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Despite shaky legality, Trump’s Section 230 executive order is still dangerous

The White House’s plan to loosen social networks’ protections against being sued may be more about intimidation than legislation.

Despite shaky legality, Trump’s Section 230 executive order is still dangerous
NICHOLAS KAMM/ Contributor/Getty Images]

When Donald Trump issued his May 28 executive order on “online censorship,” it looked like little more than a temper tantrum. The announcement came down the day after Twitter took the unprecedented step of labeling two presidential tweets with fact check information.

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The order seemed to take a wild swing at Section 230 of the Communications Decency Act, which shields tech companies from lawsuits over the content users post on their platforms as well as the decisions companies make about removing harmful content. The order says some tech companies have abused these protections. But the White House can’t change the law without the Congress, so the order asks the Department of Justice to write up a Section 230 repeal bill. The bill, called the “Limiting Section 230 Immunity to Good Samaritans Act,” was introduced Wednesday by a quintet of GOP firebrands, including Senators Josh Hawley (R-MO), Marco Rubio (R-FL), Mike Braun (R-IN), Tom Cotton (R-AR), and Kelly Loeffler (R-GA). The legislation requires tech companies to apply their community guidelines consistently and “in good faith.” Any tech company that breaches its duty of good faith would have to pay $5,000 plus attorney’s fees to each user who complained, the bill says.

The response to the DOJ’s language and the resulting bill came immediately.

“[T]his legislation would expose popular social media services to a wave of new lawsuits that would undercut their ability and willingness to effectively moderate their platforms,” said Information Technology and Innovation Foundation (ITIF) vice president Daniel Castro in a statement. “While this legislation is unlikely to gain broad support, it represents yet another attempt to intimidate companies from enforcing fair and reasonable online content moderation practices by threatening to poke holes in the intermediary liability protections that have formed the legal foundation of the internet economy.”

But the Section 230 bill is just one prong of the executive order’s attack on social networks. The order’s main purpose is to direct several agencies to use the existing law to put tech companies’ content moderation practices under the microscope, explains Sherwin Siy, senior public policy manager and counsel for the Wikimedia Foundation, which operates Wikipedia.

Even if there is no ‘there’ there from a legal point of view, the government agencies can still use investigations to intimidate.”

Sherwin Siy, Wikimedia Foundation
“It asks the FTC and the FCC to begin investigating, and it asks the Justice Department to start putting content moderation into a deceptive practices framework,” Siy says. The Federal Trade Commission could potentially sue a social media company for moderating content in a different way than described within its published community guidelines. Wikipedia has a unique interest in this because all of its content comes from users, and it also relies on users for content moderation.

The agencies would have to form new policies based on the order, which typically takes months or years to hash out. And the minute they try an enforcement action based in the new policies, it will almost certainly be challenged in court by any number of digital and civil rights groups. In the time needed for all this to happen, Donald Trump may no longer reside at 1600 Pennsylvania Avenue.

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The order also asks state and federal attorneys general to form a “working group” to coordinate legal actions against social media companies. Such cases would be hard to win because of the First Amendment and Section 230 rights afforded the companies. But winning may not be the point.

“Even if there is no ‘there’ there from a legal point of view, the government agencies can still use investigations to intimidate,” Siy says. “The idea that they are under the microscope is a substantial threat.”

Freezing Twitter and Facebook in place

The real intent of the order may not be to bring lawsuits or change laws, but rather to cause fear. Both Twitter and Facebook, after receiving massive criticism, are working hard to control the proliferation of misinformation and hate on their platforms. They’re realizing that an idealistic hands-off approach is no longer viable, and that they must make active content moderation a central part of their businesses. Twitter took an important step in that evolution by placing a misinformation warning label on Trump’s tweets.

Until now, Trump has taken advantage of both Twitter and Facebook as unfiltered propaganda pipelines to his loyal followers. The goal of the executive order is likely to freeze the social networks in place—to make Jack Dorsey think twice about labeling more Trump tweets, and to prevent Mark Zuckerberg from being pressured by users and his own employees to begin placing warning labels on Trump’s posts and ads.

“We’re deeply concerned that the Executive Order is designed to pressure platforms into reducing their efforts to address misinformation and voter suppression online,” says Alexandra Givens, president and CEO of the Center for Democracy and Technology. “You can see this both in the circumstances that triggered the Order (Twitter’s decision to append a ‘fact check’ notice to two of the President’s tweets about mail-in voting), and in the executive order’s instruction to enforce some government-determined measure of platform ‘neutrality.'”

Republican proposals are misaligned with the goal of making social networks safer and improving political discourse.

While the executive order doesn’t change Section 230, it could make content moderation law a higher-profile issue in Washington. It’s likely that the order represents the first time many Trump supporters have heard the term Section 230 and associated it with the privileged coastal elites who run social networks. Republicans in Congress have so far threatened to take Section 230 away from the tech companies mainly in retaliation for social networks allegedly suppressing or censoring “conservative” viewpoints (there is no hard evidence of this). They argue that tech companies, by favoring liberal content, in fact behave more like publishers than the neutral “internet platforms” Section 230 is designed to shield, and therefore don’t deserve the protections.

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The order telegraphs this punch: “It is the policy of the United States to ensure that, to the maximum extent permissible under the law, this provision is not distorted to provide liability protection for online platforms that—far from acting in ‘good faith’ to remove objectionable content—instead engage in deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they disagree.”

Some tech companies may indeed have leaned too heavily on Section 230’s protections, using it as a way to avoid the hard work and high cost of responsible content moderation. But Republican proposals are misaligned with the goal of making social networks safer and improving political discourse. They look more like weapons in the GOP’s war on liberals.

“To be clear, there is an important public dialogue taking place about how platforms should moderate content, and whether Section 230 creates the right incentives for platforms to address harmful speech,” CDT’s Givens points out.

The Trump White House is likely not capable of framing and sponsoring this nuanced debate. As the language of the order makes clear, it’s not really interested in forming effective regulation at all. As usual, it’s mainly about power.

“[T]he Order raises a separate, and much more fundamental, question,” Givens says. “This is about whether the Administration can coerce platforms into adopting government-approved content moderation decisions.”

Trump’s executive order is a recipe for marshaling any available powers of the government to bend tech companies to his will. The president again betrays a belief that the agencies exist to act on his behalf. It’s yet another example of the ugly authoritarian instinct that’s alive in the nation’s highest office.

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About the author

Fast Company Senior Writer Mark Sullivan covers emerging technology, politics, artificial intelligence, large tech companies, and misinformation. An award-winning San Francisco-based journalist, Sullivan's work has appeared in Wired, Al Jazeera, CNN, ABC News, CNET, and many others.

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