After the White House told reporters that the president would soon announce an executive order “pertaining to social media,” the draft of that order is out in circulation.
We’ve reviewed the draft, and while its contents are somewhat shocking by the standards of a normal administration, this isn’t the first time we’ve seen the Trump administration lash out at social media companies over accusations of political bias. In fact, we may be seeing the same executive order now that circulated in draft form last year.
The president’s draft order tries to exert control over social media companies in a few ways. The most ominous of those is by attacking a law known as Section 230 of the Communications Decency Act. That law, often regarded as the legal infrastructure for the social internet, shields online platforms from legal liability for the content their users create. Without the law, Twitter or Facebook or YouTube (or Yelp or Reddit or any website with a comments section, including this one) could be sued for the stuff their users post.
Whether you think they should be held more accountable for their content or not, in a world without Section 230, social media companies would never have been able to scale into the services we use today.
The draft order attacks this legal provision by claiming that that part of the law means that “an online platform that engaged in any editing or restriction of content posted by others thereby became itself a ‘publisher,’ ” implying that a company would then be legally liable for things its users say.
This interpretation appears to be a willful inversion of what the law really intends. Sen. Ron Wyden (D-OR), who co-authored Section 230, often says that the law provides companies with both a sword and a shield. The “shield” protects companies from legal liability and the “sword” allows them to make moderation decisions without facing liability for that either.
While Trump is trying to intimidate social media companies into doing even less moderation — such as Twitter labeling the falsehood he tweeted — the consensus beyond this politically expedient viewpoint is that social media should actually be removing and contextualizing more of the potentially harmful content on their platforms.
In a statement Thursday, Wyden called the order “plainly illegal.”
“As the co-author of Section 230, let me make this clear — there is nothing in the law about political neutrality,” Wyden said. “It does not say companies like Twitter are forced to carry misinformation about voting, especially from the president. Efforts to erode Section 230 will only make online content more likely to be false and dangerous.”
Beyond attacking Twitter’s moderation decisions through Section 230, the draft executive order says the White House will reestablish a “tech bias” reporting tool, presumably so it can unsystematically collect anecdotal evidence that he and his supporters are being unfairly targeted on social platforms. According to the order, the White House would then submit those reports to the Justice Department and the Federal Trade Commission (FTC). The order would further rope in the FTC to make a public report of complaints and “consider taking action” against social media companies that “restrict speech.”
It’s not clear what kind of action, if any, the FTC would have legal ground to take.
The order also asks the Commerce Secretary to file a petition that would require the Federal Communications Commission to “clarify” parts of Section 230 — a role the commission isn’t likely eager to embrace.
“Social media can be frustrating. But an executive order that would turn the FCC into the president’s speech police is not the answer,” Democratic FCC commissioner Jessica Rosenworcel tweeted on Thursday morning.
The order also calls for the U.S. Attorney General William Barr to form a working group of state attorneys general “regarding the enforcement of state statutes” to collect information about social media practices, another presumably legally unsound exercise in partisanship. Barr, a close Trump ally, has expressed his own appetite for dismantling tech’s legal protections in recent months.
While Trump’s executive order may prove toothless, there is some appetite for dismantling Section 230 among tech’s critics in Congress — a branch of the government with much more power to hold companies accountable.
The most prominent of those threats is currently the EARN-IT Act, a bipartisan Senate bill introduced in March that would amend Section 230 “to allow companies to ” ‘earn’ their liability protection” under the guise of pressuring them to crack down on enforcement against child sexual exploitation. The executive order doesn’t directly connect to that proposal, but sounding the war drums against the tech industry’s key legal provision will likely signal Trump’s Republican allies to double down on those efforts.
In response to the circulating draft executive order, Twitter declined to comment when reached by TechCrunch, and Facebook and Google did not respond to our emails. The Internet Association, the lobbying group that represents the interests of internet companies, was out with a statement opposing the president’s efforts on Thursday morning:
Section 230, by design and reinforced by several decades of case law, empowers platforms and services to remove harmful, dangerous, and illegal content based on their terms of service, regardless of who posted the content or their motivations for doing so.
Based on media reports, this proposed executive order seems designed to punish a handful of companies for perceived slights and is inconsistent with the purpose and text of Section 230. It stands to undermine a variety of government efforts to protect public safety and spread critical information online through social media and threatens the vibrancy of a core segment of our economy.
The group also pointed to the fact that political figures rely on social media to successfully broadcast their thoughts to millions of followers every day — 80 million, in Trump’s case.
The ACLU also weighed in on the executive order Thursday morning. “Much as he might wish otherwise, Donald Trump is not the president of Twitter,” said ACLU Senior Legislative Counsel Kate Ruane. “This order, if issued, would be a blatant and unconstitutional threat to punish social media companies that displease the president.”
“Ironically, Donald Trump is a big beneficiary of Section 230. If platforms were not immune under the law, then they would not risk the legal liability that could come with hosting Donald Trump’s lies, defamation and threats.”