Can Trump Really Have The FCC Regulate Social Media? So No.

Last week, Politico reported that the White House was considering a potential “Executive Order” (EO) to address the ongoing-yet-unproven allegations of pro-liberal, anti-conservative bias by giant Silicon Valley companies such as Facebook, Twitter, and Google. (To the extent that there is rigorous research by AI experts, it shows that social media sites are more likely to flag posts by self-identified African Americans as “hate speech” than identical wording used by whites.) Subsequent reports by CNN and The Verge have provided more detail. Putting the two together, it appears that the Executive Order would require the Federal Communications Commission to create regulations designed to create rules limiting the ability of digital platforms to “remove or suppress content” as well as prohibit “anticompetitive, unfair or deceptive” practices around content moderation. The EO would also require the Federal Trade Commission to somehow open a docket and take complaints (something it does not, at present, do, or have capacity to do – but I will save that hobby horse for another time) about supposed political bias claims.

 

(I really don’t expect I have to explain why this sort of ham-handed effort at political interference in the free flow of ideas and information is a BAD IDEA. For one thing, I’ve covered this fairly extensively in chapters five and six of my book, The Case for the Digital Platform Act. Also, Chris Lewis, President of my employer Public Knowledge, explained this at length in our press release in response to the reports that surfaced last week. But for those who still don’t get it, giving an administration that regards abuse of power for political purposes as a legitimate tool of governance power to harass important platforms for the exchange of views and information unless they promote its political allies and suppress its critics is something of a worst case scenario for the First Amendment and democracy generally. Even the most intrusive government intervention/supervision of speech in electronic media, such as the Fairness Doctrine, had built in safeguards to insulate the process from political manipulation. Nor are we talking about imposing common carrier-like regulations that remove the government entirely from influencing who gets to use the platform. According to what we have seen so far, we are talking about direct efforts by the government to pick winners and losers — the opposite of net neutrality. That’s not to say that viewpoint-based discrimination on speech platforms can’t be a problem — it’s just that, if it’s a problem, it’s better dealt with through the traditional tools of media policy, such as ownership caps and limits on the size of any one platform, or by using antitrust or regulation to create a more competitive marketplace with fewer bottlenecks.)

 

I have a number of reasons why I don’t think this EO will ever actually go out. For one thing, it would completely contradict everything that the FCC said in the “Restoring Internet Freedom Order” (RIFO) repealing net neutrality. As a result, the FCC would either have to reverse its previous findings that Section 230 prohibits any government regulation of internet services (including ISPs), or see the regulations struck down as arbitrary and capricious. Even if the FCC tried to somehow reconcile the two, Section 230 applies to ISPs. Any “neutrality” rule that applies to Facebook, Google, and Twitter would also apply to AT&T, Verizon, and Comcast. 

 

But this niggles at my mind enough to ask a good old law school hypothetical. If Trump really did issue an EO similar to the one described, what could the FCC actually do under existing law?

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I Accidentally Write A Book On How To Regulate Digital Platforms.

Some of you may have noticed I haven’t posted that much lately. For the last few months, I’ve been finishing up a project that I hope will contribute to the ongoing debate on “What to do about ‘Big Tech'” aka, what has now become our collective freak out at discovering that these companies we thought of as really cool turn out to control big chunks of our lives. I have now, literally, written the book on how to regulate digital platforms. Well, how to think about regulating them. As I have repeatedly observed, this stuff is really hard and involves lots of tradeoffs.

 

The Case for the Digital Platform Act: Market Structure and Regulation of Digital Platforms, with a Foreword by former FCC Chair (and author of From Gutenberg to Google) Tom Wheeler, covers all the hot topics (some of which I have previewed in other blog posts). How do we define digital platforms? How do we determine if a platform is ‘dominant’? What can we do to promote competition in the platform space? How do we handle the very thorny problem of content moderation and filter bubbles? How do we protect consumers on digital platforms, and how do we use this technology to further traditional important goals such as public safety? Should we preempt the states to create one, uniform national policy? (Spoiler alert, no.) Alternatively, why do need any sort of government regulation at all?

 

My employer, Public Knowledge, is releasing The Case for the Digital Platform Act free, under the Creative Commons Attribution-NonCommercial-ShareAlike license (v. 4.0) in partnership with the Roosevelt Institute. You can download the Foreword by Tom Wheeler here, the Executive Summary here, and the entire book here. Not since Jean Tirole’s Economics for the Common Good has there been such an amazing work of wonkdom to take to the beach for summer reading! Even better, it’s free — and we won’t collect your personal information unless you actively sign up for our mailing list!

 

Download the entire book here. You can also scroll down the page to links for just the executive summary (if you don’t want to print out all 216 pages) or just the Tom Wheeler foreword.

 

More, including spoilers!, below . . .

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What Makes Elizabeth Warren’s Platform Proposal So Potentially Important.

As always when I talk politics, I remind folks that this blog is my personal blog, which I had well before I joined my current employer Public Knowledge. I’ve been commenting on Presidential campaigns since well before I joined PK, and I don’t run any of this stuff in front of my employer before I publish it.

 

 

Friday March 8, the Presidential campaign of Elizabeth Warren, not to be confused with the actual office of Senator Elizabeth Warren (D-MA), announced Warren’s plan for addressing the tech giants. Warren has been drawing attention to massive concentration in industry generally and tech specifically since well before it was cool, so the fat that she is out of the gate with a major proposal on this early in the 2020 campaign is no surprise. Nor is it a surprise that her proposed plan would end up breaking up, in some significant ways, the largest tech platforms.

 

What makes Warren’s contribution a potential game changer is that she goes well beyond the standard “break ’em up” rhetoric that has dominated most of the conversation to date. Warrens proposal addresses numerous key weaknesses I have previously pointed out in relying exclusively on antitrust and is the first significant effort to propose a plan for permanent, sustainable sector specific regulation. As my boss at public knowledge Gene Kimmelman has observed here, (and I’ve spent many 10s of thousands of words explaining) antitrust alone won’t handle the problem of digital platforms and how they impact our lives. For that we need sector specific regulation.

 

Warren is the first major Presidential candidate to advance a real proposal that goes beyond antitrust. As Warren herself observes, this proposal is just a first step to tackle on of the most serious problems that has emerged in the digital platform space, the control that a handful of giant platforms exercises over digital commerce. But Warren’s proposal is already smart in a number of important ways that have the potential to trigger the debate we need to have if we hope to develop smart regulation that will actually work to promote competition and curb consumer abuses.

 

I break these out below . . . .

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Tumblr, Consolidation and The Gentrification of Internet.

Tumblr recently announced it will ban adult content.  Although partially in response to the discovery of a number of communities posting child pornography and subsequent ban of the Tumblr ap from the extremely important Apple ap store, a former engineer at Tumblr told Vox the change has been in works for months. The change was mandated by Tumblr’s corporate parent Verizon (which acquired Tumblr when it acquired Yahoo! after Yahoo! acquired it back in 2013. Why did Verizon want to ban adult content on Tumblr after 11 years? According to the same Vox article, it new ban is an effort to attract greater advertising revenue. Tumblr has a reputation for adult content which translates to advertisers as “porn” (unfairly, in the view of Tumblr’s supporters), and advertisers don’t like their products associated with pornography (or other types of controversial content.)

 

I can’t blame Verizon for wanting to make more money from Tumblr. But the rendering of Tumblr “safe for work” (and therefore safe for more mainstream advertising) illustrates one of the often under-appreciated problems of widespread content and platform consolidation. Sites that become popular because they allow communities or content that challenge conventional standards become targets for acquisition. Once acquired, the acquirer seeks to expand the attractiveness of the platform for advertisers and more mainstream audiences. Like a gentrifying neighborhood, the authentic and sometimes dangerous character rapidly smoothes out to become more palatable — forcing the original community to either conform to the new domesticated normal or try to find somewhere else to go. And, as with gentrification, while this may appear to have limited impact, the widespread trends ultimately impact us all.

 

I explain more below . . . .

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Pai Continues Radical Deregulation Agenda. Next On The Menu — SMS Texting and Short Codes

In December 2007, Public Knowledge (joined by several other public interest groups] filed a Petition For Declaratory Ruling asking the Federal Communications Commission (FCC) to clarify that both SMS Text Messaging and short codes are “Title II” telecommunications services. Put another way, we asked the FCC to reaffirm the basic statutory language that if you use telephones and the telephone network to send information from one telephone number to another, it meets the definition of “telecommunications service.” (47 U.S.C. 153(53)) We did this because earlier in 2007 Verizon had blocked NARAL from using its short code for political action alerts. While we thought there might be some question about short codes, it seemed pretty obvious from reading the statute that when you send “information between or among points of the users choosing, without change in the form or content as sent and received” (definition of “telecommunications”), over the phone network, using phone numbers that it is a “telecommunications service.”

 

Sigh.

 

On the anniversary of the repeal of net neutrality, FCC Chair Ajit Pai now proposes another goodie for carriers – classifying both short codes and text messages as Title I “information service” rather than a Title II telecommunications service. As this is even more ridiculous than last year’s reclassification of broadband as Title I, the draft Order relies primarily on the false claim that classifying text messaging as Title I is an anti-robocall measure. As we at PK pointed out a bunch of times when the wireless carriers first raised this argument back in 2008 – this is utter nonsense. Email, the archetypal Title I information service, is (as Pai himself pointed out over here) chock full of spam. Furthermore, as Pai pointed out last month, the rise in robocalls to mobile phones has nothing to do with regulatory classification and is primarily due to the carriers not implementing existing technical fixes. (And, as the Wall St J explained in this article, robocallers have figured out how to get paid just for connecting to a live number whether or not you answer, which involves a kind of arbitrage that does not work for text messages.)

 

As if that were not enough, the FCC issued a declaratory ruling in 2015, reaffirmed in 2016, that carriers may block unwanted calls or texts despite being Title II common carriers. There is absolutely nothing, nada, zip, zero, that classifying text messages as Title II does that makes it harder to combat spam. By contrast, Title II does prevent a bunch of blocking of wanted text messages as an anticompetitive conduct which we have already seen (and which is occurring fairly regularly on a daily basis, based on the record in the relevant FCC proceeding (08-7). This includes blocking immigrants rights groups, blocking health alerts, blocking information about legal medical marijuana, and blocking competing services. We should therefore treat the claims by industry and the FCC that only by classifying text messaging as “information services” can we save consumers from a rising tide of spam for what they are – self-serving nonsense designed to justify stripping away the few remaining enforceable consumer rights.

 

Once again, beyond the obvious free expression concerns and competition concerns, playing cutesy games with regulatory definitions will have a bunch of unintended consequences that the draft order either shrugs off or fails to consider. Notably:

 

  1. Classifying texting as Title I will take revenue away from the Universal Service Fund (USF). This will further undermine funds to support rural broadband.

 

  1. Classifying texting as Title I disrupts the current automatic roaming framework established by the FCC in 2007.

 

  1. Classifying texting as Title I may, ironically, take it out of the jurisdiction of the Robocall statute (Telephone Consumer Protection Act (TCPA) of 1991).

 

  1. Trashing whatever consumer protections, we have for text messages, and taking one more step to total administrative repeal of Title II completely. Which sounds like fun if you are a carrier but leaves us operating without a safety net for our critical communications infrastructure (as I’ve been writing about for almost ten years).

 

I unpack all of this below.

 

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My Insanely Long Field Guide To Common Carriage, Public Utility, Public Forum — And Why The Differences Matter.

Once upon a time, social conservatives used to be major allies on both limiting media consolidation and on net neutrality. Why? Because they recognized that if you had a handful of corporate gatekeepers controlling access to the marketplace of ideas, they could easily get shut out. Market forces being market forces, companies pressured to censor unpopular or controversial speech and views will do so. Add to that the belief on the part of conservatives that they face ideological bias from the “mainstream media” or “Silicon Valley,” and you had many conservatives back in the day who stood shoulder to shoulder with us back when I was at Media Access Project to oppose Powell’s efforts to relax media ownership rules in 2003 and who opposed Congress’ first attempt to gut net neutrality — the COPE Act — in 2006.

 

Then came the 2008 election and the Tea Party blowback of 2009-10. Net neutrality became a red team/blue team issue and even social conservatives who had previously supported net neutrality went silent on the issue.

 

Ironically, now that Republicans dominate all branches of government, conservatives are once again discovering the value of common carriage and government prohibition on any sort of interference with conduits of speech — at least with regard to social media platforms like Facebook, Youtube and Twitter. Why? As conservatives have once again discovered, if companies retain the right to exert editorial control based on content, they will get pressured by the market and government to use that editorial discretion to censor “harmful” speech. That, and the perception that Silicon Valley has a distinct liberal bias, have prompted some in the conservative movement to rediscover the idea that common carrier regulations actually protect and promote free speech and are not a regulation of speech. Because without access to the public square — whether the real life public square or its digital equivalent — your freedom of speech is simply a freedom to whisper to yourself.

 

I am happy to agree that the time has come to consider whether social media platforms — and other essential elements of communications such as operating systems, DNS registration, or content hosting — should have non-discrimination obligations consistent with our traditional concepts of common carriage. I believe this would also have the salutary effect of protecting companies from liability or social pressure by taking away their discretion. After all, we don’t see anyone demanding that the major mobile providers stop providing cell phones to white supremacists or that broadband providers block subscribers from accessing websites like Daily Stormer. The public accepts that these companies have no choice, because they are common carriers and must serve everyone equally as a matter of law. By contrast, we have seen successful campaigns to pressure DNS registrars to refuse to host the Daily Stormer domain name, Cloudflare, which itself decided to stop servicing Daily Stormer after Daily Stormer claimed that Cloudflare’s decision not to suspend service constituted an endorsement, posted this excellent blog post on why their actions should make people very uncomfortable.

 

So this should be a great time to reforge the Left/Right alliance on media diversity and government regulation to prevent private censorship, right? I hope so. Unfortunately, this very important conversation keeps getting muddled for two reasons.

 

1) People keep confusing the concept of “common carriage” with the concept of “public utility.” The differences actually matter a lot, despite 15 years of anti-net neutrality advocates muddling the two.

2) The most active proponents of using government regulation to prevent private censorship on the conservative side are pretty much treating common carrier regulation as a form of revenge porn rather than as a serious public policy debate. “Oh, you don’t want me? You want to break up with me? Well I’ll show you! I’ll make it so you have to carry me!” Indeed, since 2006, when Google (to my considerable annoyance) became the poster child for net neutrality for opponents and a trade press obsessed with treating every policy debate as an industry food fight, the debate about common carrier obligations or non-discrimination obligations or even privacy has always triggered a “but what about edge providers? Waaaaahhhhh!! Regulate them! Regulate them!”

 

Now I should make it very clear that I can find plenty of progressives who have conceived passionate hatreds for “Silicon Valley” platforms for various reasons, and who also get confused on the concept of “public utility.” Additionally, I can find at least some conservative free market types who understand why we need to regulate things like Internet access differently than hosting services or social media. But it’s conservatives lusting to regulate “Silicon Valley” that have been getting the headlines, and are driving the discussion among Republicans in Congress. Plus I’m getting tired of being asked the same stupid questions by the same folks on Twitter. So I’ll call out the conservatives howling for Silicon Valley blood by name.

 

Anyway, because whether and how to regulate various parts of the Internet supply chain (or, if you prefer, ecosystem), I will try to explain below why common carriage obligations, such as network neutrality, are different from public utility regulation (even though most utility providers are common carriers), which is different from natural monopoly regulated rate of return/tariffing/price regulation. I will briefly explore some of the arguments in favor of applying some sort of public forum doctrine or common carrier obligation to social media platforms, and — because this invariably comes up in telecom space — why platform or other infrastructure providers are not and should not be covered by Title II or the FCC, even if we agree they should have some sort of public forum or even public utility obligations.

 

More below . . .

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*Packingham* And The Public Forum Doctrine Part I: Implications For Copyright.

On Monday June 19, the Supreme Court issued two significant First Amendment decisions. Most of the press attention went to Matal v. Tam aka “The Slants'” case. But the far more significant case for my little neck of the woods was Packingham v. North CarolinaBecause Packingham focused on criminal law, and did not have anything to do with the Washington Redskins keeping or changing their name, it garnered relatively little attention. But Packingham has much more importance for the future of the First Amendment online by recognizing the primary First Amendment right of subscribers to access broadband platforms and content. Indeed, Justice Kennedy’s paean to the Internet as the modern public square echoes themes from the more “Madisonian” view of the First Amendment expounded by scholars such as Cass Sunstein (and prompted alarm from Alito, Roberts and Thomas in concurrence).

 

This has significant implications for all the crap the Digital Millenium Copyright Act (DMCA) has done to make it easy to kick users offline (and the whole future of “graduated response”/”3 strikes”) and the existing and fairly abusive notice and takedown regime (and efforts to extend it further). It may also have significant implications for the First Amendment argument over broadband, net neutrality and the future of regulation of online platforms such as Facebook, but I will save that for Part II.

 

I unpack all this below . . .

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Are Police Jamming Cell Phones At Standing Rock Protest? The FCC Should Investigate.

Given the lack of coverage in mainstream media, you might not have heard about the ongoing protest against the construction of the Dakota Access Pipeline immediately upstream from the Standing Rock Sioux reservation aka #NoDAPL. You can find some good statistics on the pipeline and number of arrests associated with the protest here. Setting aside my personal feelings about democracy, freedom to peacefully protest, and how the Sioux concerns seem rather justified in light of the Alabama pipeline explosion, this has now raised an interesting communications issue that only an FCC investigation can solve. Are police jamming, or illegally spying, on communications at the protest and associated Sacred Stone Camp?

 

Over the last week, I have seen a number of communications from the protest about jamming, particularly in the period immediately before and during the Thursday effort by police to force protesters off the land owned by Dakota Access Pipeline. In addition, this article in Wired documents why tribal leaders connected with the tribal telecom provider, Standing Rock Telecom, think they are being jammed. I’ve had folks ask to speak to me using encrypted channels for fear that law enforcement will use illegal monitoring of wireless communications. As this article notes, there are a number of telltale signs that law enforcement in the area have deployed IMSI catchers, aka Stingrays, to monitor communications by protesters. However, as I explain below, proving such allegations — particularly about jamming — is extremely difficult to do unless you are the FCC.

 

Which is why the FCC needs to send an enforcement team to Standing Rock to check things out. Given the enormous public interest at stake in protecting the free flow of communications from peaceful protests, and the enormous public interest in continuing live coverage of the protests, the FCC should move quickly to resolve these concerns. If law enforcement in the area are illegally jamming communications, or illegally intercepting and tracking cell phone use, the FCC needs to expose this quickly and stop it. If law enforcement are innocent of such conduct, only an FCC investigation on the scene can effectively clear them. In either case, the public deserves to know — and to have confidence in the Rule of Law with regard to electronic communications.

 

More below . . . .

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Free Internet Is NOT For Porn — And Isn’t Broadband Access

As some folks may have heard, New York City has begun a really awesome project in free broadband access with it’s LinkNYC program. NYC is replacing no longer used pay phone kiosks with free WiFi access points (and an available interface built into the kiosk for those who cannot afford a smart device).

 

In a surprise to no one but the bright eyed innocents who set up the program, homeless people followed the advice of Avenue Q and decided that the Internet was indeed really really great — for porn. On the plus side, this certainly silenced those critics of the program who alleged that LinkNYC would only serve rich tourists. On the downside, the sight of the unwashed whacking hordes gathering around WiFi access points like pigeons clustered around lonely people with breadcrumbs on Central Park benches was not exactly the “proof of concept” the City hoped to get. So, once again to no one’s surprise, LinkNYC decided to install filters to block porn sites.

 

 

As has been the case since we first started debating Internet blocking in 2008, some folks raise the argument that net neutrality will prevent people from blocking porn sites. I testified on this back in 2008 at the FCC’s open hearing at Stanford University when folks claimed that if Comcast couldn’t block file-swapping sites it couldn’t block porn. Naturally, it also got debated in the lead up to the 2010 Open Internet Order and the 2015 Open Internet Order. So it’s not like we never thought of this before and it’s not like we don’t know the answer: free access sites can block porn (or otherwise filter) no problem. Indeed, as others have observed in the past, free access sites (like coffee houses or libraries) do not count as broadband Internet access providers and free Internet access is not Title II broadband Internet access service (BIAS).

 

Why? See below . . .

 

UPDATE: LinkNYC made this reply to my post through their official twitter account.

 

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I Summarize (Some of) My Net Neutrality Arguments in 15 Minutes

Back in August, I spoke about network neutraliy as part of a panel the Federal Communication Commission (FCC) Consumer Advisory Committee. My opening 15 minutes hit most of what I think are the important (and often overlooked) arguments around network neutrality. Specifically:

1. In terms of real world experiments, the service that has never been Title II is cable television. The service that has always been Title II is wireless voice (or, as we telecom folks call it, “Commercial Mobile Radio Service,” (CMRS)). As we know, consumers loooooove their cable television provider more than any other service, and hate wireless as completely not innovative. Oh wait, other way around.

2. Net neutrality is extremely important for maintaining diversity of voices. Not simply the ability of commercial entities to compete on a level playing field, but the ability of anyone to speak without an intermediary. When we eliminate that, even with the best of intentions, we destroy something that makes the Internet special.

3. Title II is a flexible and well understood tool for protecting consumers, protecting diversity of voices, and protecting competition. Title I and Section 706 are a roll of the dice with our fundamental rights.

This is not a comprehensive list of arguments in favor of net neutrality by any means. I also recognize that “Harold Feld Talks For 15 Minutes About Net Neutrality” is probably the Worst. Clickbait. Headline. EVAR! But I hope some of you will find it useful and entertaining.

 

Stay tuned .  .  . .