WASHINGTON, June 12, 2019 – New critics of Section 230 of the Telecommunications Act seem to emerge every day on both the political right and the left.
The law states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
These 26 words are widely credited with creating the free-wheeling internet of today. It did this by shielding internet social media “publishers” – otherwise known as internet “platforms” – from liability for the content created by their users.
On Tuesday, conservative firebrand Rep. Matt Gaetz, R-Fla., became the latest on the right to fire at Section 230. At a hearing on Google and Facebook’s impact on journalism, Gaetz floated the possibility of removing or altering the Section 230 protections upon which the technology industry has come to rely.
He also imputed a kind of “fairness” or neutrality standard to which internet platforms must purportedly subscribe if they wish to retain the benefits from liability provided by Section 230.
From the left, Reed Hundt criticizes Section 230 protections as ‘naïve’
But it isn’t just conservatives gunning for Section 230: So are progressives, including Reed Hundt, the author of a recent book critical of what he calls Barack Obama’s “neoliberal” handling of the great recession.
Speaking about his book “A Crisis Wasted: Barack Obama’s Defining Decisions” at a Friday forum hosted by The Capitol Forum, Hundt concurred with some – on the left and on the right – who want to break up Facebook.
Hundt, the first chairman of the Federal Communications Commission under President Bill Clinton, said that he was “wrong” not to oppose Section 230 when it was introduced as part of the Communications Decency Act that passed in 1996.
Hundt contrasted the libel standard that governs traditional publishers like The New York Times. The landmark 1964 Supreme Court decision New York Times Co. v. Sullivan held that newspapers needed to have made a false statement with knowledge or reckless disregard of the truth to be guilty of libel.
It is that standard to which The New York Times is held when it decides to publish “user-generated content” like a letter to the editor. By contrast, Facebook takes much less care in its treatment of content posted by users on its site.
As a result, Facebook and other social media networks permit far more violence and hatred on their web sites than a traditional publisher like The Times would ever countenance on its web site.
Hundt said that the laissez-faire approach of the 1990s, including Section 230, was built around the presumption that “people are good.” Of the time, he now says, “we were very naïve.”
Section 230 took an alternative approach to incentivize online decency
Section 230 was drafted as part of the Communications Decency Act included in the Telecommunications Act of 1996. CDA barred “indecent” material online. It was struck down as unconstitutional in 1997 by the Supreme Court in Reno v. ACLU.
But Section 230 has remained the law of the land. And courts have read its provision to be quite broad in exempting technology companies from liability.
The provisions of Section 230 had originally been proposed as an alternative remedy to an outright ban of indecent content. Indeed, it gave an “interactive computer service(s)” protection for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
Today, with greater scrutiny on the market power and elements of toxic speech emanating from social media, Section 230 is under much greater fire from political and social leaders. And yet courts keep making it difficult to limit its scope and reach.
Courts can’t help themselves in broadly viewing Section 230, so prosecutors want legislative changes
On Friday, for example, the D.C. Court of Appeals cited Section 230 in holding that Google, Microsoft and Yahoo aren’t liable for hosting content posted by known scammers. A group of locksmiths had sued the platforms, claiming that the platforms were effectively engaging in a racket to incentivize legitimate locksmiths to buy ads in order to drive scammers lower on search results.
And that’s probably why state attorneys general are also not letting up in their criticism of Section 230. Last month, 47 of 50 attorneys general joined a letter of the National Association of Attorneys General supporting legislative changes to the law. They say (PDF) that Section 230 precludes state and local authorities from enforcing laws against “sex trafficking and crimes against children.”
The attorneys general continue:
- “We sadly note that the abuse on these platforms does not stop at sex trafficking. Stories of online black market opioid sales, ID theft, deep fakes, election meddling, and foreign intrusion are now ubiquitous, and these growing phenomena will undoubtedly serve as the subjects of hearings throughout the 116th Congress. Current precedent interpreting the CDA, however, continues to preclude states and territories from enforcing their criminal laws against companies that, while not actually performing these unlawful activities, provide platforms that make these activities possible. Worse, the extensive safe harbor conferred to these platforms by courts promotes an online environment where these pursuits remain attractive and profitable to all involved, including the platforms that facilitate them.”
The attorneys general also urged Congress to amend Section 230 in 2013 and 2017. Congress took them up on their request, for the first time, when it made a change in 2018 with the passage of the “Stop Enabling Sex Traffickers Act” and “Allow States and Victims to Fight Online Sex Trafficking Act” (known as FOSTA-SESTA). Passed last year, the measure provides that Section 230 immunity does not apply against enforcement of federal or state sex trafficking laws.
Will changes to Section 230 help big social media companies at the expense of competition?
Some populist Republicans are treating Section 230 as if it were an all-purpose punching bag to go after technology companies and internet platforms.
At a May policy forum flaying Facebook, Sen. Josh Hawley, R-Missouri, said that Section 230 is “predicated on [platforms] providing open, fair and free platforms. If they are not going to do that, but insert their own political biases, then they start to look a lot more like a newspaper, or TV station, but don’t qualify for Section 230.”
At the same time, Hawley took a nuanced view about the possible effects that changes to Section 230 might have on startup companies attempting to compete against giants like Facebook and Google. “We need to make sure that [changes to Section 230 are] not a benefit to incumbency.”
Dan Huff, counsel to former House Judiciary Committee Chairman Bob Goodlatte, R-Va., said at the event that Congress should be more bold in exercising power. The House should use the threat of revising Section 230 as a weapon. This could force Google and Facebook to let the public know how their algorithms highlight particular search results or promote certain items within a user’s social news feed.
Congress should say to these companies: “Unless your make public the grounds on which you keep content off your platform,” we are going to eliminate or drastically scale back Section 230 protections, said Huff.
(Photo of former FCC Chairman Reed Hundt, speaking at The Capitol Forum on Friday, by Drew Clark.)
With Congress Debating Trillions, a Community Guide to Federal Broadband Funding
Muninetworks.org has put together a handy overview of broadband programs – current and pending.
September 30, 2021 – In response to the Covid-19 pandemic, Congress and the Biden Administration passed two federal stimulus relief packages with historic levels of funding for programs devoted to advancing digital equity – the American Rescue Plan Act and the Consolidated Appropriations Act.
In early August, legislators in the U.S. Senate passed the Infrastructure Investment and Jobs Act, a $1.2 trillion infrastructure package which continues many of the federal programs started by previous relief packages and includes $65 billion more for expanding high-speed Internet infrastructure and connectivity. Members of Congress returned from their summer break on September 20th and U.S. House Representatives are expected to vote on the infrastructure relief bill, which enjoys bipartisan support, on September 30th.
This guide consolidates the different funding opportunities made available through various relief packages to assist communities interested in accessing federal funds to expand broadband infrastructure and digital inclusion services. It updates ILSR’s Community Guide to Broadband Funding released in April of 2021, which describes programs established under ARPA and CAA in more detail, provides additional resources and answers FAQs.
Important upcoming deadlines are bolded throughout this guide.
Infrastructure Investment and Jobs Act – Pending
Though the legislation is pending in Congress, the version of the Infrastructure Investment and Jobs Act passed by the U.S. Senate in August of 2021 includes $65 billion for expanding Internet access and digital inclusion initiatives. The Senate bill takes a more holistic approach to addressing the digital divide than previous relief packages, as it includes historic levels of funding for digital skills training. Of the $65 billion:
- $42.5 billion is being issued as block grants to states to fund the deployment of broadband infrastructure in “unserved” and “underserved” parts of the country. Funds can also be utilized to deploy affordable networks to low-income, multi-dwelling units (MDUs). Block grants of at least $100 million are reserved for all states.
- $14.2 billion is devoted to extending and making permanent the Emergency Broadband Benefit Program established under the Consolidated Appropriations Act. The name of the program will change to the Affordable Connectivity Program, the monthly stipend offered will be reduced to $30 a month maximum in most cases, and eligibility for the program will increase to include households within 200 percent of the poverty line.
- $2.75 billion will go to NTIA to establish programs promoting digital inclusion initiatives for communities which lack the skills, technologies and support necessary to take advantage of Internet connections. Of the $2.75 billion, $1.25 billion ($250 million a year for 5 years) is allocated for a competitive grant program, $60 million is for state planning grants, and $1.44 billion is for state implementation grants.
- $2 billion will extend the Tribal Connectivity Program administered by NTIA, established under the Consolidated Appropriations Act.
- $2 billion for USDA’s ReConnect Loan and Grant Program to deploy broadband to rural areas.
- $1 billion will go to NTIA to create a grant program to expand access to middle-mile infrastructure.
- $600 million will finance private activity bonds to fund broadband projects in partnership with the private sector.
As this legislation is pending, the rules and deadlines for these programs have yet to be established. A bipartisan federal infrastructure package is expected to pass Congress in the next two months. In the meantime, check out ILSR’s recent piece deciphering broadband provisions in the U.S. Senate infrastructure bill, Broadband Infrastructure Bill: The Good, The Bad & The Ugly.
- Benton’s Overview of the Senate Infrastructure Bill
- NDIA’s Overview of the Senate Infrastructure Bill
American Rescue Plan Act – Enacted March 2021
With the American Rescue Plan Act, the federal government specifically recognized and began to address critical infrastructure and connectivity needs across the country, and provided billions to states, municipalities, and counties to expand broadband infrastructure. The federal broadband programs introduced under the Rescue Plan required eligible projects to deliver higher-speed Internet connections than the federal government has required in the past, and also placed an emphasis on funding futureproof fiber infrastructure for the first time. The American Rescue Plan appropriated:
1. $350 billion to the Coronavirus State and Local Fiscal Recovery Fund – aid sent directly to states, counties, local municipalities and Tribal governments eligible to be used to make necessary investments in water, sewer, and broadband infrastructure.
- Eligible broadband projects are expected to be designed to deliver Internet service that reliably meets or exceeds symmetrical upload and download speeds of 100 Mbps. In areas where the geography makes this speed benchmark impractical to obtain, projects are expected to deliver Internet service that reliably meets or exceeds 100 Mbps download and between at least 20 Mbps and 100 Mbps upload speeds.
- Communities have a relatively long window of time to expand broadband infrastructure with these funds. Though communities must allocate the funds by December 2024, broadband projects do not have to be completed until December 2026.
- The first payment was distributed to localities earlier this summer. The U.S. Treasury is required to distribute the second payment 12 months after the first.
- Rules governing the program: U.S. Treasury Interim Final Rules
- ILSR’s Overview of U.S. Treasury Interim Final Rules
- Many localities have already dedicated these funds toward expanding Internet access. See ILSR’s ongoing Big List of American Rescue Plan Community Broadband Projects.
2. $10 billion to the Coronavirus Capital Projects Fund – aid issued in the form of state block grants to states, territories, and Tribes to cover the costs of capital projects like broadband infrastructure, and provide funding for connectivity devices and equipment. The focus of the Capital Projects Fund is confronting the need for improved broadband connectivity which was exposed during the pandemic. Capital projects must focus on enabling work, education, and health monitoring, including remote options.
- The guidelines for this program urge states to pursue “projects that involve broadband networks owned, operated by or affiliated with local governments, nonprofits and cooperatives — providers with less pressure to generate profits and with a commitment to serving entire communities.”
- Although this is not a competitive grant program, states, territories, and freely associated states must submit an Application and a Grant Plan for their allocation of the Capital Projects Fund through the Treasury Submission Portal; for Tribal Governments, the Application also serves as their Grant Plan.
- $9.8 billion is available to states through the Capital Projects Fund; $100 million is available to Tribes; $100 million is available to freely associated states.
- Although local governments are ineligible to be direct recipients of these grants, states can suballocate a portion of their award to local governments, nonprofits and private entities.
- Read more about eligible projects and grant processes here [pdf].
- The Treasury Portal for the fund opened on September 24. Applicants will have the ability to apply through December 24, 2021. Once funds are awarded, eligible entities will be able to use them through December 31, 2026.
- Treasury will host an informational webinar for states, territories & freely associated states on Thursday, September 30 at 3PM ET.
- Treasury and NTIA will co-host an informational webinar for Tribal Governments on Wednesday, October 6 at 3PM ET.
- U.S. Treasury Guidance for Capital Projects Fund for States [pdf]
- U.S. Treasury Guidance for Capital Projects Fund for Tribal Governments [pdf]
- U.S. Treasury Program Overview Webpage
- Receive Email Updates on the Capital Projects Fund
- Benton’s Program Overview
- NDIA’s Program Overview
3. $7.17 billion to the FCC’s Emergency Connectivity Fund – federal program to assist schools and libraries as they transition to remote learning by partially funding the cost of Internet services and eligible equipment.
- The initial ECF Program application filing window closed on August 13. Due to demand, a second filing window will open on September 28 and run until October 13.
- FCC Program Overview Page
- USAC Program Overview Webpage
- Emergency Connectivity Fund Program Overview Module
Consolidated Appropriations Act – Enacted December 2020
The Consolidated Appropriations Act directed the FCC to establish the Emergency Broadband Benefit Program and directed NTIA to implement three new broadband grant programs. The federal government addressed broadband affordability for the first time with this relief package. CAA appropriated:
1. $3.2 billion to FCC’s Emergency Broadband Benefit Program – federal program providing $50 to $75/month subsidies for monthly Internet service to eligible households. Internet plans regularly costing less than $50 per month will be free to eligible subscribers. If the participating ISP chooses to provide devices, eligible households can also receive a one-time discount of up to $100 to purchase a laptop, desktop computer, or tablet from providers.
- Enrollment for the program began in May of 2021. Funding for the program has not run out and eligible households can continue to access the program today. Learn how to apply here.
- The program will be indefinitely extended if the pending infrastructure package passes Congress.
- FCC Program Overview Webpage
- NDIA’s EBB Website
- Next Centuries Cities’ Explainer for Consumers
- ILSR’s Connect This! episode on the Emergency Broadband Benefit
2. $268 million to NTIA’s Connecting Minority Communities Pilot Program – grants available to Black colleges and universities (HBCUs), Tribal colleges and universities (TCUs), Minority-serving institutions (MSIs), and consortiums led by an HBCU, TCU, or MSI including a minority business enterprise or a nonprofit organization in the surrounding community. Eligible equipment includes Wi-Fi hotspots, modems, routers, laptops, tablets, and other Internet-connected devices.
- The current deadline for applications is December 1, 2021.
- See Notice of Funding Opportunity (NOFO) here.
- NTIA Program Overview Webpage
3. $300 million to NTIA’s Broadband Infrastructure Program – grants available to partnerships between states, local jurisdictions, and ISPs to expand fixed broadband service in unserved areas.
- The initial application filing window closed on August 17.
- See NOFO here.
- NTIA Program Overview Webpage
4. $980 million to NTIA’s Tribal Broadband Connectivity Program – grants available to Tribal governments and organizations to improve broadband infrastructure.
- The initial application filing window closed on September 1. The timeline for the program may be extended if the pending federal infrastructure package passes Congress.
- See NOFO here.
- NTIA Program Overview Webpage
Editor’s Note: This piece was authored by Jericho Casper, a reporter for the Institute for Local Self Reliance’s Community Broadband Network Initiative. Originally appearing at MuniNetworks.org on September 28, 2021, the piece is republished with permission.
House Democrats Fight Against Anti-Crypto Measures in Senate-Passed Infrastructure Bill
August 20, 2021 – Pro-crypto House Democrats pushed back against the Senate Infrastructure Investment and Jobs Act’s inclusion of crypto regulatory language, seeking to make it less broad.
The additions of cryptocurrency taxes aim to generate revenue to pay for part of the infrastructure spending. Its authors intended to reduce fraud in reports to the IRS.
Democratic California Reps. Ro Khanna, Eric Swalwell, and Anna Eshoo joined cryptocurrency enthusiasts Rep. Bill Foster, D-Illinois, and Rep. Darren Soto, D-Fla., in urging to amend the infrastructure bill in the House.
In a letter released on August 12, Eshoo advocated to Pelosi that the House should “amend the problematic broker definition,” describing the existing language as “imposing unworkable regulations.”
But there is some feeling that amendments to the bill in the House may not be necessary. According to a Treasury Department official, the agency plans to clarify its definition of a “broker” to be more specific.
Any amendments to the House would force the infrastructure measure back to the Senate.
Senators Reintroduce Bipartisan Digital Equity Act
Sen. Murray re-introduces bi-partisan that would provide grants to states pushing for digital equity.
June 14, 2021– Three Senators have introduced legislation that would provide grants to states that create digital equity plans.
The proposed legislation, reintroduced on Thursday by Patty Murray, D-Washington, Rob Portman, R-Ohio, and Angus King, I-Maine, would set-aside $60 million to establish a State Digital Equity Capacity Grant within the Department of Commerce that would “promote the achievement of digital equity, support digital inclusion activities, and build capacity for efforts by States relating to the adoption of broadband by residents of those States.”
The funds from the Digital Equity Act in the Senate would be made available to all states, foundations, corporations, institutions, or agencies. The bill was first introduced by Murray in 2019.
Each state will receive a different grant amount depending on a formula that includes population and access to broadband across the state, to be spent within 5 years of receipt.
In addition to funding for states, the bill creates a $125-million Digital Equity Competitive Grant Program. This program is also for state agencies and institutions but is more specifically geared toward those that are responsible for “adult education and literacy activities.”
A final pillar of the bill is to create more infrastructure and resources for future development of policies that will continue to promote a bridging of the digital divide.
During a press conference on the bill, Murray told the Broadband Breakfast that she believes the bill will be successful because it gives states and local communities the ability to decide what their needs are. “We cannot dictate that in D.C.,” she remarked.
When asked why the bill will create more permanent solutions, she stated that it, “Provides for the diversity of needs that are going to continue to be out there.”
The senators co-sponsoring the bill said they are confident it will make its way into any infrastructure legislation passed by Congress.
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