Privacy & New Media

Proskauer
New Media and Technology Law  Blog
Jeffrey Neuburger
July 30, 2020

The currents around the Communications Decency Act just got a little more turbulent as the White House and executive branch try to reel in the big fish of CDA reform.

On July 27, 2020, the Commerce Department submitted a petition requesting the FCC initiate a rulemaking to clarify the provisions of Section 230 of the Communications Decency Act (CDA). . .

While a deep dive in the 57-page Commerce Department petition (or whether the FCC even has the legal authority to issue such rules in this area) is beyond the scope of this post, its reform proposals can be broken down into several areas. In brief, the Commerce Dept. has asked to FCC to:

• Clarify the relationship between the more well-known §230(c)(1) “publisher” immunity for hosting third-party content and the lesser-utilized §230(c)(2) “Good Samaritan” immunity for filtering of objectionable content, lest they be read and applied in a manner that renders §230(c)(2) superfluous.
• Amend the statute to specify that §230(c)(1) has no application to any provider`s decision to restrict access to content or terminate user accounts.
• Provide clearer guidance on what content would be deemed “objectionable content” within §230(c)(2) and when removals are done in “good faith” (including proposing that filtering decision taken contrary to terms of service or without an adequate notice or process should fall outside the CDA).
• Modify the language that defines under what circumstances a provider becomes an “information content provider” as per 47 U.S.C. § 230(f)(3) (“responsible, in whole or in part, for the creation or development of information”), and clarify when a provider`s content moderation practices take it outside of the protections of the CDA. The proposal requests that such providers should lose CDA protection when, for example, they make editorial decision that modify or alter content, “including but not limited to substantively contributing to, commenting upon, editorializing about, or presenting with a discernible viewpoint content provided by another information content provider.”
• Mandate disclosure for internet transparency similar to that required of other internet companies, such as ISPs.

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