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.

Filed Under: 1st amendment, cda 230, doj, donald trump, executive order, fcc, free speech, ftc, section 230, social media


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  • identicon
    Anonymous Coward, 29 May 2020 @ 10:23am

    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.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 29 May 2020 @ 11:14am

      Scorched Earth

      Imagine what our peerless leader will consider once his removal from office is imminent.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 May 2020 @ 5:55pm

        Re: Scorched Earth

        I could imagine him starting a nuclear conflict, so he could declare martial law and hold desperately to power for a few more months....

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 May 2020 @ 6:55am

          Re: Re: Scorched Earth

          He did say that he did not understand why we could not use them, it had to be explained several times by several people and yet I do not think he understands.

          reply to this | link to this | view in chronology ]

    • icon
      Bloof (profile), 29 May 2020 @ 11:36am

      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.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 29 May 2020 @ 11:49am

        What does it say about the state of the United States

        ...that our system elected such a man to power, and can't remove him despite all our stop measures?

        reply to this | link to this | view in chronology ]

        • icon
          Upstream (profile), 29 May 2020 @ 11:55am

          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.

          reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 29 May 2020 @ 11:57pm

      Re:

      Trump has a long, well-known track record of stuff like this. He had a long running feud with Vanity Fair into this decade because one of its writers called him a "short fingered vulgarian" back in the 80s.

      reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 29 May 2020 @ 10:24am

    Donald Trump, probably: I must be seen doing something…about anything that isn’t COVID-19.

    reply to this | link to this | view in chronology ]

  • icon
    Thad (profile), 29 May 2020 @ 10:28am

    I'm beginning to suspect this Donald Trump fellow has something against the news media.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 May 2020 @ 10:46am

    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?

    reply to this | link to this | view in chronology ]

  • icon
    Koby (profile), 29 May 2020 @ 11:22am

    Platform or Publisher

    Newspapers are publishers, not a platform. They do not enjoy section 230 protection, and very much have been held liable in courts for publishing problematic articles.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 29 May 2020 @ 11:35am

      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.

      reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 29 May 2020 @ 11:37am

      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.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 29 May 2020 @ 2:03pm

      Re: Platform or Publisher

      This is not a distinction.

      Newspaper websites absolutely enjoy Section 230 protection for 3rd party content.

      To be clear: Social media, just like newspapers, enjoy Section 230 protections for 3rd party content. Social media, just like newspapers, do NOT enjoy Section 230 protections for their own content that they create.

      So, no, you're wrong. What's worse is that I know I've explained this to you directly in the past, so I do not understand why you repeat this false claim, other than to say that if you continue to do so it is clear you are doing so in bad faith.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 May 2020 @ 11:29am

    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

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 29 May 2020 @ 11:46am

    what you get..

    for NOT going to public schools, and being treated as a Common person.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 May 2020 @ 12:32pm

    Trump's Final Executive Order

    I so much wanted the title to end there.

    reply to this | link to this | view in chronology ]

  • identicon
    Aaron Gordon, 29 May 2020 @ 12:59pm

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 May 2020 @ 1:27pm

      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.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 29 May 2020 @ 1:50pm

        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.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 29 May 2020 @ 2:28pm

          Re: Controlling all three branches

          ..... victims of terrorism aren't aq agents you fucking nutjob

          reply to this | link to this | view in chronology ]

          • icon
            Uriel-238 (profile), 29 May 2020 @ 3:48pm

            Victims of terrorism

            If you're going to call me a fucking nutjob, you're going to have to enunciate your grievance more clearly.

            So please elaborate!

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 29 May 2020 @ 5:20pm

              Re: Victims of terrorism

              Aq is still solely an Asian origin network of terrorists... although a certain group of heavy oil exporters also funded them, especially Sudan, stop blaming Americans victims of terrorism for something they have never had any actual control over.

              reply to this | link to this | view in chronology ]

              • icon
                Uriel-238 (profile), 29 May 2020 @ 8:23pm

                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.

                reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 29 May 2020 @ 2:15pm

      Re: Big Picture

      I think nearly everything in this post is wrong, which is pretty impressive.

      What gets lost in this debate is that Big Tech, specifically large-scale social media sites, are in long-term trouble.

      Uh huh.

      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.

      That's laughable. (1) Their business model has, to date, been a massive success with insane margins. The idea that it's currently at risk seems silly. (2) Part of the business model working is keeping the safe site, because a garbage dump doesn't attract as many advertisers.

      But the biggest laugh is the idea that they've "erred on the side of aggressive moderation." The big platforms have some of the lightest-touch moderation imaginable -- which is why so many people have complained about how they have aggressively HELPED extremists and pushed racist content to people.

      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.

      There are lots of spaces on the internet. This is the nice thing about the internet. Various communities can find their own space, and you don't need to maintain lowest-common-denominator. There are some sites that want to be broadly available, and those have rules to keep garbage out.

      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.

      You're conflating a few different things here, none of which are particularly accurate.

      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.

      They had that the first two years of the Trump administration. How did that go?

      And, at least based on the polling so far, it seems unlikely to happen again. Not impossible, of course, but unlikely.

      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.

      That is also laughable and unlikely. Remember, the key decision that says the these sites cannot be regulated in the way that you want is the MNN case, which was decided LAST SUMMER with a decision WRITTEN BY KAVANAUGH and signed onto by all of the conservative justices, saying in no uncertain terms, that social media sites are private property and cannot be regulated as state actors.

      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.

      Lol. No.

      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).

      That's not how any of this works.

      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.

      Discord and Reddit only exist the way they do because of Section 230. So, yeah, no.

      I'm all on board with more distributed, decentralized social media with the powers moved to the ends, but your prognostications appear to have little basis in reality.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 May 2020 @ 2:30pm

        Re: Re: Big Picture

        I read over some of that documentation and it doesn't seem to solve any of the controversy....

        It looks kind of moot

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 May 2020 @ 6:55pm

      Re: Big Picture

      while the other side's speech (anti-vaxxers', for example) should be stifled

      ...You don't think anti-vaxxer speech should be stifled? Really? Especially now that we're in this COVID-19 mess?

      reply to this | link to this | view in chronology ]

  • icon
    tz1 (profile), 29 May 2020 @ 3:59pm

    Newspapers WERE important

    Now there are only a few huge media congolmerates so almost every paper is the USA Today, as well as the radio stations and TV. Especially in small markets. We must keep the scriptoria and buggy whip makers in business. Meanwhile, people like Tim Pool (TimCast) are the new media.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 30 May 2020 @ 12:02am

      Re: Newspapers WERE important

      "Meanwhile, people like Tim Pool (TimCast) are the new media."

      ...which will be affected the same way by these decisions as "old" media will be.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 30 May 2020 @ 1:45am

      Re: Newspapers WERE important

      Now there are only a few huge media congolmerates so almost every paper is the USA Today, as well as the radio stations and TV. Especially in small markets. We must keep the scriptoria and buggy whip makers in business. Meanwhile, people like Tim Pool (TimCast) are the new media.

      I'm not sure what that has to do with the topic of the post, but rest assured that without 230, you lose much of that. Only the big guys will be able to handle the liability.

      And sites like YouTube won't be willing to host Tim Pool's wacky commentary any more as being too risky.

      Trumpites like yourself should maybe try to actually understand what would happen if they got what they wanted. It's not good.

      reply to this | link to this | view in chronology ]


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