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Explained: Trump’s executive order targeting social media platforms

Trump has signed an executive order aimed at removing certain protections for social media platforms. Legally, the order may not make much of a difference.

By: Explained Desk | New Delhi | Updated: May 30, 2020 9:06:46 am
President Donald Trump arrives to speak with reporters about the coronavirus in the James Brady Briefing Room of the White House, Friday, May 22, 2020, in Washington with White House press secretary Kayleigh McEnany. (AP Photo/Alex Brandon)

On Thursday, US President Donald Trump signed an executive order aimed at removing certain protections for social media platforms that aim to safeguard them from any liabilities arising out of the content that is posted on their websites. The order gives federal regulators the agency to take action against online platforms that are seen as censoring free speech.

What is an executive order?

An executive order is a written directive issued by the President and is one of the most common presidential documents. Such orders are not legislations and don’t require the approval of the Congress, which also means that the Congress cannot overturn them. According to the American Bar Association, Congress may pass legislation that makes it difficult or impossible to carry out an executive order, such as removing funding. However, ultimately, only a sitting US president can overturn an executive order by issuing another one to that effect.

What does it say?

The executive order says that online platforms are engaging in “selective censorship” and that Twitter’s labelling of Trump’s Tweets shows “political bias”.

“At the same time online platforms are invoking inconsistent, irrational, and groundless justifications to censor or otherwise restrict Americans’ speech here at home, several online platforms are profiting from and promoting the aggression and disinformation spread by foreign governments like China,” the order mentions.

What triggered the move?

The move comes after Twitter labelled two posts made by Trump about California’s vote-by-mail plans as fact-checked. As part of its new policy undertaken amid the coronavirus pandemic, the platform has introduced labels and warning messages that aim to provide “additional context and information” on Tweets containing disputed, misleading or unverified claims related to the pandemic.

However, the labels can also be used in situations where the risk of harm associated with a Tweet is less severe and people may be confused or misled by the content.

Also read | After fact-check, Twitter flags Donald Trump’s tweet for ‘glorifying violence’

On Tuesday Trump tweeted, “There is NO WAY (ZERO!) that Mail-In Ballots will be anything less than substantially fraudulent. Mail boxes will be robbed, ballots will be forged & even illegally printed out & fraudulently signed. The Governor of California is sending Ballots to millions of people, anyone…..”, followed by another Tweet that said, “…living in the state, no matter who they are or how they got there, will get one. That will be followed up with professionals telling all of these people, many of whom have never even thought of voting before, how, and for whom, to vote. This will be a Rigged Election. No way!”.

Both the tweets were labelled by Twitter and the platform maintained the posts could “confuse” voters about what they need to do to receive a ballot and participate in the election process.

What changes with the order?

Section 230 of the Communications Decency Act (CDA) provides immunity to online platforms and protects them from being liable for the content billions of people post on their platform every day.

Further, under this section, providers of “interactive computer services” are free from being treated as the publisher or speaker of any information posted by the users, rendering these platforms “unfettered by Federal or State regulation”.

Significantly, the Act also protects online platforms from civil liability, which means that they may not be liable for restricting access to certain content that platforms may consider being, “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable” and when such content is removed in “good faith”.

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However, Thursday’s executive order says that when online platforms remove or restrict access to content, which are not based on the aforementioned criteria, or is in bad taste, it engages in editorial conduct and thereby becomes the “publisher” of all the content posted on its website. Based on this, the order seeks to revoke the liability shield offered to platforms and exposes them to liability “like any traditional editor and publisher that is not an online provider.”

Further, the order directs the Secretary of Commerce (Secretary) to file a petition for making rules with the Federal Communications Commission (FCC) along with the Attorney General to clarify the conditions under which an action taken by an online platform to restrict access or availability of certain content is not “taken in good faith” and therefore such action is excluded from being protected under Section 230.

What are the implications of this order?

Legally, the order may not make much of a difference. According to a report in The New York Times, the order does not make it clear as to why FCC, an independent agency outside of Trump’s control, would have any agency in interpreting the relevant sections of the CDA. Further, the report mentions that an agency such as FCC cannot override a statute enacted by Congress. Even so, the order can certainly give rise to a policy debate about the liabilities and responsibilities of social media platforms.

Twitter has said that the order is a “reactionary” and “politicised” approach to a landmark law. It says that Section 230 protects American innovation and freedom of expression. “Attempts to unilaterally erode it threaten the future of online speech and Internet freedoms,” Twitter said.

On the other hand, Facebook’s CEO Mark Zuckerberg in an interview he gave to Fox News on Wednesday criticised Twitter for fact-checking the US president and said, “I just believe strongly that Facebook shouldn’t be the arbiter of truth of everything that people say online. In general, private companies probably shouldn’t be – especially these platform companies – shouldn’t be in the position of doing that.”

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