When there are only five people in charge of a major federal agency, the personal agenda of even one of them can have a profound impact. That’s why EFF is closely watching the nomination of Nathan Simington to the Federal Communications Commission (FCC).
Simington’s nomination appears to be the culmination of a several-month project to transform the FCC and expand its purview in ways that threaten our civil liberties online. The Senate should not confirm him without asking some crucial questions about whether and how he will help ensure that the FCC does the public interest job Congress gave it, which is to expand broadband access, manage the public’s wireless spectrum to their benefit, and protect consumers when they use telecommunications services.
There’s good reason to worry: Simington was reportedly one of the legal architects behind the president’s recent executive order seeking to have the FCC issue “clarifying” regulations for social media platforms. The executive order purports to give the FCC authority to create rules to which social media platforms must adhere in order to enjoy liability protections under Section 230, the most important law protecting our free speech online. Section 230 protects online platforms from liability for the speech of their users, while protecting their flexibility to develop their own speech moderation policies. The Trump executive order would upend that flexibility.
As we’ve explained at length, this executive order was based on a legal fiction. The FCC’s role is not to enforce or interpret Section 230; its job is to regulate the United States’ telecommunications infrastructure: broadband, telephone, cable television, satellite, and all the various infrastructural means of delivering information to and from homes and businesses in the U.S. Throughout the Trump administration, the FCC has often shirked that duty — most dramatically, by abandoning any meaningful defense of net neutrality. Simington’s nomination seems to be an at-the-buzzer shot by an administration that’s been focused on undermining our protections for free speech online, instead of upholding the FCC’s traditional role of ensuring affordable access to the Internet and other communications technologies, and ensuring that those technologies don’t unfairly discriminate against specific users or uses.
The FCC Is Not the Speech Police — and Shouldn’t Be
Let’s take a look at the events leading up to Simington’s nomination. Twitter first applied a fact-check label to a tweet of President Trump’s in May, in response to his claims that mail-in ballots were part of a campaign of systemic voter fraud. As a private company, Twitter has the First Amendment right to implement such fact-checks, or even to choose not to carry someone’s speech for any reason.
The White House responded with its executive order that, among other things, directed the FCC to draft regulations that would narrow the Section 230 liability shield. As a result, it perverted the FCC’s role: it’s supposed to be a telecom regulator, not the social media police.
The White House executive order reflects a long-running (and unproven) claim in conservative circles that social media platforms are biased against conservative users. Some lawmakers and commentators have even claimed that their biased moderation practices somehow strip social media platforms of their liability protections under Section 230. As early as 2018, Sen. Ted Cruz incorrectly told Facebook CEO Mark Zuckerberg that in order to be shielded by 230, a platform had to be a “neutral public forum.” In the years since then, members of Congress have introduced multiple bills purporting to condition platforms’ 230 immunity on “neutral” moderation policies. As we’ve explained to Congress, a law demanding that platforms moderate speech in a certain way would be unconstitutional. The misguided executive order has the same inherent flaw as the bills: the government cannot dictate online platforms’ speech policies.
It’s not the FCC’s job to police social media, and it’s also not the president’s job to tell it to. By design, the FCC is an independent agency and not subject to the president’s demands. But when Republican FCC commissioner Michael O’Rielly correctly pointed out that government efforts to control private actor speech were unconstitutional, he was quickly punished. O’Rielly wrote [pdf], “the First Amendment protects us from limits on speech imposed by the government – not private actors – and we should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way.” The White House responded by withdrawing O’Rielly’s nomination and nominating Simington, one of the drafters of the executive order.
During a transition of power, it’s customary for independent agencies like the FCC to pause on controversial actions. The current FCC has so far adhered to that tradition, only moving forward items that have unanimous support. Every item the FCC has voted on since the election had the support of the Chair, the other four commissioners, and industry and consumer groups. For example, the FCC has moved forward on freeing up of 5.9 Ghz spectrum for unlicensed uses, a move applauded by EFF and most experts. But we worry that in nominating Simington, the administration is attempting to pave the way for a future FCC to go far beyond its traditional mandate and move into policing social media platforms’ policies. We’re glad to see Fight for the Future, Demand Progress, and several other groups rightfully calling on the Senate to not move forward on Nate Simington’s nomination.
The FCC’s Real Job Is More Important Than Ever
There’s no shortage of work to do within FCC’s traditional role and statutory mandate. The FCC must begin to address the pressure test that the COVID-19 pandemic has posed to the U.S. telecommunications infrastructure. Much of the U.S. population must now rely on home Internet subscriptions for work, education, and socializing. Millions of families either have no home Internet access at all or lack sufficient access to meet this new demand. The new FCC has a monumental task in front of itself.
During his Senate confirmation hearing, Simington gave no real indication on how he plans to work on the real issues facing the agency: broadband access, remote school challenges, spectrum management, improving competition, and public safety rules, for example. The only things we learned from the hearing are that he plans to continue the Trump-era policy of refusing to regulate large ISPs and that he refuses to recuse himself from decisions on the misguided executive order that he helped write. Before the Simington confirmation hearing started, Trump again urged Republicans to quickly confirm his nominee on a partisan basis.
In response, Senator Richard Blumenthal called for a hold on Simington’s nomination, indicating real concern for the FCC’s independence from the White House. That means the Senate would need to bypass his filibuster if it truly wanted to confirm Trump’s nominee.
Sen. Blumenthal’s concerns are real and important. President Trump effectively fired his own commissioner (O’Rielly) for expressing basic First Amendment principles. Before it confirms Simington, the Senate ought to consider what the nomination means for the future of the FCC. As the pandemic continues to worsen, there are too many mission critical issues for the FCC to tackle for it to continue with Trump’s misguided war on Section 230.