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What Trump’s Executive Order Could Do to Social Media Provider Immunity

Section 230(c) of the Communications Decency Act, which has been around for more than 20 years, gives online platform providers and others protection from claims that information posted on their sites by third parties violates a law or someone else's rights.

Section 230(c) also states that such entities and others are protected against claims based on their “good faith” actions to restrict access to information they consider to be “lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
 
These protections may soon be “clarified” in a manner that narrows their application as a result of an Executive Order signed yesterday by the President, which Executive Order was issued just a couple of days after Twitter labeled two of his tweets in a manner that questioned the tweets’ accuracy. The Executive Order requires a host of government-related actions including, among others, the following:

  • The Secretary of Commerce (through NTIA), in consultation with the Attorney General, shall within 60 days file a petition for rulemaking with the FCC requesting that the FCC promptly propose regulations to:
    • Clarify the circumstances under which online platform providers and others could, in light of their own editorial decisions, lose their protections under Section 230(c) from claims that information put on their sites or through their services by third parties (such as other users) violates a law or someone else’s rights, and
    • Clarify the circumstances under which restricting access to information is not being done “in good faith,” under Section 230(c), such as where the restrictions are:
      •  Deceptive, pretextual, or not consistent with a provider’s terms of service; or
      • Taken before providing adequate notice, a reasoned explanation, or a meaningful opportunity to be heard
    • Otherwise advance the policies set forth in the Executive Order relating to:
      • Promoting free and open debate on the internet;
      • Avoiding providing protection under Section 230(c) “for those who purport to provide users a forum for free and open speech, but in reality, use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints;” and
      • Preventing a “handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate [and then have] blanket immunity when they use their power to censor content and silence viewpoints that they dislike.”
  • Each executive department shall
    • Ensure that their application of section 230(c) properly reflects the narrow purpose of that section and take all appropriate actions in this regard.
    • Within 30 days issue a report to OMB regarding its spending on marketing and advertising to online platforms so that the DOJ can decide whether any of those “online platforms are problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.”
  • The FTC, after the White House provides it with complaints of online censorship already received from citizens, should consider taking action to prohibit unfair or deceptive acts or practices by online platforms, and also should consider taking action to address large online platforms restrictions on protected speech. In addition, the FTC should consider creating a report regarding the online censorship complaints and making that report public, consistent with applicable law.
  • The Attorney General
    • Shall establish a working group, which will consult with state AGs. The working group shall:
      • Focus on potential enforcement of state statutes that prohibit unfair or deceptive acts or practices by online providers.
      • Create model legislation for states to consider where existing state laws do not protect against unfair and deceptive acts and practices by online platforms.
      • Collect publicly available information regarding any online platforms’
        • increased scrutiny of users based on who else they follow or interact with;
        • algorithms that suppress content or users based on political alignment or views;
        • policies that allow otherwise impermissible behavior when committed by accounts associated with the Chinese Communist Party or other anti-democratic associations or governments;
        • reliance on third parties (such as contractors, the media, and individuals) who have shown biases to review content; and
        • acts that limit users with particular views the ability to earn money on the platform compared with other users who are similarly situated but have different views
    • Shall propose federal legislation that would promote the policy objectives of the Executive Order.

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