An obscure section of government regulation doesn’t often become a hot-button issue. But that’s exactly what happened to Section 230 of the Communications Decency Act as Big Tech behaviors have angered politicians on both sides of the aisle.

The portion of Section 230 currently being debated is the “protection for ‘Good Samaritan’ blocking and screening of offensive material.” Under that heading, Section 230 says websites won’t be treated as publishers of the content people put online. It also prevents civil liability for taking “good faith” action against inappropriate content. Inappropriate is defined as “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” materials.

As more and more conservatives have complained social media companies are unfairly applying content policies to suppress their speech, the Trump administration and some congressional Republicans called for reform of Section 230.

After Twitter started fact-checking his tweets, former President Donald Trump issued an executive order to petition the Federal Communications Commission to “clarify” immunity requirements. Former Attorney General William Barr released a blueprint for reform, calling on Congress to limit immunity and change the phrase “otherwise objectionable” to the less vague wording of “unlawful and promotes terrorism.” A handful of Senate Republicans also introduced a bill to narrow and redefine the standards for “good faith” immunity.

Conservative experts remain divided on the issue of altering Section 230.

Some Democrats have also taken aim at Section 230 for different reasons. President Joe Biden called for outright repeal of immunity in January 2020. He claimed Facebook allowed a political ad with false information about his son Hunter to run on the platform. Other liberals wanted tech companies to lose government immunity if they allowed “hate speech” or content promoting violence.

The American Principles Project also released a blueprint for Section 230 reform in June 2020, calling for a return to the original intent of the regulations, to incentivize free speech and protect children from obscene content.

• Liberal voting advocacy groups filed suit in August 2020 against Trump’s social media executive order claiming it harms voters who receive information through social media.
• The FCC opened a 45-day public comment period on Aug. 3, 2020, to listen to feedback surrounding the Trump administration's petition to revise Section 230.
• Sen. Josh Hawley (R-MO) and a few other Republicans introduced the Limiting Section 230 Immunity to Good Samaritans Act in July 2020. It would not only define “good faith” behavior, but penalize platforms that fail to act in good faith. It would also open up companies to lawsuits.
• American Principles Project released its blueprint to amend Section 230, protect freedom of speech and children.
• In May 2020, Trump issued an executive order calling on the Commerce and Justice departments to write a petition to the FCC within 60 days. He wanted the FCC to make Section 230 much clearer so that social media platforms cannot just take down speech they disagree with. In July, the petition was filed with the FCC.
• Biden lashed out at Facebook over a political ad, calling for Section 230 immunity for Facebook and other tech companies to be immediately “revoked.”
• In August 2019, Trump drafted an executive order to encourage the FCC to clarify how social media like Facebook and Twitter handle content. The draft was not finalized.
• Hawley introduced the Ending Support for Internet Censorship Act in June 2019, designed to require companies to prove political neutrality and be certified by the Federal Trade Commission. Some conservatives warned this would reduce free speech and lead to the removal of “more conservative content, not less.”

Contact the FCC: 1 (888) 225-5322, Facebook, Twitter, or by mail 445 12th Street, SW Washington, DC 20554

Many social media companies including Facebook, Google, YouTube, Instagram and Twitter now fact-check content published on their sites. Conservatives argue this fact-checking is selective and politically biased. After Twitter fact-checked President Donald Trump in May 2020, he issued an executive order calling for changes to regulations currently protecting social media companies.

The “Executive Order on Preventing Online Censorship” took aim at social media companies that “censor opinions” the companies disagree with by calling for changes to Section 230 of the Communications Decency Act. Section 230 provides broad immunity to companies and enables them to censor content.

“[T]he immunity should not extend beyond its text and purpose to provide protection for those who purport to provide users a forum for free and open speech,” Trump ordered.

Trump and many others say social media companies are no longer forums for free expression. “When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators,” he added.

The order directed all federal agencies to examine their application of Section 230 and instructed the Commerce Department to petition the Federal Communications Commission within 60 days to make changes. He also directed federal agencies to examine ad spending on social media to prevent financing companies guilty of viewpoint discrimination.

The regulatory impulse concerned some conservatives and libertarians. Liberal website Vox wrote about the order saying it was symbolic, “likely unenforceable” and could face a court challenge. 

• Liberal groups Rock the Vote, Free Press and others filed a lawsuit in August 2020, against the executive order, claiming it will endanger voting rights. The Center for Democracy and Technology (which takes money from George Soros and Big Tech companies) also filed a lawsuit in June claiming the order violates the First Amendment.
• The Executive Order on Preventing Online Censorship was issued May 28, 2020, requiring federal agencies examine their application of Section 230 and use of social media advertising. It also required the Commerce Department and DOJ to petition the FCC to clarify when social media companies should receive “immunity.”
• On July 29, the Commerce/DOJ petition was filed with the FCC requesting the agency “clarify when an online platform curates content in ‘good faith,’ and requests transparency requirements on their moderation practices ...”
• FCC Chairman Ajit Pai called the Section 230 debate “important,” and said the FCC would “carefully review any petition for rulemaking.”

Contact the FCC: 1-888-225-5322, www.fcc.gov/consumers, 445 12th Street SW, Washington, DC 20554

The major players of tech and social media have grown so big and powerful, their actions are receiving more scrutiny than ever. In 2020, Alphabet (owner of Google and YouTube), Facebook (owner of Instagram, WhatsApp and Giphy), Amazon and Apple were all under antitrust investigation by various state or federal initiatives. Some also faced investigations or fines from Europe.

Federal antitrust laws define and police anti-competitive behaviors including mergers and acquisitions, monopolies, conspiracies to monopolize or price fix, and unfair or deceptive practices. These laws are enforced by the Federal Trade Commission and the Dept. of Justice (DOJ). The two agencies have the power to fine companies for bad behavior, rollback mergers and even require a company to sell off parts (breaking it up). The FTC and DOJ came to an agreement in 2019 to divvy up scrutiny of Big Tech.

Google became the third tech company valued at more than $1 trillion in early 2020. But it’s dominance in search, email and huge market share of online advertising have made it a target of multiple antitrust investigations. The company faces separate investigations by state attorneys general, the House Judiciary Committee and the DOJ. The DOJ’s investigation began in August 2019, and was expected to end with a lawsuit against Google by the end of summer (2020).

It was also fined $1.7 billion by the European Commission in 2019 over “abusive practices” in online advertising. The Commission said Google broke European Union antitrust rules and blocked rivals from working with companies it was working with in prior years. That was its third multi-billion dollar fine by European regulators.

When the DOJ planned to open an antitrust probe of Facebook in 2019, it became the fourth investigation into possible anti-competitive practices by the social media giant, including one by the FTC and another by several state attorneys general.

Although smaller competitors and some Democratic and Republican politicians are clamoring for antitrust intervention, the difficulty facing all antitrust investigations will be proving harm. As the Wall Street Journal editorial board noted, since the 1970s, antitrust law has “focused not on [company] size but consumer harm.”

“The burden is on the critics of Big Tech to prove genuine damage, and then propose solutions that don’t do more harm than good,” the board added.

• Business Insider reported in August 2020, that the FTC, New York and California were collaborating on a probe of Amazon. Third-party sellers allege Amazon used data it collects about sellers to develop competing products. Asked about that before Congress, CEO Jeff Bezos said, “We have a policy against using seller-specific data to aid our private label business, but I can't guarantee you that that policy has never been violated.” The EU was expected to file charges against Amazon over the third-party seller allegations.
• The DOJ, along with some state attorneys general, started taking steps toward an antitrust probe of Apple in early 2020.
• Apple is involved in an ongoing tax probe that began in 2017 as well as two antitrust investigations launched in 2020 by the European Commission. The antitrust probes are focused on the company’s control of its App Store and payment platform Apple Pay.
• In February 2020, the FTC asked Amazon, Apple, Facebook, Microsoft and Alphabet to report any unreported business acquisitions to see if any were meant to head off “a competitive threat” or effectively created a monopoly.
• Speaking about a new DOJ investigation into Google launched in 2019, U.S. Attorney General William Barr said, “I don’t think big is necessarily bad, but I think a lot of people wonder how such huge behemoths that now exist in Silicon Valley have taken shape under the nose of the antitrust enforcers ... You can win that place in the marketplace without violating the antitrust laws, but I want to find out more about that dynamic.”
• The House Judiciary Committee’s antitrust subcommittee is investigating Facebook.
• At least 47 states are investigating Facebook’s ad pricing practices. Even more states (48) launched a similar investigation of Google’s online ad dominance in 2019.
• The FTC concluded in 2012 that Google used anti-competitive practices and abused its power in online search and advertising. However, it ended the investigation in 2013 after Google volunteered to make changes.

Contact the FTC: (202) 326-3300, antitrust@ftc.gov, Facebook, Twitter, or by mail 600 Pennsylvania Avenue, NW, Washington, DC 20580