U.S. President Donald Trump signed an executive order Thursday, seeking to amend Section 230 of the Communications Decency Act. Section 230 prevents social media companies from civil liability for the content posted on them. The order targets Twitter and Facebook after Twitter fact-checked two of the President’s tweets.
The text emphasizes Trump’s “commitment to free and open debate on the internet.” Trump said that “we are here today to defend free speech against one of the gravest dangers it has faced in American history” before going on to identify that threat as a “small handful of social media monopolies.”
Lawyers who reviewed the order say it’s unlikely to accomplish Trump’s goals. Trump was misunderstanding the law, they said, and had little chance of achieving genuine reform of Section 230 without Congressional help.
Campaigners for a repeal of Section 230 said Trump’s intervention might derail their cause. But it also might offer an opening for decentralized technology, allowing innovation to substitute for government action on issues around misinformation, censorship and the power of social media (see below).
Misunderstanding 230
“Trump neither understands nor cares about the law, whether it's the First Amendment or Section 230,” said Mary Anne Franks, a law professor at Miami Law School, author of "The Cult of the Constitution" and who has written about Section 230 extensively. “All he cares about is power, and he knows that the only way to disguise this is to pretend he is being persecuted.”
Robert Corn-Revere, partner at Davis Wright and Tremaine LLP, who focuses on first amendment issues, said the executive order is not well informed about how Section 230 works – or even what it says – much less how it has been interpreted by courts over the past two decades.
“It is a novel concept, to say the least, to suggest that the President, by executive order, can amend or modify an act of Congress, override hundreds of judicial rulings and instruct independent federal agencies to take actions that exceed their jurisdictional mandates,” said Corn-Revere in an email.
“And these problems arise even before getting to the obvious First Amendment issues raised by seeking to punish or regulate social media platforms for their editorial decisions.” [Disclosure: Davis Wright and Tremaine carries out legal work for CoinDesk.]
Twitter responded to the order, saying the executive order was a reactionary and politicized approach to a landmark law. “#Section230 protects American innovation and freedom of expression, and it’s underpinned by democratic values. Attempts to unilaterally erode it threaten the future of online speech and Internet freedoms,” it said.
Friday morning, the company flagged another of Trump’s tweets for “glorifying violence” after he suggested protesters in Minneapolis, Minn., could be shot.
Public debate around 230 centers around whether these platforms are publishers. To some, a decision to add a fact-check counts as editorializing, making such a platform a publisher. But this is a misreading of the powerful and unilateral immunity Section 230 offers, says Preston Byrne, a prominent crypto law partner (and CoinDesk columnist).
In a blog he said Section 230 does two things only: 1) ensures platforms and users are not liable for content and 2) that, if you complain about a platform moderating your content, don’t expect much legal recourse.
Good faith
Trump’s order goes after the “good faith” requirement for removing “objectionable content” which could encompass whatever the platform chooses to amend.
There's no "good faith" requirement the platform (termed interactive computer service in the section) or user of that platform be treated as the publisher or speaker of any information provided by another user. If someone says something defamatory about you, you can’t sue me or Twitter over it, you sue the person that said it.
“You can't treat an online intermediary like a publisher,” said Franks, even if it acts like a publisher.
She’s critical of latitude to exercise "good faith" in taking down any content the intermediary finds "objectionable" and makes pretty much any parsing of "good faith" a moot point. It’s all up to the company. In any event, Twitter didn't take down any content in relation to Trump, she said, they merely added to it.
Section 230 has allowed platforms to flourish, and those same platforms to share disinformation, profit from the eyeballs that come with each cycle of outrage and deeply affect public discourse.
The order calls on the Federal Communications Commission (FCC) and Federal Trade Commission (FTC) to re-evaluate the “good faith” requirement. In a statement Thursday Commissioner Jessica Rosenworcel (one of two Democrats on the committee) said turning the FCC into the President’s “free speech police” was not the answer.
The process of putting the order together was hastily conducted, and included adapting an old order that had been floating around the White House for years, according to Protocol.
“One casualty of this tantrum is any serious consideration of longstanding and legitimate critiques of Section 230,” said Franks. “It's an intentional hijacking of the principled calls for reform.”
However, Gigi Sohn, a former counselor at the FCC, said Section 230 is not “inviolable,” meaning Congress could choose to address criticisms of the law. Amending this rule could improve online accountability, she argues, but also put upstart networks at a disadvantage. If moderation is now required, Twitter and Facebook are more likely to have the resources to do it properly.
“The little guys are already behind, and they will be even further behind if you keep carving out protections granted by Section 230,” Sohn said. “This points out the incredible power of a handful of companies. The power to determine what people see, what people think and what people believe. That should not be.”
Decentralization
Whatever the fate of Section 230, technology offers a potential way forward without the need for new laws.
Sohn supports major internet platforms “opening” their services to competitors and making themselves interoperable.
Denouncing ongoing efforts to break up big tech platforms, which are toothless due to decades of antitrust law attrition, Sohn said. “I’d rather see something like making them interoperable.”
“That’s the way you quote-unquote break up Twitter and Facebook. You make them open up their APIs [application programming interface] and policies to competitors to make use of,” she said. “I’d like to see it become mandatory.”
Forcing companies to decentralize or move to open standards would spur the creation of new businesses. “The way you handle the power of a company like Twitter is by making sure it can be competed against,” she said.
A mandate to decentralize has some historic precedence, too. It’s akin to what the Telecommunications Act of 1996 did for telephone companies, Sohn said, referring to a bill that required communications operators to open their networks for competitive use.
“Unbundling” online networks, and distributing the influence that one microblogging platform holds over the public conversation, would likely “get them out of this constant criticism,” she said.
Twitter is working on a decentralized standard called Blue Sky, though not much has been revealed about the project since announced in late 2019. Twitter did not respond to a request for comment.
Other networks, sometimes appended to a blockchain, already exist and are thriving. "[W]ith the recent politicization of [F]acebook, [G]oogle, and other bigtech social media giants, the web3 thesis for crypto has never been as underrated as it is now," Su Zhu, CEO of hedge fund and cryptocurrency investor Three Arrows Capital, tweeted.
LBRY, for one, cites the wanton power to censor and deplatform that centralized platforms like Twitter wield as one of its motivations for existing. LBRY’s neutral protocol enables anyone to post content without reprisal, and stores this information on an immutable blockchain. The company’s CEO, Jeremy Kauffman, said LBRY has seen three million active users in May, nearly doubling the count from preceding months. It also receives a number of new users anytime a crypto personality is banished from a big tech platform.
“The President is right to be concerned about the neutrality of companies like Facebook, Twitter and YouTube,” Kauffman said. But he doesn’t agree with making the government – as Trump just attempted – “the arbiter of truth.”
“If platforms want to make the error of enforcing their political biases on their users, let the free market provide competitors like LBRY that make this problem obsolete. Innovations like LBRY make it so that the interference of Twitter and YouTube is technologically impossible,” he said.
To be sure, there are issues with decentralization. Crypto Beadles, a prominent crypto YouTuber, tried the platform and found it wanting.
“There are currently no fully decentralized social media platforms I know of that work even remotely as well as the first version of YouTube,” he said. He painted the picture of a platform with the network effects of Twitter, guided by the principles of LBRY.
For his part, Kauffman said if Twitter were to decentralize, “the biggest effect this would have on LBRY is the potential to slow our growth…if it forces these companies to behave more responsibly. But they misbehave in so many other ways, I doubt this will happen.”