U.S. President Donald Trump’s executive order
weaponizes Section 230 of the Communications Decency Act against social
media companies, the provision that is often used to protect against
being legally responsible for what users post on their networks.
There is no doubt in anyone’s mind that Twitter, Facebook, and
YouTube — more appropriately named BIG social — is censoring users.
However, the solution of more government regulation is a door now being
opened into much harsher conditions for users under the guise of
protecting free speech.
Trump signed an executive order targeting social media companies days after Twitter called two of his tweets “potentially misleading,” in a fact check.
Speaking from the Oval Office ahead of signing the historic order,
Trump said the move was to “defend free speech from one of the gravest
dangers it has faced in American history.”
“A small handful of social media monopolies controls a vast portion
of all public and private communications in the United States,” he
stated, “They’ve had unchecked power to censor, restrict, edit, shape,
hide, alter, virtually any form of communication between private
citizens and large public audiences.”
Handing power over to the government to police social media networks
won’t fix the problem of censorship, it will enable it even more. There
are also legal challenges to a proposal to use Section 230 against
corporations. In essence, this is an attempt to do something similar to
what the EARN IT Act being put through Congress is attempting to do,
weaponizing section 230 of the Communications Decency Act.
Section 230 is a 1996 law that shields online platforms from liability for content created or shared by their users.
As Activist Post previously reported,
Congress is seeking to ban companies from using end-to-end encryption
and impose penalties for businesses that use it. Barr, Sen. Lindsey
Graham (R-SC), and Sen. Senator Richard Blumenthal (D-CT) are targeting
encryption with a new draft bill called
the “Eliminating Abusive and Rampant Neglect of Interactive
Technologies (or EARN IT) Act.” The act would modify the Communications
Decency Act’s Section 230 to make companies liable in state criminal
cases and civil lawsuits over child abuse and exploitation if they don’t
follow practices set by a national commission, according to Engadget.
Although, many say Trump’s recent executive order may be
unconstitutional because it risks infringing on the First Amendment
rights of private companies, and because it attempts to circumvent the
two other branches of government: the courts and Congress.
“Trump has no authority to rewrite a congressional
statute with an executive order imposing a flawed interpretation of
Section 230. Section 230 incentivizes platforms to host all sorts of
content without fear of being held liable for it. It enables speech, not
censorship,” Kate Ruane, senior legislative counsel at the American
Civil Liberties Union said.
The Senator who was the lead legislative body behind Section 230 also chimed in.
Trump is trying to steal for himself the power of the
courts and Congress to rewrite decades of settled law,” said Democratic
Sen. Ron Wyden of Oregon, the architect of the legislation that the
order seeks to reinterpret. “He decides what’s legal based on what’s in
his interest.
Under the order, the Commerce Department would ask the Federal
Communications Commission for new regulations clarifying when a
company’s conduct might violate the good faith provisions of Section 230
with the goal of making it easier to sue tech companies.
Further, the order would direct the Federal Trade Commission to
report on complaints about political bias collected by the White House
and to consider bringing federal lawsuits against companies accused of
violating the administration’s interpretation of Section 230.
However, Wired reports that Trump has little power over how social media companies operate and that the order is just for show.
Let’s get one thing out of the way: As a legal matter, that last part
is nonsense. The FCC has little to no power over the meaning of Section
230, because the law itself is extremely clear. Passed in 1996, it was
designed to solve a problem that plagued web forums in the early years
of the internet. According to the prevailing legal doctrine at the time,
a site was not liable for content posted by its users; for legal
purposes, it qualified as a “distributor,” rather than a “publisher.”
Imposing any type of content moderation, however, exposed a site to
publisher liability. This created a powerful incentive to allow a
free-for-all devoid of even the most minimal standards around things
like obscenity, racism, and libel. Section 230 addressed that problem by
letting websites keep their immunity and moderate user content as they see fit, “whether or not such material is constitutionally protected.”
In other words, the law gives website operators
essentially free rein to decide what kind of speech is allowed on their
platforms, as long as they’re not using those powers in ways that
violate their own terms of service or are otherwise fraudulent. That
broad mandate doesn’t leave much room for Trump or the FCC to play
around.
The EFF also criticizes the order stating its a violation of the
First Amendment; and if the draft order is the same final order which it
appears to be, then it won’t survive the courts.
“The good news is that, assuming the final order looks like the draft
we reviewed on Wednesday, it won’t survive judicial scrutiny. To see
why, let’s take a deeper look at its incorrect reading of Section 230 (47 U.S.C. § 230) and how the order violates the First Amendment,” the EFF wrote.
The provisions regarding the FTC could raise additional legal
questions, as the FTC is an independent agency that does not take orders
from the President nor has the authority to repeal Section 230, which
would have to go through Congress.
Others argue that the order isn’t crazy and it will probably work because it is about intimidation, Insider reported.
Trump does occupy the “bully pulpit,” and he does have
the ability to bully the Justice Department, FCC, and Congress, perhaps
enough to get them to change how they enforce the law, or even change
the law itself.
Trump also has the ability to bully the social-media
companies. And if Trump has demonstrated anything over the past three
years, it is that he is an expert at effective bullying.
Nonetheless, Trump’s administration appears to be ready for that fight and is looking to rescind Section 230 protections.
“One of the things that I found has the broadest
bipartisan support these days is the feeling that this provision,
Section 230, has been stretched way beyond its original intention, and
people feel that on both sides of the aisle,” DOJ head William Barr said.
Just as Barr doesn’t realize what is at stake when it comes to
encryption, only seeing the dark side of things. If Section 230 were to
be revoked it could harm more than just social media, putting other
online businesses like Airbnb, Google, Tripadvisor and many others in
the cross hairs as well, Skift reports.
Here’s a video
of Trump signing the landmark executive order that will give big
government more power than ever over social media. The next step is
challenging this executive order in court; because if it passes, this
could be the first door opened to more regulation and in turn the
beginning of the death of a free and open internet.
**By [@An0nkn0wledge](@an0nkn0wledge)**
Aaron Kesel writes for Activist Post.
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