Washington Examiner Oped: Did Clarence Thomas just open the door to holding tech platforms accountable for disinformation?

Supreme Court Justice Clarence Thomas’s concurrence in the Twitter case handed down last week may have inadvertently given the Federal Communications Commission an opportunity to clarify its authority to regulate social media platforms as common carriers under Section 230 of the Communications Act.

This debate is comparable to that of net neutrality because the solutions for both have the same underlying effect: empowering the government as the ultimate arbiter on what constitutes our "internet freedom." However, Thomas's concurrence may have opened the door for agencies, such as the FCC, to take a holistic approach on internet regulation. This is especially true if the FCC wants to treat internet service providers, or ISPs, as public utilities. Advocates have to ask, why not have the FCC regulate the entire internet stack as a public utility?

Traditionally, the FCC has not regulated internet platform services the same as common carriers. This is strange, as companies such as Google and Twitter claim to provide interactive computer services, which is a service that Title II (i.e., the Communications Act’s list of "Common Carrier Regulations") defines.

Does this mean that Congress already spoke to Thomas’s call for platform regulation? Possibly.

Although Thomas called on Congress to act, he may already have a champion in the FCC. It's probable that the agency has the requisite authority to promulgate rules under Title II of the Communications Act. What’s more, the FCC may even have the statutory grounds to determine what companies qualify for protection under Section 230’s "Good Samaritan" law, which shields most platforms from liability for users' posts when providing an "interactive computer service" (e.g., social media or search engines).

For instance, Section 230 sits in Title II of the Communications Act. Title II provides the FCC with the general authority to "prescribe rules and regulations as may be necessary in the public interest" to enforce provisions within the title. Even read narrowly, the FCC need only clarify platforms as providing interactive computer services for it to have the requisite jurisdiction.

In response, platform companies would most likely cite the D.C. Circuit’s opinion in Comcast v. FCC. Some have characterized this decision as the FCC being prohibited from regulating platforms under Section 230. However, the court said nothing of the sort. The D.C. Circuit simply said the FCC could not use Section 230’s policy statements in Section 230(b) as an independent source of authority to regulate an ISP’s network management practices. The court did not speak to the FCC’s authority under Section 230(c) (i.e., the part of the law that governs over the "Good Samaritan" rule) to regulate platforms. In fact, no court has held such a contention to that degree.
As a last resort, platform companies may argue that Congress did not intend to put Section 230 in Title II. But if this is truly not Congress’s intent, then it is up to Congress to make that clear, not the FCC. It is neither the job of courts nor regulators to fix Congress’s typos. Until Congress enacts a new law, then this argument, too, holds no water. Hence, Thomas may be more inclined to rule in favor of the FCC’s jurisdiction.

In short, if legislatures, regulators, and advocates were honest about their views on internet regulation, then they would hold the same perspective on Section 230 as they do for policies such as net neutrality. That should be particularly true with respect to the FCC's role. Unfortunately, they seek only to make ISPs out as the proverbial boogeymen without due consideration of their contradictory views on platforms' behaviors.

It is not my contention that the internet is a public utility. I believe that the government should stop trying to treat it as one. But if the FCC wants to treat one aspect of the internet stack as a public utility, then it must hold the entire internet ecosystem to the same standard.

Joel Thayer is an attorney based in Washington, D.C., who consults on tech and telecom.

Link to Washington Examiner site: https://www.washingtonexaminer.com/opinion/did-clarence-thomas-just-open-the-door-to-holding-tech-platforms-accountable-for-disinformation