, but it’s not sufficient. Big Tech also needs to provide more transparency, he said, voicing support for the Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard (Pro-Speech) Act (see 2106100070). The bill “pretty much nails it,” Carr said. Congress should also consider methods for banning pretextual content moderation and imposing affirmative, anti-discrimination obligations, he said. Trump’s legal complaints aren’t “frivolous,” said Free State Foundation President Randolph May. He noted Trump’s argument CDA Section 230 immunity “amounts to a delegation of authority by Congress that facilitates the companies’ censorship actions.” If correct, Big Tech companies can’t censor posts, May said, though he’s “not convinced at this point that Section 230’s grant of immunity, standing alone, is sufficient to make the Big Tech social media companies state actors.” It’s possible discovery “could uncover a trove of emails from various congressional officials urging the social media companies to take certain actions which the firms quickly took,” he added.
Trial courts should expedite antitrust cases against Big Tech, there should be direct appeal to the Supreme Court, and state attorneys general should be empowered, House Judiciary Committee Republicans said Tuesday, releasing a Big Tech agenda. Republicans want a Communications Decency Act Section 230 “overhaul” and for antitrust cases to be consolidated under DOJ. They recommended content moderation decisions be listed on a public website.
Former President Donald Trump sued Facebook, Google, Twitter and their CEOs Wednesday, alleging illegal online censorship. Experts dismissed this as a baseless effort without First Amendment grounds.
Florida plans to “immediately appeal” to the 11th U.S. Circuit Court of Appeals Wednesday's decision by the U.S. District Court in Tallahassee to freeze Florida’s law regulating social media, said a spokesperson for Gov. Ron DeSantis (R) Thursday. Hours before the law was to take effect, Judge Robert Hinkle granted NetChoice and the Computer and Communications Industry Association’s motion for preliminary injunction (see our bulletin). Plaintiffs and supporting amici told us they’re confident the 11th Circuit won’t overturn the lower court.