The Copia Institute's Comment To The FCC Regarding The Ridiculous NTIA Petition To Reinterpret Section 230

from the what-utter-crap dept

In his post Mike called the NTIA petition for the FCC to change the enforceable language of Section 230 laughable. Earlier I called it execrable. There is absolutely nothing redeeming about it, or Trump's Executive Order that precipitated it, and it has turned into an enormous waste of time for everyone who cares about preserving speech on the Internet because it meant we all had to file comments to create the public record that might stop this trainwreck from causing even more damage.

Mike's post discusses his comment. He wrote it from the standpoint of a small businessman and owner of a media website that depends on Section 230 to enable its comment section, as well as help spread its posts around the Internet and took on the myth that content moderation is something that should inspire a regulatory reaction.

I also filed one, on behalf of the Copia Institute, consistent with the other advocacy we've done, including on Section 230. It was a challenge to draft; the NTIA petition is 57 pages of ignorance about the purpose and operation of the statute. There was so much to take issue with it was hard to pick what to focus on. But among the many misstatements the most egregious was its declaration on page 14 that:

"[L]iability shields can deter entrance."

There is so much wrong with this statement. It's the flat earth equivalent of Internet policy, so utterly untethered from reality it's hard to know where to begin. So we made several points in response:

The first is that this whole regulatory exercise is likely unconstitutional. (See this recent post for the basic argument on that front.)

Secondly, we know that liability shields not only don't deter new platforms; they are necessary to get new platforms. Without protection platforms face ruinous legal costs practically from the get-go, and will struggle to even get capitalized in the first place, as what investor wants their cash just to go to legal fees? Even if a platform might ultimately not be found liable for their users' content, simply being on the receiving end of a lawsuit, or even just a demand letter, can be extremely costly. With lots of users, the potential risk exposure is staggering.

And we have seen what can happen to platforms when they get sued over user content in a notable area where Section 230 does not apply: copyright. As we pointed out in this comment, Veoh Networks was ultimately found not to be liable for copyright infringement. But by that point the company had already been bankrupted. If the NTIA is serious about wanting to stimulate competition and ensure Internet users have lots of choices of platforms to use, it should be plugging the still-few holes there already are in Section 230's protection, not deliberately trying to add more.

In addition, we discussed how much of the platform behavior NTIA takes issue with is actually First Amendment-protected editorial discretion. As a threshold matter, we pointed out that in trying to take jurisdiction over what Section 230 says and how courts may interpret it, it would mean that the FCC would end up asserting jurisdiction over non-social media platforms too. If Section 230 changes for any platforms, ultimately it will change for them all, including media sites like Techdirt, newspapers, and even individuals' Facebook posts that depend on this statute – even though these are the types of expressive outlets that have never been subject to FCC regulation. The claim for FCC jurisdiction over social media platforms is already extremely flimsy. But giving it power over these other sorts of platforms is constitutionally and statutorily insupportable.

In any case, the NTIA provided no coherent or Constitutional basis why any platforms should lose their First Amendment-protected editorial discretion. We've discussed this before: if individuals should be able to decide which comments to maintain on their Facebook posts (and, as anyone who posts on Facebook can easily understand, they should), there needs to be a principled reason why individuals grouped together in large enough corporate form should lose that right.

Perhaps there is some distinction that can be found in antitrust law, but the NTIA didn't provide it. It just scapegoated certain commercial platforms that are large and popular. But being large and popular is no basis to lose a Constitutional right. Moreover, the "irony" is that taking away the statutory protection platforms depend on will only take it away from the potential competitors we should hope they have.

In short, the NTIA petition to the FCC is terrible and the FCC should reject it, and we did not hesitate to say so.

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Filed Under: content moderation, fcc, free speech, ntia, section 230