On Social Media Bias, Trump’s Executive Order, and the China Data Threat: FCC Commissioner Brendan Carr

June 1, 2020 Updated: June 6, 2020

In this episode of American Thought Leaders 🇺🇸 , we sat down with Brendan Carr, one of the five commissioners leading the Federal Communications Commission, which regulates radio, television, wire, and satellite communications in America. He previously served as General Counsel of the FCC, and chief legal advisor to the Commission.

We discuss President Trump’s recent social media executive order, which may force social media giants like Twitter, Facebook, and YouTube to relax their content restrictions, especially on political speech, lest they risk losing significant liability protections.

Days ago, Twitter added a new “fact-checking” label on two of Trump’s tweets, to which he responded by accusing the company of election interference.

Jan Jekielek: Brendan Carr, such a pleasure to have you back on American Thought Leaders.

Brendan Carr: Good to be with you. Thanks so much.

Mr. Jekielek:  We’re going to talk about Section 230, social media bias, [and] the president’s executive order, momentarily. I wanted to take a brief moment to talk about what’s happening in the streets in cities across America. Communities are reeling. … I saw that one of the CNN offices had been attacked and vandalized. A lot of police activity, a lot of flames, frankly. On one side I see voices out there saying, “Hey everyone, we need to come together.” On the other hand, I see a lot of divisive voices out there. I saw you went in on Twitter about this. What are your thoughts?

Mr. Carr:  Now look, this is an unbelievably difficult time for this country. You start from the fact that we were already in uncharted territory with this COVID-19—so much economic activity that has ceased, people are out of work, people having difficulty finding up from down, and then on top of that, we have this just unbelievable killing of George Floyd. Anybody who saw that video and heard that man plead for his life before he was killed and is not shocked and is not outraged, and doesn’t want to do something about it, I don’t know if there’s any people that feel that way.

I think the president stepped in very quickly and said that he’s going to move very quickly and aggressively, potentially, in this prosecution. … As we watched that, as we watched some of the protests and watched protests turn into riots in communities across the country, there’s this very human reaction to try and process what we’re seeing through this two-sided coin of tribalism: What’s my team’s view on this? What’s their team’s view on this? There’s plenty, plenty of time for normal, petty partisan politics. Who among us hasn’t failed to rise above that on occasion? This is not a time for that. This is a time for us to come together as a country.

Several things can be true at the same time, and that’s something that’s hard to convey in headlines. You can be absolutely outraged by the killing of George Floyd; you can believe that there are systemic biases in institutions; you can believe in free speech and people exercising their rights to protest; and at the same time, you can absolutely be outraged by looting, by violence, by attacks on reporters, [and by] burning down of businesses. It’s important that we all speak out on this, separate the different factions that are involved in this, and come together as a country.

This is a time for us to heal, not to pretend that there are not issues that we need to deal with. We have to. But everyone that is looting [and] engaging in violence is not furthering the important work of accountability and justice for the killing of George Floyd. And so I hope that all Americans can come together. Pause for a moment and realize that we’re all in this together. I think it’s important that everyone with a microphone take a moment to speak about that.

Mr. Jekielek: Many of us have seen the video of the killing of George Floyd, and it certainly looks horrific. We hope that this situation can be dealt with as best as possible, due process happens, and justice is found. Let us jump into your wheelhouse here which is of course, you are a big champion of free speech. I think we could say you’re libertarian on free speech. We actually disagree on a few things. I’m not a huge fan of having Chinese Communist Party mouthpieces run their propaganda amok in the U.S. You believe more media is better media, [because] good media will overcome. Fair enough. You’ve received quite a bit of criticism yourself from, what I can tell, supporting President Trump’s executive order 230, and I wanted to give you an opportunity to talk about that. What exactly are you thinking? I think a lot of people might not understand.

Mr. Carr: I really welcome the president’s executive order. What’s interesting is there are probably three buckets of issues that all are clustering around this executive order, and I think people’s analysis often collapses those different issues. [Let’s] start obviously with the First Amendment. Every single speaker in this country has a right to free speech guaranteed by the Constitution. Above and beyond that First Amendment right, there is a set of special, unique legal, or liability, immunity protections that Congress decided to confer on social media platforms back in the 1990s. So you have to divide those two issues. Everybody has free speech rights; everybody has First Amendment rights protected by the Constitution from intrusion by the government.

That’s not what’s at issue with Section 230. That is about the statutory rights that Congress has chosen to confer above and beyond that constitutional rights. You can be absolutely a constitutional First Amendment zealot and [also agree with] when Congress drew a line in the sand in Section 230. This is that second issue. They said, “Good faith conduct is subject to this special immunity,” and by implication that means that bad faith conduct is not subject to that extra level of immunity protection. But flash forward 20 years, because remember, Congress passed that [Section] 230 when they were thinking about prodigy messaging boards, there’s been very little guidance really, if any, about where’s that line that Congress drew between good faith and bad faith. This executive order would call on a petition to be filed with the FCC [Federal Communications Commission] to provide some guidance on that line that Congress already drew.

And then the third issue that is getting in the mix is basically “terms of service”. This is more a federal trade commission issue. Twitter [and] Facebook, like any other business in the country, if you represent to people, “Come to my platform. Here’s how I’m going to run this business; here’s the terms of service; here’s the policy,” but then you start taking what appear to be punitive actions in some cases, in violation of those terms of service, then that’s an issue in terms of just any business living up to the public commitments that it makes. So really, [there are these] three buckets of issues, and that’s how we analyze it from a legal perspective: the First Amendment, the statutory provisions of [Section] 230, and then finally, the terms of service as well. All have legal implications, and we can work through all of them without collapsing it on top of each other.

Mr. Jekielek:  What people typically think about when they think of Section 230, or at least the first thing I think of is this question: Are these social media giants, which are unprecedented in scale and unprecedented in ability to control what people see or don’t see by omission, being neutral in terms of what comes through there, or are they making some editorial choices about that? Is that what we’re talking about?

Mr. Carr: Look, there’s no question that they are engaging in editorial conduct, that these are not neutral platforms. The question is, are they, under [Section] 230, supposed to be neutral platforms? Those are some of the questions that people have raised. When, again, Congress passed this provision, it was about prodigy messaging boards.

Today, these are now the largest corporations in world history with, to your point, the most control over speech of any entity that humanity has ever known. When you look at some of the conduct, that raises questions. Look at Jack Dorsey, the CEO of Twitter. He favorably sent out an article not too long ago that he agreed [with]. It was an article that said bipartisanship is over; Democrats must win; Republicans must be thoroughly defeated. When he tweets out and says the buck stops with him in terms of the content moderation decision, I think that gives a lot of comfort to people that do want either just a neutral application of the existing terms of service or otherwise.

You look at the fact they went after the president’s tweets. The president tweeted about fraud in mail-in ballots, and Twitter stepped in and decided to engage in partisan political speech, and “fact check” that. But look, there’s no other authority  than Jerry Nadler who’s been out there saying that mail-in ballots naturally create a lot of problems in terms of fraud. They not only voluntarily chose to engage in a partisan political debate, they were on the wrong side of it under the lights of Jerry Nadler. So, activity like that has raised some questions.

But look, this also isn’t partisan. Joe Biden said earlier this year that [Section] 230 should be revoked immediately, and his campaign doubled down on that just earlier this week. So we see a lot of outrage when President Trump says it and a lot less when Joe Biden says it, and I think some of that’s just a reflection of where we are right now.

Mr. Jekielek: Fascinating. Speaking of potential partisanship, this is being described actually as the president’s war on Twitter. Is it?

Mr. Carr: Look, I get it. I think if you step back, this is not something that’s new or unique to President Trump. There’s bipartisan concern about the scope of [Section] 230. As I mentioned, Joe Biden says it should be revoked immediately, but also a concern about the power that these companies have. And so I don’t think it’s a one-way concern that’s been raised here.

Mr. Jekielek: You actually referenced Mark Zuckerberg, and said that he nailed it. I’m going to read the quote here. He said, “I’m responsible for reacting not just in my personal capacity, but as the leader of an institution committed to free expression.” I guess this speaks to what you were saying about Jack Dorsey. Explain that for me though.

Mr. Carr:  It strikes me that Twitter has gone on tilt. Not only did a bipartisan group call for [Section] 230 reform, when an executive order goes forward to do it, you saw them take immediate action against another one of President Trump’s tweets, and maybe that fits with Jack Dorsey’s personal politics, and he is free to express his personal politics. I’m not here to tell anybody how to vote at the ballot box, or who to endorse, or who to spend their money on—have at it. Whatever your passion is, please do it. Exercise that right.

But I think what Mark Zuckerberg was saying, and he deserves credit for this, is [that] his job as the leader of an institution is to apply the terms of service, the public legal commitment that they’ve made to every single user, evenly. I think what Jack Dorsey is doing is more reflective, to me, [of] the book “A Man for All Seasons,” when William Roper said that he was going to chop down every tree [law] in England to get at his enemy [the devil], and Sir Thomas More turned back to him and said [along the lines of], “When you’ve done that, when you’ve knocked down every tree [law] and the devil turns around for you, where are you going to hide?”

Now, I would say that to everybody. Jack Dorsey has a personal political dispute with the president, and he’s going to run roughshod over the terms of service to fact check, or take down, or do whatever to the president’s tweets. What happens when it comes after you? This is a country of a rule of laws. In any business that makes legally binding commitments and representations needs to be held accountable. Again, this is where there’s some confusion. This has nothing to do with Twitter’s First Amendment or free speech rights. They are free to say whatever they want, but if you’ve made a public commitment to a neutral application of your rules, you can’t run roughshod over those just for partisan political purposes. No business in this country gets to do that.

Mr. Jekielek: We actually see something like this as well … with respect to YouTube. I think in the middle of the month, we reported on this. There are terms in [the] Chinese language that are critical of the Chinese Communist Party: “Gongfei,”meaning “Chinese bandit” and “wumao,” which refers to the “50 Cent Army,” which is a big deal—it’s the [online] troll army that gets paid. I think it’s 70 cents these days but we still call them the “50 Cent Army.” These terms were literally in real time being removed from YouTube. Now YouTube, just to be fair, has since said this was an error in the AI; they’ve actually stopped this practice. We’ve checked that, but again, to me, it just showed what power these companies wield at the moment.

Mr. Carr: Yeah, look, I’ve been very active when it comes to some of the issues involving the communist regime in China. A big reason for that is my job at the FCC is to assess the influence of the communist regime and telecom companies, and whether there is a sufficient degree of control to merit us taking action at the FCC. As part of that, I’ve engaged directly through social media with some of the chief propagandists of the communist regime, and that has resulted in me getting a number of new followers on Twitter, so thank you to the “wumao” for all the followers.

“Wumao” as you noted is known as the “50 Cent Army,” and it’s a reference to the paid internet trolls that the communist regime has. Anytime you tweet negatively about them [the CCP], you are going to get a number of very colorful replies from the “wumao”. They like a lot of pig references; they like to threaten to kill you—nothing that you take seriously. I’ve seen legitimate death threats before—these aren’t them. But when you go into YouTube, to your point, and you simply type in the name “wumao” [as a comment], you just name the paid propagandists using that term in any other content that you put in there, or no content, they were, at least as of earlier this week, within 15 seconds, just deleting that comment. I know because I tried it, and it happened to me.

Whether that [was happening] intentionally or unintentionally, some of the early statements on that were a bit cryptic as to how exactly that happened. But to your point, that raises some concerns, and I think YouTube as well earlier said they were taking down any speech or videos that were inconsistent with WHO guidance. I think that’s pretty disturbing, particularly when you look at what’s happened with the COVID-19 pandemic where in many respects, the WHO was simply the mouthpiece for the communist regime. [We should not] hold them up as the gold standard when they were putting out misinformation themselves about the lack of human-to-human transmissibility of COVID-19. And now YouTube’s going to look to them to measure whether health and safety information gets to go up. I think it’s a mistake.

As we started, I believe more speech is better. I trust people. They can filter this themselves. If we need filters, they should be filters that people are empowered to turn on or empowered to turn off.

Mr. Jekielek:  Let’s talk about these filters. I actually thought to myself how this might work, and you had an op-ed, again, I think somewhere in the middle of the month about this that I was reading recently. You could say, “Hey, there should be no filters whatsoever. Social media giants, let anything go.” But of course, there’s problems to that. For example, hardcore pornography—I don’t know. There’s definitely arguably legitimate forms of censorship, especially considering young children being exposed to certain kinds of material and so forth.

One solution would be no filters whatsoever. Another one is you [as the consumer] get to turn it off—you mentioned that in your op-ed. Another one that I was thinking about and we were, I think, discussing with some other folks online is that you could choose which filter from your menu of filters, assuming you want to have someone you can trust who can help you filter.

Mr. Carr: Yeah, I think empowering people, trusting people is the better way. As you noted, I wrote about this in the op-ed. There’s cases out there that you mentioned about [such as] illegal content, and those don’t tend to be the issues that are really problematic. The ones I think are actually challenging is political speech. There’s now this world that everyone slaps the label “disinformation,” not on actual disinformation, but with political speech that they disagree with. More and more, we see that on social media. You have these established media gatekeepers, whether it’s these platforms themselves or reporters for larger institutions, and they want to shut down the ability of every [person] to, whether through political means or otherwise, spread their message.

So they take a political meme, and they slap a label “disinformation” on and try to get it taken down. That’s so dangerous. And so what I’ve suggested is one of many potential solutions here, is to just turn off the bias filters. For instance, if you want MSNBC to fact check your feed before you get to see it on Facebook or Twitter—”Everything the president says, MSNBC, I want you to vet it first, tell me what you think about it”—have at it. Go for it. If you want Fox News to do that for you, great. I think people should be empowered though, because [what] we see increasingly is these platforms choosing fact-checkers, and often these are just political actors masquerading as fact-checkers, and then they’re deciding for you what gets to end up in your feed.

I think it’s much more pro-speech, but much more empowering to consumers if we have the option to turn off those bias filters. So I’ve laid that out there as one idea. Again, I’ve thought about the Federal Trade Commission as being a potential actor here. Now we have the executive order as well.

Mr. Jekielek: It’s remarkable, and I think using the WHO as an example is very on point, because on one hand, you do have the WHO information as being the arbiter of what’s true or not, and on the other hand, we know that there’s at least very strong evidence that they’ve been politically influenced. This same question applies pretty much across the board.

Mr. Carr:  Some people will maybe concede to be okay with political speech. Maybe we should not do as much vetting although, [and] put a pin in that. Some don’t [think like that]. They say, “Well, health and safety information is so important. We need someone to step in,” and they think that these decisions are made from some oracle of truth. They’re not. They’re made by people—people in power. And those people in power are either biased or merely fallible.

Take Representative [Gregg] Swallow. When COVID-19 was starting to spread in America, he tweeted, “Stop wearing masks.” Flash forward a couple of weeks, he had an entirely opposite position which is, “Start wearing masks. How dare people not wear masks?” At which point would you have a health and safety social media entity step in and take down one of those tweets? I think let’s get all the information out there and let people make their choices.

In a lot of ways, I think if you look at Mark Zuckerberg, his instinct on so much of this has been right, and I’ve said before, “Zuckerberg is right; Facebook is wrong.” That’s because if you look at where he is on free speech, he seems to be very much pro-speech. At the same time, Facebook continues to make some stumbles.

They stood up this new “Oversight Board,” and they just packed this Oversight Board [but] not with Republicans on one side, Democrats on the other, or progressives and conservatives. The common denominator was people that are viscerally, emotionally anti-Trump. These are people that testified for his impeachment, people that fantasized about seeing President Trump shot, people that have called him the “crown jewel in the xenophobic white nationalist movement”. These are the people that Facebook decided to toss the keys to for content moderation in the run up to the 2020 election. If you were to hand pick a board of people to try to tilt an election against the incumbent president, it wouldn’t look much different than that board that Facebook has put together.

People can argue, and that’s perfectly fine. They can do what they want; they can vote who they want. Again, my position is: endorse who you want, vote for who you want, I’ve no official position on that, but you can’t go to Congress and otherwise represent publicly, “We are a neutral platform. We don’t shut people down based on their partisan political speech,” and then engage in conduct that pretty clearly seems to undermine that position.

Mr. Jekielek: Let’s talk about how the FCC is going to be involved, [and] how you will be in a professional capacity with respect to this executive order exactly.

Mr. Carr:  The executive order provides 60 days for the Department of Commerce to file a petition at the FCC, asking us to engage in a rulemaking to provide some clarity on these 20-plus-year-old terms and lines in the sand that Congress drew in Section 230. So 60 days from now, … we’ll get that petition at the FCC. Then we run our normal process from there. We’ll review the petition, we will put it out for public comment, and we will receive public comment on that petition. Everyone gets to tell us, “We think this is a great idea. We think it’s a terrible idea. We think you should interpret it this way [or] that way.” Everybody gets to have their say. Then ultimately, we’ll collect all that information, and move quickly and make a decision, and I look forward to getting the chance to take all those steps.

Mr. Jekielek: I’d like you to kind of simplify it for us too, because … there’s this question of what’s good faith, what’s bad faith, and where is the line between the two? That’s the salient question here. But what does that actually mean in layman’s terms?

Mr. Carr: So [Section] 230 confers this special set of immunity protections that stops these platforms from being sued, but it only protects them with respect to conduct of engaging in good faith. We’re going to have to potentially provide some guidance on where that good faith line is. For instance, when Twitter puts a fact check up on the president’s tweet, is the fact check itself a conduct that is subject to [Section]  230 liability protections or not? I think most people at this point say, “It’s not.” Well, what about the content that the fact check then points to that’s pointing to other user’s content? Is the fact that Twitter pointed you to that conduct, is that an action that is subject to [Section] 230’s good faith? And then what about ultimately that content itself? What about the rankings in other ways that Twitter boosts or doesn’t boost information? These could all be things potentially that are put before the FCC in this rulemaking.

Mr. Jekielek: Fascinating. Let’s move on to talk a little bit more about China. You’ve been engaging, like you said, with the various Chinese Communist Party officials on Twitter. You explained in our past interview that this is actually part of your intelligence gathering, I guess, in terms of your work looking at how these companies engaged with our communications infrastructure.

Mr. Carr: Yeah, that’s exactly right. We’ve taken a lot of steps at the FCC. President Trump really came out of the box and articulated a very different foreign policy with respect to China, frankly, a much stronger foreign policy. This isn’t a partisan point; this was a bipartisan issue in Washington through administrations. We were just weak on China. I think we’re finally showing strength, and that includes us at the FCC. Not too long ago, the Department of Justice asked the FCC to look at revoking the authority of an entity known as China Telecom. This is a company that may ultimately be owned and controlled by the communist regime of China, that is currently authorized to do business in this country, which means interconnecting to our network and therefore getting access to data, and the Justice Department has concerns about the national security risks that poses and they’ve asked us to take action. So those are just some of the recent actions we’ve been taking with respect to China.

Mr. Jekielek: There’s recent reports, again, that 33 Chinese companies have been added to the entity list, companies that have this big question mark about them. How does the FCC exactly fit into looking at them? Is it just a referral to you or what happens?

Mr. Carr:  There’s a couple things going on. Some of that entity list actually [came] out of the Department of Commerce in the administration. Our work obviously dovetails together ultimately on some of these issues. That’s why we’re looking at China Telecom, and we looked at some similar companies like that, but I think this COVID-19 pandemic has done something very interesting. I think we’ve talked about this before.

It used to be that this whole debate about communism used to be something limited to the dusty pages of foreign policy journals, and it spilled out from there. It’s now a conversation at the kitchen table across America. People are out of work because of this pandemic, kids are having to be schooled remotely because of this, and my position is very clear: The Communist regime exacerbated the spread of this pandemic. They did it by disappearing people that tried to sound the alarm early; they did it through a very concerted disinformation campaign about COVID-19 in the weeks that made sense.

They’ve retreated to an interesting position, so they’ve taken the view that they cannot be held liable for COVID-19, because they locked down the city of Wuhan early on and warned the world. Well, both of those are complete lies. In the first three weeks of January before this vaunted Wuhan lockdown, the communist regime let 7 million people leave Wuhan—that’s a city of 11 million— including people that went on international flights and including people of course that had COVID-19. When you let 7 million people out of an 11-million-people city leave and go to international destinations, that’s not how you stop a global pandemic. That is exactly how you start a global pandemic.

At that point, at the point in time when Wuhan was locked down at the end of January, it was over. There was going to be a global pandemic. The communist regime’s actions absolutely guaranteed it. Of course there’ll be differences of the scale and nature of that pandemic, based on actions and conduct taken in individual countries, but the threshold question of a pandemic was over, thanks to the incompetence of the communist regime. Second, it was this idea of information that said, “Yeah, we bought time for the world to act.” Not so. Both through January and February, they worked to undermine the information providers. We talked about working with the WHO claiming that there was no evidence of human-to-human transmission for weeks, and weeks, and weeks. So for those reasons, I think that there is a lot of accountability that is laid at the feet of the communist regime.

Mr. Jekielek: President Trump recently had [what] a lot of people are seeing as a groundbreaking press conference yesterday. … He talked about the Chinese Communist Party’s culpability with respect to COVID-19 coronavirus. He also talked about Hong Kong and basically jumping on the idea that Hong Kong is no longer autonomous. Secretary Pompeo had just talked about it. What are the implications of this change to the FCC?

Mr. Carr: We’ll see. It’s something that’s definitely sad to see. There is a long running international commitment to the autonomy of Hong Kong. I think it’s Secretary Pompeo [who] declared earlier in the week [that] it looks like that is coming to an end. And we’ve seen some brutal actions taken in the crackdown there in terms of independence and the ability for democracy to thrive in Hong Kong, so that’s sad. We will see what impact that has directly on the work with the FCC in terms of Hong Kong, but just more generally, I think it’s more data that’s relevant to our work looking at China Telecom and other things. Not the be-all end-all, but it’s a data point that we need to consider when you look at entities that may be under the thumb of this brutal communist regime.

Mr. Jekielek: We’re going to finish up in a moment. Any final thoughts before we do?

Mr. Carr: No. I really enjoy the chance to have a little bit more extended discussion. I think so many of these important public policy topics we try to cover in a few characters, in a tweet or in a headline, I think it’s very valuable to get the chance to just scratch a little bit below the surface on some of them.

Mr. Jekielek: My other question is, I think a lot of people are going to be interested in weighing in to the FCC when you put out your call for that. How will people be notified? How can they participate?

Mr. Carr: Yeah, that’s a great question. Once this petition is filed, then we will turn around and issue a public notice, I assume, seeking comment on it, and people can file in our comment systems. They can follow me, I’m sure I’ll tweet about it: @BrendanCarrFCC. You can go to our website: fcc.gov. I welcome everybody with every possible political view or other type of view to please weigh in and let us know. You can only benefit the decision that we ultimately reach.

Mr. Jekielek: Brendan Carr, is such a pleasure to have you.

Mr. Carr: Thanks very much.

This interview has been edited for clarity and brevity.

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Follow Jan on Twitter: @JanJekielek