Throughout the Trump presidency, there have been calls for Twitter to act on the President’s tweets that were in apparent violation of its terms of service such as past tweets threatening nuclear war against North Korea and a photoshopped video showing him beating up CNN. Tweets by Trump and other world leaders led Twitter to adopt a public interest policy governing tweets from elected and government officials which it has used to remove tweets by Brazilian President Bolsonaro and Venezuelan President Maduro for spreading misinformation about COVID-19 remedies.
Trump’s Offending Tweets
Recent tweets by President Trump making false allegations regarding the death of a former staff member of former Congressman and MSNBC host Joe Scarborough and claims that vote by mail results in rampant voter fraud (see below) sparked controversy and Twitter finally acted on the vote by mail tweets by adding a link to a page debunking Trump’s claims.
Twitter explained that the link was added “as part of our efforts to enforce our civic integrity policy. We believe those Tweets could confuse voters about what they need to do to receive a ballot and participate in the election process.” The label in no way blocks Trump’s content and it disappears if you click through on the tweet.
The Executive Order
A little over a day later, the Trump administration is unveiling an Executive Order attacking Twitter’s actions and directing the government to seek a reinterpretation of Section 230 of the Communications Decency Act that, as summarized by the Congressional Research Service, provides immunities to interactive service providers “for publishing or restricting access to material posted by” a third party.
In summary, the Executive Order¹ seeks to punish Twitter and other social media platforms by pushing for a more narrow reading of Section 230 than is generally prevailing today (which courts are free to ignore), encouraging agencies to potentially withdraw advertising dollars and directing independent agencies it does not control to open rulemaking and investigations on the platforms.
The Executive Order is largely an act of political grandstanding but more importantly, it is also a chilling attempt by the Federal Government to punish and bully social media platforms from taking any action against President Trump or his allies. The Executive Order will impose substantial costs on the platforms in potential lost advertising revenue and in having to fight and engage the various rulemaking and investigations called for by the order.
For what ends? To protect Trump’s ability to traffic in false statements that are not protected by the First Amendment during his reelection campaign.²
¹ See A Quick Take on the May 26 Executive Order on Platforms and CDA 230, Daphne Keller, the Platform Regulation Director, Stanford Cyber Policy Center (annotated text of draft EO).
² According to the Washington Post, as President, Trump has made 18,000 false and misleading claims through April 3, 2020.
Section 1: Policy Statement
The draft Executive Order begins with a policy statement that is an airing of grievances by President Trump that allowing online platforms to selectively censor or flag content is “fundamentally un-American and anti-democratic.” The Executive Order explains
[w]e must seek transparency and accountability from online platforms, and encourage standards and tools to protect and preserve the integrity and openness of American discourse and freedom of expression.
Section 2: Protections Against Arbitrary Restrictions
This is the meat of the Executive Order in which the President provides his own interpretation as “the policy of the United States” that Section 230 immunity applies only when the platform
acts in “good faith” to restrict access to content that it considers to be “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.” The provision does not extend to deceptive or pretextual actions restricting online content or actions inconsistent with an online platform’s terms of service.
While that may be the Trump administration’s view, courts generally have not adopted that position (except for a recent 9th Circuit decision) and a court is free to ignore this interpretation.
The Executive Order also directs the Department of Commerce to petition the Federal Communications Commission (which is an independent federal regulatory body) to issue regulations defining the scope of the good faith requirement including
the conditions under which such actions will be considered to be: (1) deceptive, pretextual, or inconsistent with a provider’s terms of service; or (2) the result of inadequate notice, the product of unreasoned explanation, or having been undertaking without a meaningful opportunity to be heard.
(For the sake of reference, that is the same Federal Communications Commission that adopted a “hands-off” approach to the internet in repealing the Obama-era net neutrality rules.)
Section 3: Prohibition on Spending Federal Taxpayer Dollars on
Advertising with Online Platforms That Violate Free Speech Principles
President Trump calls on Federal agencies to conduct an immediate review of spending on advertising and marketing paid to online platforms to assess whether the “online platform is appropriate for such agency’s speech, and the statutory authorities available to restrict advertising dollars to online platforms not appropriate for such agency’s speech.” The Federal government is free to spend money as it chooses, but this clearly could be seen as a punitive measure designed to punish platforms own exercise of free speech.
Sec. 4. Federal Review of Unfair or Deceptive Practices.
This section calls for the White House Office of Digital Strategy to reestablish a Tech Bias Reporting tool “to collect complaints of online censorship and other potentially unfair or deceptive acts or practices by online platforms and shall submit complaints received to the Department of Justice and the Federal Trade Commission (FTC).”
It also calls on the FTC, which is another independent regulatory body, to consider taking action to address unfair and deceptive acts that restrict speech in ways that do not align with those entities’ public representations about those practices and issue a report on whether online platforms engage in censorship.
Since the FTC is an independent body, this would appear to be merely advisory.
Sec. 5. State Review of Unfair or Deceptive Practices
This section directs the Attorney General to establish a working group “regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair and deceptive acts and practices” and invite State Attorneys General to participate. This is simply an act of political theater and likely will involve Attorney General Barr and friendly State Attorneys General using it as a platform to bash Twitter or other social media companies.
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