Sofi Chamath Palihapitiyabursztynskycnbc: On Wednesday the FCC chairman Ajit Pai announced that he would not be moving forward with any rule-making on Section 230 and that he would not “second-guess” Facebook and Twitter’s decision to bar President Donald Trump from posting. This is significant because previously, these two platforms had agreed to comply with the FCC’s request for information in order to ascertain whether Section 230 allowed them to block certain content without violating the First Amendment.
There are two aspects of Section 230 that are important for the rest of this article. One is that according to the statute, an intermediary can’t be held liable for messages sent by third-parties. (The case was about an ISP blocking a website, and it’s established law.) But Section 230 also allows intermediaries to filter their own traffic. There is no law on the books that prevents Facebook from blocking a controversial website and then blaming an anti-censorship filter (e.g. Comodo) for the problem.
This is a big problem, because we don’t know if Facebook could effectively block Trump’s posts, but we do know it can’t easily be manipulated by an anti-censorship filter. Both the content and the comments on this article were written by my colleagues at the Media Freedom Foundation (MFF) and are available here.
If you want to see a powerful example of how this could be abused, watch this video:
In other words, Section 230 leaves it up to Facebook and Twitter to decide who they allow on their platforms. If they decide to block Trump, then Facebook can’t blame an anti-censorship filter (especially if it already exists) for his tweets being censored. And Section 230 leaves it up to Facebook to determine which posts from Trump are “high-profile.” If he is promoting a new book, then these posts could be deemed high profile. But if all he does is propagate conspiracy theories, then such stories might not be deemed “high-profile” enough to warrant censorship.
(Side note: I also have a column coming out in the Lawfare blog tomorrow, but I need time to write it and have no idea if my editors will publish it. This analysis is the best I can do for now.)
In short, Internet platforms might want to be more careful about who they allow on their platforms and how they define “high-profile,” because through Section 230, their hands are tied when it comes to blocking Trump’s content.
Trump has utilized Section 230 to his advantage throughout his campaign and into his presidency. It was one of his main arguments against net neutrality—that platforms should not be regulated under Title II (the rules that apply to land-based phone companies). The logic was that without net neutrality, the government would not be able to stop Internet platforms from censoring him. This is how we got to the current situation where the president’s tweets are being censored by companies that they owe their very existence to Section 230.
(Side note: This analysis is part of an ongoing MFF project, which seeks to highlight how Section 230 has been utilized to reduce and eliminate protections for journalists over the past three years.)
And this week, he tweeted about this topic again. Here’s his tweet:
I am continuing to monitor the censorship of AMERICAN CITIZENS on social media platforms. This is the United States of America — and we have what’s known as FREEDOM OF SPEECH! We are monitoring and watching, closely!! — Donald J. Trump (@realDonaldTrump) May 3, 2018
But Pai sided with these corporations in an interview with Recode yesterday: “These are private companies,” he said. “And the First Amendment applies to them, too. We need to be respectful of that.”
What about the First Amendment? Can’t the government regulate outlets that it created (through Section 230) from censoring a high-profile American citizen? This is an open question and I don’t have a good answer, but I don’t think it’s permissible. After all, if these platforms block Trump, then they can’t blame an anti-censorship filter for their actions.