Social media executive order aims to sidestep online publication protections

A draft of an Executive Order expected to be released on Tuesday argues that social media venues need to be reclassified as publishers, contrary to an existing online venue protection law.

President Donald Trump is expected to call for a review of a law that has protected social media giants like Twitter, Facebook, and companies like Google, from being held responsible for user-posted content.

The draft of the executive order suggests that the Federal Communications Commission would clarify regulations under Section 230 of the Communications Decency Act. Section 230 exempts online platforms from legal liability for the material that their users post.

The order asks the FCC to examine actions regarding censorship and content editing by companies like Twitter and Facebook forfeiting their protections under section 230.

The executive order would attempt to re-establish a tool that would allow citizens to report cases of online censorship. The tool, known as White House Tech Bias Reporting Tool, would be started back up after its initial brief run, and would collect complaints of online censorship and submit them to the Department of Justice and the Federal Trade Commission.

After complaints were collected, the FTC would be required to review the complaints about any violations against the law, and publicly report them.

The draft order would also require the Attorney General to establish a working group to create and monitor watch-lists of users based on their interactions with content or other users. The group would also monitor online platforms for engaging in unfair and deceptive acts.

The decision was likely spurred by Twitter's decision to tag Trump's May 26 tweets regarding mail-in voting with a link that leads to an article titled "Trump makes unsubstantiated claim that mail-in ballots will lead to voter fraud."

On May 27, Trump tweeted a vague threat at Twitter, with the sentence "Big action to follow!"

Any challenge to social media will take years to resolve

At present, Twitter does not fall under the the FCC's purview in any way, partly because the venue is a private business not subject to any FCC guidelines or regulations defined by the charter of the agency. Any process to get the FCC involved in regulating social media is lengthy, and will likely take several years both administratively and to work its way through the legal system with the inevitable First Amendment challenges.

Furthermore, the Executive Order doesn't — and can't — change section 230 protections by fiat. Instead, it directs the FCC and FTC to "consider" taking action against platforms, and it isn't yet clear how that will be done, judged, or implemented.

Additionally, the crux of the Executive Order's argument about unfair moderation, doesn't seem to apply to the Tweet that sparked the reaction. Attaching a fact-check link to a social media post, regardless of content, isn't an "edit" to the words of the poster, and therefore, the interpretation that this makes Twitter a "publisher" isn't viable.

DRAFT EO Preventing Online Censorship by Mike Wuerthele on Scribd