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White House proposal to combat online censorship may allow FCC to remove Section 230 protections

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New details have emerged about a draft White House executive order that will tackle online censorship. These details appear to be related to the anti-conservative bias draft executive order that was reported on earlier this week.

The initial reports on the draft anti-conservative bias executive order contained few specific details but said that the order had changed many times, that it was still in the early drafting stages, and that it would address topics beyond tech bias.

Like with the draft anti-conservative bias executive order, the new report on this draft executive order says that it’s also in the early drafting stages and subject to change but offers more specific details.

This draft executive order reportedly has the title “Protecting Americans from Online Censorship” and according to people familiar with the order, it will:

  • Call for the Federal Communication Commission (FCC) to clarify the legal protections social media websites receive when removing or suppressing content
  • Ask the Federal Trade Commission (FTC) to take the FCC’s recommendations into account when investigating or taking legal action against misbehaving companies
  • Task the FTC with opening a public complaint docket
  • Ask the FCC and FTC to report on whether the social media companies curate their platforms in a neutral manner

Additionally, the report says that the FCC will be tasked with removing immunity from social media sites that:

  • Remove or suppress content without notifying the user who posted the content
  • Make decisions to remove content that are proven to be evidence of anti-competitive, unfair, or deceptive practices

The report goes on to say that Facebook, Google, Instagram, Twitter, Pinterest, and Snapchat are likely to face scrutiny under this order and it could also impact companies where the monthly user base accounts for at least one-eighth of the US population (41 million monthly users).

The draft executive order reportedly references 15,000 complaints of social media censorship which the Trump administration will offer to share with the FTC. While the order doesn’t reference the source of these complaints, many of them were likely gathered via the national social media censorship surveywhich President Trump launched in May.

When asked for comment, the White House referred to Trump’s remarks at the White House Social Media Summit where he vowed to “explore all regulatory and legislative solutions to protect free speech.”

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The details of this executive order come just a few days after President Trump called out Google’s censorship and manipulation of political news on Twitter. Some of the many examples of this censorship include undercover video of a Google executive outlining plans to prevent a “Trump situation” in 2020 and two former Google engineers saying that YouTube manipulates its search results.

The report on this draft order also comes as these social media companies face mounting accusations that they’re now acting as both platforms and publishers and that this is grounds for the legal immunity they receive under Section 230 of the Communications Decency Act to be reconsidered.

Currently, under Section 230, internet companies that operate as platforms aren’t liable for most of the user-generated content that’s posted to their platforms and they’re allowed to make some content moderation decisions while maintaining this legal immunity.

Last year, Senator Ron Wyden, one of the authors of Section 230, said his intention with this legislation was “to make sure that internet companies could moderate their websites without getting clobbered by lawsuits.”

Giving the FCC power to clarify legal protections and remove immunity from social media sites, as outlined in this draft executive order, could result in significant changes to Section 230’s current protections.

Free speech social network Gab, which has been censored by many big tech platforms and provides users with a social platform that’s governed by the First Amendment of the United States, described this draft order as “bad,” adding that “the FCC is a political body and should not have the power to determine what is and is not biased.”

Gab also believes that “removing immunity from a publishing platform would result in worse outcomes for free speech than simply doing nothing and letting the market sort things out” and that “in the United States, the government has no business patrolling anyone’s biases and thoughts.”

Attorney Preston Byrne said that this draft executive order is “unconstitutional and illegal,” adding that “the concept of impartiality appears nowhere” in Section 230.

He also said that “The US Government should not be in the business of telling Americans – or, post-Citizens United, American companies – what views they can and cannot make, endorse, or reject on their infrastructure.”

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