Here's Trump's executive order meant as payback to Twitter. It's doomed to fail.

Early today a draft emerged of President Trump's executive order CDA 230 that aims to limit the ability of Facebook, Google, Twitter and other companies to police content on their platforms. That order has now moved from a draft to a signed document, according to AP. The move comes after Twitter earlier this week labeled a pair of tweets from the President asserting that mail-in ballots are open to abuse and fraud as misleading. In a subsequent tantrum on Twitter (of course), Trump threatened to "strongly regulate" Twitter and other social media platforms.

The problem is Trump is wrong. He isn't being silenced. His tweets haven't been removed. They haven't even been altered. Instead, their veracity has been called into question with a link to reputable sources that make clear why the content of his claims is questionable. Twitter applying those labels is akin to a grocery store asking shoppers to wear masks. Being asked to wear a mask doesn't infringe on people's rights, it's a defense of "right of admission reserved." It's a private company exercising its prerogative to decide what's best for it. You'd think a "successful" businessman would not just understand this, but defend it.

Fortunately, though, the odds of the executive order surviving the courts are not in Trump's favor. Similar claims that social media companies favor democrats and democratic content over that of their Republican counterparts have already failed in the Republican-laden U.S. Court of Appeals.

Going back on his own position — The order asks for increased oversight of Twitter and its ilk by the Federal Trade Commission (FTC) and Federal Communications Commission (FCC). Previously, Trump has argued that the same bodies should be used to ensure net-neutrality. Further, by stifling social media company's ability to call out lies on their platforms, Trump is actually limiting freedom of speech, not protecting it.

Especially troubling is Section 5b of the executive order, which calls for 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." That same working group will be tasked with "monitoring or creating watch-lists of users based on their interactions with content or users," and "monitoring users based on their activity off the platform."

That's not freedom of speech, that's surveillance.

Executive Order CDA 230 isn't about defending the freedom of speech, it's about the President believing the rules shouldn't apply to him, and a reminder of the thinness of his skin. Trump is, after all, the same man who instigated legal proceedings against a Pulitzer Prize-winning political cartoonist who satirized Trump's suggestion that injecting bleach might prove a useful way of treating those with the coronavirus.

Changes to Section 230 — Section 230 of the Communications Decency Act, the law that allows social media companies to avoid being held responsible for content on their platforms. When a newspaper or traditional news organization publishes falsehoods, it can be sued. Part of the editorial obligation at those organizations is trying to avoid that happening by making decisions about what's true and what isn't. Despite social media platforms now being the largest purveyors of news and other information, Section 230 effectively absolves them from this responsibility. It doesn't preclude from doing so, though, and calls for companies (including Twitter) to remove misinformation continue to grow.

Instead of holding social media companies liable for the very content from which they profit, the proposed amendments would see social media companies even less liable for peddling falsehoods. Attempts to arbit truth from falsehood could, instead, see them penalized. At the same time, this entire effort is a bizarre use of time and resources when a pandemic continues to sweep the U.S. and has already resulted in the loss of over 100,000 lives.

Trump wants to be seen to fight — Of course, this isn't really about free speech. The first amendment concerns deliberately impeding freedom of expression. It enshrines your right to say what you want. But it doesn't mean someone standing next to you can't call you a liar.

It also doesn't cover private individuals spouting falsehoods on shareholder-backed social media platforms. But Trump has never been one to let the facts get in the way of a chance to grab a headline. Or to outrage his base at another instance of perceived conservative muzzling. What matters is being seen to be shouting. Being wrong is of no consequence.

The President is understandably concerned about his odds of successful reelection considering the economy is contracting, the pandemic his administration tried to pretend didn't exist has gripped the U.S. and made it the world epicenter for the disease, and the litany of accusations of malfeasance by the incumbent gets ever longer. Limiting voter turnout by whatever means possible makes perfect sense. But that doesn't make it ethical, permissible or the sort of thing any social media platform would want to be seen to be enabling. Well, any social media platform with a moral compass that is.

Facebook remains fine with lies — Twitter CEO Jack Dorsey defended the labeling of Trump's tweets that set off this entire fiasco, saying Twitter will "continue to point out incorrect or disputed information about elections globally." Meanwhile, Facebook CEO Mark Zuckerberg in an interview with Fox News argued — as he does any time Facebook is asked to take responsibility for misinformation or harmful content on its platform — that social media platforms aren't the "arbiters of truth" and shouldn't be policing or otherwise interfering with content posted to them. Which, implicitly, includes lies from the President, of course.

This doesn't come as a surprise. Earlier this week it emerged Facebook found it does, as feared, worsen partisan divisions and polarizes users of its service, but opted not to do anything about it. Giving both sides more fodder for their respective echo chambers is damaging and morally dubious, sure, but it's a world away from the sort of censorship Trump alleges. Facebook may have no moral compass, but it doesn't favor blue or red content. It favors whatever content generates the most green. Fortunately for the President — and unfortunately for everyone else — that tends to be vitriol, from both sides of the aisle.

Stanford Cyber Policy Center's director of platform regulation, Daphne Keller, published a draft version of executive order CDA230 on Thursday (we've included it at the bottom of this post), highlighting what she sees as the key parts of, and problems with it.

Keller highlights a number of passages of CDA 230 that aren't only "legally dubious," but that "requires agencies to disregard judicial interpretation of federal legislation." The courts will likely agree, as Keller points out, even Trump appointee Brett Kavanaugh has "proclaimed himself solidly on the side of private internet companies’ first amendment rights to establish and enforce editorial policy."

Even though Trump's executive order is doomed to fail, tragically it will likely succeed in its key aim nonetheless: riling up Republican supports who want to see him secure a second term, while allowing him to argue he's the victim of a liberal plot by social media to silence him. In reality, Twitter's just treating him like a regular user. For a reality star turned accidental leader of the free world, that may be the most egregious part of this whole thing.

Update: This story has been updated to reflect that the order has been signed by the president.

DRAFT OF EXECUTIVE ORDER CDA 230

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PREVENTING ONLINE CENSORSHIP

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 101 and 121(a)), it is hereby ordered as follows:

Section 1. Policy.

Free speech is the bedrock of American democracy. Our Founding Fathers protected this sacred right with the First Amendment to the Constitution, underscoring that the freedom to express and debate ideas is the foundation for all of our rights as a free people.

The emergence and growth of online platforms in recent years raises important questions about applying the ideals of the First Amendment to modern communications technology. Today, many Americans follow the news, stay in touch with friends and family, and share their views on current events through social media and other online platforms. As a result, these platforms function in many ways as a 21st-century equivalent of the public square.

As President, I have made clear my commitment to free and open debate on the Internet. Such debate is just as important online as it is in our universities, our businesses, our newspapers, and our homes. It is essential to sustaining our democracy.

In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand-pick the speech that Americans may access and convey online. This practice is fundamentally un-American and anti-democratic. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power.

Online platforms, however, are engaging in selective censorship that is hurting our national discourse. Tens of thousands of Americans have reported, among other troubling behaviors, online platforms “flagging” content as inappropriate, even though it does not violate any stated terms of service; making unannounced and unexplained changes to policies that have the effect of disfavoring certain viewpoints; and deleting content and entire accounts with no warning, no rationale, and no recourse.

At the same time social media platforms are invoking inconsistent, irrational, and groundless justifications to censor or otherwise punish Americans’ speech here at home, several online platforms are profiting from and promoting the aggression and disinformation spread by foreign governments like China. Google, for example, created a search engine for the Chinese Communist Party, which blacklisted searches for “human rights,” hid data unfavorable to the Chinese Communist Party, and tracked users determined appropriate for surveillance. Google has also established research partnerships in China that provide direct benefits to the Chinese military. For their part, Facebook and Twitter have accepted advertisements paid for by the Chinese Government that spread false information about China’s mass imprisonment of religious minorities. Twitter has also amplified China’s propaganda abroad, including by allowing Chinese government officials to use its platform to undermine pro-democracy protests in Hong Kong.

My commitment to free and open debate on the Internet remains as strong as ever. Therefore, it remains the policy of the United States that lawful content should be free from censorship in our digital marketplace of ideas. As a Nation, we must foster and protect diverse viewpoints in today’s digital communications environment where all Americans can and should have a voice. We 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.

Sec. 2. Protections Against Arbitrary Restrictions. (a) It is the policy of the United States to foster clear, nondiscriminatory ground rules promoting free and open debate on the Internet. Prominent among those rules is the immunity from liability created by section 230(c) of the Communications Decency Act (section 230). 47 U.S.C. 230. It is the policy of the United States that the scope of that immunity should be clarified.

Section 230(c) was designed to address court decisions from the early days of the Internet holding that an online platform that engaged in any editing or restriction of content posted by others thereby became itself a “publisher” of the content and could be liable for torts like defamation. As the title of section 230(c) makes clear, the provision is intended to provide liability “protection” to a provider of an interactive computer service (such as an online platform like Twitter) that engages in “‘Good Samaritan’ blocking” of content when the provider deems the content (in the terms of subsection 230(c)(2)(A)) obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable. Subsection 230(c)(1) broadly states that no provider of an interactive computer service shall be treated as a publisher or speaker of content provided by another person. But subsection 230(c)(2) qualifies that principle when the provider edits the content provided by others. Subparagraph (c)(2) specifically addresses protections from “civil liability” and clarifies that a provider is protected from liability when it 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. 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. By making itself an editor of content outside the protections of subparagraph (c)(2)(A), such a provider forfeits any protection from being deemed a “publisher or speaker” under subsection 230(c)(1), which properly applies only to a provider that merely provides a platform for content supplied by others. It is the policy of the United States that all departments and agencies should apply section 230(c) according to the interpretation set out in this section.

(b) To further advance the policy described in subsection (a) of this section, within 30 days of the date of this order, the Secretary of Commerce (Secretary), 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 to clarify:

(i) the conditions under which an action restricting access to or availability of material is not “taken in good faith” within the meaning of subparagraph (c)(2)(A) of section 230, particularly 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; and

(ii) Any other proposed regulations that the NTIA concludes may be appropriate to advance the policy described in subsection (a) of this section.

Sec 3. Prohibition on Spending Federal Taxpayer Dollars on Advertising with Online Platforms That Violate Free Speech Principles. (a) 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 supported, the viewpoint-based speech restrictions imposed by each online platform, an assessment of 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.

(b) 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.

Sec. 4. Federal Review of Unfair or Deceptive Practices. (a) It is the policy of the United States that large social media platforms, such as Twitter and Facebook, as the functional equivalent of a traditional public forum, should not infringe on protected speech. The Supreme Court has described that social media sites, as the modern public square, “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017). Communication through these channels has become important for meaningful participation in American democracy, including to petition elected leaders. These sites are providing a public forum to the public for others to engage in free expression and debate. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 85-89 (1980).

(b) In May of 2019, the White House Office of Digital Strategy created a Tech Bias Reporting tool to allow Americans to report incidents of online censorship. In just weeks, the White House received over 16,000 complaints of online platforms censoring or otherwise taking action against users based on their political viewpoints. The White House Office of Digital Strategy shall reestablish the White House 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).

(c) 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 15 U.S.C. 45. Such unfair or deceptive acts or practice shall include practices by entities regulated by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.

(d) For large internet platforms that are vast arenas for public debate, including the social media platform Twitter, the FTC shall also consider whether complaints allege violations of law that implicate the policies set forth in section 4(a) of this order. The FTC shall develop a report describing such complaints and make the report publicly available, consistent with applicable law.

Sec. 5. State Review of Unfair or Deceptive Practices. (a) The Attorney General shall establish a working group regarding the potential enforcement of State statutes that prohibit online platforms from engaging in 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.

(b) The White House Office of Digital Strategy shall submit all complaints described in Section 4(b) of this order to the working group, consistent with applicable law. The working group shall also collect publicly available information regarding the following:

(i) monitoring or creating watch-lists of users based on their interactions with content or users (e.g., likes, follows, time spent); and

(ii) monitoring users based on their activity off the platform.

Sec. 6. Definition. For purposes of this order, the term “online platform” means any website or application that allows users to create and share content or engage in social networking, or any general search engine.

Sec. 7. General Provisions.

Nothing in this order shall be construed to impair or otherwise affect:

the authority granted by law to an executive department or agency, or the head thereof;

the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals; or

existing rights or obligations under international agreements.

This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.