FCC’s Section 230 Interpretation Opens Door for Democratic Majority
The FCC’s Communications Decency Act Section 230 rulemaking proceeding (see 2010210062) opens the door for a potential Biden administration to pursue its own interpretation of the technology industry’s liability shield, tech observers and legal experts told us. Rather than drop the proceeding, initiated by President Donald Trump’s social media executive order, a Democratic FCC could take an activist approach with it, they said.
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“People are right to worry that an activist FCC under a Biden administration could point to the scope of authority that the current FCC has claimed that they have,” said Stand Together Vice President-Technology and Innovation Jesse Blumenthal. There’s concern about the chilling effect of government regulating online speech under either administration, he said.
The social media EO is “closely tied” to Trump’s brand, but it opens the door for Democrat Joe Biden to appropriate the FCC’s effort, said Access Partnership Data and Trust Head Michael Clauser: "The train’s already in motion. It would just come into the station under” a Democratic FCC chairman.
A Biden administration wouldn’t move forward with the EO, but the agency has a “little bit of a weird claim here, where the general counsel has said” the FCC has the authority to interpret Section 230, said R Street Institute Technology and Innovation Policy Fellow Jeffrey Westling. It’s tricky, though, because the provisions that are “somewhat ambiguous” involve language on platforms’ “good faith” decisions moderating content and “otherwise objectionable” definitions for content. It’s clear there’s no real ambiguity elsewhere, so it doesn’t leave a lot of room for either administration to interpret, he said.
“The Democrats have been very critical of the FCC for doing rulemaking, so it’s going to be maybe a little bit hard to suddenly justify why they think that it is within the FCC’s jurisdiction to do it,” said Committee for Justice President Curt Levey. “I suspect, despite the possible hypocrisy ... that if Biden wins, they’ll find a way to do their own rulemaking.”
Expect a Biden administration to engage with the EU on privacy issues, given the significance of the Schrems II decision (see 2010270059), said Kelley Drye’s Aaron Burstein: “That may take a while, but I would expect that to be a priority of the administration and the FTC" under Biden. Expect a reboot with U.S.-EU relations if Biden becomes president, said Clauser: There will be more of an attempt at regulatory cooperation.
Blumenthal expects more productive engagement from both the U.S. and EU under Biden, given the ways Trump has isolated the U.S. through trade policies and rhetoric. The rest of the world, in turn, will be more likely to engage with the U.S., he said. Westling agreed but said that’s not necessarily beneficial, because European policies like the general data protection regulation aren’t good.
Expect Senate Banking Committee Chairman Mike Crapo, R-Idaho, to seek the Senate Finance Committee chair, which Sen. Chuck Grassley, R-Iowa, is expected to vacate due to term limits, said K&L Gates’ Karishma Shah Page. Crapo tried to position the Banking Committee in the ongoing privacy debate (see 1912130049), while the Judiciary and Commerce committees jockey for jurisdiction. Crapo “would likely be the contender” for Finance, given seniority, Page said. She expects Sen. Pat Toomey, R-Pa., to fill the Banking chair. “We are not commenting on prospects for the 117th Congress at this time,” a spokesperson for Crapo emailed.
Democrat John Hickenlooper, who defeated Republican Sen. Cory Gardner for a seat in Colorado, could be a natural ally for the tech sector, said Clauser. He cited Denver and Boulder as destinations for Big Tech expats from Northern California. Hickenlooper's choice for his tech policy adviser will be key, Clauser said: He could follow the lead of someone like Sen. Brian Schatz, D-Hawaii, who hired Melika Carroll, a former tech lobbyist, helping position Schatz as a “tech senator.”
DOJ’s recommendations to Congress on Section 230 will “probably” be one of the casualties of the transition, said Clauser. The department sent Congress draft legislation in September to make tech platforms more accountable for alleged speech censorship and facilitation of criminal activity (see 2009230060). “Because they’re so tied to Attorney General [William] Barr’s brand, Democrats will be comfortable with walking away from them without considering them,” he said.