Net Neutrality Has a Section 230 Problem | Opinion

Advocates argue that net neutrality rules—rules mandating that the internet not favor some pieces of content over others—are "essential to our democracy." Color of Change, a progressive advocacy group, went so far as to say that net neutrality "has enabled [the internet] to serve Black people and other historically marginalized communities." Sarah Kate Ellis, president and CEO of LGBTQ media advocacy group GLAAD, said "stripping away net neutrality is the latest attempt...to silence voices of already marginalized communities and render us invisible."

Set aside for the moment the fact that all these claims were proven false five years ago after net neutrality rules were repealed. These same advocates are now cheering on the Federal Communications Commission (FCC), which has once again decided to use its authority under Title II of the Communications Act to revive Obama-era net neutrality rules. The rules are intended to prevent internet service providers (ISPs) from blocking, throttling, or deprioritizing websites.

But there's a problem for the FCC—one the commission doesn't seem to recognize. That problem is the infamous Section 230 of the Communications Decency Act.

You may have heard of it. It's the same statute that provides legal immunity when Twitter blocks the New York Post, or Apple takes down Parler, or Google deprioritizes search results from academic institutions that challenge official COVID-19 narratives.

Section 230(c)(2) states that "no provider...of an interactive computer service shall be held liable" when "restrict[ing] access to or availability of material that the provider...considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." In other words, Section 230 gives interactive computer service providers near immunity from civil liability for blocking, throttling, deprioritizing, or shadow-banning online content.

That's not just my interpretation, that's what the courts say. In Domen v. Vimeo, for example, the Second Circuit held that Section 230(c)(2) provides a "broad" shield from civil liability whenever an interactive computer service provider restricts access to content it finds "objectionable."

One might think that net neutrality advocates would be outraged by such a statute. Instead, organizations like the ACLU see Section 230 as a tool to promote free speech because it "remov[es] strong incentives for platforms to limit what we can say and do online."

That's a bit strange—incoherent even—because Section 230 explicitly protects internet service providers when they "restrict access" to content they found objectionable. It's not hidden. Section 230(f)(2) defines "interactive computer service" to include "a service or system that provides access to the Internet." That's exactly what an internet service provider does—the FCC even echoes this languages when describing them as "broadband Internet access service providers."

In other words, FCC rules meant to stop an internet service provider from restricting access to certain websites legally cannot—under Section 230—stop an internet service provider from restricting access to certain websites.

Now, one might expect the FCC to make the case that its civil enforcement authority somehow falls outside the scope of Section 230. But it would be almost impossible to square that circle. Section 230 does list a few government actions that are exempt from its reach: Section 230(e) makes clear the liability protection doesn't extend to criminal laws, intellectual property laws, certain state laws, certain privacy laws, and sex trafficking laws. Missing from that list? FCC enforcement of its own rules. In other words, even if the FCC adopted a rule to prevent blocking, throttling, or deprioritizing by internet service providers, Section 230 would prevent it from enforcing that rule.

What is more, the FCC almost certainly can't strip ISPs of their immunity under Section 230 in the name of net neutrality. At least not since the Supreme Court formalized the "major questions doctrine" in West Virginia v. EPA last year.

The major questions doctrine requires that an agency's interpretation of any statute of "vast economic and political significance" be explicitly present in the text. If Congress didn't write it in, agencies can't read it in. Now, under West Virginia v. EPA, courts can no longer jump to the question of whether a statute is ambiguous when an agency asserts new authority. The onus will now be on the FCC to show that a matter is not a major question—which net neutrality clearly is—and then point to a clear delegation of that authority in the text of the statute—one that, due in part to Section 230, it doesn't have.

The FCC's net neutrality rules undoubtably trigger a major question because the FCC seeks nearly unbounded regulatory authority over ISPs. After all, the internet touches a large portion of our economy, and the debates over net neutrality and public-utility regulation have been fiercely political.

So how does the FCC address the Section 230 problem for its net neutrality rules? Amazingly, it doesn't—the only mention of Section 230 in its draft Notice of Proposed Rulemaking is a brief reference to the statute's liability limitation provisions.

The last time net neutrality rules went to court, they only survived scrutiny because the FCC admitted that if an internet service provider chose to "exercise editorial discretion," net neutrality rules "would not apply to such providers."

In short, Section 230 means that any FCC-adopted net neutrality rules cannot stop blocking, throttling, or deprioritization—they can't protect free speech or democracy (to the extent that were even needed). Overcoming this act of Congress will take an act of Congress; the FCC rulemaking is just a lawless distraction. Let's hope the advocates of net neutrality soon realize that.

Joel Thayer is president of the Digital Progress Institute and an attorney based in Washington, D.C. The Digital Progress Institute is a nonprofit seeking to bridge the policy divide between telecom and tech through bipartisan consensus.

The views expressed in this article are the writer's own.