Update: The final executive order has been released and added below the post and above the draft version published here previously
It’s finally here: The day when Donald Trump will use the power of the presidency to unilaterally threaten private companies not for action (or inaction) deemed detrimental to US national security (e.g., offshoring), rather, for simply daring to suggest that Americans get the facts behind demonstrable falsehoods.
Following Trump’s threat to “close down” America’s social media companies in retaliation for what he continues to insist is bias against “conservative voices”, White House officials said the president would sign an executive order on social media Thursday.
According to The Washington Post, which originally reported the contents of the draft, that order “could open the door for federal officials to try to penalize Facebook, Google and Twitter for the way they moderate content on their sites”.
Specifically, the directive would encourage federal regulators to reimagine Section 230, which shields tech companies from liability for comments and content posted by users. As ever, the irony seems to escape Trump, a user who posts all manner of content for which companies might theoretically be held liable.
“The order would task the Commerce Department with petitioning the Federal Communications Commission to open a proceeding to reconsider the scope of the law”, The Post writes, adding that “it also would seek to channel complaints about political bias to the Federal Trade Commission, which would be encouraged to probe whether tech companies’ content-moderation policies are in keeping with their pledges of neutrality”.
In other words, Trump looks poised to push his supporters to inundate the FTC with allegations of bias in content moderation, which could result in investigations. If you doubt that interpretation, just ask Trump, who, on May 16, told his 80 million followers to “send names”.
This is easily the White House’s most aggressive step yet in targeting the social media giants Trump both despises for alleged biases and counts among the most effective implements in his campaign toolbox.
“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”, an updated draft version of the order reads. “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”.
For the record, many of Trump’s tweets clearly violate Twitter’s terms, something users have pointed out to the company on too many occasions to catalogue, including this week, when a widower asked Jack Dorsey to remove the president’s tweets suggesting the deceased was murdered by Joe Scarborough. Other famous examples include a series of tweets in which Trump variously threatened to deploy nuclear weapons against North Korea.
“The draft order would push the Federal Communications Commission to issue rules clarifying the issue, potentially allowing users to sue over takedowns if they were inconsistent with companies’ terms of service, did not provide enough notice or meet other suggested criteria”, Bloomberg notes.
The draft of his order is embedded in full below.
Remember: This is not “hand-picking” speech. Twitter simply pointed out that Trump’s tweets on mail-in voting were probably false, something Dorsey emphasized in a late Wednesday tweet.
“This does not make us an ‘arbiter of truth.’ Our intention is to connect the dots of conflicting statements and show the information in dispute so people can judge for themselves”, he said. “More transparency from us is critical so folks can clearly see the why behind our actions”.
Dorsey was apparently responding more to Mark Zuckerberg than Trump. “I just believe strongly that Facebook shouldn’t be the arbiter of truth of everything that people say online”, Zuckerberg said, in an interview with Fox News clearly designed to appeal to the White House ahead of the president’s crackdown. “Private companies probably shouldn’t be, especially these platform companies, shouldn’t be in the position of doing that”.
That Zuckerberg would appear on Fox just hours before Trump’s executive order is set to be delivered, is a shameless and absurdly transparent attempt to curry favor.
Either something is true, or it is not. In most cases, there is no need for an “arbiter” because it is easy to determine when someone is lying simply by checking what they say against reality, which is what Twitter is now doing with some of the president’s demonstrably false claims.
Dorsey should not have to justify the decision to add an addendum to tweets which contain misleading content. If the President of the United States (or anyone else) is lying on Twitter, the company has every right to point it out. Indeed, you could argue they are habitually derelict in their implicit responsibility to users not to police the platform more closely, given its reputation for being, at best, a Wild West-style free for all, and at worst, a soul-sucking, hellscape that’s immeasurably inimical to public discourse.
I wrote extensively about this last year in a post called “Death By A Thousand Tweets“. Here are some key excerpts from that post:
Twitter is a veritable godsend for anyone (individuals or entities) looking to spread misinformation. That’s one reason Donald Trump is so fond of his account. The President claims he needs to tweet so he can “get the word out”, which is true, precisely because the “word” is false.
But it’s not enough for Trump that Twitter lets him effectively poll the audience on critical policy decisions. It’s not enough that he can solicit uninformed opinions on delicate matters of war and peace from millions of uneducated followers and, in some cases, bots who Trump doesn’t recognize as bots. It’s not enough that a sitting US president — who already enjoys a bully pulpit like no other — is allowed to implicitly incite violence against a sitting US congresswoman solely on the basis of her religion.
No, none of that is enough. Trump wants more, and it isn’t even clear what “more” means. For the umpteenth time in the past two years, Trump accused Twitter of discriminating against him and of making it difficult for people to follow him.
“The best thing ever to happen to Twitter is Donald Trump”, Trump said at the time. “They don’t treat me well as a Republican”.
Dorsey had more to say on Wednesday evening.
“Fact check: there is someone ultimately accountable for our actions as a company, and that’s me”, he wrote. “Please leave our employees out of this. We’ll continue to point out incorrect or disputed information about elections globally. And we will admit to and own any mistakes we make”.
Trump stepped up his assault.
“Big Tech is doing everything in their very considerable power to CENSOR in advance of the 2020 Election”, he claimed, baselessly. “If that happens, we no longer have our freedom. I will never let it happen! They tried hard in 2016, and lost. Now they are going absolutely CRAZY. Stay Tuned!!!”, the president proceeded to shriek.
Nasdaq futures slipped when the The Post‘s story was published.
Social media outlets like Twitter are trying to clean things up, but when the President of the United States is essentially arguing that those efforts are tantamount to bias, it not only makes things harder for tech companies to fight misinformation, it also adds another conspiracy theory to the mix — namely that Twitter, a conspiracy theorist’s dream come true, is itself involved in a conspiracy.
Trump’s executive order will reportedly also mandate that federal agencies review their spending on social media advertising.
One imagines that won’t apply to Trump’s 2020 campaign, though.
Final executive order
By the authority vested in me as President by the Constitution and the laws of the United States of America, 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. The freedom to express and debate ideas is the foundation for all of our rights as a free people.
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 on the internet. 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. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.
The 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.
Twitter, Facebook, Instagram, and YouTube wield immense, if not unprecedented, power to shape the interpretation of public events; to censor, delete, or disappear information; and to control what people see or do not see.
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 town halls, and our homes. It is essential to sustaining our democracy.
Online platforms are engaging in selective censorship that is harming 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 company policies that have the effect of disfavoring certain viewpoints; and deleting content and entire accounts with no warning, no rationale, and no recourse.
Twitter now selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias. As has been reported, Twitter seems never to have placed such a label on another politician’s tweet. As recently as last week, Representative Adam Schiff was continuing to mislead his followers by peddling the long-disproved Russian Collusion Hoax, and Twitter did not flag those tweets. Unsurprisingly, its officer in charge of so-called ‘Site Integrity’ has flaunted his political bias in his own tweets.
At the same time online platforms are invoking inconsistent, irrational, and groundless justifications to censor or otherwise restrict Americans’ speech here at home, several online platforms are profiting from and promoting the aggression and disinformation spread by foreign governments like China. One United States company, for example, created a search engine for the Chinese Communist Party that would have blacklisted searches for “human rights,” hid data unfavorable to the Chinese Communist Party, and tracked users determined appropriate for surveillance. It also established research partnerships in China that provide direct benefits to the Chinese military. Other companies have accepted advertisements paid for by the Chinese government that spread false information about China’s mass imprisonment of religious minorities, thereby enabling these abuses of human rights. They have also amplified China’s propaganda abroad, including by allowing Chinese government officials to use their platforms to spread misinformation regarding the origins of the COVID-19 pandemic, and to undermine pro-democracy protests in Hong Kong.
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 Online Censorship. (a) It is the policy of the United States to foster clear ground rules promoting free and open debate on the internet. Prominent among the ground rules governing that debate is the immunity from liability created by section 230(c) of the Communications Decency Act (section 230(c)). 47 U.S.C. 230(c). It is the policy of the United States that the scope of that immunity should be clarified: the immunity should not extend beyond its text and purpose to provide protection for those who purport to provide users a forum for free and open speech, but in reality 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.
Section 230(c) was designed 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. As the title of section 230(c) makes clear, the provision provides limited liability “protection” to a provider of an interactive computer service (such as an online platform) that engages in “‘Good Samaritan’ blocking” of harmful content. In particular, the Congress sought to provide protections for online platforms that attempted to protect minors from harmful content and intended to ensure that such providers would not be discouraged from taking down harmful material. The provision was also intended to further the express vision of the Congress that the internet is a “forum for a true diversity of political discourse.” 47 U.S.C. 230(a)(3). The limited protections provided by the statute should be construed with these purposes in mind.
In particular, subparagraph (c)(2) expressly addresses protections from “civil liability” and specifies that an interactive computer service provider may not be made liable “on account of” its decision in “good faith” to restrict access to content that it considers to be “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.” It is the policy of the United States to ensure that, to the maximum extent permissible under the law, this provision is not distorted to provide liability protection for online platforms that – far from acting in “good faith” to remove objectionable content – instead engage in deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they disagree. Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor content and silence viewpoints that they dislike. 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.
(b) To advance the policy described in subsection (a) of this section, all executive departments and agencies should ensure that their application of section 230(c) properly reflects the narrow purpose of the section and take all appropriate actions in this regard. 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 to clarify:
(i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and 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;
(ii) 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 whether actions can be “taken in good faith” if they are:
(A) deceptive, pretextual, or inconsistent with a provider’s terms of service; or
(B) taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard; and
(iii) any other proposed regulations that the NTIA concludes may be appropriate to advance the policy described in subsection (a) of this section.
Sec. 3. Protecting Federal Taxpayer Dollars from Financing Online Platforms That Restrict Free Speech. (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 that receive Federal dollars, and the statutory authorities available to restrict their receipt of advertising dollars.
(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.
(c) 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.
Sec. 4. Federal Review of Unfair or Deceptive Acts or Practices. (a) 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. The Supreme Court has noted 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 an important 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 launched 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 will submit such 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 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.
(d) For large online platforms that are vast arenas for public debate, including the social media platform Twitter, the FTC shall also, consistent with its legal authority, consider whether complaints allege violations of law that implicate the policies set forth in section 4(a) of this order. The FTC shall consider developing a report describing such complaints and making the report publicly available, consistent with applicable law.
Sec. 5. State Review of Unfair or Deceptive Acts or Practices and Anti-Discrimination Laws. (a) 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.
(b) Complaints described in section 4(b) of this order will be shared with the working group, consistent with applicable law. The working group shall also collect publicly available information regarding the following:
(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.
Sec. 6. Legislation. The Attorney General shall develop a proposal for Federal legislation that would be useful to promote the policy objectives of this order.
Sec. 7. 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. 8. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) 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.