The White House reportedly has an Executive Order in the works that would put two government agencies in charge of regulating how Big Tech companies moderate and curate content on their platforms.
News of the EO follows months of increasingly angry complaints from conservatives about social media companies’ alleged bias against them. If you follow President Trump on Twitter, you have likely noticed that he has been engaged in a years-long virtual war with social media platforms over this alleged bias (even though Twitter has never banned him or removed any of his Tweets).
Politico was the first to report the existence of the draft EO:
The White House is circulating drafts of a proposed executive order that would address allegations of anti-conservative bias by social media companies, according to a White House official and two other people familiar with the matter — a month after President Donald Trump pledged to explore “all regulatory and legislative solutions” on the issue.
None of the three would describe the contents of the order, which one person cautioned has already taken many different forms and remains in flux. But its existence, and the deliberations surrounding it, are evidence that the administration is taking a serious look at wielding the federal government’s power against Silicon Valley. (source)
The White House official told Politico:
“If the internet is going to be presented as this egalitarian platform and most of Twitter is liberal cesspools of venom, then at least the president wants some fairness in the system. But look, we also think that social media plays a vital role. They have a vital role and an increasing responsibility to the culture that has helped make them so profitable and so prominent.” (source)
Once politicians start using words like “fairness” and “responsibility”, be wary.
Be very wary.
Why? Because the use of those terms usually means some kind of legislation that will likely not be “fair” is impending.
While many libertarians and conservatives believe (rightfully so) they are being censored in one way or another by platforms like Facebook and Twitter, it is important to understand that when the government starts to regulate things, we all ultimately pay the price. That’s because once the government starts meddling in private affairs, it does not stop there. More laws lead to more laws, and so on – it is a vicious cycle.
What kinds of penalties would companies face for alleged censorship? No one seems to know yet.
None of the three people Politico contacted could say what penalties (if any) would be imposed on companies deemed to be censoring political viewpoints. “The order, which deals with other topics besides tech bias, is still in the early drafting stages and is not expected to be issued imminently,” Politico reports.
“The President announced at this month’s social media summit that we were going to address this and the administration is exploring all policy solutions,” a second White House official said when asked about the draft order.
The agencies Trump wants to regulate platforms are not authorized to do so.
The draft EO calls for the FCC to develop new regulations clarifying how and when the law protects social media websites when they decide to remove or suppress content on their platforms. Although still in its early stages and subject to change, the draft EO also calls for the Federal Trade Commission to take those new policies into account when it investigates or files lawsuits against misbehaving companies.
However, the federal government’s options are limited by the First Amendment. And, a provision of the 1996 Communications Decency Act, which both protects online platforms from liability for content their users post and empowers the companies to remove content without fear of liability, creates another obstacle. That provision, Section 230, has increasingly come under fire from lawmakers of both parties who are frustrated with tech companies’ content moderation practices.
Section 230 of the Communications Decency Act protects companies from legal responsibility for content posted on their platforms, like hate speech, violence, and graphic images. That’s why social media companies are generally allowed to moderate themselves as long as they’re operating in “good faith.”
But the new executive order would put all of that content moderation under the FCC’s purview, CNNreports. The government agency would be able to take away a company’s legal immunity if it removes or hides content without notifying the poster. The FCC can also strip the “good faith” immunity if it decides a company is acting unfairly or deceptively when hiding or removing content. (source)
The White House is crossing some serious lines with this Executive Order.
Back in May, the White House announced that it had created an online form where Americans can share instances in which they’ve been censored by social media platforms like Facebook and YouTube. The form, which is now closed to new submissions, asked users to share their contact information, social media links, their citizenship and residency status, and links or screenshots of any social media content they’ve posted that was censored by Facebook or its Instagram service, Twitter, or Google’s YouTube.
“This permission grants the U.S. Government a license to use, edit, display, publish, broadcast, transmit, post, or otherwise distribute all or part of the Content (including edited, composite, or derivative works made therefrom),” read the user agreement for the form.
But the White House effort may be complicated by skepticism in some agencies involved in the discussions about tech policy, Politico reports:
The Republicans at the Federal Communications Commission and Federal Trade Commission have said publicly that they don’t see a role for their agencies in policing companies’ online content. The FCC and FTC have joined the Justice and Commerce departments in discussions about the potential bias crackdown.
“There’s very little in terms of direct regulation the federal government can do without congressional action, and frankly I think that’s a positive thing,” said John Morris, who handled internet policy issues at the Commerce Department’s National Telecommunications and Information Administration before leaving in May.
He added: “Although the government may be able to support and assist online platforms’ efforts to reduce hate and violence online, the government should not try to impose speech regulations on private platforms. As politicians from both sides of the political spectrum have historically urged, the government should not be in the business of regulating speech.” (source)
“It makes no sense to involve the FCC here,” Berin Szoka, president of the libertarian-leaning think tank TechFreedom, told CNN. “They have rule-making authority, but no jurisdiction — they can’t possibly want to be involved. It would be an impossible position.”
Some people close to the tech industry expressed frustration that the White House seemed to be trying to have it both ways — excoriating tech companies for allegedly censoring conservative speech, a claim the platforms vigorously dispute, while castigating them for failing to block enough violent or hateful content. “The internal inconsistency of this is outrageous,” one of them said. (source)
This executive order would create Internet Speech Police.
In a TechFreedom post titled Draft Social Media Bias Executive Order Would Create Real Internet Speech Police, Szoka said:
Trump’s proposed executive order would transform the FCC and FTC from consumer protection agencies into regulators of online speech. Ironically, the same people screaming about ‘censorship’ by private companies would empower regulators to decide what kinds of online speech should and shouldn’t be taken down. That Republicans, after decades of fighting government meddling in broadcasting, now want their own Fairness Doctrine for the Internet is staggeringly hypocritical. (source)
It is important to remember that social media platforms are protected by the First Amendment because they are private companies. They have the right to exclude anyone from their platforms for any reason at all. The First Amendment protects us from government censorship, not censorship by private companies.
A journalism professor who specializes in First Amendment law, Jared Schroeder elaborates:
Confusing social media companies with public spaces — such as parks and sidewalks —the order mistakenly claims jurisdiction where it has none. Public spaces are held in trust by the government and generally cannot limit expression because of the ideas that are expressed. The online forums Facebook and Twitter provide are more comparable to a supermarket, shopping mall, or one of the president’s golf courses. The corporations own the spaces, which remain private. If customers dislike the space, they can show their displeasure by shopping — or golfing — elsewhere.
The First Amendment does not apply to private spaces, since it only protects us from government restrictions on expression. If a TV network removes a show because one of the actors shares racist ideas, this is not government censorship. It’s a business decision. When Facebook or Twitter blocks someone or removes a post, however fair or unfair, that is not a First Amendment concern. (source)
“The government cannot force these companies to open up their sites and associate with viewpoints that their owners and shareholders find objectionable, any more than it can force you to display government-approved speech on your private property,” as attorney Daniel Ortner explains in an article for The Hill.
Aware of these constitutional limits, critics of Facebook or Twitter have taken a different tack and argued that if social media companies filter content in any way, they should be liable for anything that is posted on their platform.
This gives Facebook an awful choice: filter nothing or aggressively filter all content to exclude anything remotely libelous or offensive to anyone. Faced with a choice of being sued or losing the ability to prohibit even the most shockingly immoral material — including such things as neo-Nazi propaganda, dog-fighting videos, or snuff films (which the Supreme Court has said are protected under the First Amendment) — what would you do?
Why would anyone believe this dynamic would lead to more freedom of speech on the internet? It more likely would lead to drastically less freedom of expression as platforms impose far more rigid content filters. Say goodbye to being able to instantly tweet what comes to your mind. (source)
Government regulation of social media platforms would lead us down a slippery slope.
“The law of unintended consequences, often cited but rarely defined, is that the actions of people – and especially of government – always have effects that are unanticipated or unintended. Economists and other social scientists have heeded its power for centuries; for just as long, politicians and popular opinion have largely ignored it,” Rob Norton explains in The Library of Economics and Liberty.
Whenever a government enacts a new piece of legislation or creates new regulations, we see the law of intended consequences in action.
“The first and most complete analysis of the concept of unintended consequences was done in 1936 by the American sociologist Robert K. Merton. In an influential article titled The Unanticipated Consequences of Purposive Social Action, Merton identified five sources of unanticipated consequences,” Norton writes.
While Merton’s analysis is worth reading in its entirety, it is the third source he identifies that is relevant to this article:
Merton labeled the third source the “imperious immediacy of interest.” By that he was referring to instances in which someone wants the intended consequence of an action so much that he purposefully chooses to ignore any unintended effects. (That type of willful ignorance is very different from true ignorance.)
The Food and Drug Administration, for example, creates enormously destructive unintendedconsequences with its regulation of pharmaceutical drugs. By requiring that drugs be not only safe but efficacious for a particular use, as it has done since 1962, the FDA has slowed down by years the introduction of each drug. An unintended consequence is that many people die or suffer who would have been able to live or thrive. This consequence, however, has been so well documented that the regulators and legislators now foresee it but accept it. (source)
In his piece for The Hill, Ortner goes on to ask a thought-provoking question:
Maybe you like the idea of President Trump’s appointees deciding what must or must not be posted on social media — but how will you feel if it’s President Sanders, President Warren, or President Biden? (source)
If the proposed EO becomes reality, it would set a dangerous precedent when it comes to freedom of expression, particularly since the government would decide what “fair” means.
We should be very careful what we ask for when it comes to government regulation of, well – anything.
What do you think?
Do you think the government should regulate social media platforms? Have you ever been censored on one of those platforms? Please share your thoughts in the comments.