How Technology Platforms Are Categorized Shapes Their Regulation

Communications lawyer Peter Schildkraut explains how Internet policy continues to evolve even in the absence of Congressional action

As told to Andrew Brandt | Reviewed by Canaan Suitt, J.D. | Last updated on January 18, 2024 Featuring practical insights from contributing attorney Peter J. Schildkraut

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The rise of social media platforms like Facebook and X (formerly known as Twitter)—as well as other platform businesses and search engines—raised several important public policy questions we’re still grappling with:

  • How do we categorize these entities?
  • Are they technology companies?
  • Are they media companies and publishers?
  • Are they both?
  • And why does it matter how we categorize these companies?

Publishers Are Treated Differently than Tech Companies

The answers to these questions matter because we regulate media companies and publishers differently than we do technology companies.

Example 1: Political Advertising

One example is with political advertising: To the extent that a broadcaster or TV company accepts political ads from one candidate, federal statutes require that the company accept political ads from all candidates—and regulate the rates charged.

These entities also have to keep records of political ad purchases and make them available to the public. Right now, technology companies don’t face these requirements, even though they’re carrying a lot of political advertising. Congress is considering whether to extend these requirements, or similar ones, to online advertising.

Another example is copyright infringement. Media companies, generally, are liable for violations of copyright law. Technology companies and digital platforms, on the other hand, generally aren’t liable for violations of copyright law—as long as they don’t choose or modify the content posted by their users and they abide by certain protections for copyright owners.

Ultimately, until Congress… [updates] the Communications Act, we’re likely to continue grappling with and rethinking these questions.

Peter J. Schildkraut

Section 230: You Can’t Treat Internet Service Providers as Publishers

Congress passed a statute, Section 230 of the Communications Decency Act, which provides that internet service providers, websites, and their users can’t “be treated as the publisher’s speaker of any information provided by another information content provider.”

This means, for example, that a platform owner can’t be sued for its users’ posts—for instance, a bad restaurant review or a complaint about a contractor’s sloppy work. I, as the person who posted it, could be liable for my libelous remark. But the website that published my review couldn’t.

Protections from copyright infringement and liability for obscene, defamatory, and other unlawful content are why certain types of platforms have been careful to insist they’re technology companies—not media companies or publishers.

In the various Congressional hearings into technology companies over the last year, it’s been clear that the importance of online platforms to the way we get our information and convey information has led legislators to think about whether or not it remains appropriate to provide technology companies these protections—or whether they need to be treated more like we treat media companies and publishers today.

Then there’s net neutrality. This is obviously not a new question; it’s been around since I was a new lawyer in the late 1990s. At the time I started practicing, internet access service was predominantly dial-up over regular phone lines.

Phone companies had to provide equal access to third-party internet service providers (ISPs) like AOL. Cable modem service debuted in 1996 and typically bundled together the broadband connection and various functions available through third-party dial-up service. Because cable modem subscribers already received additional functions as part of their cable modem service, they then had little incentive to subscribe to a third-party ISP as well.

Recognizing that this was bad for their business model, third-party ISPs sought regulatory intervention to require cable companies to offer wholesale stand-alone broadband connections. Although cable modem service debuted the same year that Congress finally reached an agreement on updating the Communications Act, the update really didn’t grapple with whether or how to regulate the internet.

The Telecommunications Act of 1996

[The Act expressed] the basic difference between telecommunication services and information services:

  • With telecommunications, the content gets sent from one point to another, as specified by the user, without change.
  • By contrast, information services do something to the content by generating, acquiring, storing, or transforming it.

Congress didn’t provide a separate definition for internet access service or cable modem service, and it didn’t specify whether they should be treated as telecommunications services, information services, or cable services.

This mattered because Congress prescribed regulatory regimes for telecommunication and cable services that essentially left information services unregulated. If internet access services were treated like cable modems or telecommunications services, there would be full-bodied regulations that we would apply to them.

For an information service, however, it basically would be unregulated.

FCC: Back-and-Forth Regulatory Rulings on Net Neutrality

The first answer from the Federal Communications Commission (FCC) came in 2002. At that time, they issued a declaratory ruling that cable modem service is an information service, not a cable service, and that there’s no separate offering of telecommunication service. This meant that the third-party ISPs couldn’t get the separate telecommunication service unbundled. That’s largely why the third-party ISPs have dried up and gone away.

In 2005, the Supreme Court upheld the FCC’s ruling. Later that year, the FCC applied the same regulatory classification to telephone company broadband internet access service, which, at that time, was primarily DSL.

By the time all this had played out, the net neutrality debate that’s still with us had begun and largely involved the same questions about whether or not internet service—or at least the connection—should be regulated like a telecommunication service or in a less-robust manner.

In 2015, the FCC decided to reverse the conclusion it reached in 2002 and 2005 and held that broadband internet access service should be regulated as a telecommunication service and subject to common carrier regulations. Following the change from the Obama administration to the Trump administration, the FCC reversed course again in 2017 to the position it had taken in 2002. In October 2023, under the Biden administration, the FCC voted to advance a proposal reinstating the 2015 net neutrality rules.

Looking Toward the Regulatory Future

Ultimately, until Congress provides a roadmap for the Internet era by updating the Communications Act, we’re likely to continue grappling with and rethinking these questions about our digital ecosystem.

Find a Lawyer with Experience in Digital Technology and Communications Law

If you’re involved with a telecommunications or media business and in need of a lawyer, visit the Super Lawyers directory to find an experienced communications attorney in your area.

Learn more about how lawyers can help clients with the legal interface of new technology initiatives, software development, and business processes. For more general information on this legal area, see our overview of technology transaction law.

Peter J. Schildkraut is a communications attorney with Arnold & Porter Kaye Scholer in Washington, DC.

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