FTC Commissioners Are Upset About Section 230; Though It's Not At All Clear Why

from the guys,-really? dept

Another day, another bunch of nonsense about Section 230 of the Communications Decency Act. The Senate Commerce Committee held an FTC oversight hearing yesterday, with all five commissioners attending via video conference (kudos to Commissioner Rebecca Slaughter who attended with her baby strapped to her -- setting a great example for so many working parents who are struggling with working from home while also having to manage childcare duties!). Section 230 came up a few times, though I'm perplexed as to why.

Senator Thune, who sponsored the problematic PACT Act that would remove Section 230 immunity for civil actions brought by the federal government, asked a leading question to FTC Chair, Joe Simons, that was basically "wouldn't the PACT Act be great?" and Simons responded oddly about how 230 was somehow blocking their enforcement actions (which is just not true).

Senator Thune: Chairman Simons, as you know, reforming Section 230 of the Communications Decency Act has been hotly debated here in Congress. Section 230 is the law that prevents social media platforms, like Facebook and Twitter, from being sued for content that users post on their platforms. I've introduced a bi-partisan bill with Senator Schatz on this issue, known as the Platform Accountability and Consumer Transparency Act (the PACT Act), which among other things would stipulate that the immunity provided by Section 230 does not apply to civil enforcement actions brought by the federal government. The DOJ recommended this particular provision in its recently published list of recommendations for reforming Section 230. My question is how would consumer benefit from reforming Section 230 to ensure that the immunity provided by Section 230 does not apply to civil enforcement actions brought by the federal government, such as the FTC.

Simons: Thank you Senator. So we have a number of instances... it's actually fairly common for us to go into court and have a defense put on us relating to Section 230. So, it would be very helpful for us to avoid having to deal with that and allow us the ability to go not only after the platform participants, but, in the right circumstances, the platform itself.

There are so many issues with this. First, he doesn't actually answer the question. Thune asked him how it would benefit consumers, but Simons answered how it would benefit the FTC. While the FTC might like to argue otherwise, those two things are not the same. Second, what a nonsense question and answer. The point of Section 230 is to protect platforms from being held liable for actions of their users -- so why would it make sense for the FTC to ever go after the platform in those cases? Third, it's difficult to think of any case where (contrary to what Simons claims...) Section 230 ever got in the way of an FTC enforcement action. Indeed, back in 2016 we had a story showing the exact opposite. The 2nd Circuit appeals court more or less said that the FTC gets to ignore Section 230. We found that problematic at the time, but Simons (and Thune) seem to think they just need more of that.

Meanwhile, it's not clear there's a real split among Commissioners. Simons, the chair, is a Republican. Commissioner Rohit Chopra was also asked about Section 230 and also gave a bizarre answer. This was in response to some questions asked by Senator Wicker (who went on a bizarrely uninformed anti-Section 230 floor rant earlier this week). He first asked Simons about whether or not the FTC had a role in enforcing Section 230, and also about doing anything in regards to the President's executive order on 230. Unlike FCC chair Ajit Pai, who caved in to the President's unconstitutional order and started an inquiry, Simons at least pointed out that (despite what the executive order says about the FTC) he sees no role for it:

Wicker: Let's talk about the FTC's role in overseeing the enforcement of Section 230 of the Communications Decency Act, and in particular, President Trump's Executive Order in May, on preventing online censorship. Specifically, section four of this order calls on the FTC to take action against online platforms that restrict speech in a manner inconsistent with their terms of service. What is your view, Mr. Chairman, on the FTC's responsibilities under the executive order? And have you seen any examples of the behavior described in the order and taken any action under your authority so far?

Simons: Thank you, Mr. Chairman. We haven't taken any action according to the executive order. We get complaints from a wide variety of sources. From the public, from Congress, from competitors, from people in industry, from consumer watchdogs. And it's very important that we get those complaints and we pay attention to them. Lots of complaints have come from members of this Committee, and we're very thankful to them that you provide us with such thoughtful complaints.

We're an independent agency so we review all of them independently. We have jurisdiction over commercial speech -- particularly on deceptive and unfair and then some other statutes. So we look to see whether the complaints are subject to unfairness... or whether they're within our authority as I described. Our authority focuses on commercial speech, not political content curation.

If we see complaints that are not within our jurisdiction, then we don’t do anything. If we see complaints that are, we take a closer look, and figure out whether there's a violation. And then we determine whether it's appropriate for us to act.

Wicker: So you don't view political speech as within your jurisdiction?

Simons: Correct.

Wicker: So if the public and members of the Senate are concerned about online platforms like Twitter and Facebook being inconsistent in the way they restrict political speech, you do not view that as within the purview of your statutory responsibilities. And therefore, the executive order does not instruct you in that specific area? Is that correct?

Simons: Yes. For political content curation. Yes.

This line of questioning was already silly enough, but at least, unlike Pai, Simons was willing to say "hey, that's outside of our jurisdiction." But Wicker's line of question is silly in its own way. There's no legal requirement that platforms treat different political speech equally. And it would violate the 1st Amendment if the law did.

From there, though Wicker goes on to one of the Democratic Commissioners, Chopra, who also doesn't seem to like 230 either.

Chopra: Putting aside the executive order, the issue of Section 230 is one where... of great concern, and I think there's growing bipartisan consensus that it has been abused. We see, whether it comes to counterfeit and defective goods, and the unlevel playing field between online platforms and brick and mortar stores. And in general, I think the scrutiny is warranted when it comes to technology platforms abusing any liabilities and public privileges, and using that as regulatory arbitrage.

I think many of these platforms do have too much power to dictate certain policies and regulations, and I don't want to see them continue, in my view, to overuse and abuse the legal immunities that Congress has provided, and I think we need to take a hard look at that. Particularly when it comes to the use of surveillance-based behavioral advertising. I think that business model is inconsistent with the origins of Section 230. Section 230 is supposed to safeguard and promote speech. It's not supposed to prioritize certain types of things over others based on what makes those companies more money.

This is also wrong and misguided on many points. First of all, you don't "abuse" an immunity granted by Congress when you use it as intended -- which is to avoid liability for 3rd party content and to make content moderation decisions. Second: regarding counterfeit or defective goods, counterfeit goods are generally a trademark issue which is entirely exempt from Section 230. You'd think that Chopra would know this? Indeed, there was a huge lawsuit regarding eBay and counterfeit goods that I'm sure he does know about -- which shows that the issue is not a Section 230 one.

Also, every major platform already has a massive operation trying to fight counterfeit and defective goods -- totally unrelated to Section 230. They do so because they want their consumers to be happy.

Second, there is no "unlevel playing field." Section 230 protects all websites -- including those of "brick and mortar stores." So it's a weird comparison to make.

Finally, as we were just discussing, it's unclear what behavioral advertising has to do with 230. Section 230 is unrelated to business models -- and having an advertising based business model has not "inconsistent with the origins of Section 230." Section 230 has allowed a wide variety of platforms to exist, many of which is because they have relied on Section 230 protections to enable much broader consumer speech.

Once again, it would be nice if someone in our government actually understood the law before commenting on it. Unfortunately, it appears we're not getting that from the FTC.

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Filed Under: civil enforcement, counterfeits, ftc, intermediary liability, joe simons, john thune, oversight, pact act, roger wicker, rohit chopra, section 230


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  • identicon
    Anonymous Coward, 7 Aug 2020 @ 10:53am

    Why do I get the impression that the politicians are trying to turn social media into a government propaganda platform, whilst using terrorism to stop it being used to organise political protest?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Aug 2020 @ 11:23am

    Rather than "reform" section 230, why not simply dump the Communications Decency Act in the circular file where it belongs?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Aug 2020 @ 11:37am

      Re:

      Why not shut down the Internet by making the platforms liable for user content?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Aug 2020 @ 1:51pm

        Re: Re:

        Please explain.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 7 Aug 2020 @ 1:53pm

          Make Twitter liable for the actions of its users and Twitter will shut down. The same goes for any other interactive web service.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 7 Aug 2020 @ 3:16pm

            Re:

            Has third party liability been tested in court?

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 7 Aug 2020 @ 3:40pm

              Re: Re:

              yes, and that was why 230 was written.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 8 Aug 2020 @ 3:55am

                Re: Re: Re:

                Are you sure the "reformed" section 230 will be better than nothing at all?

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 8 Aug 2020 @ 6:26pm

                  Re: Re: Re: Re:fine details

                  Look I know the first amendment makes you angry and 230 is pretty much the digital first amendment but even if you did get rid of it first court case would just reinstate it becuase despite congress being obvious in the fact that they have gone Saudi Arabian crackdown towards Everyone they don’t like regardless of side it does not work like that.

                  reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Aug 2020 @ 2:01pm

          Re: Re: Re:

          If you make the platforms liable for user content, then you force them to actually become publishers, selecting what they will publish, and that will be very little, as they just can't look at everything people want published.

          reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 7 Aug 2020 @ 2:17pm

            230 does not make the “platform/publisher” distinction. Neither does any 230 case law. You might want to read a certain primer on 230 before making further comments.

            reply to this | link to this | view in chronology ]

            • icon
              That One Guy (profile), 7 Aug 2020 @ 2:28pm

              Re:

              I believe their point was that if you did away with 230 then platforms would face that risk, not that they do currently.

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 7 Aug 2020 @ 2:59pm

              Re:

              My point is that without section 230, and with activist attorney generals and politicians, do nothing is unlikely to be an option. It is easy to send some form of notice, and use that to claim knowledge. Those pushing to destroy section 230, do not want free speech, they want control of speech. Hence remove section 230, and sites have to become publishers, with control over content to have a presence on the Internet.

              reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 7 Aug 2020 @ 11:46am

      Re:

      Absolutely, we can toss it in the bin right alongside the first amendment, that outdated collection of scribbles on piece of paper that has time and time again shielded people from legal penalties for their speech by people abusing it for their own ends. /s

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 7 Aug 2020 @ 11:50am

      The courts already did. 230 is the only surviving part of the CDA, for good reason.

      reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 7 Aug 2020 @ 8:03pm

      Re:

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 7 Aug 2020 @ 11:51am

    And the wait for an honest argument continues...

    Once again, it would be nice if someone in our government actually understood the law before commenting on it. Unfortunately, it appears we're not getting that from the FTC.

    'It is difficult to get a person to understand something when their talking points and argument depends upon their real or feigned ignorance of it.'

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Aug 2020 @ 11:54am

    Section 230 is a really short read. I wonder how any of these people got out of primary school.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 7 Aug 2020 @ 12:02pm

      Re:

      Just because you can read something doesn't mean you will, or will be honest about what you read afterwards, especially if doing so undermines the talking points you're using to con gullible fools.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 8 Aug 2020 @ 1:56am

      Re:

      The first and second amendments are also very short, but they've been debated for many years without anyone completely agreeing on how they actually apply.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Aug 2020 @ 1:15pm

    Some stupid politicians like to criticise section 230 as if it's just there to protect Facebook or Google or twiitter, it's protects millions of small websites,
    Liberal, Conservative and any site that has users comments or forums . Every newspaper is now on the Web.
    It's hard to take anyone seriously that cannot read section 230, a website is not responsible for its users
    comments or opinions.
    It's very simple.
    No more than Comcast is responsible for an email or txt its customers send to anyone.
    Losing section 230 would be a massive blow against
    ordinary people who use the Web to communicate
    and debate or even expose bad actors eg see metoo
    movement

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 7 Aug 2020 @ 2:00pm

    Isnt it possible...

    That laws are created MORE, by the people who have to abide by them? and part of the reason we tend not to shoot each other, often enough??

    Lets look at this Side ways..
    IF we held our congress liable for WHAT THEY SAY, and do..How many wouldnt have a job?
    If everything they DID, was above board, and NOT hidden in offshore banks..(as it shouldnt be) couldnt we sue them to BE RESPONSIBLE TO THE PUBLIC??
    So much of this has been under the table, and now with the internet, its totally interactive, that everything is Out in the open. That WE should be able to demand of them to be Truthful, and more honest.

    But that cant happen. As we would have to petition and send it to THEM' and they would just throw it inthe can.
    There is even a site for that. And there have been a few of those,that fell FLAT because of the Amount of petitions and Sorting it to find what you needed, was just Overwhelming. So most added THEIR OWN, idea of the petitions, and it added to the mess.

    So, HOW do we control our gov. anymore? Or have we been able to, in the last 50+ years?
    We could create a huge one ont he net, even pass it around to other sites, but they would complain that it was fake, and how to decide if it was LEGAL, and not Forged.(same thing Inside the congress)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Aug 2020 @ 3:29pm

      Re: Isnt it possible...

      The good news in all of this is progress on the SLAPP laws.

      You might think of SLAPP as codifying the same rights as CD230 does, except that it applies to everyone involved--with the added benefit that people who indulge in frivolous and malicious lawsuits against free speech, have to pay the legal fees of their opponents.

      Perhaps CD230 could be improved by adding that clause also?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Aug 2020 @ 4:05am

    So, does this mean that if 230 is abolished somehow, that we in non American countries can then sue or take action against websites like Breitbart etc. that host criminal (in the EU) hate speech?

    reply to this | link to this | view in chronology ]


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