When you think about who is going to be hit the hardest by pollution, whether it’s conventional air water and soil pollution or climate change, it is very often low-income communities and communities of color. The undercutting of these kinds of protections is going to have a disproportionate impact on these very same communities.
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Federal Communications Commission
As one of the FCC’s previous General Counsels noted, the FCC has authority to take this action because Section 230 is codified in the Communications Act.'© The FCC’s Section 230 reforms should track the positions outlined
in a July 2020 Petition for Rulemaking filed at the FCC near the end of
the Trump Administration.” Any new presidential Administration should consider filing a similar or new petition.
As Justice Clarence Thomas has made clear, courts have construed Section 230 broadly to confer on some of the world’s largest companies a sweeping immunity that is found nowhere in the text of the statute.!* They have done so ina way that nullifies the limits Congress placed on the types of actions that Internet companies can take while continuing to benefit from Section 230. One way to start correcting this error is for the FCC to remind courts how the various portions of Section 230 operate.
At the outset, the FCC can clarify that Section 230(c)(1) does not apply broadly to every decision that a platform makes. Rather, its protections apply only when a platform does not remove information provided by someone else. In contrast, the FCC should clarify that the more limited Section 230(c)(2) protections apply to any covered platform’s decision to restrict access to material provided by someone else. Combined, these actions will appropriately limit the number of cases in which a platform can censor with the benefit of Section 230’s protections. Such clarifications might also include drawing out the traditional legal distinction between distributor and publisher liability; Section 230 did not do away with the former, nor does it collapse into the latter.
Impose transparency rules on Big Tech. Today, Big Tech offers a black box. After Google manipulates search results, a small business can see its web traffic drop precipitously overnight for no apparent reason, potentially flipping its outlook from black to red. On Facebook, social media posts
are left up or taken down, accounts suspended or permanently banned, without any apparent consistency. Out of the blue, YouTube can demonetize individuals who have risked their capital and invested their labor to build online businesses.
At present, the FCC requires broadband providers to comply witha transparency rule that can provide a good baseline for Big Tech. Under the FCC’s rule, broadband providers must provide detailed disclosures about practices that would shape Internet traffic—from blocking to prioritizing or discriminating against content. The FCC could take a similar approach to