Under the direction of Donald Trump, the NTIA has petitioned [PDF] the FCC “to clarify the provisions of section 230”. Such clarification is unnecessary. The proposed rule would not, in fact, be mere clarification, but a fundamental rewriting of §230 for nakedly political purposes.
NTIA’s analysis claims that “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the internet, does not receive the statute’s shield”. This is incorrect. Section 230 does not require categorisation as solely an “interactive computer service” or solely as an “information content provider”. The same person or entity may play both roles; in doing so, they would benefit from the protections of §230 in their role as an interactive computer service, even though they may still face liability for any content they create.
The NTIA suggests that changes to §230 are necessary because “a handful of large social media platforms delivering varied types of content over high-speed internet have replaced the sprawling world of dial-up Internet Service Providers (ISPs) and countless bulletin boards hosting static postings”. Although it is true that the internet of 2020 is not the internet of 1996, such a fundamental change §230 would serve only to reinforce the hegemony of large platforms. Smaller websites, lacking the resources to be able to risk liability, would be forced to choose between simply eliminating the option to allow users to contribute content or allowing user-generated content to become a virtual cesspit.
Even if the proposed rule were a good idea, it would still be inappropriate for the Commission to implement. Section 230 has stood for nearly twenty-five years, and in that time, Congress has not seen fit to amend it. This is not merely because Congress is somehow unable to come up with the idea — several members have discussed possible amendments similar to the NTIA’s suggestion — but because Congress does not wish to make such changes. The NTIA’s argument that the Commission has authority to implement this rule is weak, but regardless of whether such authority exists, it should not be exercised.