Under the executive order, Trump said he is asking regulators to reinterpret a law that shields internet companies from lawsuits over content on their sites, a safeguard that has allowed Silicon Valley’s giants to generate some of the world’s biggest fortunes.
„My executive order calls for new regulations … to make it that social media companies that engage in censoring or any political conduct will not be able to keep their liability shield,“ he said,
But any such action depends on independent agencies and state attorneys general agreeing with the administration’s stance, and would certainly provoke a legal fight that would last long past November’s election.
Trump told reporters he would gladly quit Twitter — the platform where he has amassed 80.4 million followers — if the mainstream media weren’t biased against him. He has frequently used the platform to attack publications and individual news reports he deems „fake.“ The White House pulled the trigger on the executive order targeting social media — an option it has floated in the past — after Twitter added fact-check warnings this week to two of Trump’s posts containing inaccurate information about mail-in ballots. Twitter has said those posts violated its policies against misinformation about elections and other civic processes.
The president also singled out Yoel Roth, the head of site integrity for Twitter, holding up a cover of the New York Post with Roth’s photo. Roth has drawn attacks from conservatives in recent days after people unearthed old tweets in which he appeared to disparage Trump and his supporters.
Both the order and the push for new legislation target Section 230 of the Communications Decency Act, a 1996 law that shields online platforms from liability for content created or shared by their users.
Barr declined to provide details on legislative effort, saying the department is considering options for what it will look like, but indicated litigation was likely on the horizon as well.
„One of the things that I found has the broadest bipartisan support these days is the feeling that this provision, Section 230, has been stretched way beyond its original intention, and people feel that on both sides of the aisle,“ Barr said. Both Democrats and Republicans raised the prospect of changes to Section 230, though for opposite reasons. The Democrats want more fact-checking of misinformation and misleading posts, such as those by Trump that Twitter slapped with warning labels.
Vice President Joseph Biden’s campaign called Trump’s action an „extreme abuse of power.“ Though Biden has argued for Section 230 to be revoked, arguing social media sites don’t do enough to police misinformation, his campaign said Thursday that Trump is crafting policy for personal benefit.
„It will not be the position of any future Biden Administration – or any other administration that is aware of our basic constitutional structure – that the First Amendment means private companies must provide a venue for, and amplification of, the President’s falsehoods, lest they become the subject of coordinated retaliation by the federal government,“ said spokesperson Bill Russo.
The order drew condemnation even before it was finalized from both internet industry advocates and civil liberties groups, including some who regularly criticize Silicon Valley, after the language began circulating on social media and in news reports. Some called it dangerous to free speech; some dismissed it as bluster.
„This reads like a stream of consciousness tweetstorm that some poor staffer had to turn into the form of an Executive Order,“ said Daphne Keller, a former Google attorney who now leads the Program on Platform Regulation at Stanford’s Cyber Policy Center.
The order nevertheless adds more ammunition to a talking point that resonates with Trump’s online base and will appease some Washington conservatives who are skeptical of the tech industry’s influence over political discourse. And Trump’s escalation of the issue could have a chilling effect on internet companies weighing whether to make rulings on misinformation or other content as Election Day nears.
“This executive order is a naked attempt by the president to bully into silence Twitter, other social-media sites and anyone who attempts to correct or criticize Trump,“ said Gaurav Laroia, senior policy counsel at advocacy group Free Press, in a statement.
Twitter was just as unsparing in its response. „This EO is a reactionary and politicized approach to a landmark law,“ the company’s global public policy team tweeted late Thursday night. „#Section230 protects American innovation and freedom of expression, and it’s underpinned by democratic values. Attempts to unilaterally erode it threaten the future of online speech and Internet freedoms.“
Google and Facebook released statements defending their content policies and their handling of controversial posts, saying their decisions are not partisan.
„We believe in protecting freedom of expression on our services, while protecting our community from harmful content including content designed to stop voters from exercising their right to vote. Those rules apply to everybody,“ Facebook said.
Section 230 is considered sacred in tech circles and many credit it for the rise of the modern internet. Lawmakers created the statute with the rationale that online sites are conduits of information, rather than publishers that pick and choose what content to offer — a principle Trump and Barr accuse the Big Tech platforms of violating.
“It is the policy of the United States that the scope of that immunity should be clarified,” the order declares.
The Trump administration argues that social media platforms forfeit those protections when they exercise editorial judgment, particularly after engaging in “deceptive or pretextual actions restricting online content.” It also directs the Commerce Department to request FCC rules determining when social media companies have not acted in “good faith” when restricting access to content, as Section 230 requires.
FCC Chairman Ajit Pai said Thursday the agency will „carefully review“ the rulemaking request, though last year he said that his agency does not have the authority to regulate social media under current law. His Republican colleague Commissioner Mike O’Rielly tweeted that the president „has [the] right to seek review of statute’s application.“
Democratic Commissioner Jessica Rosenworcel was not keen on the agency being drafted into Trump’s social media war.
“Social media can be frustrating. But an Executive Order that would turn the FCC into the President’s speech police is not the answer,“ she tweeted before the final order was released. „It’s time for those in Washington to speak up for the First Amendment. History won’t be kind to silence.”
The FCC is legally independent of the president, although Trump appointed its five board members and elevated Pai to the chairmanship. Political power on the commission would shift, though, if Democrat Joe Biden wins the November election.
Congress wrote Section 230 in the mid-1990s, when the internet was still a newfangled thing for most Americans, and its implementation has been shaped in recent decades through court decisions. The administration’s interpretation is likely to face legal challenges from both internet advocates and industry players.
Trump “can’t just unilaterally determine how a law can be interpreted, especially not with all of the years of precedent behind it,“ said Kate Klonick, a St. John’s University assistant law professor who reviewed the order. „So it’s unlikely that the order will be upheld if there’s like an injunction or it goes to the courts.”
The executive order also moves to ban federal agencies from advertising through social networks that “restrict free speech,” and gives agencies 30 days to report their spending so the DOJ can evaluate whether they’re paying platforms with “viewpoint-based speech restrictions.“ That policy could restrict the government from advertising their services and programs, potentially even the U.S. Census, to millions of Americans on the platform.
Finally, it directs the Federal Trade Commission and state attorneys general, in partnership with the Justice Department, to review whether internet companies have deceived or been unfair to users by censoring political speech beyond what they have publicly disclosed.
“The FTC is committed to robust enforcement of consumer protection and competition laws, including with respect to social media platforms, and consistent with our jurisdictional authority and constitutional limitations,“ said Peter Kaplan, the agency’s spokesperson.
The FTC has previously been reluctant to get involved in evaluating political speech, said Bill Kovacic, a law professor at George Washington University.
“For a regulator, this is exactly the kind of work you don’t want to do,” said Kovacic, who served as chairman of the FTC during the George W. Bush administration. The executive order does not require the agency to act. Even if it did do so, it does not have the authority to issue fines. It’s most common action against companies is to order them to stop a practice the agency deems deceptive.
The White House gathered its own evidence of political bias last year when its Office of Digital Strategy created an online survey where people could submit examples of times they’ve felt big technology companies unfairly took action against them because of their views. The White House received 16,000 submissions at the time, and now plans to pass along complaints to the FTC, DOJ and state authorities, according to the executive order.
“In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand-pick the speech that Americans may access and convey online,” the executive order reads. “This practice is fundamentally un-American and anti-democratic.”
Trump has lost his own court battles over online speech. In 2017, Columbia University’s Knight First Amendment Institute successfully sued the president after he blocked multiple Twitter users for criticizing his policies. An appeals court unanimously agreed Trump’s actions violated the First Amendment.
Jameel Jaffer, the institute’s executive director, said in a statement Thursday that Trump’s executive order was „born unconstitutional“ because it amounts to retaliation against Twitter for calling out the president’s misleading tweets. Some of the provisions also raise constitutional concerns because they appear to punish the companies for decisions protected under the First Amendment.
„There may well be regulation and legislation worth considering in this sphere, but whatever else this order may be, it is not a good faith effort to protect free speech online,“ Jaffer said.
The executive order marks an escalation of Trump’s longstanding love-hate relationship with social media companies like Twitter and Facebook, which he has frequently accused of being biased against him but which also serve as his primary method of communication with supporters.
Indeed, Trump regularly turns to Twitter to pump up campaign rallies, attack political and personal rivals, pronounce new federal policies and tout forthcoming media appearances. His prolific use of the platform has helped him amass 80.3 million followers, more than any political leader except for former President Barack Obama.
But Trump and his allies have also accused the major social networks operating out of liberal Silicon Valley of censoring conservative speech and making it difficult to find or follow their accounts, a practice known as shadow banning. That perceived bias was the subject of a White House summit in July that brought together online pundits who have emerged as the president’s most vocal advocates.
Barr said in December that the Justice Department would launch its own review of Section 230.
„I was expecting this executive order to come at the end of that review,“ said Rachel Bovard, a senior adviser to the Internet Accountability Project, a conservative group partially funded by Oracle that is pushing for antitrust tech probes. “I think Twitter’s action sort of sped it up. And in that regard, Twitter just scored the biggest own goal in history.“
John Hendel and Leah Nylen contributed to this report.
Source: politico.com
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