As the saying goes, “If all you have is a hammer, then everything looks like a nail.” It is ironic then that with a full toolbox to go after bad actors online — both under existing consumer protection authority and more defined laws like the Children’s Online Privacy Protection Act (COPPA) — some Federal Trade Commission (FTC) commissioners argue the FTC is unable to protect consumers without changes to Section 230. Additionally, despite all the tools at its disposal to pursue the goals Americans most care about, including online privacy and protecting children online, the current FTC leadership seems determined to focus on its preferred political agenda including claims it needs even more tools to do its job.
While reasonable people can debate the appropriateness or penalties related to its various actions, Section 230 is not a barrier to the FTC’s ability to be an active enforcer.
Before Lina Khan’s confirmation to be FTC Chairman, the FTC actually used its very large enforcement toolbox, particularly around key issues like privacy and security. Let us review the history.
Americans’ top concerns about what is happening online have repeatedly been shown to be related to data privacy and security or children. In both cases, the FTC has actively enforced these laws and in neither case would changes to Section 230 create more or new resources for enforcement.
Additionally, the FTC has successfully pursued significant cases related to these concerns. For example, the FTC issued a $5.7 million fine in a settlement that also resulted in additional consent requirements in an enforcement against TikTok over children’s privacy. The agency also reached a record $170 million settlement with YouTube over concerns related to the collection of children’s data and saw resulting policy changes on the video sharing platform.
Again in the last five years, the FTC pursued what turned out to be one of the biggest privacy scandals at the time, imposing a $5 billion penalty — and many additional operating requirements — against Facebook for actions that became public during investigations following the Cambridge Analytica scandal. These are just some of the notable examples of the ways in which the agency has already engaged in actions to respond to most Americans’ tech policy concerns.
The reality remains that the most needed consumer protection stems from these privacy and security related concerns and not something that changes the way users can share their content or the liability of platforms for content moderation.
Polling shows that privacy and children’s online safety remains a top priority for Americans, yet FTC Chair Khan is ignoring those concerns, neglecting her designated authority and pursuing her top priority — antitrust enforcement.
Notably, existing case law again supports that Section 230 is not a barrier to antitrust enforcement. In MalwareBytes v. Enigma, the Ninth Circuit held that Section 230’s liability protections do not extend to claims regarding anticompetitive conduct. While debate continues about the implications of such a holding on Section 230, the current precedent shows that while there may be many concerns about Chair Khan’s crusade against American tech innovators using the agency’s competition authority, Section 230 does not create a barrier to it.
In fact, Section 230 is designed as a very specific tool that provides both users and innovators with new opportunities online and provides protection only when dealing with questions related to user-generated content and the platforms’ decisions around it. As a result, it does not stand in the way of even misguided antitrust enforcement.
The FTC should focus on using the tools it has when it comes to technology rather than seeking dramatic changes that would have a negative impact on users and startups. Before taking a sledgehammer to an important law with serious consequences, the FTC should examine the numerous existing tools it is already using to respond to concerns from the American people.
Jennifer Huddleston is policy counsel with NetChoice and an adjunct professor at George Mason University’s Antonin Scalia Law School.
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