A Blog by Jonathan Low


May 28, 2020

How An Executive Order Attacking Social Media Would Actually Work

The biggest threat to social media companies specifically and tech generally would be limiting the protection from legal liability they currently enjoy. This would open them to lawsuits which would be potentially destructive financially and operationally.

The even larger threat could be to Amazon, which, if the order were extended to ecommerce, could be found liable for the products it sells directly and which third parties sell on its site, could be ruinous. The strategy of 'hey, we're just little ol' tech platforms, we dont know nothin' about content' has given big tech wide latitude. If it ends, their finances could change dramatically. JL

Cat Zakrzewski reports in the Washington Post:

The order could empower federal regulators to reexamine a legal provision known as Section 230, which shields tech platforms from legal liability for the comments and other content users post on their services. (It could) Direct the Commerce Department to petition the Federal Communications Commission to reconsider Section 230; Channel complaints about political bias to the Federal Trade Commission to investigate tech companies’ content-moderation policies; Require federal agencies to review their spending on social media advertising.
President Trump is preparing to unleash his most significant broadside against Silicon Valley after years of threatening a regulatory crackdown. 
Trump is expected to sign an executive order today targeting major social media companies over his repeated allegations of political bias. The order could empower federal regulators to reexamine a legal provision known as Section 230, which shields tech platforms from legal liability for the comments and other content users post on their services, my colleagues Tony Romm and Josh Dawsey report. 
The document may still evolve, but here's how my colleagues report it could impact the tech industry:
  • Direct the Commerce Department to petition the Federal Communications Commission to open a proceeding to reconsider the scope of Section 230
  • Channel complaints about political bias to the Federal Trade Commission and encourage the agency to investigate whether tech companies’ content-moderation policies are in keeping with their promises of neutrality
  • Require federal agencies to review their spending on social media advertising
“In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to handpick the speech that Americans may access and convey online,” according to an undated draft version of the executive order obtained by my colleagues late Wednesday.
Trump signaled this morning that a big day is ahead:
Any changes to Section 230 could have major implications for companies that do business online. 
The president's order will likely set the stage for a new battle between the White House and Silicon Valley after Twitter took the unprecedented step of labeling two factually inaccurate Trump tweets that painted mail voting procedures as fraudulent. Social media companies have been loathe to police statements from world leaders like Trump, who frequently uses the platform to air controversial views, precisely because of the backlash it might prompt.
The tech industry has aggressively defended Section 230 against previous calls from Washington to change it — and this time will likely be no different.
Tech companies have a lot at stake. They've previously hailed Section 230 as allowing the Internet to flourish without the threat of onerous litigation, and they've warned the provision allows them to police their websites for harmful content such as terrorism without fear of lawsuits. 
NetChoice, a trade association representing tech companies including Facebook and Google, released a statement on Thursday morning condemning the president's order. 
“The president is trampling the first amendment by threatening the fundamental free speech rights of social media platforms,” said Steve DelBianco, president of NetChoice, in a statement. “Conservatives should be very afraid of future administrations following President Trump’s example to bully social media platforms into suppressing political speech.”
Section 230 is very controversial — and it's come under fire from leaders from both political parties for shielding tech companies from responsibility for harmful content, such as election misinformation and child exploitation. Former vice president Joe Biden, the presumptive Democratic presidential nominee in 2020, has also criticized the provision, telling the New York Times it should be revoked. He raised concerns that it allows Facebook to propagate falsehoods the company knows to be incorrect. 
Major tech companies have yet to individually weigh in on Trump's expected order. But Facebook chief executive Mark Zuckerberg pushed back on Trump's general threats to regulate social media companies in an interview with Fox News, which is scheduled to air today. 
“I have to understand what they actually would intend to do,” Zuckerberg said in response to Trump's threat to “strongly regulate” or shut down the companies. “But 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.” 
President Trump has significantly escalated his attacks on the tech industry since Twitter labeled his tweets. 
The president is ratcheting up his criticism of Silicon Valley in an election year in which he faces sharp criticism for his handling of the coronavirus pandemic, which has killed 100,000 Americans and left tens of millions unemployed. 
Tech companies have faced increasing pressure to be more aggressive in moderating the president's social media accounts, which have frequently pushed disinformation to his more than 80 million Twitter followers and millions of Facebook followers. Despite their largely hands-off approach, Trump has long argued without evidence the liberal executives running the tech companies are discriminating against Republicans. The tech companies have repeatedly denied such allegations. 
Tech companies have long feared Trump's allegations of conservative bias could result in an executive order. 
There have been multiple reports over the past two years that the White House was mulling executive orders to address anti-conservative bias. Until now, no such order has been signed — even though reports have surfaced about drafts. Tony and Josh report this executive order has gone through multiple iterations in recent years, and it may still change. 
It also could raise new legal questions. “It also may raise fresh, thorny questions about the First Amendment, the future of expression online and the extent to which the White House can properly — and legally — influence the decisions that private companies make about their apps, sites and services,” my colleagues write. 
Once Trump signs it, it would be up to the FCC and the FTC, two independent agencies operating outside the president’s Cabinet, to determine exact plans of action. 
Meanwhile, Republicans in Congress are also escalating their attacks on Section 230. 
Sen. Josh Hawley (R-Mo.) wrote a letter to Twitter chief executive Jack Dorsey, pressing him on the company's decision to fact-check the president's tweets, and threatening legislation to change Section 230. Hawley has previously proposed legislationto overhaul Section 230 due to his concerns about anti-conservative bias. The tech industry has previously warned that bill could lead to a torrent of harmful content. 
But efforts such as Hawley’s would likely be dead on arrival in a divided Congress that has not been able to reach consensus on far less controversial tech policy issues, such as privacy. Congressional Democrats were deeply critical of the president’s attacks on Twitter


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