(CNN) Officials from the Federal Communications Commission and the Federal Trade Commission have expressed serious concerns about a draft Trump administration executive order seeking to regulate tech giants such as Facebook (FB) and Twitter (TWTR), according to several people familiar with the matter.
In a closed-door meeting last month, officials from the two agencies met to discuss the matter with a US Commerce Department office that advises the White House on telecommunications, the people said.
A key issue raised in the meeting was the possibility the Trump administration’s plan may be unconstitutional, one of the people said. The draft order — a summary of which CNN obtainedthis month — proposes to put the FCC and FTC in charge of overseeing claims of partisan censorship on social media. But critics of the idea, including some legislators and policy analysts in the tech community, say it amounts to appointing a government “speech police” in violation of the First Amendment.
“This executive order would be the most transformative action related to the purpose of the FCC since the Telecommunications Act of 1996,” said Blair Levin, a former FCC chief of staff during the Clinton administration. “This would give the FCC more power over content than it’s ever had.”
Agency officials now appear to share the critics’ reservations. The pushback points to a sea of bureaucratic and legal difficulties ahead as the Trump administration seeks to put additional pressure on Silicon Valley’s most dominant players.
President Donald Trump has been willing to plow ahead with policy before, over the professional opinions of other government experts. Beginning in 2017, for example, Trump sought repeatedly to ban transgender Americans from serving in the military, a move that multiple courts said was not supported by the Defense Department’s own conclusions.
Right-wing critics, including Trump, have long claimed that an anti-conservative bias is baked into the tech industry’s most popular products — though researchers have consistently failed to unearth systemic evidence of partisan discrimination.
That hasn’t stopped conservative policymakers from targeting the purported effects of Silicon Valley’s liberal bent. Within the White House, the people said, the efforts to draft the executive order are being led by a labor economics expert, James Sherk. Sherk spent over a decade at the right-leaning Heritage Foundation as a research analyst before joining the White House as a domestic policy adviser.
Thus far, officials from the FCC and FTC have largely refrained from speaking publicly against the draft order. Jessica Rosenworcel, a Democratic commissioner at the FCC, appeared to express shock in response to the draft order earlier this month with a one-word tweet: “What.“
But officials have periodically signaled their reluctance to become an effective moderator of political speech.
Asked last November by Republican Senator Ted Cruz how the FTC could address allegations of conservative censorship, FTC Chairman Joseph Simons said it wasn’t clear the his agency “should be addressing that at all.”
“Unless it’s something that relates to a competition issue, or it’s unfair or deceptive, then I don’t think we have a role,” he said at a hearing.
Meanwhile, Pai has resisted calls by Trump to revoke the broadcast licenses of TV networks based on the content they run, saying he is a believer in the First Amendment.
But Pai has separately been outspoken in his own criticism of the tech industry, claiming in his 2017 remarks that Twitter “has a viewpoint and uses that viewpoint to discriminate.”
That could put Pai in a challenging position as his agency seeks to distance itself from the draft order in its current form. As with other such interagency meetings, last month’s would likely have included at least one of Pai’s top lawyers, along with representatives for the White House, said Levin.
“I wouldn’t be surprised if this meeting was requested by the FCC,” said Levin. He added: “I think the White House would have been there. But then again, this White House works differently from a lot of other White Houses.”