US president Donald Trump has signed an executive order calling for the removal of legal protections for social media companies.
The Executive Order on Preventing Online Censorship was signed on Thursday 28 May and focuses on Section 230 of the 1996 Communications Decency Act, a small 26-word passage in the legislation that shields social media companies from liability for user-generated content.
This is because any “interactive computer service” cannot be treated as the publisher or speaker of content posted on its forums by others under the Act, and are therefore not legally liable for this material.
The order was signed after Twitter attached a fact-checking label to a tweet in which Trump made completely unsubstantiated claims of widespread fraud in postal votes.
Shortly after the order was signed, Twitter hid a post in which Trump expressed support for the US military shooting looters in Minneapolis, attaching a warning saying the post violates the platform’s rules on “glorifying violence”.
The executive order claims that Twitter has displayed clear political bias by placing the initial warning, noting: “Twitter seems never to have placed such a label on another politician’s tweet.”
It goes on to argue that if a service provider begins to restrict content, it engages in “editorial conduct” and should therefore be legally treated as any traditional publisher would.
“When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of… [Section 230], it is engaged in editorial conduct,” the order said.
“It is the policy of the United States that such a provider should properly lose the limited liability shield of… [Section 230] and be exposed to liability like any traditional editor and publisher that is not an online provider.”
The order said attorney general William Barr would be developing a proposal for legislation “that would be useful to promote the policy objectives of this order”.
Twitter itself called the order “a reactionary and politicised approach to a landmark law”, adding that Section 230 “protects American innovation and freedom of expression, and it’s underpinned by democratic values”.
According to Judy Krieg, partner and compliance and enforcement expert at law firm Fieldfisher, it is unclear whether any president can repeal a federal statute via an executive order.
“From a practical standpoint, this will likely be sorted in court,” she said. “This is not so much president Trump in his capacity as executive in chief, but rather president Trump in his capacity as social media user.
“This executive order sends a message to the CEOs and executives who manage social media platforms about whether they should regulate or not regulate user content. President Trump’s user content is the tip of the spear and whether and how the social media platforms respond to this executive order – irrespective of its legality – will determine if there is any effect on social media users who are not president Trump, and indeed are not even Americans.”
Read more about social media companies
- Facebook has announced the first 20 members of its oversight board, a new independent body responsible for content governance, moderation and enforcement.
- The government has told social media companies that they need to go “further and faster to address disinformation” about the Covid-19 coronavirus pandemic.
- Privacy campaigner Max Schrems has urged the European Commission to intervene after the Irish Data Protection Commission allegedly used ‘Kafkaesque’ tactics to delay investigations into Facebook’s compliance with GDPR.
According to US senator Ron Wyden, the architect of Section 230, the legislation was originally crafted so that internet companies could exercise some control over content without worrying about the legal repercussions.
The implications of Section 230 in its current form are still deeply contested, however. On the one hand, companies are freed from sifting through millions of posts to make sure they are not violating the law before they appear on the forum, but on the other, it means they can duck responsibility for not removing genuinely harmful or illegal content.
The Electronic Frontier Foundation, for example, has called it “the most important law protecting internet speech”.
It argued that, given the sheer size of user-generated websites, “it would be infeasible for online intermediaries to prevent objectionable content from cropping up on their site”.
It added: “Rather than face potential liability for their users’ actions, most would likely not host any user content at all or would need to protect themselves by being actively engaged in censoring what we say, what we see, and what we do online. In short, CDA 230 is perhaps the most influential law to protect the kind of innovation that has allowed the internet to thrive since 1996.”
But others are much more critical, arguing that Section 230 puts too much power into the hands of social media or tech companies.
Shoshana Zuboff, author of The age of surveillance capitalism: The fight for a human future at the new frontier of power and a professor emerita at Harvard Business School, argues in her book that this reasoning collapsed with the advent of surveillance capitalism, which fundamentally changed the relationship between internet companies and the content on their platforms.
Now, content and how people interact with it is a source of behavioral data for technology companies, which means Section 230 is a “bulwark that shelters this extractive surveillance capitalist operation from critical examination”, wrote Zuboff.
“They no longer merely host content, but aggressively, secretly and unilaterally extract value from that content… and economic imperatives require them to forgo as few of these raw materials as possible,” she added.
“That means moderating only those extremes which threaten the volume and velocity of surplus by repelling or attracting regulatory scrutiny. This is the reason that firms such as Facebook, Google and Twitter have been reluctant to remove even the most egregious content from their landscapes and why ‘lawyers for tech companies litigate ferociously to prevent even a sliver of erosion’ in Section 230.
“A statue once crafted to nurture an important new technological milieu is now the legal bulwark that protects asymmetric wealth, knowledge and power of a rogue capitalism.”