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White House order for new content moderation rules could face long legal odds

The White House is reportedly working on a draft executive order that would call on select federal agencies to create and apply new rules around how online platforms moderate content, but technology law experts said successful implementation of such an order would face long odds.

The draft executive order, which has not yet been released, is in response to allegations of anti-conservative bias in content moderation on prominent social media platforms and would call on the U.S. Federal Communications Commission to create new rules about "when the law protects social media websites when they decide to remove or suppress content on their platforms," according to a CNN report.

The order, a draft of which was viewed by various media outlets, would also reportedly enlist the U.S. Federal Trade Commission to consider the new policies when it considers filing lawsuits against "misbehaving" companies. However, legal experts said neither agency may have the appropriate authority to take those actions.

FCC authority

Mitchell Brecher, a shareholder at the law firm Greenberg Traurig LLP, who focuses his practice on telecommunication, media law and regulation, said in an interview that the Communications Act of 1934 — the federal law that established the FCC and the legal framework for regulating many forms of communication — does not appear to give the FCC authority to regulate edge providers, such as Facebook Inc., Twitter Inc. and Alphabet Inc.'s Google LLC.

"The Communications Act is pretty clear what the FCC has jurisdiction over — anybody that uses the spectrum, broadcast stations, anyone that provides telecommunications services, anyone that manufactures devices to transmit radio energy — I don't think edge providers fit within any of those categories," he said, adding that an executive order "can't create authority" for a regulatory body.

SNL Image

President Donald Trump speaks during a White House social media summit in July.
Source: The Associated Press

Rob Frieden, a telecommunications law professor at Pennsylvania State University, said the executive order, as described, sounds like an attempt to create an internet version of the Fairness Doctrine, a former FCC policy that required broadcasters to give equal air time to opposing views on controversial issues.

An attempt to create a Fairness Doctrine for the internet "just reeks of First Amendment problems," according to Frieden, who previously worked at the FCC and the U.S. National Telecommunications and Information Administration.

"It's just unconstitutional and how would you enforce it?" said Frieden. "And how do you determine fairness?"

FTC powers

Brecher also does not see appropriate authority for the FTC, which is, in part, charged with overseeing unfair and deceptive practices in commerce.

"The way I read the Federal Trade Commission Act, there is a difference between an unfair and deceptive practice a practice that's going to rip off consumers or mislead consumers about a product and political commentary," he said. "I don't think that controlling the substantive content of information that's put out by edge providers comes within the jurisdiction of the FTC, unless that information is unfair and [a] deceptive trade practice."

Frieden also noted that, historically, the FTC has been an agency that reacts to issues where they receive a high volume of complaints, but the draft order, as described, would call for the agency to take a "much more aggressive, proactive role."

Legal battles

If the White House does ultimately go through with the executive order in the manner being reported, Brecher sees a legal battle ahead.

Specifically, he said that if the FCC issues a new rule to implement the provisions of the executive order, the rulemaking is open to an appeal. Brecher said the primary basis for an appeal most likely would be that the agency exceeded its statutory authority.

Ultimately, due to the legal challenges such an order could face, Frieden is skeptical that the White House will move forward with it.

"I think it got some good headlines," he said. "But, this isn’t the way you do it. We are a nation of laws."

At a Senate hearing in April, Sen. Ted Cruz, R-Texas, warned that big tech has the power to "collate a person's feed so that they only receive the news that comports with their own political agenda."

However, Cruz, who has been a leading voice against anti-conservative bias on social media, himself acknowledged that a remedy to this perceived issue is "a thorny legal question" and went so far as to say that no one wants to see "a government speech police."