FCC to move forward with considering executive order targeting tech’s liability shield

Federal Communications Commission (FCC) Chairman Ajit Pai announced Thursday that the panel will move forward the Trump administration’s petition to clarify the meaning of the law that gives tech companies a legal liability shield for content posted by third parties. 

President Trump targeted Section 230 of the Communications Decency Act — which also gives platforms the ability to do good-faith content moderation — in a May executive order shortly after Twitter fact checked some of his posts about mail-in voting.

The executive order had the National Telecommunications and Information Agency, a subagency of the Commerce Department, submit a request to the FCC for the landmark law to be reconsidered.

The order was roundly criticized by tech groups and legal experts, who noted that only Congress has the authority to amend laws.

Pai said in a statement Thursday that the FCC’s general counsel informed him that the “FCC has the legal authority to interpret Section 230.”

Sen. Ron Wyden (D-Ore.), one of the original authors of Section 230, slammed Pai’s decision Thursday.

“The FCC does not have the authority to rewrite the law, and Ajit Pai can’t appoint himself commissioner of the speech police,” Wyden tweeted.

Conservatives have escalated their attacks on Section 230 in the past few months, baselessly arguing that it allows tech companies to censor conservative viewpoints.

The announcement Thursday came as Trump and his allies blasted Facebook and Twitter for their decision this week to clamp down on the spread of a New York Post story that contained allegations about Hunter Biden, the son of Trump’s Democratic presidential rival Joe Biden. Trump and his allies have tried to use the story to attack Joe Biden.

“If Big Tech persists in coordination with the mainstream media, we must immediately strip them of their Section 230 protections, OK? It’s very simple,” Trump said at a rally in North Carolina.

While some bipartisan efforts to amend the federal law do exist, the subject has become increasingly polarized.

The two Democrats on the five person FCC criticized the order Thursday.

“We’re in the midst of an election,” Commissioner Geoffrey Starks told The Hill. “The president’s Executive Order on Section 230 was politically motivated and legally unsound. The FCC shouldn’t do the president’s bidding here.”

Fellow Democratic Commissioner Jessica Rosenworcel echoed that sentiment.

“The timing of this effort is absurd. The FCC has no business being the President’s speech police,” she said.

Republican Commissioner Michael O’Rielly expressed concern about the petition in July, saying that “the First Amendment protects us from limits on speech imposed by the government—not private actors—and we should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way.” 

The White House withdrew his nomination for a full second term less than a week later. The Hill has reached out to O’Rielly’s office for comment. 

The final commissioner, Republican Brendan Carr, has thrown his support behind the administration’s proposal.

Updated at 4:10 p.m.