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Trump, Twitter, and why a 25-year-old law is needed to protect the future of freedom of expression online (Demo)

Editor’s Note: Over recent days, the world’s attention has been justifiably focused on the US protests following the killing of George Floyd in police custody, along with the sharp rise in press freedom violations by US local and state authorities. At such a worrying time for freedom of expression in the US, we wanted to share some serious concerns about the Trump administration’s recent attacks on online freedoms.

US President Donald Trump and Twitter have long been intimately intertwined in the public imagination. While most politicians use social media, none have exploited its potential more than President Trump, whose image and reputation are intrinsically linked with his Twitter feed.

For many years, Trump has used Twitter to effectively dominate the media cycle, often by posting outrageous, false, and defamatory content sure to spark controversy and attract media attention.

Last week, however, things came to a head after the president deployed this tactic yet again, this time in order to make false claims about the integrity of mail-in ballots. Twitter did not remove the president’s posts, but added a link encouraging readers to “get the facts” – such fact checks are commonly used by Twitter to combat misinformation on the platform, but this was the first time they were applied to tweets by the president.

Retaliation from the White House was swift, in the form of an Executive Order targeting social media companies in a range of ways, most notably by threatening to strip them of legal immunity for what their users post online. 

If the goal of the order was to intimidate Twitter, it did not appear to succeed: the following day Twitter placed a warning on a tweet posted by Trump (and later reposted from the White House account) that it glorified violence.

Let’s take a look at what Trump’s Executive Order says, why its implications are significant, how IFEX members and others have responded, and the broader issues it raises for freedom of expression and access to information online.

What does Trump’s Executive Order say?

The president’s Executive Order, issued on Thursday 28 May, set out a number of measures targeting social media companies, from ordering a Federal Trade Commission investigation into supposed political bias, to a review of federal government spending on social media advertising. 

The most controversial measure directs the Federal Communications Commission (FCC), the US telecommunications regulator, to rethink the scope of liability protections for tech companies set out in Section 230 of the Communications Decency Act 1996. As we’ll examine in more detail below, Section 230 is a crucial pillar of freedom of expression online.

It’s important to note that the immediate practical impact of Trump’s order is likely to be limited. Although the FCC has a built-in majority for the president’s party, its powers are restricted to interpreting the law, not rewriting it. As many have pointed out, the wording of Section 230 is unambiguous and leaves very little room for interpretation, especially after decades of court rulings and legal precedent. Realistically, Section 230 could only be meaningfully changed by legislation in Congress.

So why is Section 230 so important, and how did this nearly 25-year-old piece of legislation become a cornerstone of the modern internet?

To really understand Section 230’s importance, we need to take a step back in time to the early days of the world wide web. Back in the mid-1990s, there was no Facebook, no Twitter, and no Google – platforms which, today, host the majority of user-generated content in the US.

However there were still platforms that hosted user-generated content, such as online forums, the comment sections of media organisations, etc. Prior to the passing of Section 230, platforms that hosted user content were faced with a dilemma: if they engaged in any moderation of user content they would become legally liable – a publisher rather than a distributor – for everything posted by users on their platform. Their only option to avoid legal liability was essentially to permit a total free-for-all and not moderate anything.

Section 230 changed all that by shielding tech companies from liability for content posted by users on their platforms, and permitting them to moderate users’ content, without becoming liable for everything they host. It reflects the principle that the person who generates content, not the website where it is posted, should be held responsible for that content. 

The significance of this cannot be understated – Section 230 remains a cornerstone of the internet we know today. It is essential for freedom of expression online, and has often been described as “The First Amendment of the Internet”. The Electronic Frontier Foundation (EFF), an IFEX member, describes Section 230 as “one of the most valuable tools for protecting freedom of expression and innovation on the Internet.”

In practical terms, Section 230 has, in EFF’s words, “allowed for YouTube and Vimeo users to upload their own videos, Amazon and Yelp to offer countless user reviews, craigslist to host classified ads, and Facebook and Twitter to offer social networking to hundreds of millions of Internet users.”

Ironically, few people would be more impacted by a successful undermining of Section 230 than President Trump himself. Platforms would move to censor all posts that could be viewed as false or defamatory, two common characteristics of the president’s tweets. At a stroke he could lose his most powerful communications tool.

What has been the reaction from across the IFEX network and elsewhere?

Given the importance of Section 230 to online freedom of expression and the open internet, reaction to Trump’s order was swift, not least from across the IFEX network of over 100 organisations committed to promoting and defending freedom of expression and access to information. 

Here’s just a flavour of how IFEX members responded:

ARTICLE 19’s executive director Quinn McKew stated that:

“Rather than protecting free speech, undermining Section 230 in this way will restrict more speech online. It will make it easier for the government itself to exert the levers of censorship, fundamentally undermining First Amendment rights in the United States.

A detailed analysis of the order by EFF’s David Greene and Aaron Mackey didn’t mince words, describing it as “an assault on free expression online”. However, Greene and Mackey also point out that “The good news is that… it won’t survive judicial scrutiny,” noting that:

“The Supreme Court has consistently upheld the right of publishers to make these types of editorial decisions. While the order faults social media platforms for not being purely passive conduits of user speech, the Court derived the First Amendment right from that very feature.”

Freedom House president Michael J Abramowitz stated that: 

“It is a democratic imperative to uphold free expression online. The protections from intermediary liability provided by Section 230 ensure that users are able to engage in legitimate expression while also allowing companies to remove banned content when necessary.”

Human Rights Watch’s senior digital rights researcher Deborah Brown said

“President Trump’s executive order amounts to a threat to punish social media platforms and the people who post on them because the government might disagree with the way the companies moderate content.” While acknowledging the controversy around what platforms allow and disallow, she argued that “stripping platforms of their immunity from liability is not the answer.”

PEN America’s CEO Suzanne Nossel described the order as the “lashing out of a leader who has begun to reap what he has sown in making indiscriminate, at times bullying use of social media, including to spread falsehoods,” and noted that:

“This executive order seeks to brush aside settled law, circumvent restrictions on executive authority, and politicize government agencies. While the EO fairly cites the risks of empowering private companies to arbitrate our public discourse, far more dangerous would be arrogating for government the powers of a Ministry of Truth, as this EO seems to contemplate.”

Many other experts from outside the IFEX network have also weighed in:

  • David Kaye, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, tweeted that the Executive Order was a straightforward attempt to “intimidate Twitter into not fact checking him.”
  • Daphne Keller, Director of the Program on Platform Regulation at Stanford’s Cyber Policy Center, produced an annotated version of the Executive Order, noting that much of it is legally dubious, or consists of political atmospherics, while cautioning that even the non-legally enforceable aspects of the order could have indirect legal consequences: “To the extent they scare platforms into adopting the White House’s preferred editorial policies, there are questions about whether that exercise of state power would violate the First Amendment.”
  • FCC Commissioner Jessica Rosenworcel, one of two Democrats on the 5-person FCC, stated that the Executive Order “would turn the Federal Communications Commission into the President’s speech police,” adding that “It’s time for those in Washington to speak up for the First Amendment. History won’t be kind to silence.”
  • In a hard-hitting op-ed for The New York Times, law professor Tim Wu described the order as “a legal dumpster fire” and argued that “no one who believes in the importance of free speech wants the president, equipped with the censorial power of government, to be able to dictate what speech policy should be followed by social media companies nationwide.” Professor Wu went on to slam Facebook as “cowardly” for responding to Trump’s threats by assuring the White House it thinks it wrong to fact-check politicians. 
  • Senator Ron Wyden (D-OR), who co-authored Section 230 in 1996, accused the president of “targeting Section 230 because it protects private businesses’ right not to have to play host to his lies,” pointing out that “Efforts to erode Section 230 will only make online content more likely to be false and dangerous.” 

There’s an important debate to be had, but this isn’t the way to have it…

A common thread running through many of these responses is that there is indeed a legitimate debate to be had about the growing power of large platforms like Facebook and Twitter and their lack of accountability – but that Trump’s Executive Order is not the way to achieve this.

As PEN America’s Suzanne Nossel pointed out in her statement:

“Certain types of online content, including harassment, disinformation, and incitement to violence, do cause genuine and widespread harm. While platforms have a role to play in mitigating these and other dangers, affording them unfettered discretion to arbitrate speech raises serious concerns about how profit motives, political beliefs, and flawed systems may stunt our public discourse. Forcing them to police speech under penalty of liability, which would happen if Section 230 is rolled back, could intensify these concerns.” 

Similarly, the Electronic Frontier Foundation pointed to “legitimate concerns about the current state of online expression, including how a handful of powerful platforms have centralized user speech,” while Human Rights Watch noted that social media companies “have a responsibility to be more transparent and accountable on how they moderate content and what procedural safeguards they put in place against arbitrary censorship”.

Put simply, it’s important to address harms such as misinformation and disinformation in ways that respect freedom of expression and international human rights standards. There are some great ideas out there for how to achieve this – such as the Santa Clara Principles on Content Moderation endorsed by many CSOs and tech companies, or the type of multi-stakeholder accountability mechanisms such as Social Media Councils proposed by ARTICLE 19, UN special rapporteur David Kaye and others. Facebook’s recent introduction of an independent Oversight Board will also be watched closely.

The bottom line is that these are complex issues that require thoughtful consideration and debate – rather than the legally dubious knee-jerk response put forward by the Trump administration.

Resources for further reading: 

  • For more on the already worrying climate for freedom of expression in the US, check out the 2018 US Press Freedom Report that IFEX co-authored with ARTICLE 19, the Committee to Protect Journalists (CPJ), Index on Censorship, the International Press Institute, and Reporters Without Borders, as well as CPJ’s more recent 2020 report:  The Trump Administration and the Media.
  • For more on the broader topic of disinformation and misinformation online, check out our original content series on regional experiences with the global problem of information disorder, and what people are doing to counter it. 

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