By Mike Masnick
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.