President Signs Executive Order “Clarifying” Section 230 Immunity for Online Platforms

President Trump signed Executive Order 13925, “Preventing Online Censorship” on Thursday, May 28. The order came after his tweets critical of mail-in ballots posted on May 26 had a link attached to them by Twitter that reads: “Get the facts about mail-in ballots”. The link leads to a Twitter page including a CNN article calling Trump’s claims “unsubstantiated”, along with tweets and quotes promoting mail in-ballots.

The Executive Order stated “We cannot allow a limited number of online platforms to handpick the speech that Americans may access and convey on the internet.” and that “[o]nline platforms are engaging in selective censorship that is harming our national discourse.” The order claimed that “Tens of thousands of Americans have reported, among other troubling behaviors, online platforms ‘flagging’ content as inappropriate, even though it does not violate any stated terms of service; making unannounced and unexplained changes to company policies that have the effect of disfavoring certain viewpoints; and deleting content and entire accounts with no warning, no rationale, and no recourse.”
In the order, the President stated “Twitter now selectively decides to place a warning label on certain tweets in a manner that clearly reflects political bias.” The ordre claimed that “Twitter seems never to have placed such a label on another politician’s tweet.”

The order seeks to clarify the scope of immunity provided to providers of interactive computer services who engage in “Good Samaritan Blocking” under section 230(c) of the Communications Decency Act. The Act provides protection to computer service providers who on account of decisions in “good faith”, limit access to content the provider believes to be “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.” The Executive Order stated that when a provider restricts access to content without meeting the stated criteria, it has engaged in editorial conduct is thus exposed to liability the same as a traditional publisher or editor.

The Executive Order calls on the Secretary of Commerce and the Attorney General to file a petition for rule-making with the Federal Communications Commission (FCC)  through the National Telecommunications and Information Administration (NTIA) that clarifies the loss of limited liability protections for companies that do not meet the specified guidelines when restricting access to information. The order also calls on the heads of all executive departments and agencies to review the spending of federal dollars paid to online platforms, as well as statutory authorities that can restrict the platforms’ receipt of the money. The Department of Justice (DOJ), under the order, will be reviewing speech restrictions based on viewpoint for each online platform identified and will “assess whether any online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.”

Other actions taken by the Executive Order include having the Attorney General establish a working group “regarding the potential enforcement of State statutes that prohibit online platforms from engaging in unfair and deceptive acts and practices”, and having information from the White House’s “Tech Bias Reporting Tool” reviewed by the Department of Justice and the Federal Trade Commission (FTC). The working group is said to be collecting information regarding increased scrutiny of users based on their interactions with others, algorithms that suppress particular viewpoints, and users losing their ability to monetize their content based on their viewpoints.

The Executive Order calls on the Attorney General to “develop a proposal for Federal legislation that would be useful to promote the policy objectives of this order.” The text was published on the Federal Register on June 2.

On the day prior to the Executive Order being signed, Twitter CEO Jack Dorsey issued a statement on his personal Twitter, stating “[T]here is someone ultimately accountable for our actions as a company and that’s me.” Dorsey clarified that his intention behind the fact-check was to “connect the dots of conflicting statements and show the information in dispute so people can judge for themselves.” He explained that the presidents tweets “may have mislead people into thinking they don’t need to register to get a ballot”, and that he was acting in accordance with the company’s Civic Integrity policy.

Twitter’s Civic Integrity policy reads “You may not use Twitter’s services for the purpose of manipulating or interfering in elections or other civic processes. This includes posting or sharing content that may suppress participation or mislead people about when, where, or how to participate in a civic process.”

In response to the order, House Bill 7300 was introduced on June 22 to reportedly “prevent Federal funds from being used to carry out Executive Order 13925”. The bill is sponsored by California House Democrat Norma Torres and was referred to the Committee on Oversight and Reform and the Committee on Energy and Commerce.