President Trump issues executive order on “Preventing Online Censorship”
On Thursday, President Trump delivered on a long overdue promise to get a grip on the censorship of tech oligarchs on major platforms such as Twitter, YouTube, Facebook and Instagram. After months of promising to “monitor the situation” it seems that Twitter’s expedition into directly censoring the president’s tweets has triggered a response. So, on behalf of America, thank you for screwing up so badly, Jack Dorsey.
The entirety of the order may be read here, but a more digestible breakdown of the main points may be read below. In brief, the president is utilizing the full force of the executive branch and all tools at his disposal to combat the stifling threat of censorship on social media platforms. He’s ordered the Attorney General, Secretary of Commerce, the Federal Trade Commission, the Federal Communications Commission, and all other government department and agencies to take action.
Where a so-called platform (defined below) oversteps its authority to remove harmful content without liability, he’s seeking out methods to strip them of their Section 230 immunity. Where government agencies are spending taxpayer dollars on such platforms, he’s demanding that an assessment be made as to whether they should continue marketing their programs and thereby funding the tech oligarchs in the process. He’s even dispatching the Attorney General to determine if any state laws can be used to combat the censorship occurring on sites like Facebook and Twitter.
Twitter recently crossed a very bold line by adding fact checking disclaimers to the president’s tweets about mail-in voting. As a result, President Trump promised to take action. And today, he followed through.
The executive order is the best first step that Americans could hope for
“This practice [of online censorship] is fundamentally un-American and anti-democratic.”
The order begins by outlining the Trump Administration’s philosophy on free speech as a necessity for involvement in the republic and the dangerous influence of the consolidation of internet traffic to a select few number of sites. “In a country that has long cherished the freedom of expression,” it reads, “we cannot allow a limited number of online platforms to hand pick the speech that Americans may access on the internet.”
Arguing that the platforms are the modern equivalent to the “public square,” Trump’s order states the platforms have deceptively gone beyond their published Terms of Service agreements in a “manner that clearly reflects political bias.”
As currently interpreted by courts, Section 230 treats #BigTech companies as passive distributors even when they substantially transform third-party content, like @Twitter did to @realDonaldTrump. They get to act like publishers, but without the accountability. That’s a problem!— Josh Hawley (@HawleyMO) May 28, 2020
Meanwhile, it continues, despite creating “groundless justifications to censor or otherwise restrict Americans’ speech here at home,” these platforms are often caught doing the bidding of foreign governments, such as the Communist Party in China. Just recently, YouTube was caught censoring any criticism of the Communist Party’s internet propaganda arm, deleting tens of thousands of comments and videos that criticized the regime, as District Herald reported.
Without referring to a specific American business by name, the order clearly refers to Alphabet (Google and YouTube’s parent company), when it references a tech company that “also established research partnerships in China that provide direct benefits to the Chinese military.”
So what sort of policy does the Executive Order actually initiate? Read on!
It is the policy of the United States to foster clear ground rules promoting free and open debate on the internet.
Trump’s order argues that social media sites like Twitter, Facebook, Instagram, and YouTube have violated their immunity from liability under Sec. 230 of the Communications Decency Act
Section 230 of the Communications Decency Act provides immunity from liability to online platforms that do not engage in editorializing or content creation of their own. The theory is simple: if you set up a website and allow people to come and post their own viewpoints, any illegal content posted by them—such as threats or pornography depicting minors—can’t be used to hold them criminally liable.
The rule was issued to allow these platforms to remove harmful content without themselves being deemed a publisher and was issued to address “early court decisions holding that, if an online platform restricted access to some content posted by others, it would thereby become a ‘publisher’ of all the content posted on its site for purposes of torts such as defamation.”
“but in reality [social media platforms] use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints.”“
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In reality, however, social media sites have used this limited immunity from liability to shield themselves while taking deceptive action to remove political speech they find unfavorable. These so-called platforms are, in effect, “far from acting in “good faith” to remove objectionable content,” and instead have been stifling viewpoints with which they disagree.
Trump Argues That Twitter, Facebook, Youtube and Instagram should lose their limited liability shield due to deceptive bad behavior:
“When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct. It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher that is not an online provider.”
The Executive Order on censorship commands the Attorney General and Secretary of Commerce to file a petition with the Federal Communications Commission
“In addition, within 60 days of the date of this order, the Secretary of Commerce (Secretary), in consultation with the Attorney General, and acting through the National Telecommunications and Information Administration (NTIA), shall file a petition for rulemaking with the Federal Communications Commission (FCC) requesting that the FCC expeditiously propose regulations.”
“Determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1), which merely states that a provider shall not be treated as a publisher or speaker for making third-party content available and does not address the provider’s responsibility for its own editorial decisions”
“[Define] the conditions under which an action restricting access to or availability of material is not ‘taken in good faith’.”
Trump’s order also declares an intention to cease spending money for advertising on these platforms
The head of each executive department and agency (agency) shall review its agency’s Federal spending on advertising and marketing paid to online platforms. Such review shall include the amount of money spent, the online platforms that receive Federal dollars, and the statutory authorities available to restrict their receipt of advertising dollars. Within 30 days of the date of this order, the head of each agency shall report its findings to the Director of the Office of Management and Budget.
The Department of Justice shall review the viewpoint-based speech restrictions imposed by each online platform identified in the report described in subsection (b) of this section and assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.
It is the policy of the United States that large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech.
Mobilizing the Federal Trade Commission to see if social media sites have been misrepresenting themselves to their users and hurting the bottom line of other American businesses in the process
“The FTC shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce, pursuant to section 45 of title 15, United States Code. Such unfair or deceptive acts or practice may include practices by entities covered by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.”
He is authorizing the Attorney General to review and assist in the enforcement of applicable state laws that prohibit platforms from engaging in unfair practices
“The Attorney General shall establish a working group regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair or deceptive acts or practices. The working group shall also develop model legislation for consideration by legislatures in States where existing statutes do not protect Americans from such unfair and deceptive acts and practices. The working group shall invite State Attorneys General for discussion and consultation, as appropriate and consistent with applicable law.”
It orders the Attorney General to develop proposals for Federal legislation that will deter further acts of online censorship
“The Attorney General shall develop a proposal for Federal legislation that would be useful to promote the policy objectives of this order.”
He really was monitoring the situation, here’s a breakdown of deceptive practices the order is looking into:
(i) increased scrutiny of users based on the other users they choose to follow, or their interactions with other users;
(ii) algorithms to suppress content or users based on indications of political alignment or viewpoint;
(iii) differential policies allowing for otherwise impermissible behavior, when committed by accounts associated with the Chinese Communist Party or other anti-democratic associations or governments;
(iv) reliance on third-party entities, including contractors, media
organizations, and individuals, with indicia of bias to review content; and
(v) acts that limit the ability of users with particular viewpoints to earn money on the platform compared with other users similarly situated.