Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC

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Section 230 of the Communications Act
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Of 1934
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In the Matter of

Docket No. RM-11862

COMMENT OF THE COPIA INSTITUTE
OPPOSING THE NATIONAL TELECOMMUNICATIONS AND
INFORMATION ADMINISTRATION’S
PETITION FOR RULEMAKING
I.

Preliminary Statement
The NTIA petition must be rejected. The rulemaking it demands represents an

unconstitutional power grab not authorized by any statute. It also represents bad policy.
The petition is rife with misstatements and misapprehensions about how Section 230
operates and has been interpreted over the years. The most egregious is at page 14 of the
petition:
"[L]iability shields can deter entrance."
Not only is that statement utterly incorrect, but if any of the recommendations
NTIA makes were to somehow take on the force of law, it is these changes themselves that
would be catastrophic to new entrants. Far from vindicating competitive interests, what
NTIA proposes would be destructive to them, as well as the First Amendment interests of
Internet users and platforms. Every policy value NTIA suggests it cares about in its
petition, including speech and competition, would be hurt by giving any of its language
suggestions the force of law. In this comment the Copia Institute explains why.

 II.

About the Copia Institute
The Copia Institute is the think tank arm of Floor64, Inc., the privately-held small

business behind Techdirt.com, an online publication that has chronicled technology law
and policy for more than 20 years. These efforts are animated by the belief in the
importance of promoting innovation and expression and aimed at educating lawmakers,
courts, and other regulators, as well as innovators, entrepreneurs, and the public, on the
policy choices needed to achieve these values.

The Copia Institute regularly files

regulatory comments, amicus briefs, and other advocacy instruments on subjects ranging
from freedom of expression, platform liability, patents, copyright, trademark, privacy,
innovation policy and more, while Techdirt has published more than 70,000 posts
commenting on these subjects. The site regularly receives more than a million page views
per month, and its posts have also attracted more than a million reader comments—itself
user-generated speech that advances discovery and discussion around these topics.
Techdirt depends on Section 230 to both enable the robust public discourse found on its
website and for its own speech to be shared and read throughout the Internet.1
III.

Argument
A. FCC action to codify amendments to statutory language are
unconstitutional.
The Constitution vests the power to legislate with Congress.2 Consistent with that

authority Congress passed Section 230. That statutory language has been in force for more
than 20 years. Even if it were no longer suited to achieve Congress's intended policy goals,3
or even if those policy goals no longer suited the nation,4 it is up to Congress, and only

1

See Comment of Michael Masnick, founder and editor of Techdirt for further insight in how Section 230
makes his small business possible.
2
U.S. Const. art. 1, § 1.
3
As this comment explains, infra, the original language is well-suited to meeting its objectives, and to the
extent that any improvements might be warranted to better achieve those policy goals, none of the language
proposed by the NTIA would constitute an effective improvement. Rather, it would all exacerbate the
problems the NTIA complains of.
4
Even the NTIA concedes that free speech and competition that Congress hoped to foster when it passed
Section 230 remain desirable policy goals. See, e.g., NTIA Petition at 6.

 Congress, to change that statutory language to better vindicate this or any other policy
value.
The United States Supreme Court recently drove home the supremacy of Congress's
legislative role. In Bostock v. Clayton County, Ga. the Supreme Court made clear that
courts do not get to rewrite the statute to infer the presence of additional language Congress
did not include.5 This rule holds even when it might lead to results that were not necessarily
foreseen at the time the legislation was passed.6 Courts do not get to second guess what
Congress might have meant just because it may be applying that statutory text many years
later, even after the world has changed. Of course the world changes, and Congress knows
it will when it passes its legislation. If in the future Congress thinks that a law hasn’t scaled
to changed circumstances it can change that law. But, per the Supreme Court, courts don’t
get to make that change for Congress. The statute means what it says, and courts are
obligated to enforce it the way Congress wrote it, regardless of whether they like the result.7
While the Bostock decision does not explicitly spell out that agencies are prohibited
from making changes to legislation, the Constitution is clear that legislating is the domain
of Congress. If Article III courts, who are charged with statutory interpretation,8 do not
get to read new language into a statute, there is even less reason to believe that Article II
Executive Branch agencies get to either.

5

Bostock v. Clayton County, Ga., 140 S. Ct. 1731, 1754 (2020) ("Ours is a society of written laws. Judges
are not free to overlook plain statutory commands on the strength of nothing more than suppositions about
intentions or guesswork about expectations.").
6
Id. at 1737 ("Those who adopted the Civil Rights Act might not have anticipated their work would lead to
this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become
apparent over the years, including its prohibition against discrimination on the basis of motherhood or its
ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no
reason to ignore the law’s demands. When the express terms of a statute give us one answer and
extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all
persons are entitled to its benefit.").
7
Id. at 1753 ("The place to make new legislation, or address unwanted consequences of old legislation, lies
in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as
faithfully as we can in the cases that come before us. As judges we possess no special expertise or authority
to declare for ourselves what a self-governing people should consider just or wise. And the same judicial
humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.").
8
Marbury v. Madison, 5 U.S. 137 (1803).

 But that is what NTIA is attempting to do with its petition to the FCC: usurp
Congress's power to legislate by having the FCC overwrite the original language Congress
put into the statute with its own and give this alternative language the force of law. Even
if Congress had made a grievous error with its statutory language choices back in 1996
when it originally passed the law, even if it had been bad policy, or even if it was language
that failed to achieve Congress's intended policy, it is not up to the FCC or any other agency
to fix it for Congress. Even if Congress's chosen language simply no longer meets its
intended policy goals today, or the policy goals have evolved, it is still not up to any agency
to change it.
If the statute is to change, it is Congress's job to make that policy decision and
implement the appropriate language that will achieve it. It is not the job of the FCC, NTIA,
or any other member of the Executive Branch9 to claim for itself the power to legislate, no
matter how well-intentioned or how much better its language or policy choices might be.
But, as explained further below, these recommendations are not better. The petition
is rife with inaccuracies, misunderstandings, and contradictory policy goals. Under the
best of circumstances the FCC should not speak here. And these are hardly the best.
Congress's legislative goal to foster online speech and innovation with Section 230
was a good one. Furthermore, the language it chose to implement this policy was wellsuited to meet it then, and it remains well-suited to meet it now. Allowing the Executive
Branch to overwrite this chosen language with the alternate language it proposes would
turn the statute into an entirely different law advancing entirely different policy goals than
Congress intended when it passed Section 230 in order to ensure that the Internet could
continue to grow to be vibrant and competitive. And it would do it at their expense.
The NTIA petition must therefore be rejected.

9

See Exec. Order No. 13925: Preventing Online Censorship, 85 Fed. Reg. 34,079 (June 2, 2020).

 B. The NTIA's recommendation for language changes to Section 230 are
misguided and counter-productive.
The NTIA's petition is full of mistakes and misunderstandings about Section 230,
its operation, its intended policy goals, and how courts have interpreted it over the past two
decades. But none are as profoundly misguided as the statement that "liability shields can
deter [market] entrance." In reality, the exact opposite is true.
Liability shields are critical to enabling new market entrants. Without them the
barriers to entry for new Internet platforms and services can be insurmountable. If Internet
platforms and services could be held liable for their users' activity, as soon as they took on
users, they would also take on potentially crippling liability. Even if ultimately there is
nothing legally wrong with their users' activity, or even if they would not ultimately be
found liable for it, the damage will have already been done just by having to take on the
defense costs.
What is critically important for policymakers to understand is that liability shields
are about more than ultimate liability. Litigation in the United States is cripplingly
expensive. Even simply having a lawyer respond to a demand letter can cost four figures,
answering complaints five figures, and full-blown litigation can easily cost well into the
six or even seven figures.10 And those numbers presume a successful defense. Multiply
this financial risk by the number of users, and scale it to the volume of user-generated
content they create, and the amount of financial risk a new platform would face is
staggering. Few could ever afford to enter the market, assuming they could even get
capitalized in the first place. Needed investment would be deterred, because instead of
underwriting platforms' future success, investors' cash would be more likely spent
underwriting legal costs.
We know this market-obliviating risk is not hypothetical because we can see what
happens in the fortunately still-few areas where Section 230 is not available for Internet
10

See Engine, Section 230 Cost Report (last accessed Sept. 2, 2020), http://www.engine.is/s/Section-230cost-study.pdf.

 platforms and services. For instance, if the thing allegedly wrong with user-supplied
content is that it infringes an intellectual property right, Section 230 is not available to
protect the platform.11

In the case of potential copyright infringement, the Digital

Millennium Copyright Act provides some protection,12 but that protection is much more
limited and conditional. Lawsuits naming the platforms as defendants can rapidly deplete
the them and drive them to bankruptcy, even when they might ultimately not be held liable.
A salient example of this ruinous reality arose in UMG v. Shelter Capital.13 In this
case UMG sued Veoh Networks, a video-hosting platform similar to YouTube, for
copyright infringement. Eventually Veoh Networks was found not to be liable, but not
before the company had been bankrupted and the public lost a market competitor to
YouTube.14 Indeed, as that case also demonstrates, sometimes driving out a competitor
may itself be the goal of the litigation.15 Litigation is so costly that lawsuits are often battles
of attrition rather than merit. The point of Section 230 is to protect platforms from being
obliterated by litigiousness. It is likely a policy failure that Section 230 does not cover
allegations of intellectual property infringement because it has led to this sort of market
harm. But in its recommendations the NTIA does not suggest plugging this hole in its
coverage. Instead it demands that the FCC make more.

11

47 U.S.C. § 230(e)(2).
See 17 U.S.C. § 512.
13
UMG Recordings, Inc. v. Shelter Capital Partners, 718 F. 3d 1006 (9th Cir. 2013).
14
Peter Kafka, Veoh finally calls it quits: layoffs yesterday, bankruptcy filing soon, C NET (Feb. 11, 2010),
http://www.cnet.com/news/veoh-finally-calls-it-quits-layoffs-yesterday-bankruptcy-filing-soon/ (describing
how the startup platform in UMG v. Shelter Capital, supra, could not get funding and thus went out of
business while it was litigating the lawsuit it later won).
15
See, e.g., Dmitry Shapiro, UNCENSORED – A personal experience with DMCA, The World Wide
Water Cooler (Jan. 18, 2012), available at
https://web.archive.org/web/20120119032819/http://minglewing.com/w/sopapipa/
4f15f882e2c68903d2000004/uncensored-a-personal-experience-with-dmca-umg (“UMG scoffed at
their responsibilities to notify us of infringement and refused to send us a single DMCA take down notice.
They believed that the DMCA didn't apply. They were not interested in making sure their content was
taken down, but rather that Veoh was taken down! As you can imagine the lawsuit dramatically impacted
our ability to operate the company. The financial drain of millions of dollars going to litigation took away
our power to compete, countless hours of executive's time was spent in dealing with various responsibilities
of litigation, and employee morale was deeply impacted with a constant threat of shutdown.”).
12

 If we are unhappy that today there are not enough alternatives to YouTube we only
have ourselves to blame by having not adequately protected its potential competitors so
that there today could now be more of them. Limiting Section 230's protection is certainly
not something we should be doing more of if we actually wish to foster these choices. The
more Section 230 becomes limited or conditional in its coverage, the more these choices
are reduced as fewer platforms are available to enable user activity.
This point was driven home recently when Congress amended Section 230 with
FOSTA.16

By making Section 230's critical statutory protection more limited and

conditional, it made it unsafe for many platforms that hoped to continue to exist to remain
available to facilitate even lawful user expression.17
We cannot and should not invite more of these sorts of harms that reduce the ability
for Americans to engage online. Therefore we cannot and should not further limit Section
230. But this limitation is exactly what the NTIA calls for in its petition with each of its
proposed language changes. And thus this depletion of online resources is exactly what
will result if any of this proposed language is given effect. The NTIA is correct that there
should be plenty of forums available for online activity. But the only way to achieve that
end is to reject every one of the textual changes it proposes for Section 230.
C. The NTIA's recommendation for language changes to Section 230 are
misguided and counter-productive.
In its petition the NTIA alleges that changes are needed to Section 230 to vindicate
First Amendment values. In reality, the exact opposite is true. Not only would the changes
proposed by the NTIA limit the number of platforms available to facilitate user
expression,18 and their ability to facilitate lawful speech,19 but its animus toward existing

Fight Online Sex Trafficking Act of 2017, Pub. L. No. 115-164, 132 Stat. 1253 (2018) (“FOSTA”).
Craigslist notably turned off its online personals section in response to FOSTA. See
https://www.craigslist.org/about/FOSTA. It also prohibited the advertisements of lawful services.
Woodhull Freedom Foundation v. U.S., 948 F. 3d 363, 374 (D.C. Cir. 2020) (finding that a masseuse who
could no longer advertise on Craigslist had standing to challenge FOSTA).
18
See discussion supra Section III.B.
19
Id.
16
17

 platforms' moderation practices ignores their First Amendment rights to exercise that
editorial discretion. The changes the NTIA proposes, purposefully designed to limit that
editorial discretion, would thus unconstitutionally offend these rights if put into effect.
An initial failing here is a lack of understanding of what Section 230 protects. It is
not just the large, commercial platforms the NTIA takes issue with; Section 230 protects
everyone, including ordinary Internet users.20 Because it is not just large commercial
platforms that intermediate third-party content; individual people can too, and Section 230
is just as much about insulating them as it does the larger platforms.21
For example, individuals with Facebook posts may allow comments on their posts.
If one of those comments happens to be wrongful in some way, the Facebook user with the
parent post is not liable for that wrongfulness. Section 230 makes clear that whoever
imbued the content with its wrongful quality is responsible for it, but not whoever provided
the forum for that content.22 It isn't just Facebook that offered the forum for the content;
so did the Facebook user who provided the parent post, and both are equally protected.
It's easy to see, however, that a Facebook user who allows comments on their post
should not be obligated to keep a comment that they find distasteful, or be forced to delete
a comment they enjoy. The First Amendment protects those decisions.
It also protects those decisions even if, instead of Facebook, it was the person's blog
where others could comment, or an online message board they host. The First Amendment
would protect those decisions even if the message board host monetized this user activity,
such as with ads. And it would protect those decisions if the message board host ran it with
their friend, perhaps even as an corporation. That editorial discretion would remain.23
20

See, e.g., Barrett v. Rosenthal, 146 P. 3d 510 (Cal. 2006).
Section 230 also protects online publications, including newspapers, that accept user comments. Were
the FCC to take upon itself the authority to change Section 230, it would inherently change it for media that
has never been part of its regulatory purview, including traditional press.
22
See, e.g., Force v. Facebook, Inc., 934 F. 3d 53 (2d. Cir. 2019).
23
Requiring "transparency" into these editorial decisions also itself attacks this discretion. The NTIA's
proposal to require "transparency" into these editorial decisions also itself attacks this discretion. True
discretion includes the ability to be arbitrary, but having to document these decisions both chills them and
raises issues of compelled speech, which is itself constitutionally dubious.
21

 The changes the NTIA proposes are predicated on the unconstitutional notion that
there is some size a platform or company could reach that warrants it to be stripped of its
discretion. There is not, and NTIA suggests no Constitutional basis for why companies of
a certain size should be allowed to have their First Amendment rights taken from them.
Even if there were some basis in competition law that could justify different treatment of
some platforms, simply being large, successful, and popular does not make a business anticompetitive. Yet the NTIA offers no other principled rationale for targeting them, while
also proposing changes to the functioning language of Section 230 that will hit far more
platforms than just the large ones that are the targets of the NTIA's ire.
Indeed, as long as new platforms can continue to be launched to facilitate user
expression, stripping any of their editorial discretion is insupportable. The "irony" is that
these attempts to strip these platforms of their Section 230 protection and editorial
discretion are what jeopardizes the ability to get new platforms and risks entrenching the
large incumbents further. The NTIA is correct to want to encourage greater platform
competition. But the only way to do that is to ensure that platforms retain the rights and
protections they have enjoyed to date. It is when we meddle with them that we doom
ourselves to the exact situation we are trying to avoid.
IV.

Conclusion
For the forgoing reasons, the NTIA petition must be rejected.

Dated: September 2, 2020

Respectfully submitted,
/s/ Catherine R. Gellis

Catherine R. Gellis
(CA Bar # 251927)
3020 Bridgeway #247
Sausalito, CA 94965
Phone: 202-642-2849
cathy@cgcounsel.com
Counsel for the Copia Institute