It’s Unclear What Trump’s Section 230 Executive Order Will Do Beyond Bully Social Media

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President Donald Trump signed an executive targeting companies on Thursday. The move came after Twitter fact-checked two of his tweets as containing “potentially misleading misinformation.”

“This will be a Big Day for Social Media and FAIRNESS!” the president tweeted on Thursday morning before attacking by name the Twitter employee whom some conservatives have falsely claimed was responsible for adding the fact-check label to his tweets.

“So ridiculous to see Twitter trying to make the case that Mail-In Ballots are not subject to FRAUD. How stupid, there are examples, & cases, all over the place. Our election process will become badly tainted & a laughingstock all over the World. Tell that to your hater @yoyoel.”

Trump’s executive order will affect Section 230 of the Communications Decency Act, which protects online platforms like Facebook and Twitter from being held liable for content posted by their users. The 1996 law states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

“Twitter slapped Trump on the wrist,” Goldman said. “Trump responds with an attempt to blow up the entire internet.”

The Electronic Frontier Foundation has dubbed Section 230 the “one of the most valuable tools for protecting freedom of expression.” Passed following two court decisions that forced early internet services to choose between moderating content and a enjoying immunity from being sued over what users posted on them, Section 230 solved the “moderator’s dilemma” by allowing internet services to both patrol user-generated content and sidestep lawsuits for content they hosted.

Although the Communications Decency Act was passed on a bipartisan basis, Jeff Kosseff, assistant professor of cybersecurity law at the United States Naval Academy, told TheNewstip that Section 230 has, for years, been stuck in a political purgatory. “You have one contingent saying there is too much moderation,” he said, “but then you have another contingent saying overall there is not enough moderation.”

But legal experts said that regardless of whether the provision needed to be changed, Trump’s action Thursday will add even more confusion to what responsibility platforms about what it posted in their communities.

“How [Trump’s executive order] would work is very . If there are effects, it will take a long time and be likely struck down by the courts,” Katie Fallow, senior staff attorney at Columbia University’s Knight First Amendment Institute, told TheNewstip. “I believe the purpose of this is to put a burden on the social media companies.”

Fallow said it was ironic that the executive order treats Twitter, a private company, as a public square where people have free speech rights protected by the First Amendment when conservatives historically have opposed government regulation of speech on private property.

The executive order is unlikely to have many tangible effects, according to Eric Goldman, a professor at the Santa Clara University School of Law. “It’s largely atmospherics. It’s largely performative,” he told TheNewstip.

“Twitter slapped Trump on the wrist,” Goldman said. “Trump responds with an attempt to blow up the entire internet.”

In advance of Trump’s announcement, FCC Commissioner Jessica Rosenworcel released a statement on Thursday saying an order pulling the agency into Trump’s spat with Twitter was a bad idea.

 

“This does not work. Social media can be frustrating. But an Executive Order that would turn the Federal Communications Commission into the President’s speech police is not the answer. It’s time for those in Washington to speak up for the First Amendment. History won’t be kind to silence,” Rosenworcel said.

In his remarks, the president made it clear that the order was retaliation for Twitter fact-checking his tweets, but Attorney General Bill Barr has been exploring options to change Section 230 for months. In a December speech, Barr said the Justice Department had “started thinking critically” about the issue, describing how immune social media companies are being held responsible as “staggering.”

But the Department of Justice’s focus, according to Barr’s speeches, has been less about political bias and more about whether or not social media companies are doing enough to make the internet safe. In February, the Department of Justice held a workshop on the future of Section 230. Barr said in his opening remarks that the threat of lawsuits could force social media companies to do more to limit speech that facilitated terrorism and human trafficking; the issue of whether Twitter and other platforms were targeting conservative speech barely came up, according to coverage of the workshop by the Verge.

Mary Anne Franks, the president of the Cyber Civil Rights Initiative and a member of Twitter’s Trust and Safety Council, criticized Trump’s order, saying it would “reinforce the baseless claim that conservatives are being discriminated against on social media,” she told TheNewstip.

Franks also took issue with the way the executive order was announced: first by press secretary Kayleigh McEnany to reporters on a flight back to Washington on Wednesday night and then leaked later that evening.

“I think the leaked order is trolling all these legal scholars,” she said.

Franks didn’t think the executive order would change much in the law, but it would influence how online platforms carry out their fact-checks and moderate content.

“It’s meant to have a cultural impact, not a legal impact,” she said. “All they did was slap a tiny label on something that will probably not have any real effect except make him angry. It’s really a shame this really modest step in that direction has set this off.”

Ahead of the executive order’s signing on Thursday morning, Mark Zuckerberg differentiated his company from Twitter, saying during a Fox News interview that Facebook should not be an “arbiter of truth.”

“Private companies probably shouldn’t be, especially these platform companies, shouldn’t be in the position of doing that,” he said, adding, “in general, I think a government choosing to censor a platform because they’re worried about censorship doesn’t exactly strike me as the right reflex there.”

The Trump fact-check on Twitter infuriated Republicans and set off waves of abuse at an employee incorrectly believed to be responsible for applying the label.

On Wednesday evening, Twitter CEO Jack Dorsey defended the Trump fact-check, tweeting, “Fact check: there is someone ultimately accountable for our actions as a company, and that’s me. Please leave our employees out of this. We’ll continue to point out incorrect or disputed information about elections globally. And we will admit to and own any mistakes we make.”

The dispute between Trump and Twitter also included members of Congress.

“The law still protects social media companies like @Twitter because they are considered forums not publishers,” Sen. Marco Rubio tweeted on Tuesday. “But if they have now decided to exercise an editorial role like a publisher then they should no longer be shielded from liability & treated as publishers under the law.”

On Wednesday, Sen. Josh Hawley shared an open letter to Dorsey.

“.@jack a few questions for you below,” he wrote. “Bottom line: Why should @twitter continue to get special treatment from government as a mere distributor of other people’s content if you are going to editorialize and comment like a publisher? Shouldn’t you be treated like publisher?”

Last year, Hawley introduced legislation to amend Section 230 to revoke what he called “the immunity big tech companies receive … unless they submit to an external audit that proves by clear and convincing evidence that their algorithms and content-removal practices are politically neutral.”

He said on Tuesday that he plans to introduce similar legislation again.

At the time of its passage, the liability shield was not tied to an expectation that platforms would act in a neutral manner toward political speech that they hosted. The law’s text makes no such requirement, either. But conservatives like Hawley have recently attempted to tie the two together, arguing that platforms should only enjoy immunity from lawsuits if they act in a politically neutral fashion.

In a statement last June, Hawley said, “With Section 230, tech companies get a sweetheart deal that no other industry enjoys: complete exemption from traditional publisher liability in exchange for providing a forum free of political censorship. Unfortunately, and unsurprisingly, big tech has failed to hold up its end of the bargain.”

Democratic Sen. Ron Wyden of Oregon, who drafted Section 230 along with former Republican Rep. Chris Cox, said in an interview with TheNewstip Thursday that he thinks it’s clear Trump is targeting the provision in his order because it “protects private businesses’ right not to have to play host to his lying.”

“The bottom line is, I have warned for years … the administration was threatening 230 in order to chill speech, , you know, companies — Facebook and YouTube and Twitter — into giving him favorable treatment, and today he proved that that take was right,” Wyden said.

In February of last year, Barr argued that “[t]echnology has changed in ways that no one, including the drafters of Section 230, could have imagined.” But Wyden said he thinks Barr’s argument is less about the changing landscape of the internet and more about his personal agenda.

“I think Barr’s agenda has been really clear from the beginning. What he has been interested in is a speech control program, because he, like the president, feels that any coverage that isn’t favorable to him is somehow a crime,” he said.

The attack on Section 230 is also antithetical to conservative principles, the senator argued.

“And the idea that these … conservative officials think that the government should take control of private companies and dictate exactly how they operate, that just turns on his head what you think conservative principles are all about,” he said. “Now, I understand these conservative politicians are upset that there are large corporations don’t toe their party line, and then when they talk about it — shout about it — it’s popular with their base. But they’re just plain wrong.”

Wyden said he’s particularly bothered by the argument some conservatives have made that Section 230 requires platforms to be neutral, something the law itself, he noted, doesn’t say at all. He also said he’s distrurbed by the idea of a panel deciding what constitutes neutrality or discrimination against conservative ideas.

Nathaniel Persily, a professor at Stanford Law School, told TheNewstip that Trump’s executive order “is the first missive in a larger battle over whether Section 230 is a special privilege that’s given to internet platforms or whether it’s a core extension of the First Amendment.”

Persily said an attack on Section 230 was bound to happen, whether from the right or left.

In January, Democratic presidential candidate Joe Biden told the New York Times he also wanted to revoke Section 230, saying, “The idea that it’s a tech company is that Section 230 should be revoked, immediately should be revoked, number one.”

Regardless of what comes of the executive order, Trump’s action is already being celebrated in right-wing media and among his base online. [XXXX fill in once signed]

Daphne Keller, director of the program on platform regulation for Stanford’s Cyber Policy Center, told TheNewstip that the executive order was political theater. “This reads like a stream of consciousness tweetstorm that some poor staffer had to turn into the form of an executive order,” she said.

Keller said that an informed public debate about the power of platforms over public discourse was important. But that’s not what this executive order had led to.

“This is a distraction,” she said. “We have only ourselves to blame if it makes us avert our gaze from the crises that are right in front of us: 100,000 Americans dead in a profoundly mismanaged pandemic, for example, or the potential failure of democratic process in the 2020 elections.”

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