Time to lawyer up —
Draft executive order claims that technology giants have “dangerous power.”
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The Trump administration is putting the final touches on a sweeping executive order designed to punish online platforms for perceived anti-conservative bias. Legal scholar Kate Klonick obtained a draft of the document and posted it online late Wednesday night.
“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,” the draft executive order states. “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.”
The document claims that online platforms have been “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.”
The order then lays out several specific policy initiatives that will purportedly promote “free and open debate on the Internet.”
Trump could ask the FCC to clarify Section 230
First up is Section 230 of the Communications Decency Act. The 1996 law gives online service providers like Google, Facebook, and Twitter broad immunity from liability for content posted by users. These protections are available to anyone who runs a website—from YouTube and Facebook to a personal blog with a comment section. But in recent years, a number of Republican politicians have started referring to Section 230 as a special privilege granted to big technology platforms.
Trump’s draft executive order would ask the Federal Communications Commission to clarify Section 230—specifically a provision shielding companies from liability when they remove objectionable content. The provision requires that takedowns be made “in good faith,” and the Trump administration wants the FCC to clarify situations in which takedowns are not made in good faith but are instead “deceptive, pretextual, or inconsistent with a provider’s terms of service” or those undertaken with inadequate notice, explanation, or opportunity for appeal.
It’s unclear if the FCC has the authority to interpret Section 230, which does not explicitly give the FCC rulemaking power. However, Section 230 is technically part of the Communications Act, and the courts have traditionally given the FCC broad discretion to clarify portions of the act—so it’s possible FCC rulemaking here could pass legal muster.
However, the FCC is an independent agency not directly accountable to the president. FCC chairman Ajit Pai has not traditionally been a fan of regulating technology platforms, and he has sometimes refused to follow through on Trump policy requests. So the FCC might decide not to act on the Trump administration petition—or at least to delay action on it until after the 2020 election.
Ad spending and unfair consumer practices
Next, the executive order directs federal agencies to review their ad spending to ensure that no ad dollars go to online platforms that “violate free speech principles.” The head of each executive branch agency would be required to review ad spending on online platforms and consider whether those platforms imposed “viewpoint-based speech restrictions”—and if so, whether the agency could legally re-direct their ad dollars elsewhere.
Another provision asks the Federal Trade Commission to examine whether online platforms are restricting speech “in ways that do not align with those entities’ public representations about those practices”—in other words, whether the companies’ actual content moderation practices are consistent with their terms of service. The executive order suggests that an inconsistency between policy and practice could constitute an “unfair and deceptive practice” under consumer protection laws.
Trump would also ask the FTC to consider whether large online platforms like Facebook and Twitter have become so big that they’ve effectively become “the modern public square”—and hence governed by the First Amendment. Interestingly, the DC Circuit Appeals Court rejected this argument just yesterday in a case where a conservative activist argued that technology giants had violated her First Amendment rights. The court ruled that the First Amendment only limits the actions of governments, not private companies. It seems likely that the courts would reach a similar conclusion here.
Finally, the order directs US Attorney General William Barr to organize a working group of state attorneys general to consider whether online platforms’ policies violated state consumer protection laws.
As we said before, the leaked order is a draft. The White House has signaled that Trump will sign a final order today, but it’s possible that the final draft will differ from the leaked draft.
One thing we can say for certain is that the order will lead to a lot of litigation. If the Trump administration follows through on these proposals, we can expect the technology giants to argue that several of them violate their own First Amendment rights. It’s unlikely that any of them will have a significant impact on the technology giants before this November’s election. If Donald Trump loses re-election, the executive order would likely be rolled back. If Trump wins a second term, we can expect four more years of bitter conflict with Silicon Valley.
