November 28, 2020

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Facebook, Twitter, Google face reckoning as deadline looms on Trump’s executive order

4 min read
Social media giants could soon get a stronger taste of the Trump administration’s attempt to...

Social media giants could soon get a stronger taste of the Trump administration’s attempt to weaken legal protections that have long shielded those platforms from liability for edits and deletions to user content.

Companies targeted by the President’s May 28 executive order could learn in more detail by Monday — when the order’s 60-day deadline arrives — how the administration intends to carry out its plan. It coincides with social media CEOs preparing to testify Monday before lawmakers on the hotly-contested and related issue of antitrust.

Underscoring the stakes, the executive order charges Twitter (TWTR), Facebook (FB) and its photo-sharing platform Instagram, as well as Google’s (GOOG) YouTube with wielding “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.”

The order requests that the Federal Communications Commission (FCC) reinterpret and issue new regulations for Section 230 of the Communications Decency Act, the law granting social media giants their special protection. The protection is widely regarded as the tool that made it possible for Big Tech to amass considerable market dominance.

WASHINGTON, DC – MAY 28: U.S. President Donald Trump speaks in the Oval Office before signing an executive order related to regulating social media on May 28, 2020 in Washington, DC. Trump’s executive order could lead to attempts to punish companies such as Twitter and Google for attempting to point out factual inconsistencies in social media posts by politicians. (Photo by Doug Mills-Pool/Getty Images)

By weakening the law’s safeguards, Trump’s maneuver is designed to make it tougher for social media platforms to edit or delete user content, especially politically charged material.

That includes his own posts, which recently fueled a feud with Twitter over warning labels the company placed on posts that questioned the integrity of mail-in voting, and threatened force against protestors responding to the homicide of George Floyd.

How it would be enforced

SAN ANSELMO, CALIFORNIA – MAY 29: In this photo illustration a notification from Twitter appears on tweet by U.S. President Donald Trump that the social media platform says violated its policy on May 29, 2020 in San Anselmo, California. Twitter has started to flag some of President Trump’s tweets that violate the company’s terms. (Photo by Justin Sullivan/Getty Images)

Section 230 was originally created to enable online platforms to make good faith efforts to block user content that the platform — or its users — consider to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, without exposing them to lawsuits. That latitude gives social media and other platforms that host user content an exemption for editorial decisions not available to traditional publishers.

Under the order, the president instructs U.S. Secretary of Commerce Wilbur Ross, acting through the department’s National Telecommunications and Information Administration (NTIA) — an executive branch agency responsible for advising the president on telecommunications and information policy issues — to file a petition for rulemaking with the FCC. The NTIA did not immediately respond to Yahoo Finance’s request for comment.

The order requests that the FCC “expeditiously propose” new regulations for the online platforms that would further tighten scenarios under which 230 would allow the platforms to edit and delete content — but the independent agency is under no obligation to do so. And before it can take rule-making steps, the FCC must first be authorized by statute to do so.

Anne Veigle, an FCC representative, told Yahoo Finance that the agency had so far received no petitions in connection with the Trump administration’s executive order.

Yet Legal experts, including Commissioner Jessica Rosenworcel, question whether the FCC has any authority at all to engage in rulemaking concerning 230. The agency has never claimed the authority under the law, and no such language extending authority exists in the statute.

In a statement Rosenworcel, a Democratic appointee, urged her fellow commissioners to reject the anticipated petition from the administration, saying that the FCC should not become the president’s speech police.

Still, FCC Commissioner Bradley Carr, a Republican appointee, defended Trump’s move. He told Yahoo Finance that online platforms should lose the 230 liability shield if they engage in “bad faith” content moderation.

If the NTIA does file a petition with the FCC, and the FCC asserts authority to take action, the administration’s effort could still stop there if the FCC finds the NTIA’s petition deficient.

Alternatively, the agency could move forward by filing an official Notice of Proposed Rulemaking (NPRM) — a document that explains the agency’s plans and must be published in the Federal Register. Another option still would be for the FCC to issue an advisory opinion. 

Once an NFPR is submitted to the Federal Register, it can be done by either soliciting or declining to solicit public comment. For submissions that do request public comment, a timeframe is set for the comment period, allowing the public and interested parties to raise and document issues of concern.

At the end of the period, which in this case would likely extend into the fall, the FCC evaluates the comments and, based upon them, can choose to terminate the proposed action, or accept it in whole or in part.

Rules are also subject to court challenges, as well as recommendations for legislative changes from the Department of Justice.

Alexis Keenan is a legal reporter for Yahoo Finance. Follow on Twitter @alexiskweed.

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