Trump's Final Executive Order On Social Media Deliberately Removed Reference To Importance Of Newspapers To Democracy

from the because-of-course dept

We wrote a detailed breakdown of the President’s silly, nonsensical, legally wrong Executive Order regarding social media yesterday. A few hours later the official version came out, and it was somewhat different than the draft (though, in no ways better). If you want to see the differences between the draft and the final version, here’s a handy dandy redline version put together by Professor Eric Goldman.

The new version inserted a bunch more nutty ramblings that have no legal meaning, but should the executive order ever need to be challenged in court, more or less made it clear that this was done vindictively. It honestly reads like Trump read the draft and whined that there wasn’t enough about how unfair everyone is to him and what a meanie Rep. Adam Schiff has been in investigating the President. Separately, the very fact that the draft changed so drastically from the night before to the moment of release shows that it was drafted hastily, which provides even more evidence that it was done directly in retaliation for Twitter fact checking his false claims.

The biggest change in the final version is that beyond setting up a “working group,” the final version instructs the Attorney General to “develop model legislation for consideration in States where existing statutes do not protect Americans from such unfair and deceptive practices.” Theoretically, this might become a nuisance, but (1) Barr already put together such a working group last year, and (2) had already been working on various legislative proposals to undermine Section 230, including the EARN IT Act that we’ve discussed at great length.

One other notable change is in the instructions given to the FCC, which (despite having literally no legal authority over websites) is to come up with an interpretation of Section 230 (also, the FCC has no reason or basis to interpret Section 230, as that’s a job for the courts). The difference from the draft is that it instructs this analysis to look at “the interaction” between the two clauses of the Good Samaritan clause:

… requesting that the FCC expeditiously propose regulations to clarify:

(i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1), which merely states that a provider shall not be treated as a publisher or speaker for making third-party content available and does not address the provider?s responsibility for its own editorial decisions;

If you don’t recall, we’ve discussed at great lengths the two parts of 230. (c)(1) is the sites are not liable for content posted by users part and (c)(2) is sites are not liable for moderation choices. These are two separate things. There is no “interaction” between them. There’s never been any interaction between them. No court has said there’s any interaction between them. As far as I know, no party in a case has competently argued that there’s an interaction between them.

Yet, to try to make this EO have teeth, the Trump administration seems to want to invent an interaction between the two. Specifically, (c)(2)(A) says that:

No provider or user of an interactive computer service shall be held liable on account of…. any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;

The Executive Order is hinting that “good faith” and the “objectionable” content part should somehow restrict the part that makes a website liable for what it’s users do. There is no credible lawyer who thinks this makes any sense. It’s just a weird move by someone looking for any scrap of a way to increase the liability of websites.

But to me, the craziest part of the “changes” between the draft and the final version is that someone apparently flipped out that during the patriotic nonsense part, the original draft mentioned that open and free debate in businesses and newspapers is “essential to sustaining our democracy.” And the final version crossed out both businesses and newspapers, and replaced them with “town halls.”

It’s almost as if someone saw that and said “shit, we can’t admit that open debate in newspapers is good for democracy when we keep attacking them and calling them fake news.”

Once again, this whole thing is nonsense, and is designed to distract from the President’s own failings.

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Anonymous Coward says:

The craziest part of this is how it’s all based on Trump getting politely called out for obvious lies finally after having gotten nothing from Twitter correcting his misbehavior on their platform for years. Trump wants to subvert the laws of the entire nation, which, if he could actually be effective, would have massive unfortunate consequences, all because someone pointed out he was lying when he was lying. This is a narcissist trying to burn down the house because he didn’t get his way.

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Bloof (profile) says:

Re: Re:

He’s got a track record of doing this, he only ran for office because Obama made a joke about him after years of parroting racist conspiracy theories and one of his main goals is to undo everything he did while president, from the ACA to national parks. He’s a petty, petty man with skin as thin as the fat soaked paper bag he so resembles.

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Upstream (profile) says:

Re: Re: Re: What does it say about the state of the United States

It says that our system has gone down the toilet, and that the cult of the presidency has taken over completely. It also says that our "educational system" does not teach people how to think, but rather how to be good government stooges.

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Anonymous Coward says:

Twitter, Facebook, Instagram, and Youtube wield immense, if not unprecedented, power to shape the interpretation of public events; to censor, delete, or disappear information; and to control what people see or do not see.

Isn’t this the same guy who ordered a transcript moved to a classified server in favor of releasing a "transcript" of a "beautiful phone call" with the words "not a transcript" printed on page 1, all the while referring to the transcript marked "not a transcript" as "THE transcript?"

Is that the kind of "unprecedented power" he’s talking about?

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That One Guy (profile) says:

Re: Repeating a bad argument does not turn it into a good one

Yes, because that’s the courts holding them responsible for what they said.

As for 230 protections they don’t have them because unlike online platforms it didn’t need to be spelled out that they are only liable for what they create, something that did have to be made crystal clear unfortunately for online platforms.

There wasn’t a need for a law saying that if someone scribbles defamatory content in a newspaper that they or someone else had bought that you can’t sue the paper for ‘providing a surface for illegal content’, because that was already blindingly obvious, it was only when it came to online platforms that it needed to be spelled out that you hold the speaker liable, not the platform they speak on.

230 isn’t giving online platforms some special extra privilege that offline publishers/platforms don’t get, it’s saying that the same rules regarding liability that offline publisher already enjoy apply online too.

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Anonymous Anonymous Coward (profile) says:

Re: Platform or Publisher or both

You are correct since they have mostly dumped their comments sections. When, or if they still do, they have Section 230 protection for those comments. Now your going to say that letters to the editor are like comments, except they are not. Letters to the editor are screened prior to them being printed, whereas comments sections are not.

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Anonymous Coward says:

And the scary thing is that his supporters all think that this is genuinely helping democracy as Twitter is an echo chamber for left wing posts. They really think that conservative vioces are being stifled…

For Trump, this has worked perfectly despite if being pure political theatre

Aaron Gordon says:

Big Picture

What gets lost in this debate is that Big Tech, specifically large-scale social media sites, are in long-term trouble. Their business model is necessarily focused on "keeping people safe" from unpopular opinions & false information (both of which can be in the eye of the beholder), lest their sites starve from being "unsafe" or "uncool". At the same time, as well-described on this site, moderation is difficult. As such, Big Tech has erred on the side of aggressive moderation. If "safety" is prioritized over freedom, either to post, or to think for yourself & ignore hard right-wing propaganda, then this is just fine. The Internet lowest-common-denominator status quo is maintained.

Unfortunately, for Big Tech & their cheerleading squad, this cuts many ways. Left-wing ideas, not being aligned with private, Capitalist motives, will continue to be aggressively curtailed (note that this creates one ever-growing group against Big Tech). Niche interests, such as obscure YouTube channels, as well as Alex Jones wannabes, have been demonetized or otherwise marginalized, under the rubric of being "unprofitable", or otherwise running afoul of YouTube’s & others’ algorithms.

Most importantly, as the Republican party is the party of Trump, there will come a day, possibly as soon as this November, that the GOP will control both houses of Congress & all three branches of the Federal government. Then, there will be a significant movement for revenge against the current Big Tech regime (hence Zuckerberg’s fence riding). Section 230 isn’t in the Constitution, it’s a statute that can be repealed. Any future legal challenges without 230, based on First Amendment principles, will come up against Trump appointees, and will lose. It will devolve into an argument where one side’s speech ("liberal" Big Tech’s speech) should be protected, while the other side’s speech (anti-vaxxers’, for example) should be stifled. Large-scale social media will likely be compelled back into an anything-goes Wild West. Plus, Big Tech profits on public anonymity, but private identification, to keep up the illusion of such to users so that they will divulge personal data, but to make huge money on the trading of personal proprietary information to advertisers (as though advertising has much of a future, especially during this Second Great Depression).

So, with an ever-growing enemies list, Big Tech, as it stands today, especially sitting in the political center, whose days are numbered anyway, is playing right into Trump’s hands. I, at least, foresee an ever-increasing Balkanization of tech (which has been well underway for years), where users bounce from platform to platform, chasing "coolness" & avoiding trolls, but creating an environment where "network effects" & destructive "innovation" never kick in (see Uber), so no one ever makes that much money. Ultimately, the current incumbents won’t be able to keep up with acquisition, and the Internet will go back to the early days, interest groups of a few hundred splintering off (like Discord servers or Reddits), this time with the number of groups numbering in the millions, with minimal ways to make a large public statement. I, again at least, am perfectly OK with that.

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Anonymous Coward says:

Re: Big Picture

there will come a day, possibly as soon as this November, that the GOP will control both houses of Congress & all three branches of the Federal government.

Not if we vote that shithead out of office. And I pray that no one party ever controls both sides of the house, no matter the party.

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Uriel-238 (profile) says:

Re: Re: Controlling all three branches

The GOP controlled the House and Senate during both the Bush administration and the first two years of the Trump administration. It was what set up the War on Terror, the torture program and the surveillance state, also the beginnings of the disposition matrix when Americans were discovered operating as Al Qaeda agents.

The Democrats controlled both houses during the beginning of the Obama administration. In the end, the GOP was willing to rig procedure pass things through. The Democrats were not. But then the DNC’s true colors as corporatist became clear as they pushed IP-maximal policies.

At this point, the courts have been captured by the Federalist Society, and both parties are entirely oligarch-controlled. While we’ve had the occasional rational capitalist point out the fishwives are sharpening their tools, our oligarchs can’t be bothered to give a single fuck.

Historically, class struggles polarize pitting citizens and their mercenaries against plebian masses and it gets violent before the society collapses or a resolution can be made. Disasters like plagues tend to be tension multipliers that serve as a catalyst.

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Uriel-238 (profile) says:

Re: Re: Re:4 Americans operating as Al Qaeda agents

I was referring to Adam Yahiye Gadahn who was captured among enemy combatants. His position functioning as an enemy combatant while still having US citizenship raised the specter of US troops inadvertently shooting at US citizens. This not only created the problem of executing citizens without due process, but also US soldiers are not keen on shooting at their own countryfolk.

The inception of the Disposition Matrix came during the review of this incident, considering the possibility that American citizens could be radicalized both domestic and abroad. (The point of the magazine Dabiq is to do just that, or more exactly, direct those who are already radicalized — who are pissed off and want to blow something up — toward taking action that serves the Islamic State (the one in Iraq). So there’s validity to the concern that US citizens could choose to fight in the name of an enemy of the US. (The incidents in which US citizens have been so radicalized have just been very few. It is much less of a concern than say, US citizens who want to blow stuff up for Hitler or for white supremacy. We have a lot more Nazi terrorists than Islamic terrorists.)

The Disposition Matrix is a War-on-Terror protocol which allows the President of the United States authority to command the execution of an enemy combatant which happens to have US citizenship if they are a danger to the United States. Indeed, Gadahn, himself was killed by drone strike in 2015.

So I’m not sure for what you think I’m blaming American victims of terrorism. The people of the United States did not ask for the dispensation matrix.

I would argue the United States has been an asshole to pretty much every entity it has come into contact with since it was founded, so it could be argued that the US as a state has incited retribution against it by orders of magnitude more than the attacks we’ve actually suffered, again both within and abroad. But this may be true of any self-serving expansionist empire. Still, it means we never had to argue the 9/11 attacks were because they hate our freedom! The US feels compelled to bomb nations relentlessly, and we’ve earned enough hatred to fuel a thousand wars.

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