Carr: CDA S. 230 Effort Not Comparable to Net Neutrality
The FCC effort to interpret Communications Decency Act Section 230 isn’t comparable to the heavy-handed regulations repealed during the net neutrality debate in the late 2000s, Commissioner Brendan Carr said Tuesday during a Federalist Society event. Public Knowledge Senior Vice President Harold Feld questioned how Carr could be against Communications Act Title II regulation of internet service providers but also support Section 230 regulatory changes envisioned by the Trump administration (see 2011060053).
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On Section 230, the FCC is taking a narrow look at language in the statute, said Carr. The net neutrality discussion involved imposing “a whole new set” of Title II regulations on the internet, he argued. There’s a major gap when it comes to regulating Big Tech versus regulating ISPs, he said: Big Tech companies don’t have the same transparency obligations. It’s a “different dynamic” interpreting Section 230 wording versus “reclassifying” a type of service, said Carr.
The FCC is in a good position to “shine some light” on Section 230 statutory terms, said Carr: If platforms exercise their First Amendment rights in moderating content, it’s worth examining whether their decisions fall within the statutory confines of Section 230.
There's a need to update Section 230 and pass a comprehensive national privacy law, FTC Commissioner Christine Wilson said. She said the House Antitrust Subcommittee’s recent report on its investigation of Big Tech (see 2010090053) lacked recommendations on those two fronts. She disagreed with much of the report: “There is zero mention of Section 230, and yet Section 230 has shaped the online platforms the committee investigated.”
Carr cited the power that companies like Facebook and Google have over speech, noting Section 230 was written when online forums were mostly small message boards. Feld said he agreed there’s a problem with the concentration of corporate power: Some online services are so large they’re unavoidable. Feld said he’s against any effort by the FCC to rush out its Section 230 rulemaking in the next month or two, saying it would be out of step with norms of presidential transitions.
Carr supports an update for antitrust tools, though he doesn’t agree with the approach from House Antitrust Subcommittee Chair David Cicilline, D-R.I. Agencies don’t have the tools to properly examine “dynamically what’s taking place,” particularly with Big Tech, Carr said, citing Facebook-Instagram. “I’m not saying unwind Facebook-Instagram, but did we have the tools to actually see in 2011-12 how quickly Instagram was going to scale up? I don’t know that our tools and models” have kept up.
Carr and Feld agreed platform content moderation decisions lack transparency. Carr described Big Tech’s “black box,” in which users are in the dark about why certain ones are blocked, banned or labeled. Users should have the ability to turn off “bias filters,” so no entity is filtering their feeds, the commissioner said.