Update: On Thursday afternoon the president signed the executive order seeking to clarify section 230.
Over the past week, the president of the United States has been in a protracted meltdown after Twitter appended one of his outrageously false missives with a meekly-worded notification to “get the facts.”
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On Thursday, the White House said, Donald Trump fired back in what is essentially a deeply personal and petty fight with an executive order from the highest office in the land. The order, a draft of which was circulated Wednesday night by content moderation expert Kate Klonick, seeks to clarify section 230 of the Communications Decency Act to remove liability protection for digital communications services if they restrict content in a way that is “deceptive,” “pretextual,” or inconsistent with the platform’s terms of service, or if it has been done without adequate notice or explanation, or without a “meaningful opportunity to be heard.”
Section 230 is a bedrock piece of internet legislation that allows service providers to engage in “Good Samaritan” blocking and screening of content that it deems to be lewd, harassing, or just distasteful in some way, even if it is constitutionally protected speech. As far as legislation goes, the first subsection of 230 is concise and powerful: “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.”
In the order, Trump also makes the argument that social media companies’ actions should not “infringe on protected speech,” which would be a massive change from Section 230 as it’s currently worded, which makes an explicit carve-out for restricting protected speech. This will, unequivocally, change the internet as a whole and make it worse. Straight-up neo-Nazi propaganda might be constitutionally protected speech, for example, but social media companies regularly remove such content. Right now, those people simply congregate on the platforms that do choose to leave such content up, and they do exist. If all protected speech were allowed on all platforms, it would get very ugly very quickly.
The order also asks the government to engage in a review of so-called deceptive or unfair practices by social media companies, and says that the government will not spend advertising dollars on any site that runs afoul of this edict.
There are massive problems with this order, not least that the president is using the power of his office and the laws of the land to settle a clearly personal beef. The underlying research cited by the order is also a highly informal, unscientific, and politically targeted poll that the White House ran in May 2019. Cries of social media “censorship” targeting conservatives have been a popular talking point of Trump, prominent lawmakers like Ted Cruz, and right-wing media outlets for several years now, but there’s very little evidence to suggest that social media companies are targeting conservatives any more than they’re targeting anyone else, and there are many examples of platforms deleting content about, for example, police brutality.
Content moderation experts immediately pilloried the order.
“Trump simply wants to intimidate twitter into not fact checking him. The rest is fog,” David Kaye, a free expression expert for the United Nations tweeted. “Trump wants to draw everyone into what looks like a policy debate about the scope of platform immunity. But it’s not that! It’s a ploy for him to dominate and eviscerate public oversight of his lies.”
Daphne Keller, of the Stanford Cyber Policy Center, annotated a copy of the order on Google Docs. In her annotation, Keller notes that much of the order is, in her mind, legally dubious, outright posturing, or politically motivated. Other parts could drastically change how the internet works. For example, the order invokes the First Amendment; she worries that the order attempts to put all First Amendment-protected speech on a level footing (i.e., that it attempts to limit what speech platforms can moderate). “If this really means that *all* First Amendment-permitted speech must be given equal footing on major platforms, this is a radical proposition,” she wrote. “It would change the Internet as we know it, and undermine calls to remove widely reviled material like the Christchurch massacre video.”
It is true, of course, that social media companies inconsistently apply their terms of service (mostly, to the benefit of right-wingers) and have engaged in unfair practices such as letting advertisers target ads for jobs or housing away from minorities. Companies have secrets, and many of them are bad. It is also true that Section 230 is in need of reform.
Because of its broad protections against liability for social media companies, Section 230 generally allows social media companies to take a laissez-faire attitude toward content moderation. This has allowed social media to be wacky and weird (because users, not companies like Facebook and Twitter) are liable for what they publish—this is why social media companies call themselves “platforms,” rather than publishers. Though Section 230 is a short piece of legislation, its enforcement and interpretation is deeply complicated, and politicians across the spectrum have suggested that it needs reform. But that reform needs to be based in reality, and shouldn’t come because of a personal Twitter beef from the president.
Trump’s order isn’t about any of that, though, and nowhere is “deceptive” or “pretextual” defined in the order as it relates to restricting content from “certain viewpoints,” as the order puts it. The closest we get to a definition is if companies “restrict speech in ways that do not align with those entities’ public representations about those practices,” which is just a vague allusion to a secret agenda. This is so vague that it could be dangerous, as one only has to look at Kellyanne Conway siccing the president’s acolytes on a Jewish Twitter employee on television to see where it leads. Ultimately, the order leaves it up to the FCC to determine what constitutes such behaviour.
This all, of course, ignores the fact that social media companies have bent over backwards to accommodate Trump, such as by letting him have a platform even though he violates the site’s TOS constantly. Social media companies will surely fight this in court, so we’re in for what looks to be a long, exhausting battle.
