Biden Revokes Trump's Silly Executive Order On Section 230; But It Already Did Its Damage

from the too-late dept

It's better than nothing -- especially given that Biden has been so vocal against Section 230 -- but last week, Biden rescinded Trump's ridiculous executive order about Section 230. As you may recall, almost exactly a year ago, Trump issued an absolutely insane executive order demanding the FCC reinterpret Section 230. As we noted at the time, this made no sense, as 230 was written with the explicit admonition that the point was to keep the FCC out of the business of regulating the internet.

At any point in the process, those involved in the federal government could have stood up to Trump and said that everything about the executive order was a joke and ridiculous. But, nope, that's not how things work apparently. NTIA, which was in the process of being handed over to a lawyer whose mission in life seems to be to lie about and destroy Section 230 (partly to favor his white nationalist clients), followed through on Trump's demands, and petitioned the FCC to reinterpret Section 230.

Then, Ajit Pai had every opportunity to do the right thing and say that this was way outside of the FCC's jurisdiction -- as he had years earlier before Trump even knew what Section 230 was. Instead, he let the charade play on, wasted everyone's time and energy in needing to explain to Pai why the FCC had no authority... and then ignored all of the legal precedent and every ounce of whatever principles he supposedly had, and agreed to do a rulemaking on 230. Of course, what might have suddenly drained Pai of any basic decency was the fact that when his colleague Michael O'Rielly actually spoke the truth, Trump fired him. O'Rielly came out of this nonsense with principles, while Pai came out of it looking like a Trump lapdog with no principles whatsoever.

Pai only finally ditched the idea right after January 6th when everyone was focused on the insurrection on Capitol Hill, and he realized that he could dispose of the news while Trump's attention was elsewhere.

Still, the whole thing was a huge waste of time, and has completely polluted the dialogue about Section 230 with utter nonsense. It's good that Biden rescinded the order, though it was way too late. Meanwhile, the author of the original executive order, Nathan Simington... got O'Rielly's vacant seat on the FCC, guaranteeing that the two Republicans on the Committee are now anti-1st Amendment, anti-Section 230.

Trump didn't end up getting the FCC to issue a reinterpretation of Section 230, but he still did a ton of damage to the dialogue around Section 230, with tremendous help from Adam Candeub, Nathan Simington, and Ajit Pai.

Filed Under: adam candeub, ajit pai, donald trump, fcc, joe biden, nathan simington, nist, section 230

Americans For Prosperity Sue Commerce Department To Find Out Who Was Influencing NTIA's Attack On Section 230

from the interesting-list dept

This is kind of fascinating. The group Americans for Prosperity have announced they've filed FOIA litigation against the Commerce Department after it has refused to respond to a FOIA request seeking communications between two former top NTIA officials that we've discussed here recently, regarding Section 230.

As background, you'll recall that after Twitter added two fact checks on Donald Trump's misleading tweets about mail-in ballots, Trump issued a bizarre executive order, demanding that (among other things) NTIA ask the FCC to reinterpret Section 230. Trump needed to order NTIA to do this because the FCC is supposed to be an independent agency and the President isn't supposed to order it to do anything. Indeed, as you'll recall, when Barrack Obama merely made a public statement about net neutrality, without directing the FCC to do anything, basically every Republican, including Donald Trump, whined that he was illegally trying to "bully' the FCC to do his bidding.

It quickly came out that two NTIA staffers were responsible for crafting the Executive Order: Adam Candeub, a long term critic of Section 230 who had just been hired to NTIA, and Nathan Simington. Candeub was later promoted to run NTIA and just this week was given a top job in the Justice Department. Simington, despite little qualifying experience, has been made an FCC Commissioner.

This was despite a separate FOIA request that revealed that Candeub and Simington, together, had emailed with a Fox News producer, asking to get Fox News host Laura Ingraham to attack Section 230 to help move the NTIA petition forward, and noting that it was important to do so to help re-elect Trump and help with down-ballot Republicans. This, of course, should be disqualifying for either of them to hold government jobs. When you get a job in the government you represent everyone and not just your own political party. You are not supposed to be using your government job to bully the media to do things for purely political reasons.

Given that, there should be tremendous interest in just who Candeub and Simington were talking to about Section 230. And Americans for Prosperity sent a FOIA request seeking exactly that information, asking for any emails between the two of them about Section 230 with a short list of known anti-Section 230 folks, including former Fox lobbyist (and the person responsible for getting FOSTA passed), Rick Lane, anti-230 FCC Commissioner Brendan Carr, AT&T (a company protected by 230, but which has decided to attack the law because it hates Google), DCI Group (a famously sketchy lobbying organization) and a bunch of others.

The full complaint details what happened:

On October 26, 2020, NTIA transmitted its first interim production, which contained 128 records in 35 electronic files. Ex. 5. Thirty-five records were withheld “in part or in their entirety,” under Exemption 5, but without identifying any relevant privilege. Id. An additional eight records were “withheld in part under Exemption 6.”

In this production, one record revealed that Mr. Candeub sent an email from a government email address to his private, gmail.com email address.

On November 10, 2020, AFPF asked NTIA whether it could email the next production and when another interim or final production could be expected.

On November 11, 2020, AFPF raised concerns that the first interim production did not include any text messages or instant messages. Id. (“These should be included in ‘all communications’ as well as e-mail, hand-written notes, etc.”).

On November 16, 2020, NTIA responded that the second interim response was prepared, but the agency required an address clarification. Ex. 8. NTIA also claimed that AFPF’s “request only specified email, it did not specify text and IM. If [AFPF] would like to request text messages and IM, [it] will need to file another FOIA request for those records.”

AFPF immediately confirmed its mailing address and noted that its initial FOIA request contained “no reference to seeking only e-mail records,” as it instead mentioned “all communications.” Id. AFPF further noted that this “matches the same language in [NTIA’s] . . . clarification confirmation e-mail from September 18 . . . . Therefore, the request covers text messages and IMs.” Id. AFPF also asked how many records were left after the second batch and when AFPF could expect to receive them.

NTIA responded that it does “not have a final count or an estimate of how many records will be responsive to [AFPF’s] request. Nor d[id it] have an estimate of when this will be completed.” Id. Additionally, NTIA attempted to justify its refusal to include records beyond e-mails in a search for “all communications” by pointing to a footnote in AFPF’s request that defines the term “record.”

On November 18, 2020, NTIA transmitted its second interim production, which contained 153 records in 39 electronic files. Ex. 9. Fifty-nine records were withheld “in part or in their entirety,” under Exemption 5, but without identifying any relevant privilege. Id. An additional twenty-five records were “withheld in part under Exemption 6.” Id. Additionally, fourteen records were referred to the Department of Justice and three to the Department of Commerce “for a direct response[.]”

On December 14, 2020, AFPF emailed NTIA noting that both Mr. Candeub and Mr. Simington will reportedly be leaving the agency. Ex. 10. Given these reports, AFPF requested “that NTIA take affirmative steps to preserve all potentially responsive records, including text message records and any private email account that may contain government records.”

To date, NTIA has not provided a final determination on AFPF’s request, nor has it released another interim or final production of responsive records.

And thus, the lawsuit for failing to comply with FOIA's requirements. As with most FOIA lawsuits, the main remedy sought is having NTIA actually cough up the records requested, as required by the law. It sure would be interesting to see what's there, and why NTIA seems unwilling to obey the law and hand over those records.

Filed Under: adam candeub, brendan carr, commerce department, donald trump, executive order, fcc, foia, nathan simington, ntia, rick lane, section 230, transparency
Companies: afp, at&t, dci

Trump Appoints Unqualified Guy Who Hates Section 230 To Top Justice Department Role

from the why-is-he-in-government-at-all? dept

In 2018, we wrote about a law professor named Adam Candeub, who was one of the lawyers for white supremacist Jared Taylor, suing Twitter in a doomed lawsuit for kicking him off its platform. I had a confusing email exchange with Candeub which I wrote about in that piece, which suggested that he was either unaware of Section 230 at the time he filed the lawsuit, or simply confused about the long list of decisions around 230 that made the lawsuit an obvious loser (which is what happened). Candeub and his co-counsel were very angry about my article, and insisted that their alternative interpretation of Section 230 would win the day.

Since being proven wrong, Candeub has spent a tremendous amount of energy trying to twist and torture Section 230 interpretations into his own belief of what they should be. Back in May, Candeub was hired by the Trump administration to be deputy assistant secretary, where he helped guide Trump's ridiculolus executive order on 230 a few weeks later. It recently came out that he, and new FCC commissioner Nathan Simington, abused their government jobs to try to get Fox News to attack Section 230, telling a producer of Fox News host Laura Ingraham's show that doing so may help get Trump and down-ballot Republicans elected in the fall.

In normal times, federal government officials are supposed to represent everyone, and not just their own political party. They are not supposed to engage in campaigning or electioneering on the public's dime, and they certainly aren't supposed to be working with the press to help elect their own party. Yet, that's exactly what Candeub and Simington did. In response, Simington got his FCC commissionership (despite basically no relevant telecom law experience) and Candeub... has now been promoted to a senior level Justice Department job:

Adam Candeub, the acting head of Commerce’s National Telecommunications and Information Administration, has been named deputy associate attorney general starting Monday, according to two officials and a third person familiar with the matter, who requested anonymity to discuss the plans. The political appointment does not require congressional confirmation.

The concern, as noted in Politico, is that he's going to use the remaining month in office to cause problems for the internet:

Candeub has played a central role in carrying out Trump’s executive order targeting social media companies like Twitter and Facebook over allegations they censor conservative viewpoints. The executive order asked federal agencies, including the Federal Communications Commission, to narrow the scope of a crucial set of liability protections that shield online companies from lawsuits over the user content they host. One of Candeub’s advisers at the NTIA, Nathan Simington, was confirmed last week to a five-year term as an FCC commissioner.

Trump has taken increasing aim at the legal shield, a 1996 law known as Section 230, in the twilight of presidency, including vowing to veto a must-pass defense spending bill that overwhelmingly sailed through both the House and Senate because it does not repeal the protections. And he’s rallied his allies across federal agencies and in Congress against the law, which has been widely credited with enabling the creation of today’s thriving online industry.

Candeub, who first joined NTIA earlier this year, has a long history of bashing the social media giants over allegations of an anti-conservative bias. In 2018, Candeub represented a white nationalist in a lawsuit against Twitter alleging the social network censored him.

The article further notes that in writing the NTIA's petition to the FCC (in response to the executive order that he helped craft), Candeub worked closely with the DOJ, which has itself continued to attack Section 230 (despite the fact that Section 230 has an exemption for any federal criminal laws, and thus does not impact the DOJ at all):

Candeub actively consulted with the Justice Department during this summer’s efforts to draft the administration’s social media petition to the FCC. He also ran draft copy by White House adviser James Sherk, according to emails obtained by POLITICO through a Freedom of Information Act request.

“I’m feeling heavy breathing,” Candeub wrote in one July 13 email pressing DOJ counsel Lauren Willard and DOJ's Chris Grieco for feedback on the petition, citing pressure from Sherk.

It's not clear what Candeub can do in the month he has left, but it certainly is alarming that he's been put in this position. He has shown over his few months in office that he has no interest in representing the American people as a public servant, but rather in trying to twist a law that stymied a high profile lawsuit he was involved in, and he's implicated in an email to try to do that twisting to help his political allies. There is no way he should be in any government role, let alone a powerful one at the Justice Department.

Filed Under: adam candeub, commerce department, doj, ntia, section 230

Trump's FCC Nominee Asked Fox News To Help Destroy Section 230 To Help Elect More Republicans

from the free-speech? dept

We've written a few times about Nathan Simington, who is currently nominated to take over Michael O'Rielly's seat at the FCC. As you'll recall, O'Rielly's renomination was withdrawn after he dared to give a talk in which he noted, accurately, that the 1st Amendment means that the government cannot regulate how private companies handle content moderation. Simington, in contrast to O'Rielly, has been at the center of various efforts to force social media companies to host speech they do not wish to host (a clear violation of the 1st Amendment, which does not allow for the government to compel speech).

Simington was the guy who apparently wrote the original executive order that kicked off the ridiculous (and still unconstitutional) FCC review process of Section 230. He also works at NTIA, which is run by Adam Candeub, a guy who has spent the last few years attacking (or misrepresenting) Section 230, after he filed a failed lawsuit against Twitter on behalf of a white supremacist. When the lawsuit was filed, Candeub appeared not to understand 230 when I engaged with him in an email exchange. Since then he's spent the intervening years, trying to change 230 to match his false belief of what it should be.

So, perhaps it shouldn't be too surprising that it's now been revealed that Simington and Candeub appeared to spend some time over the summer trying to get Fox News' bloviating talking heads to start attacking Section 230 as well, hoping that this would spur the FCC on towards action (again, which legally it cannot do) against the law.

Simington, a senior adviser in a key Commerce Department tech agency, wrote that the popular Fox News host could help sway the FCC to act on Trump's proposal before Election Day. He also suggested that democracy hinged on the ability of the commission — which has not traditionally regulated social media — to target Silicon Valley companies.

The actual letter to a Fox News staffer, in which Simington notes that this is part of a scheme with Candeub (who is cc'd) is really stunning. Having a government official asking a media personality to assist the government in pushing through an unconstitutional attack on the 1st Amendment is staggering -- and should immediately raise questions as to why either Simington or Candeub are part of the government. Simington flat out admits that he's trying to force the FCC to take action to help support the President and others "down ballot" in the election.

That is not supposed to be how government officials act. Campaigning/electioneering efforts are not supposed to be done by current government staff who are paid by our taxpayer dollars. This is a hugely problematic stance, and should call into question both Simington and Candeub's role in government. It certainly should preclude Simington from being considered for a position on the FCC itself.

As discussed, my boss, Dept. Ass't Sec'y Adam Candeub (CC'd), is strategizing about how best to present the NTIA's petition to the FCC re CDA 230. We hope that FCC rulemaking will uphold press and communication freedoms while restraining social media companies from behavior that, absent certain case law re CDA 230, would be illegal.

As you know, this is a hot issue right now, not merely per the President's major social media executive order, but also (1) Senator Cruz's recent actions re Twitter, coming out of his long-standing concerns about the partiality and bias emerging from social media's de facto content creation via moderation, promotion and demotion, and (2) Senator Hawley's new social media bill.

We therefore hope that there might be some way of engaging with Ms. Ingraham on our piece of this issue. Any additional support we might be able to obtain could help to get the FCC on board more quickly and thereby ensure a freer, fairer social media landscape going into the elections this fall. This is of concern both to the presidency and also down-ballot, and given the emerging role of social media as a replacement for mass media, our democracy will be weakened if we cannot respond to this issue quickly and effectively.

If you have some time tomorrow, I'd love to talk further about this, whether re engaging with Ms. Ingraham or generally for our own planning.

Senator Richard Blumenthal (a long term vocal critic of Section 230) seems to recognize how problematic this is:

“This email shows that Mr. Simington was an active and eager soldier in President Trump’s attempted assault on the First Amendment," Blumenthal said in a statement to POLITICO. "Mr. Simington was willing to bully the very agency he’s been nominated to join in order to do the electoral bidding of the Republican party on the taxpayer dime.

"I am demanding that Mr. Simington explain himself in follow-up questions for the record, and I certainly hope he will be more forthcoming in his written responses than he was during his hearing,"

In any normal administration this would be a massive scandal, abusing the power of government to help a specific party/candidate. Remember all the (mostly exaggerated) fuss about the IRS paying extra attention to conservative non-profits? That was one of the biggest scandals of the Obama era, in part because it was government employees supposedly making decisions based on politics (even though the details showed it wasn't quite that bad). This is worse. Here they are flat out admitting that they are trying to work with Fox News to use the levers of government to unconstitutionally change the law in order to help their preferred political party win in an election.

Filed Under: adam candeub, election, fcc, free speech, laura ingraham, michael o'rielly, nathan simington, ntia, politics, section 230
Companies: fox news

Confused Critic Of Section 230 Now In Charge Of NTIA

from the well-that's-unfortunate dept

Multiple experts on Section 230 have pointed out that the NTIA's bizarre petition to the FCC to reinterpret Section 230 of the Communications Decency Act is complete nonsense. Professor Eric Goldman's analysis is quite thorough in ripping the petition to shreds.

Normally we expect a government agency like NTIA to provide an intellectually honest assessment of the pros/cons of its actions and not engage in brazen partisan advocacy. Not any more. This petition reads like an appellate brief that would get a C- in a 1L legal writing course. It demonstrated a poor understanding of the facts, the law, and the policy considerations; and it ignored obvious counterarguments. The petition is not designed to advance the interests of America; it is designed to burn it all down.

As we mentioned, it seemed likely that the petition was written by Adam Candeub, a lawyer who was only hired a few months ago by the NTIA. Readers may recognize Candeub's name because he represented the white nationalist Jared Taylor in a failed lawsuit against Twitter for kicking him off the platform. At the time of the lawsuit, I engaged in an email discussion with Candeub in which he tried to justify his lawsuit, and it included the same sort of nonsense and debunked legal theories we now see in the NTIA petition. In that email exchange, he told me that "Section 230 doesn't help Twitter" because "if an internet firm starts to edit or curate others' comments -- creating its own content, it loses this immunity." That, of course, is incorrect.

Indeed, the California courts agreed with me (and basically every other court) in ruling that Section 230 protected Twitter's decision to remove Candeub's client.

Of course, in the past couple of years since all of that went down, Candeub has continued his quixotic quest to reimagine Section 230 to say what he wants it to say, rather than what the plain language of the law, and basically every court on record (and the authors of the law) have said that it actually says.

And now he'll get to do that as the guy in charge of NTIA. Axios is reporting that Candeub has been promoted to become the acting head of NTIA. Given Candeub's activism on this issue it's an odd role for him, and, as has happened so often in this particular administration, a destruction of historical norms. NTIA has historically been extremely balanced and avoids direct political advocacy type positions. It certainly appears that it will be taking a different approach under Candeub, and that approach includes a blatant misrepresentation of key laws about the internet. Historically, NTIA has been an important agency in protecting the open internet -- but now it should be seen as hostile to such an open internet. And that's disappointing for its legacy.

Filed Under: adam candeub, cda 230, executive order, fcc, free speech, intermediary liability, ntia, section 230