
Draft of Executive Order on Online Censorship [pdf] - longdefeat
https://kateklonick.com/wp-content/uploads/2020/05/DRAFT-EO-Preventing-Online-Censorship.pdf
======
sulam
If I am to believe the poster, this is a draft of an Executive Order
anonymously sent to her. As per:

[https://twitter.com/klonick/status/1265850206396076033?s=21](https://twitter.com/klonick/status/1265850206396076033?s=21)

The implications are fairly dramatic if this is legitimate and were to be
adopted / executed.

Specifically it would declare that sites like Twitter and Facebook are subject
to the Communications Decency Act by virtue of their editorializing the
content vs acting in more of a common carrier capacity. This is a really big
deal for them (much more significant than losing federal ad dollars).

~~~
Trasmatta
> The implications are fairly dramatic if this is legitimate and were to be
> adopted / executed.

Can anyone give a tl;dr of what the implications actually are? Maybe I'm just
tired, but I'm having a hard time parsing what this would actually do (beyond
soothe Trump's feelings after getting called out by Twitter).

~~~
sulam
It would make them legally liable for the content posted on their sites. Today
they can claim that they aren’t responsible for it, the posters are. If they
are operating in an editorial capacity, that shield is removed.

~~~
bawolff
That's what its intended to do, but i think what it would actually do is kind
of debatable. America isn't a dictatorship (yet)

~~~
chrisco255
No but we are certainly a very litigious society and I'm sure there's an army
of lawyers out there salivating over potential lawsuits against Twitter.

~~~
bawolff
I dont really understand US law, but isnt this just a statement of executive
branch policy. Wouldn't this not affect the ability of private parties to sue?
They were always able to use any argument they felt made sense.

~~~
chrisco255
I think on reading it again, you're correct. If 230c is challenged again and
reinterpreted by the Supreme Court then maybe. On reading some of the recent
cases and circuit court decisions on things like "failure to warn" maybe this
entire legislation will be reworked in the next Congress. It probably needs
some clarification.

------
RNCTX
I particularly like the bit about how a provider is found in violation of
"good faith" if they act in violation of their own terms of service, OR, if
they restrict access to material after insufficient notice, unreasoned
explanation, or acting against a user who has not had a "meaningful
opportunity to be heard."

Not being facetious, I really like it.

Everyone should start by mass-complaining to the White House's reporting tool
the recent Twitter change allowing people to censor replies.

~~~
monsonjeremy
Why would you report the ability to hide replies? If someone replies to my
tweet with something I don’t like, what’s wrong with me hiding the reply? It’s
a lesser end result than blocking someone. I’m not obligated to platform your
opinion on my post.

~~~
RNCTX
See that's the thing, it's not your post. It's all public.

Twitter does not have private posts like Facebook does, nor does this change
purport to make such a thing. Its design is specifically to allow people to
amplify their own personal echo chamber, and pre-silence disagreement.

The UI designer (hired from Facebook) who created the tool defended it with
the notion that people should "want to watch people they admire have
conversations" (his words).

That's not social interaction, that's television. A one way communication
medium in which the screen tells the observer what to think.

------
6gvONxR4sf7o
I only skimmed the second part, but this doesn't even seem to prevent the
actions it complains about.

It's also interesting to think about reddit and subreddits. When a moderator
of a subreddit engages in the behavior described here, deleting comments and
posts and banning users arbitrarily, stickying editorial commentary in
threads, are they acting as publishers? Are the mods now legally liable in the
section 230 sense? If not, is reddit a publisher and liable even though they
aren't doing the editing? If reddit can enable mods to do it without reddit or
the mods being liable, why can't reddit just do it without being liable?

~~~
threatofrain
I wonder if this would have implications for IRC or Discord as well.

------
ViViDboarder
Isn’t a company closing to to promote content for someone else their own right
to free speech?

If a company has an obligation to promote something against their will,
violating their own right to free speech, how could a company like Hobby Lobby
get away with an exemption on the same grounds?

I don’t see this getting past federal courts, even with a heavily conservative
judiciary. The fallout would be far too great.

~~~
WatchDog
There was a supreme court case a while ago that enshrined freedom of speech
rights for companies, I get the sense that many of the same people that
complained about that then, are now advocating for the rights of companies.

------
RpFLCL
>The draft order would push the Federal Communications Commission to issue
rules clarifying the issue, potentially allowing users to sue over takedowns
if they were inconsistent with companies’ terms of service, did not provide
enough notice or meet other suggested criteria.

I find this interesting and I'm not sure where I stand here.

On the one hand I'm not happy about an executive order that limits liability
for online platforms. The onus for posts being on the user, protecting the
platform, is a core part of running any service. On the other hand, this
doesn't seem like it would make platforms liable for content that users post,
instead it's liability for the content that the platforms choose to _remove_.
I've never considered that angle before.

Would it be akin to compelled speech on the part of the platform, or does it
make them more like common carriers that can't pick and choose who gets
access?

I suppose the biggest risk here would something along the lines of having bad
actors post content that follows the rules for a site, but is also obviously
against the spirit of the site, causing the posts to be removed and opening
the site to a lawsuit?

~~~
JoshTriplett
> Would it be akin to compelled speech on the part of the platform

Here's an obvious test: this would also make the operator of a personally
hosted blog liable if they moderate/remove comments (or for that matter,
spam), if it were construed as "the result of inadequate notice, the product
of unreasoned explanation, or having been undertaking without a meaningful
opportunity to be heard".

You have no obligation to provide notice, reasoned explanation, or "an
opportunity to be heard" to spammers, trolls, or anyone else you feel like
moderating on your private blog. You can just nuke their comments from orbit.
Anything suggesting otherwise is broken, and would either mean sites can't
afford the liability of user-generated content at all, or provide a perverse
incentive to stop moderating at all, which was exactly what CDA section 230
was intended to _avoid_. (The whole point of CDA section 230 was to avoid
discouraging sites from providing moderation, because otherwise "nobody would
have any incentive to keep the internet civil". Quoting Wikipedia: 'Section
230 has frequently been referred as a key law that has allowed the Internet to
flourish, often referred to as "The Twenty-Six Words That Created the
Internet".')

That's leaving aside the "compelled speech" argument, which is an entirely
separate reason to consider this unreasonable.

------
jimbob45
If I'm reading this right, platforms must act in "good faith" to restrict
access to content that is "obscene, lewd, lascivious, filthy, excessively
violent, harassing, or otherwise objectionable".

That seems _quite_ broad and doesn't seem to do anything to stop the current
deluge of censorship.

~~~
geofft
That text is quoted from Section 230. The reason Section 230 was introduced is
that, long ago, if platforms did literally any moderation on their site, they
were considered to be taking an editorial role and liable for all the things
they failed to moderate (e.g., if someone posted libel, the platform would
have liability for it), so there was an incentive not to moderate at all,
because you wouldn't get it 100% right. For pre-online platforms this was
fairly reasonable (e.g., you could hold a newspaper responsible for its
columnists publishing libel) but it put a serious damper in real-time user-
contributed online forum.

Section 230 said that if a platform acts in good faith for those moderation
reasons you list, that doesn't cause them to gain liability - they're still in
the same place as if they didn't moderate. If they exercised active editorial
control, then they'd be responsible (e.g., you can't just host a pro-
harassment forum and solicit other people to post harassing comments and
expect Section 230 to protect you), but as long as you only do normal
moderation of obviously bad stuff, you're fine.

This draft executive order says, we're interpreting that part of Section 230
to specifically not count "deceptive or pretextual actions restricting online
content" as normal moderation, presumably including things like flagging
Trump's tweets for misinformation.

That leaves Twitter with two choices: 1) forfeit Section 230 protection and be
responsible for all the content on their site (i.e., they'd have to heavily
and reliably moderate every single tweet) or 2) stop flagging Trump's tweets
for misinformation and do even less moderation so they maintain Section 230
protections.

~~~
hondo77
Choice 3) kick Trump off Twitter. They don't even have to give a reason like
"excessive posting of misinformation". Just kick him off. No law saying they
can't.

Heck, the entertainment value alone would be worth it.

~~~
bilegeek
He is possibly going to try to strip valuable protections from the entire
internet because Twitter is fact-checking him. Imagine what kicking him off
would entail.

------
dawnerd
So they should just ban him and anyone else? That seems like the obvious
solution to avoid any claim of them editorializing content. There's multiple
cases where he violated long standing rules on Twitter.

I fail to see how this is any different than that bakery years ago that
refused to make a cake for that gay couple. Or a business refusing service
because you're saying things against them. Or many of the other reasons a
company might decide you cant shop or be a customer.

------
tbabb
The constitution is just a piece of paper if no one follows or enforces it.

------
lalaland1125
Here is my attempt at summarizing the order:

1\. Twitter and Facebook (and other entities that try to fact check content)
will be labeled as publishers and thus can be sued in court for libel.

2\. The Federal Government will be banned from buying ads from internet
companies that "restrict" speech.

3\. The FTC and the Attorney General will investigate Twitter, Facebook, and
related platforms for any potential violations of law or regulation.

------
mehrdadn
I seem to recall we had a court ruling (non-SC) earlier that said officials
that use social media can't block other users on there... something about it
being a public forum or such. But if we treat it that way, then does that have
implications on what people can expect in terms of limits on speech?

~~~
akersten
No, you've misinterpreted the ruling. It is not because twitter is a "public
forum" that a public official cannot block a follower, it is because the
public official _is a public official_ that they cannot block a follower.

~~~
mehrdadn
I was thinking more along the lines of, would being a public official in a
public forum imply that the forum administrators can't interject and add their
own editorials to his speech either? At least, I can't think of situations
where this happens in real life, so it's not clear to me what the implications
are.

------
themodelplumber
Tech and policy are kind of like two different roads running in parallel.
Drivers who can drive on one of those roads only, but not both, cannot
effectively solve problems on that other road. The policy people get activated
because of issues they perceive on the tech road, and their answer is: Write
policy!

For that reason I fully expect the tech experts in question to solve this new
policy problem with some technology. Maybe a new categorization and
preference-indication system, giving users yet another way to ignore their in-
laws' award political voice, or whatever it is that routes around this latest
missive.

------
smkellat
Parts of this purported draft look a bit off. That is to say the bits being
directed are things private citizens would do rather than what the executive
branch itself has the authority to do. As bad as the whole idea sounds this
doesn't come off as authentic to me based upon presentation or textual
structure. Why is he suddenly giving direct orders to the Federal Trade
Commission but separately directing a sub-cabinet agency at Commerce to file a
Petition for Rulemaking with the Federal Communications Commission? That's
where this starts to get inconsistent.

~~~
kthxbye123
This order was hastily drafted by White House staff to soothe a temper tantrum
the President had after a day of being extremely online. Why would you expect
it to be anything but sloppy and inconsistent?

~~~
smkellat
Generally I’d expect the staff to understand how the machinery of government
works by this point in an administration. First hundred days is one thing.
This looks more like a forgery especially after the discussions that have
cropped up recently on the TeX StackExchange in terms of forging outputs.

~~~
kthxbye123
I think based on the events of the past three years (or really, the past three
months) the most parsimonious explanation by far is that the President and his
staff and advisors are simply lazy and incompetent.

------
blisterpeanuts
How did a professor of Internet law get a hold of a draft EO? Are these things
widely circulated before signing?

~~~
splintercell
If I know anything about Trump, then his team leaked it on purpose to get an
initial feedback. If it turns out to have a bad reaction then they would
repudiate this copy and release some other watered down version.

~~~
remarkEon
... or a more extreme one.

My sense is that they use leaks as a way to ferret out who is disloyal, not
get feedback from the Press, which they hate.

------
bawolff
So after actually reading it, it seems to want two things:

* prevent astro-turfing, especially by foreign governments

* require that sites engaging in moderation basically follow some sort of rule of law-eaque process (there are rules posted, and you cant be arbitraily blocked unless you break them)

Honestly in many ways those are things i agree with, but it seems
inappropriate to do it with an executive order, and much of this seems vauge
and could be used as a justification to put pressure on social media sites
arbitrarily.

~~~
geofft
There's nothing in the order to prevent astroturfing by foreign governments,
is there? (If anything, it _limits_ the ability of sites to censor foreign
governments with unpopular opinions.)

It's in the section about vague policies and opinions, but I don't think it
actually _does_ anything beyond saying "China bad."

~~~
bawolff
There is an implication of they are going to crack down on sites banning
americans to help the astro-turfers, but nobody does that, so sounds like bs.
And i dont know, maybe the section on not allowing gov to advertise on such
platforms is aimed at that (if you give very strong benefit of doubt).

But yeah, i think you are right.

------
prawn
I'm not American and not familiar with Section 230 in any detail, but I do run
a forum where I consider moderation, legality and responsibility of content.
Could Twitter apply some level of automatic editorial response on particular
topics rather than flag particular posts or users?

e.g., if it suspects the tweet is about COVID-19 (whether mundane or
outrageous), it links off to a broader information and fact-checking page
about the topic. Likewise for voting fraud or any other hot topic.

What if it were independent of the tweet itself and just one of a small
selection of header links like Reddit and others are currently doing with
COVID-19?

Edit: Also, could they differentiate the levels of editorial based on tier of
account? e.g., claim platform-status for the bulk, but accept legal
responsibility for anything by the largest accounts which saw immediate
moderator review.

------
lifeisstillgood
My base level here is "Speakers Corner". This is a part of London's Hyde Park
where free speech is (culturally if it legally) _extra_ protected - the idea
is anyone can stand and speak there, say anything, and culturally that is
acceptable - one should not be moved on or prevented.

I think that right of speaking freely in a public space is deeply important
(no surprises there).

But if someone spews vile speech while standing on my front lawn, frankly I
want them to stop.

So what is public space on the internet? What is the minimum level - the
sidewalk vs the front lawn?

It's not twitter. Hardly anyone has access to it? It's specialised and not
open in its protocols.

I suspect it's not even facebook - is it just plain HTML on a plain server,
perhaps plainly hosted in your own home?

This is going to be an interesting debate.

------
ilaksh
There is no point in me saying this, because people are literally living in
parallel universes at this point, but I feel that hatred for Trump and
anything associated with the right is blinding people.

What most young people or people on the left seem to want very badly is for
tech companies to remove viewpoints they disagree with. Unfortunately the
reality is that this is in fact political censorship. And it will lead
directly to the type of censorship that China has.

Go ahead and click the downvote button until my viewpoint disappears. It
doesn't matter anymore. I actually think that the possibility of real free
speech online, if it ever existed, is dead anyway. Because, bizarrely, people
are begging for more censorship.

~~~
w3mmpp
Indeed in a parallel universe but in the end they'll lose those battles one
after the other because they are on the wrong side of history.

People on the right need to be more vocal here and elsewhere, we can't let the
children and their feelings, run the ship or it'll end badly.

~~~
akvadrako
I’m doubtful that it does any good to provide opposing viewpoints in these
threads unless you have something surprising to say, either facts or insight.

The effect on reality of a HN thread isn’t much and it’s not really a place
for nuanced discussion.

The twitter thing doesn’t matter because the solution is obvious - we need
decentralized platforms where such behavior isn’t possible.

------
WatchDog
I wonder how this platforms that use community moderation might be held liable
under this.

------
hysan
Would someone more knowledgeable about Section 230 be able to comment on
whether this EO would be solidifying the protections afforded by Section 230?
I’m thinking that by making a deeper, clear cut line in what platforms
can/cannot do to maintain protections, there is now less legal wiggle room for
entities like the MPAA to push for moderation of content. For example, if
Google completely scrapped the Content ID system for YouTube, would the
wording in this EO put them firmly on the side of being a platform, not a
publisher?

------
bawolff
I feel like this is fake or some internal draft that was never going to see
the light of day.

But if its real, i wonder what will happen to silcon valley. Part of the
reason why internet companies like the united states is the legal environment
is conducive to making online services. If that goes away, will companies move
to other countries

~~~
dpbriggs
Regression to 4chan? Assuming this continues as-is they can still moderate the
site to remove obscene material, but otherwise have to act like platforms.

I don't think this draft will survive for long.

------
foogazi
Wonder if with this we’ll all enjoy equal representation on twitter’s search
engine, timeline & promoted tweets, or will they continue to discriminate
based on rank

Twitter’s algorithm determines who sees my tweets. Based on internal criteria
my content is ignored while other’s is promoted, limiting my exposure and
damaging my brand

/s

------
throwawaysea
The large tech platforms are defacto digital public squares. The recent trend
they’ve taken on to censor content they disagree with is unacceptable and bad
for society. And yes, it is evidence of them behaving as a publisher. This
censorship trend was bad enough previously, but it has become a lot worse and
more egregious during COVID-19, where only the word of certain public agencies
are allowed, even though they’ve been wrong several times. Various platforms
have deleted many reasonable COVID blog posts that go against the grain, even
if they’re logical and worthy of consideration.

I’m glad this move from the President will shine a light on the issue. In the
least it may result in viable alternatives to Twitter, Reddit, YouTube, and
Google springing up.

~~~
bmarquez
> In the least it may result in viable alternatives to Twitter, Reddit,
> YouTube, and Google springing up.

I'm looking forward to this. If smaller social networks (or even federated
networks) gain more traction due to this governmental shakeup, it will be
harder to get censored as people can switch to the server that has the
moderation style, or features (such as no ads but fees) they like.

There could be a silver lining in all this.

~~~
rvz
You would need a growing network effect to follow on to that alternative
platform for it to be a true challenger to the mainstream social networks.
Otherwise it will stay in the fringes of the internet.

Although it is more difficult to censor a decentralised social network,
attracting and migrating existing users from other social networks with a
growing network effect on to a new platform is even harder.

------
seemslegit
Really seems far less harmful than EARNIT, not that it replaces it - in fact
it could be a gambit to get the big web companies to play along with passing
EARNIT

------
jerome-jh
"Our Founding Fathers protected this sacred right with the First Amendment to
the Constitution, [...]"

Does not this sound like sci-fi, straight from the beginning?

------
cmdshiftf4
If nothing else this is going to provoke a crucial test for social media
"platforms" and has the potential to alter them permanently going forward,
whether they win or lose.

As someone who's quite anti social-media, and the effect it appears to have
had on our societies, I'm interested in how this plays out either way. It
feels like a test that has been a long time coming.

Regardless, it seems the next rational step is for Trump to quit Twitter and
encourage his base to do the same, or for Twitter to ban Trump and provoke his
base to leave. Trump staying active on Twitter after this, or Twitter allowing
him to, would be something beyond bizarre.

------
qubex
This will actually backfire on him spectacularly, as the social media
platforms will go all-in in every way they can think of to defeat the leagues
of bots promoting his message and therefore hinder his opportunity to get re-
elected.

It’s as if a President in the late 1800s-early 1900s declared war on the
printed press.

They’re going to reject his targeted ads, they’re going to aid Democrats in
swing states to persuade the undecided swing-voters... it’s going to be
mayhem.

------
disillusioned
If you're Twitter, don't you seriously consider deplatforming POTUS at this
point?

I understand that no small amount of their traffic has to do with him using
Twitter as his primary megaphone to the world, but they are under no
obligation whatsoever to continue to provide him said megaphone.

One only has to hope that if that were to happen, no one would show him the
Presidential Alerts functionality on all of our phones...

------
seemslegit
So what about this purported order establishes new censorship ? Surely
censorship has not become synonymous with interfering with the right of online
services to the moderate their content as they see fit ?

------
Havoc
He’s literally going to attack twitter via presidential powers because they
dared calling him out on lies?

I’d say that’s insane and childish but I think we’re a little past that
already

~~~
nicosaul
It’s not only that, youtube and facebook have been sensoring legit content and
comments that are non related to Trump. This guy is too narsicistic to express
what the real issue is, but we are having a problem with these platforms right
now.

------
tibbydudeza
He should sign an executive order to stop the Corona virus.

------
dpbriggs
How did this end up on the third page so quickly?

------
nicosaul
Nobody thinks there is a big problem with online censoring that needs to be
dealt with?

~~~
geofft
Not really - there is certainly a "problem" of major social media platforms
banning abusive/hurtful _behavior_ , and for whatever reason, such behavior
seems to not be evenly distributed across the political spectrum, but there is
not a big problem of them banning _ideas_ or good-faith or even mostly-good-
faith debate. You can find tradcaths on Twitter, threepers on Facebook,
tankies on YouTube, and literally /r/politicalcompassmemes on Reddit.

Certainly no platform is anywhere close to banning the ideas or platform of
the Trump campaign or the Republican Party - they get debate and discussion
but they certainly are not censored. They are firmly within the mainstream.

(I also think, in a broader sense, that people need to not rely on big for-
profit tech companies for unpopular ideas. I think it's good for society that
everyone from the boogaloo folks to the Unabomber get to be able to publish
their ideas, even - and perhaps especially - when those ideas involve violent
revolution to the social order. But I also think it's foolish to expect
platforms that are profiting handsomely from the stability of the social order
to fairly convey those discussions, especially if any of those ideologies gets
close to making a difference. So, even if I thought that we had a problem with
the big tech companies censoring discussions, it doesn't seem like a problem
worth solving.)

~~~
coolspot
Ummm... Reddit permanently banned theDonald using dubious reasoning. By
“coincidence”, in the election year.

~~~
geofft
But /r/conservative and plenty of other pro-Trump subreddits are doing just
fine. Is there an _ideology_ that has been censored from Reddit, or just
_behavior_?

No platform should be obligated to keep disruptive users around simply because
those users happen to have a certain political belief.

------
egamirorrim
I feel like I can see Trump's editorial influence in this. "Put in that stuff
about China yeah China and lyin' Google, don't tell me it's ranty and doesn't
make sense, put it in"

~~~
caseysoftware
It makes sense. If Trump demonstrates that some (most?) of these companies act
on behalf of or at the request of a government to suppress embarrassing
facts/comments, it challenges the assertion this is "only" about flagging
misinformation. It also raises the question of "What else are they
suppressing?"

Neither point will be fun to respond to.

------
sulam
If you are a conservative cheering this on, ask yourself what you think would
have happened when Trump was using Twitter as a platform to raise questions
about Obama’s birth certificate? Do you really want the government to be
effectively regulating the treatment of every social media post as they see
fit?

~~~
throwawaysea
I think requiring viewpoint neutrality via regulation from platforms that
behave like utilities is perfectly reasonable.

~~~
tehwebguy
In what ways is Twitter like a utility?

~~~
akvadrako
I wouldn’t say utility but the courts ruled recently it’s a public forum; the
same logic applies.

~~~
tehwebguy
What courts? What does “public forum” mean legally? I don’t think what you are
saying has actually happened and would appreciate a link but I think there is
none.

So again, in what way is Twitter even slightly _possibly_ like a utility?

------
cmendel
Jesus Christ, we're really doing this aren't we?

------
4x5-Guy
It would seem to me that this order tramples on the First Amendment. No matter
how much the executive wants to trample on twitter, they are still a private
company and can publish or not publish what they wish.

~~~
dpbriggs
Could you expand further on that?

I don't see anything in the order that prohibits speech, instead focusing on
questioning if Twitter et al. qualify for platform protections. Plus some
other ad-money ammunition.

An argument could be made that this EO itself violates the first amendment as
it's clearly in response to the tweet fact checks, thereby silencing twitter?

~~~
4x5-Guy
In the First Amendment, the government is not allowed to either promote or
attack speech. The courts have ruled that some speech, such as hate speech,
does not have this protection. Just by deciding whether or not the government
will spend ad-money on a platform or not, based solely on what is said on the
platform, is one form of the government either rewarding or punishing that
platform. I can't comment on the platform protections at the moment.

I'm going to say I believe the courts will block this, but it will look good
to Trump's base in an election year.

