NTIA Petition for Rulemaking to Clarify Provisions of Section 230 of the Communications Act

The National Telecommunications and Information Administration (NTIA) respectfully requests that the Federal Communications Commission initiate a rulemaking to clarify the provisions of section 230 of the Communications Act of 1934. Specifically, per President Donald Trump's Executive Order No. 13925: Preventing Online Censorship (EO 13925), NTIA requests that the FCC propose rules to clarify:

• the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(a) may also not be able to claim protection under subparagraph (c)(1);
• the conditions under which an action restricting access to or availability of material is not “taken in good faith” within the meaning of subparagraph (c)(2)(A) of section 230, particularly whether actions can be “taken in good faith” if they are (A) deceptive, pretextual, or inconsistent with a provider’s terms of service; or (B) taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard; and 
• any another proposed regulation that NTIA concludes may be appropriate to advance the policy described in subsection (a) of E.O. 13925, to impose disclosure requirements similar those imposed on other internet companies, such as major broadband service providers, to promote free and open debate on the internet.

NTIA urges the FCC to promulgate rules addressing the following points:

1. Clarify the relationship between subsections (c)(1) and (c)(2), lest they be read and applied in a manner that renders (c)(2) superfluous as some courts appear to be doing.
2. Specify that Section 230(c)(1) has no application to any interactive computer service’s decision, agreement, or action to restrict access to or availability of material provided by another information content provider or to bar any information content provider from using an interactive computer service.
3. Provide clearer guidance to courts, platforms, and users, on what content falls within (c)(2) immunity, particularly section 230(c)(2)’s “otherwise objectionable” language and its requirement that all removals be done in “good faith.”
4. Specify that “responsible, in whole or in part, for the creation or development of information” in the definition of “information content provider,” 47 U.S.C. § 230(f)(3), includes editorial decisions that modify or alter content, including but not limited to substantively contributing to, commenting upon, editorializing about, or presenting with a discernible viewpoint content provided by another information content provider.
5. Mandate disclosure for internet transparency similar to that required of other internet companies, such as broadband service providers.