FCC Chair Ajit Pai Engages in Some Meaningless CDA Section 230 Bootlicking arstechnica.com

Bear with me because this gets into the weeds a bit before you’ll get to the headline topic. Skip to the block quotes if you are already caught up on your Fox News shibboleths.

Yesterday, the New York Post published an extremely suspect story about alleged impropriety by Joe Biden and his son Hunter while the latter was working for Burisma, a Ukrainian oil company — something all parties deny. This is something the Republican Party has been desperate to create a scandal from despite their own investigation finding no misconduct by either Biden. The Post sourced its claims, via Rudy Giuliani, from emails and photos ostensibly taken from a laptop Hunter had taken in for service. Then, several hours after the Post published its story, Facebook decided to limit its spread, while Twitter opted to block links to it. And now it has become a whole thing.

There are many interesting questions that we can probe in the meta-story around this article. For example, the New York Times reported that U.S. intelligence agencies had concerns that hacked emails from Burisma would be combined with forged or edited ones — a tactic Russian intelligence has used before. The Washington Post reports that Giuliani was a target for spreading false information. There is evidence that the Post’s story is based on false information designed to sway the U.S. election in a manner reminiscent of other Russian disinformation campaigns. In fact, this whole saga is awfully familiar: leaked emails, Russian hacking. Didn’t we already do this? I want to bash my head into my desk.

The difference this time around is that Facebook and Twitter are intervening to slow the story’s spread. Is that right? If this is, indeed, an attempt at interference in the election, you may argue that this is a good thing — or is, at least, understandable. It is an unusually strong stance from Facebook and Twitter on a specific story. That has made it a rough day or two from a public relations perspective, as some people see it as censorship or tilting the scales. But one thing is for sure: it is completely legal. And members of the Republican party desperately want to change that.

Siobhan Hughes, Wall Street Journal:

The Senate Judiciary Committee plans to issue a subpoena on Tuesday to Twitter Inc. Chief Executive Jack Dorsey after the social-media company blocked a pair of New York Post articles that made new allegations about Democratic presidential nominee Joe Biden, which his campaign has denied.

Jon Brodkin, Ars Technica:

Federal Communications Commission Chairman Ajit Pai is backing President Donald Trump’s proposal to limit legal protections for social media websites that block or modify content posted by users. Pai’s views on the matter were unknown until today when he issued a statement saying that he will open a rule-making process to clarify that the First Amendment does not give social media companies “special immunity.”

Mike Masnick, Techdirt:

For years, FCC Chair Ajit Pai has insisted that the thing that was most important to him was to have a “light touch” regulatory regime regarding the internet. He insisted that net neutrality (which put in place a few limited rules to make sure internet access was fair) was clearly a bridge too far, and had to be wiped out or it would destroy investment into internet infrastructure (he was wrong about that). But now that Section 230 is under attack, he’s apparently done a complete reversal. He is now happy to open a proceeding to reinterpret Section 230 to place a regulatory burden on the internet. This is because Ajit Pai is a hypocrite with no backbone, and no willingness to stand up to a grandstanding President.


Pai is wrong in almost everything he says above. The FCC has no jurisdiction over internet websites. Previous lawsuits have already held that. Furthermore, the FCC has no jurisdiction over Section 230, which was explicitly written to deny the FCC any authority over websites. The FCC has no power to reinterpret the law.

If you think Facebook or Twitter ought not to have moderated the New York Post story, that is a fair point of view. If, however, you believe their moderation decision should be illegal, the problem you have is not with Section 230 of the Communications Decency Act, it is with the First Amendment.

Years of U.S. case law have upheld that businesses are free to deny service to whomever they choose, with exceptions made for cases of discrimination. Twitter has no obligation to host links to that Post story any more than it has an obligation to host spam or your account.

Perhaps your dispute with this action is that heavy-handed moderation by large social media companies is effectively a tool of silencing and censorship. But I would strongly disagree with that: the Post is widely circulated, there are many other venues online, and it is still possible to discuss it on Facebook and Twitter without linking to it. But even if that were true, your problem would be with the scale of both companies, not with Section 230 as written or interpreted.

Nothing about these moderation decisions have anything to do with CDA Section 230. Promises to investigate Facebook and Twitter because they made it harder to spread a link are a gigantic waste of time. It is perhaps worth discussing ways in which Section 230 can be clarified or reworked, but it is not something Pai or the FCC has any control over, nor is it relevant to anything these ostensibly light-regulation “small government” conservatives want to achieve.

This is all so very stupid.