Legal and tech policy experts say Trump's draft executive order cracking down on social-media companies is dead on arrival

• President Donald Trump is set to sign an executive order seeking to crack down on social-media companies after Twitter this week took the rare step of adding fact-checking labels to two of his tweets.
• A draft of the order obtained by Business Insider indicates that Trump is mainly attempting to empower federal regulators to reinterpret and amend Section 230 of the Communications Decency Act to make it harder for tech companies to moderate content on their platforms.
• It would allow the Federal Communications Commission and the Federal Trade Commission to change the way Section 230 is interpreted, regulated, and applied, and it could allow users to complain if they think the companies are acting in a way that goes against their terms of service.
• Legal and tech policy experts told Business Insider that some sections of the draft executive order were not legal at all and that other parts would require government agencies to throw out years of judicial interpretation of Section 230.
• "This is not how the Constitution works," said Ashkhen Kazaryan, the director of civil liberties at TechFreedom, a libertarian technology policy think tank. "The First Amendment protects Twitter from Trump. It does not protect Trump from Twitter."

President Donald Trump is set to sign an executive order seeking to crack down on social-media companies after Twitter this week took the rare step of adding fact-checking labels to two of his tweets.

A draft of the order obtained by Business Insider indicates that the president is primarily seeking to empower federal regulators to reinterpret and tweak Section 230 of the Communications Decency Act, which gives social-media companies broad authority to moderate speech on their platforms and stipulates that tech companies are largely not responsible for comments and other content that users post on their platforms.

Trump's order calls for tech companies to lose their Section 230 protection if they do anything to discriminate against users, restrict their access to a platform without giving them a fair hearing, or take other action that isn't in line with their terms of service.

The draft also says that within 30 days of the order's signing, the secretary of commerce should file a petition for rulemaking within the Federal Communications Commission for regulations that clarify the scope of Section 230.

It says the head of each executive department and agency should review federal spending on advertising and marketing paid to online platforms. It also directs the Federal Trade Commission to take action to prohibit "deceptive or unfair practices" and allow people to complain if they think the companies are acting in a way that goes against their terms of service.

"As President, I have made clear my commitment to free and open debate on the Internet. Such debate is just as important online as it is in our universities, our businesses, our newspapers and our homes," the draft reads. "In a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand-pick the speech that Americans may access and convey online."

Jon Berroya, the interim president of the Internet Association, which represents dozens of technology platforms in Washington, including Google, Facebook, and Twitter, said the draft order was "designed to punish a handful of companies for perceived slights," adding that the document is "inconsistent with the purpose and text of Section 230."

"It stands to undermine a variety of government efforts to protect public safety and spread critical information online through social media and threatens the vibrancy of a core segment of our economy," Berroya said.

'The First Amendment protects Twitter from Trump. It does not protect Trump from Twitter.'

Legal and technology policy experts also told Business Insider that some sections of the draft executive order were not legal at all and that other parts would require government agencies to throw out years of judicial interpretation of Section 230.

"It ignores 25 years of jurisprudence broadly interpreting Section 230," said Kate Klonick, a professor of internet law at St. John's University. Klonick described the draft order as mostly pandering to Trump's base of conservative voters who have come to believe that these companies are biased against them.

"It doesn't seem like it's enforceable," Klonick said. "It will be smacked down relatively quickly by injunction or by litigation and the courts."

Two of the agencies listed in the draft executive order, the FCC and the FTC, are independent, and enforcement of any such order is ultimately up to them. Historically, the FCC has had no authority to enforce Section 230.

It's also doubtful that the FCC will do what Trump is directing it to do, said Ashkhen Kazaryan, the director of civil liberties at TechFreedom, a libertarian technology policy think tank.

"Based on the track record of Ajit Pai, he has been lobbied to police speech many times, and he has not succumbed to any of those pressures," she said, referring to the FCC's chairman.

"This is not how the Constitution works," Kazaryan added. "The First Amendment protects Twitter from Trump. It does not protect Trump from Twitter."

But the National Telecommunications and Information Administration, a part of the Department of Commerce, is an executive-branch agency that's more likely to carry out the president's orders. Adam Candeub, a deputy assistant secretary at the NTIA, has also indicated that he's not a fan of Section 230 and advocated reforming it, writing in Forbes last summer that the law "protects Big Tech censorship in the US."

The government can regulate some speech, but 'not the decisions of private actors'

Trump's threat of an executive order to punish social-media giants was catalyzed by Twitter adding fact-checking alerts to tweets in which he falsely claimed that mail-in ballots were "substantially fraudulent" and would result in a "Rigged Election" in California.

Twitter's alert linked to a "Moments" page titled "Trump makes unsubstantiated claim that mail-in ballots will lead to voter fraud" that listed a series of facts contradicting his claims. It pointed out the dearth of evidence supporting the claim that mail-in ballots are linked to voter fraud and noted that only registered voters can receive ballots and that multiple states other than California use mail-in ballots.

On Wednesday, Twitter elaborated on its decision to fact-check the president's tweets. "We added a label to two @realDonaldTrump Tweets about California's vote-by-mail plans as part of our efforts to enforce our civic integrity policy," it said. "We believe those Tweets could confuse voters about what they need to do to receive a ballot and participate in the election process."

Trump, meanwhile, accused the social-media platform of "interfering in the 2020 Presidential Election" and "stifling FREE SPEECH."

"Republicans feel that Social Media Platforms totally silence conservatives voices," Trump tweeted on Wednesday morning. "We will strongly regulate, or close them down, before we can ever allow this to happen."

The president said his administration would take "big action" against the tech company.

Trump again teased an executive order in a tweet on Wednesday evening. "Big Tech is doing everything in their very considerable power to CENSOR in advance of the 2020 Election," he said. "If that happens, we no longer have our freedom. I will never let it happen! They tried hard in 2016, and lost. Now they are going absolutely CRAZY. Stay Tuned!!!"

Despite the president's threats, however, First Amendment experts say he does not have the power to regulate or shut down social-media companies because he disagrees with them.

"What we mean when we say free speech and First Amendment rights is about what the government can regulate when it comes to speech, not the decisions of private actors," said Jennifer Huddleston, the director of technology and innovation policy at the American Action Forum, a center-right think tank. "You do not want the government to step in and dictate what private platforms can do."

Trump's threats are 'mostly bluster'

Clay Calvert, a law professor at the University of Florida and the director of the Marion B. Brechner First Amendment Project, told Business Insider that Trump had "absolutely no legal authority" under his executive-branch powers to unilaterally shut down a social-media platform "simply because he disagrees with its policies for how it treats and now fact-checks his tweets."

"We have the First Amendment to protect the speech of private entities — Twitter being one of them — and individuals from government censorship, whether the censorship emanates from the legislative, executive, or judicial branch," Calvert added.

Carl Tobias, a law professor at the University of Richmond in Virginia, told Business Insider in an earlier interview that Trump's threats were "mostly bluster" and that he was unlikely to be able to follow through on them.

The president could issue executive orders, push federal agencies to regulate Twitter, or ask Congress to pass legislation on the matter, "but none will be fast or help him before November," Tobias added.

That said, the role of social-media companies in combatting the spread of misinformation is likely to be a recurring issue before the 2020 election.

On Wednesday evening, Facebook CEO Mark Zuckerberg criticized Twitter CEO Jack Dorsey, telling Fox News in an interview, "I just believe strongly that Facebook shouldn't be the arbiter of truth of everything that people say online."

Dorsey hit back at Zuckerberg, tweeting: "We'll continue to point out incorrect or disputed information about elections globally. And we will admit to and own any mistakes we make."

He added: "This does not make us an 'arbiter of truth.' Our intention is to connect the dots of conflicting statements and show the information in dispute so people can judge for themselves. More transparency from us is critical so folks can clearly see the why behind our actions."

Read the original article on Business Insider