The Senate Commerce Committee’s divide over FCC approval of Ligado’s L-band plan was again on display Wednesday during a commission oversight hearing, as expected (see 2006230059). The issue also came up during a committee confirmation hearing for Commissioner Mike O'Rielly (see 2006160062). There was an even clearer partisan divide among committee members about President Donald Trump’s May executive order directing NTIA to petition the FCC for regulations defining the scope of Communications Decency Act Section 230 (see 2005280060). Senate Commerce also drilled into broadband funding proposals amid the ongoing push to include money in future COVID-19 aid legislation.
Section 230
Senate Majority Whip John Thune, R-S.D., and Sen. Brian Schatz, D-Hawaii, introduced legislation Wednesday that would alter Section 230 and repeal tech industry immunity from civil action brought by federal agencies, as expected (2006160059). The Platform Accountability and Consumer Transparency Act would exempt enforcement of federal civil laws from Section 230 of the Communications Decency Act, so “online platforms cannot use it as a defense when federal regulators,” like the FTC and DOJ, “pursue civil actions for online activity.” The bill would amend Section 230 and require “large online platforms to remove court-determined illegal content and activity within 24 hours.” Thune and Schatz touted the bill’s attempt to increase transparency about content moderation. The bill would require “large online platforms to provide process protections to consumers by having a defined complaint system that processes reports and notifies users of moderation decisions within 14 days, and allows consumers to appeal.”
The Senate Judiciary Committee is scheduled to mark up the Eliminating Abusive and Rampant Neglect of Interactive Technologies (Earn It) Act Thursday (see 2006190055), the panel announced Monday. Based on customary committee practice, agenda items are generally held over a week, according to a committee spokesperson. S-3398 would alter Section 230 of the Communications Decency Act, exposing online platforms to civil liability for violating child sexual abuse material-related laws.
President Donald Trump appears slightly likelier to choose Brendan Carr over GOP Commissioner Mike O’Rielly as FCC chairman if he wins re-election and current commission head Ajit Pai steps aside, communications sector officials and lobbyists said in interviews. Carr’s edge is narrow enough that few people we spoke with discounted the prospect of O’Rielly prevailing or the possibility Trump could choose a non-FCC Republican.
DOJ should scrutinize how Google’s ad platform dominance allows the platform to stifle conservative news organizations, Sen. Marsha Blackburn, R-Tenn., wrote Attorney General William Barr Monday. Blackburn asked DOJ to scrutinize Google’s “control over vast sectors of the Internet economy, from online advertising to online search.” She threatened big tech companies’ liability protection under Section 230 of the Communications Decency Act: “Congress will act soon, and tech giants are on notice that they can no longer hide behind such immunities to silence speech or avoid antitrust enforcement.” DOJ and Google didn’t comment.
Expect “significant” proposed changes when the Senate Judiciary Committee marks up the Earn It Act, Sen. Richard Blumenthal told us Thursday (see 2006170063). “I’m ready for a markup, which will include some changes, some of them significant, to clarify the provisions in light of the feedback."
It appears there are enough votes for the Senate Judiciary Committee to advance bipartisan, Section 230 legislation for combating child exploitation, Chairman Lindsey Graham, R-S.C., told us Wednesday (see 2003110070). If Earn It Act (see 2003050066) co-sponsor Sen. Richard Blumenthal, D-Conn., is in favor, Graham will move to a vote: “I think we’ve got the votes, and I’m going to sit down with Sen. Blumenthal right after we do the policing [legislation] stuff, and if he’s ready to go, I’m ready to go.”
Facebook’s handling of President Donald Trump’s recent post about looting (see 2006100027) is dividing the Senate along party lines, leading Republicans to examine amendments to Section 230, as expected (see 2005290058). Sens. Ted Cruz, R-Texas; Marsha Blackburn, R-Tenn.; and Josh Hawley, R-Mo., said in interviews they are exploring proposals for altering the tech industry’s liability shield.
The Supreme Court should review Enigma Software v. Malwarebytes because the tech industry’s content liability protections are critical, the Internet Association said Monday (see 2006120030). Section 230 of the Communications Decency Act “ensures all online platforms can create and enforce codes of conduct and protect their users without fear of liability,” IA interim CEO Jon Berroya said. “It’s a critical time for the Supreme Court to protect online platforms’ ability to give users the tools to control their own online experiences.” IA filed its brief Friday, joining TechFreedom, the Electronic Frontier Foundation, a group of cybersecurity experts and ESET in support of Malwarebytes, which is claiming Section 230 immunity in the case.
The FCC should seek public comment on any NTIA petition about Communications Decency Act Section 230 (see 2006040056), said Commissioner Mike O'Rielly. "From there, we can see if there’s something that we should do or should not do" about President Donald Trump’s executive order on 230 and how it applies to social media platforms, said O'Rielly. Also last week, Commissioner Geoffrey Starks asked where's the petition.