A sober analysis of Trump’s executive order regarding social media

President Trump signed an executive order yesterday that would change the government’s stance on social networks. Let’s look at the portions that make sense, and the portions that are unhinged raving.

I’ll start with this. Social networks need regulation. Twitter, Facebook, and YouTube are spreading disinformation and dividing America. Now that Twitter has added content warnings to two of Trump’s tweets — one for inaccurate information about elections, and one for glorifying violence — the president is fighting back.

He has proposed methods that would weaken social networks’ Section 230 protections. Section 230 of the Communications Decency Act says that an online platform operating in good faith has protection from liability by posts that people make on its platform. Without that liability shield, social networks would not be viable.

The executive order is unlikely to succeed. It is unlikely to survive a court challenge, and much of it would be implemented by the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC), independent bodies that don’t take orders from the president.

The executive order is 2377 words long. Some parts are excellent. Others are problematic. And others are partisan trash. Let’s take a look.

The opening is a rational argument

Here’s the opening:

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.

This is a rational argument for regulating social network platforms. They do indeed wield enormous influence with little transparency and accountability. I could see Joe Biden or Elizabeth Warren, both of whom have called for regulating social networks, writing this same thing in very much the same form.

If this text bothers you because Trump wrote it, think a moment. Do you want social networks to operate entirely without government oversight? Do want their liability shield to come with no conditions whatsoever?

The rationale for regulation is problematic

This comes at the end of Section 1.

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.

What does it mean to “foster and protect diverse viewpoints”? Or to “encourage standards and tools to protect and preserve the integrity and openness of American discourse”? This is a veiled threat. It’s value depends on how the administration carries out the threat.

This is the heart of the argument. And it’s chilling.

Here’s the start of Section 2 (I’ve edited for length).

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 . . . . 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.

. . . 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. . . .

[Section 230(c)]. . . 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. . . . 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.

OK, then. This section says that social networks are not operating in good faith in restricting “objectionable” content, so they should lose their Section 230 liability shield. Proving that they are not operating in good faith will be difficult (because, fundamentally, they aren’t). Stripping their section 230 protections would render them unworkable.

Here are the bits that propose how that change will happen (again, edited for length):

[A]ll 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) . . . to clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content . . . may also not be able to claim protection;

(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,

It’s not clear that the President can direct a rulemaking to happen at the FCC, which if I recall my work as a media analyst correctly, is an organ of Congress. I also think it is problematic to define “good faith.” This would be an interesting exploration. Just suggesting it will likely have the desired effect, which is for the social networks to become more transparent in how they add content warnings, ban content, or remove users.

The executive order also directs the Federal Trade Commission (FTC) to look into whether social networks are engaged in unfair and deceptive practices. This will go nowhere. It also direct the federal government to examine its advertising spending on social networks. It’s likely that the federal government will stop advertising on Twitter, Facebook, YouTube, and Instagram. It’s also likely that those platforms won’t care.

These parts are reprehensible

Immediately after the opening, the executive order includes this text:

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.

This is just angry ranting. There is no proof of political bias. The “Russian Collusion Hoax” (capitalized, of course) is not terminology that belongs in an executive order. Even if you think Schiff’s tweets were wrong, they do not violate any Twitter policy — they don’t incite violence, spread racial hate, harass, or provide inaccurate information about elections. As a result, this paragraph undermines the logic of the executive order.

What comes next is just irrelevant.

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.

Google’s actions in China may be problematic. But they have nothing to do with its Section 230 liability shield. This is just random bashing.

The executive order also includes what I’d call political activity by the Attorney General. This includes coordinating with states and proposing legislation. Edited for length:

Sec. 5. State Review of Unfair or Deceptive Acts or Practices and Anti-Discrimination Laws. . . . 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. . . .

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.

This sounds like “Let’s gang up on Twitter, Facebook, and Google.” It doesn’t seem like the appropriate role for the Attorney General. It’s just a threat.

This executive order will create far more heat than light

Biden and Trump have both promised to rein in social media. This executive order, given that it’s a mix of real challenges that need addressing and political grandstanding, is unlikely to create much in the way of action any time soon.

Regardless of who becomes president in 2021, social networks need to clean up their acts. Their content policies must become more transparent. I think they need to label more content with warnings, especially from politicians.

The parts of this that aren’t as political will certainly become part of that debate. It’s too bad that it got released in the midst of a food fight between Trump and Twitter, because I’d like to see more scrutiny on social networks. They need to do better.