President Donald Trump is focused on eliminating what he sees as systemic bias, but it has nothing to do with racism.
Under a Trump executive order, the Federal Communications Commission for the first time would have a defined role in regulating edge providers. It’s a big change from the FCC’s hands-off approach during the previous administration, when the “gatekeeper” tag was put on internet service providers — and not on the companies that use those connections to offer their own services, like Google, Facebook or Twitter, which were basically untouchable from a regulatory perspective.
While there is bipartisan support for finding a way to ensure there is some government oversight of the most transformative technology perhaps in human history — including support from cable broadband providers — the president’s focus on online content he does not like threatens to add a layer of speech regulation that could dull the edge and even compromise its role as a marketplace of ideas.
While the order focuses on social media, law firm Wiley Rein says all the participants in online communication will be impacted by “broad and long-term legal and policy effects.”
For example, the president’s directive to develop model legislation for states to enforce his speech policies could work against efforts, backed by ISPs, to create a uniform federal approach to online privacy and commerce.
Related: Section 230: The Protection Section
Trump, in an executive order issued in May, directed the National Telecommunications & Information Administration to file a petition with the FCC, which it dutifully did late last month, to step into the regulation of web content. The FCC would be empowered to require Facebook and Google to publicly explain how they moderate their content, as well as the warnings they place on user posts like the ones Twitter placed on the president’s tweets, which would be considered content generated by the platform and not subject to the Section 230 immunity from civil liability over third-party content, an immunity the president is targeting.
Trump has long said he was looking for a way to keep social media platforms from censoring conservative speech in general. More recently, he has been critical of what he sees as political censorship of his own posts by Twitter, posts that the White House has said are official presidential statements. So, it is clearly personal.
No less a Silicon Valley maven than Facebook chairman and CEO Mark Zuckerberg has conceded there are legitimate concerns about liberal bias, but he does not think it is systemic and has said that is certainly not the case with his company.
FCC commissioner Jessica Rosenworcel, a Democrat, said Trump’s order attempts to enlist the agency in becoming what she calls the speech police, a business she doesn’t want to be in.
The White House explained the move this way: “In a country that has long valued freedom of expression, it is not acceptable for a limited number of online platforms to hand-pick speech that Americans may access and convey. When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.”
Regulations Look Inevitable
Some form of regulation of Big Tech appears inevitable. Last month’s hearing in the House Judiciary Antitrust Subcommittee with the CEOs of Facebook, Amazon, Apple and Alphabet (Google) was pretty much a proverbial case of “the beatings shall commence.” Democratic leaders said the big tech firms were too powerful, that the power had corrupted them and that they needed to be regulated and, in some cases, broken up.
Related: Ordering Up Online Regulation
Even though plenty of Democrats, including at last month’s hearing, have criticized Section 230 — or have even called for its elimination — the president’s linkage of the issue with his attacks on Twitter and other sites had some of those pausing to push back with one hand, even as they shake a big regulatory stick with the other.
Questions about whether or not websites still should enjoy blanket immunity from liability have been asked by everyone from conservative Republicans, who share Trump’s suspicions about the suppression of conservative voices, to the Democratic author of the Communications Decency Act’s Section 230 (see box). Section 230 is the law that says social-media platforms bear no civil liability for most of the speech posted on their sites and gives those platforms the freedom to remove content, or not, as they choose.
Immunity under Section 230 of the 1996 law is what allowed those sites to grow from the garage to the sprawling campus, but also, the law’s critics say, allowed them to avoid the legal consequences of the hate speech, fake news, Russian election meddling and sex trafficking that finds its way onto their sites.
Social media sites argue, and with reason, that if they are liable for the millions or billions of posts they host, or for moderating them according to the perceived preferences of their community, it will be hard to sustain their business model.
But these social-media communities have become so large and powerful that what they allow or don’t allow to be posted on their sites, or how they moderate those posts, can change the national conversation and impact many millions. Many in Washington have been saying that with that power comes responsibility — responsibility that Section 230 has allowed them to dodge, unlike news publishers that are subject to such civil liability.
While the president wants the FCC get involved with social-media content calls, that could be a big ask. As influential telcom law firm Wiley Rein pointed out in a note to clients about the executive order, the FCC recently rejected a petition to investigate broadcast coverage of the president, with the explanation that the regulator is not “a roving arbiter of broadcasters’ editorial judgments.” The executive order essentially asks it to become an arbiter of edge provider content calls.
A Bipartisan ‘Techlash’
There are no easy answers. But Democrats and Republicans have clearly been moving toward regulation, or at least heightened oversight and perhaps changes in the antitrust laws to capture the speed of tech innovation and consolidation, fueled by bipartisan concerns over issues like privacy and third-party marketing of user data. While Republicans criticize social media for allegedly censoring speech, Democrats argue the sites don’t do enough to keep disinformation, including deceptive campaign ads, off their platforms.
One Big Tech critic speaking on background said social media platforms are clearly hoping that the executive order takes some of the pressure off. But he also said the “techlash” has its own momentum, likening it to a big rock rolling down a mountain with “gravity on its side.” Sen. Ron Wyden (D-Ore.), the author of Section 230, said at a hearing last year that the whole point of the section was to have a “shield and a sword,” and the sword hasn’t been used. But following the president’s executive order, Wyden came to the defense of Section 230 and how it has been functioning.
“Efforts to erode Section 230 will only make online content more likely to be false and dangerous,” Wyden said. “Section 230 does not prevent internet companies from moderating offensive or false content. And it does not change the First Amendment of the Constitution.”
Other prominent Democrats have weighed in with questions about Section 230. Presumptive Democratic presidential nominee Joe Biden apparently agrees with Trump that the section should go, telling The New York Times back in January that the section should be revoked, saying “it is propagating falsehoods.”
Sen. Josh Hawley (R-Mo.) has also called for an end to the “sweetheart deal” of Section 230. He had an unusual congressional ally in House Speaker Nancy Pelosi, who tried, unsuccessfully, to exclude Section 230 language from the USMCA trade deal among the United States, Mexico and Canada, calling the section a “gift to big tech.” She was joined in that effort to keep Section 230 from spreading by Reps. Frank Pallone (D-N.J.) and Greg Walden (R-Ore.).
Sens. Lindsey Graham (R-S.C.) and Richard Blumenthal (D-Conn.) are political poles apart. But they teamed up earlier this year on a bill that would amend Section 230 to say that the section's immunity for online platforms from civil liability for third-party content does not extend to child exploitation, meaning Facebook or Twitter could be held liable for posts that illegally exploit children. If that passes, it could open the door to other changes and the prospect of the death of Section 230 by a thousand cuts.
Blumenthal said Section 230 provides a unique, near-absolute immunity from legal consequences for “certain companies and activities.” The bill would remove that exemption from companies that did not earn it. (It is, appropriately, called the EARN IT Act.)
But the president’s call for remaking Section 230 has forced pushback.
Pallone joined with other Democratic legislators to stand up for Big Tech. “Online platforms should enforce their codes of conduct to combat disinformation, even when it is spread by right-wing extremists and the president himself, but the president has made clear he wants the internet to cower in fear,” he said.
And following Trump’s order, Blumenthal tweeted: “Whatever the criticisms I may have of current law, this Executive Order is an authoritarian attack against freedom of expression and accountability. This Executive Order is egregiously excessive, with clearly malevolent intent to suppress free speech. It is a blatant attempt to use the full power of the United States government to force private companies to lie for the president.”
It’s not just Democrats who are pushing back on the president. Sen. Mike Lee (R-Utah), a conservative who agrees there is anti-conservative bias — though he has also argued against siccing the Justice Department on Google and other Big Tech companies — told Fox News Channel the order would be “just terrible precedent long-term.” Lee said social media platforms were not “the government's tool to play with.”
The Committee for Justice, a Republican-backed Washington, D.C., nonprofit group, pointed out that there are legitimate concerns that “content moderation policies on certain social media platforms have a disparate impact on conservative expression and sometimes result in outright anti-conservative bias,” including Twitter’s “singling out” of the president, according to committee president Curt Levey.
But Trump’s approach to those issues had Levey sounding more like Democratic FCC commissioner Rosenworcel following the executive order’s release. “Government regulation of private companies’ content moderation policies is a greater threat than the problem it seeks to address,” Levey said.
Republican FCC member Michael O’Rielly’s public raising of the First Amendment issues with regulating social media may have cost him his renomination, which the president has withdrawn.
Pushback on Both Sides
While the immediate pushback on the president from Democrats provided some hope in Silicon Valley that the regulatory tide might be turning, some of the highest-profile Democrats remained resolute.
The Biden campaign told The Verge his position in support of eliminating Section 230 has not changed, and Pelosi said that the president’s order was a “desperate distraction,” but also continued to hammer the edge, saying: “Social media platforms have sold out the public interest to pad their corporate profits. Their business model is to make money at the expense of the truth.”
And the president wants to know just how much money. He gave federal agencies until June 27 to report on what they are spending on online advertising and marketing, and on which platforms. The Justice Department will now determine which of those are “problematic vehicles for government speech,” meaning government dollars.
Related: FCC As Edge Regulator
But the principal problematic vehicle is the executive order itself, said Jon Epstein, a partner at law firm Hall Estill, who has advised clients on the risks of social media. "The EO is troubling to those who believe that the Section 230 protections are necessary and that use of the platforms should not be censored based on government officials’ political viewpoints.
“During his campaign and since he was elected, President Trump has engaged in a heated conflict with reporters and media platforms who have criticized or questioned him,” Epstein continued. “[W]e are on the verge of the battle that the President appears to have sought.”
