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Jessica Rosenworcel won't talk about what everyone really wants her to talk about. She can't. But what she says about everything else speaks volumes to the question she refuses to answer.
Rosenworcel was widely considered among the frontrunners to lead the Federal Communications Commission under a Biden administration, and on Thursday she was nominated by President Biden to serve as acting chair. She's the longest-serving Democrat on the commission, boasts two decades of communications policy work, and has spent years cultivating close relationships with left-leaning groups around Washington, D.C., who consider her a pivotal, and particularly forceful, ally on issues like net neutrality and expanding broadband access.
During this interview, which took place several months before she was named acting chair, she couldn't talk about potentially chairing the FCC because to do so would be a Hatch Act violation.
But when Rosenworcel speaks about all telecommunications topics, she does so with a remarkable level of gravity and intensity. Her diatribes about the digital divide and Section 230 are punctuated with evocative phrases like "shame on us" and "we have to stop looking the other way." She's wonky, serious and relentless in her strong critiques of the current administration.
Protocol spoke with Rosenworcel about whether the process around President Trump's social media executive order has become corrupt, why she thinks FCC Chairman Ajit Pai is dropping the ball when it comes to helping students get internet access, and what she thinks a Democratic administration should prioritize on tech policy.
This interview has been edited for clarity and brevity.
You are not a fan of Trump's Section 230 executive order and have said the FCC shouldn't serve as the president's "speech police." Sept. 2 was the first deadline for public comments about NTIA's Section 230 petition. First things first: A lot of those comments from companies said they don't even think the FCC has authority here. Do you think the FCC has the jurisdiction to make the kinds of Section 230 reforms that this executive order calls for?
The Communications Decency Act updated the Communications Act, and so these provisions fall within the statute the FCC regularly uses. But this is not a provision where Congress specifically asked us to enact rules, nor has the FCC had a history of acting in this area. While the agency might have authority, I think proceeding in the manner that the president has pushed in the executive order is a reach too far.
According to conversations you're having, what do you think is going to happen next? Do you think the FCC is going to take up the Section 230 petition?
All I know is that I think social media can be so frustrating, but turning the FCC into the president's speech police isn't the answer, and that executive order is ultimately an invitation from the president for the FCC to organize speech online in his favor. The FCC shouldn't take that bait. We should refuse to update Section 230 as the president directs in the executive order because we have a First Amendment and because updating the law like this belongs in Congress.
Turning the FCC into the president's speech police isn't the answer.
Members of your own party have increasingly been calling for some kind of Section 230 reform, saying there is so much bile and misinformation on social media, particularly important as we're coming up on the election. I wanted to take your temperature: Do you think it's time for Section 230 reform in general?
Social media … has a huge impact now on every aspect of civic and commercial life. Let's have a conversation in Congress about this law, who it benefits, what it fosters and what updates are necessary. That's smart, that's fair. Let's do it mindful of the constitution. But the executive order from the president is just an invitation for the FCC to help organize online speech in his favor, and that's not something that my agency should be doing. Not today, not next week, not next year.
It seems that the White House recently pulled Commissioner Michael O'Rielly's nomination in part because he spoke out against the Section 230 executive order. Was that an appropriate use of White House power?
Commissioner O'Rielly has not just been my colleague, he's been my friend and someone I've worked with extensively on efforts to expand the reach of Wi-Fi in this country. What I worry about now with this executive order is that there are ugly consequences for those who speak out against it. When one of my colleagues expressed skepticism that the agency had authority to do everything that the executive order suggested, he shortly thereafter found that his renomination was withdrawn by the president. Stand back, because it looks troubling.
This isn't only retaliation against those who dare to speak up in defense of the First Amendment, it's a warning for all other government servants who don't bend to serve the wishes of this White House, even when those demands are fundamentally at odds with the constitution. We should be concerned.
Are you concerned that it might be difficult for the chairman to say no to the petition, even if he might want to, given the immense amount of political pressure on the agencies from the White House to take on Section 230? We know that FTC Chairman Joseph Simons, for instance, has faced pressure from the president himself. Do you think the process is becoming corrupt?
Do you have faith the chairman is going to make the right decision in this case?
When we take these jobs, we take an oath to defend the constitution. It's something I hope every public servant takes seriously.
The only other thing I want to draw attention to: I opposed this administration's rollback of net neutrality on a substantive basis, but on a procedural basis, something that struck me is that we had lots and lots of fake and fraudulent stuff filed in our record. The FCC has not cleaned up its act in the intervening years. So this channel the public has for commenting on the biggest issues of our day, like the state of the First Amendment in Washington, is still open to fraud.
I started reading through comments that were filed and found that Fred Flintstone has offered his thoughts on Section 230, so I'm concerned that this process is going to suffer from so much of the same fraud we saw during the effort to secure comment on net neutrality. I think we should care. This is the channel the public has for speaking back to Washington, for telling agencies what they think about the most important matters before us. We should care that it's flooded with fraud. There have to be ways to fix and adjust that. This has been a problem since our net neutrality proceeding. It is dispiriting to know the agency has done little to nothing to correct that.
Former FCC Chairman Tom Wheeler, former DOJ antitrust counsel Gene Kimmelman and former FCC counsel Phil Verveer recently called for a new Digital Platform Agency to regulate the major tech firms. Do you think it's time for a whole other agency to deal with the social media platforms?
We know technology has reshaped everything in modern life. There's no part of our civic or commercial lives that has been untouched by it. Some of those innovations obviously improve our lives and they lift our standard of living, but we've got other problems that we have not fully grappled with associated with those new technologies, like competition, like privacy, like security. If we leave those things unaddressed, they're going to have really serious consequences, not just in our day-to-day lives but for our democratic institutions. So I think in this environment, I think it's very healthy to ask: Is there a better way? What's the proper role of government? Are our current laws and institutions up to this task? Are there ways to reinvigorate the institutions we already have, or should we divvy up jurisdiction in new ways? And to what extent does that process rely on a slow evolution of individual cases and common law, and to what extent should we develop ex-ante regimes to govern?
Those are big questions we should be asking, and we should be taking in every idea from young new thinkers and the old guard, but I think many of those issues to be clear are directed towards the Federal Trade Commission and whether or not it has made full use of its authority under Section 5, and if that agency should be changed our adjusted to reflect the new realities of digital life.
So you say it's a good question to be asking, and it's worth considering. Have you yourself come to a conclusion?
Because a lot of this affects primarily the FTC, I feel a little bit outside of my realm. But these are important questions to ask. Do we feel that our economy is being effectively overseen with our current institutions? How much of that is a function of their existing framework, how much of it is a function of the limitations of existing laws and how much of it is a function of lack of vigor in Washington? We've got to figure these things out because we need to make sure our institutions are up to the task.
We're very much in the thick of negotiations around the future of TikTok. The debate parallels the concerns around Huawei: What does it mean to have a Chinese-owned company controlling any part of our communications system? What do you think of the policy path we're going down, which essentially purges Chinese tech from our ecosystem?
China's engaged in a serious and well-funded effort to develop expertise in next-generation technologies like 5G, artificial intelligence, and then use those technologies to expand its influence and infrastructure around the world. My concern is that those efforts don't come with the same values we have here in the United States, they don't put the same premium on our traditional respect for openness, freedom of speech and human rights, both offline and online. And so with the deployment of those technologies, we're going to have to be concerned about surveillance, data integrity, forced transfer of intellectual property and know-how, as well as the power of the state to exercise control over Chinese companies. I think those concerns are bipartisan. I think they're here to stay.
I think the FCC has made some progress — it has made clear that some of its programs like the Universal Service Fund won't support insecure network equipment from companies like Huawei and ZTE. The FCC is also reviewing international authorization to provide communications services from Chinese companies. Ultimately as an agency, as a nation, I think we can't address these matters alone. We need allies. We're going to have to build on initiatives like the Prague proposal, which was a framework for securing 5G networks that more than 30 countries have committed to. We're going to have to develop those efforts further because we've got to make sure they reach further.
In the end, I want our national ambitions to be greater than just defined in relationship to China. We have to focus on our own competitiveness, revitalizing our own democracy and strengthening our alliances and partnerships, and then reasserting traditional American values like openness, freedom of speech and human rights. I think that's ultimately how we engage China from a position of strength, and that's how we restore American leadership in digital technology.
We're living in a global pandemic that has exposed the severity of the digital divide, at a time of reckoning about this country's enormous racial inequalities. Can you talk to me about your concerns around how Black students could be left behind as schools use remote learning this year?
This crisis has revealed the hard truth that our nation's digital divide is really big, and there's nowhere you see it quite as potently as when it comes to the homework gap. Because when this pandemic hit, we sent more than 50 million students home, and we told them to go to class online. But if you don't have internet access at home, you're locked out of the virtual classroom. This is a problem I've been talking about for some time. I call it the "homework gap" because so many students have internet access at school, but they lack it at home and can't do their nightly schoolwork. But now that homework gap has turned into an education gap and will become an opportunity gap if we don't address it.
We know from some recent data that as many as 17 million kids in this country don't have the internet access at home they now need to go to online school. That has a disproportionate impact on students of color as well as students that live in rural areas. The Alliance for Excellent Education did a recent study and they found 1 in 3 Black, Latino and American Indian families do not have high-speed internet at home. What happens to their children when class migrates online? Where do they go?
Don't look away. We just saw two students on social media sitting outside of a Taco Bell to grab a free Wi-Fi signal just to go to class. This is happening in the United States of America. Shame on us for not making fixing the homework gap a priority because it's within our power to fix this problem. It's such a cruel part of the digital divide, but we can do things right now to fix it. We have to stop looking the other way.
We just saw two students on social media sitting outside of a Taco Bell to grab a free Wi-Fi signal just to go to class. This is happening in the United States of America. Shame on us.
You've made it clear that you believe we need a national strategy for shrinking the digital divide, which you say should starts with altering E-Rate to ensure the FCC can send Wi-Fi hot spots to schools to loan out. In March, the FCC waived the E-Rate program's gift rules, which you applauded as a "smart step" toward your broader goal. My first question is: Those rules were waived until Sept. 30, which is coming up fast. So what comes after that? Is an extension in order?
First, I want to unpack the gift rules. Like with all government programs, there were prohibitions on those who bid on contracts offering gifts in order to secure a relationship. In this case, we wanted to make sure schools that were seeking assistance for connecting their classrooms to the internet weren't favoring providers that offered to throw in some free computers or wireless hot spots. That was a part of fraud prevention in the E-Rate program. That makes sense. The FCC adjusted those rules in this crisis so that if there was generosity to be had out there, schools could be beneficiaries. That makes sense. But in the end generosity is not justice — we need a national plan so our schools don't have to start begging on behalf of their students just to get kids connected so they can go to class. So I don't think that small adjustment is efficient or smart. We need to do something at national scale to close the homework gap, and it's really apparent to me that E-Rate is the program to do it.
We can use this policy to meet this moment. E-Rate is the nation's largest educational technology program. It is a quiet powerhouse that has been around since the Telecommunications Act of 1996. Remember 1996? We called the internet the "information superhighway." But Congress was really prescient then and decided that our nation's schools should be connected to the internet for learning. Now we've got to recognize that learning is happening online and help every student reach that online classroom. There's no reason not to use the statute that way.
If you want an example of why we should do this, I remember during the Bush administration when Hurricane Katrina hit, and we had wind and water devastation that drove so many people out of New Orleans. The FCC at that moment updated another one of its programs known as Lifeline to help ensure that those people who had to relocate still had a phone, could rebuild their lives and get connected through communication. We took an existing program and updated it to meet the crisis of the day. There's no reason we can't do that with E-Rate right now, because the homework gap is a national crisis, and we should use programs we have to fix it and address it immediately
Chairman Pai says it's simply not within the FCC's jurisdiction to change E-Rate this way because of how the law is written. What's your response to Pai on that?
That's just an excuse. It's not right. The law has a reference to classrooms, but it also has provisions that suggest we can make adjustments in order to facilitate the underlying purpose, which is to get kids connected to school. Moreover, the FCC has forbearance authority, which it uses on behalf of companies every other week. Why wouldn't we use that same authority to make sure that we get our nation's kids connected?
We can fix the homework gap, we can address digital equity with some modest adjustments to our programs. Our refusal to do so is cruel. We keep looking the other way. We're tying ourselves up in bureaucratic knots to help prevent kids all across this country get connected and actually go to school. Shame on us. There's nothing in the law that prevents us from making the adjustments right now.
You don't think it's necessary to have Congress step in here?
To be clear, in 2012, the FCC ran a pilot project that involved helping kids get connected at home. We have all the authority we need to do this right now. If Congress wants to step in with an additional push and additional funds, we should welcome that, but there's nothing in the law stopping the FCC from fixing this right now.
The election is coming up. What's the first thing you'd like to see from a Democratic administration on tech policy?
I think we need 100% of our households online. It needs to be a national policy — 100%, nothing less, because everyone needs to have access to affordable and reliable broadband. Without it, every other goal we have in the next few years is going to be difficult to reach. And there's no individual, household, business or community that will have a fair shot at success in the digital age without it. We need a 100% policy. We've got to reach everyone no matter who they are or where they are.
Update: This article was updated Jan. 21, 2021, to include that Rosenworcel was named acting chair.
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Emily Birnbaum ( @birnbaum_e) is a tech policy reporter with Protocol. Her coverage focuses on the U.S. government's attempts to regulate one of the most powerful industries in the world, with a focus on antitrust, privacy and politics. Previously, she worked as a tech policy reporter with The Hill after spending several months as a breaking news reporter. She is a Bethesda, Maryland native and proud Kenyon College alumna.