Beyond The Headlines: Analysis Of The Executive Order On Preventing Online Censorship And The Potential Impact On Section 230 Policy

• Published date: 25 June 2020
• Subject Matter: Media, Telecoms, IT, Entertainment, IT and Internet, Mobile & Cable Communications, Social Media
• Law Firm: Arnold & Porter
• Author: Mr Gregory M. Louer and Marne Marotta

On May 26th at 5:17 AM President Donald J. Trump published a series of tweets raising questions regarding California's vote-by-mail practices. In other words, it was a standard early morning in Washington, DC. The events that came next, however, were anything other than usual. The President's tweets led to Twitter making an extraordinary editorial decision: by the end of the day, the social media platform affixed a notation to the President's tweets alerting readers to "Get the facts about mail-in ballots," along with a link to various resources as part of effort to enforce the platform's "civic integrity policy ' [and] provide additional context and conversation with regard to voter fraud and mail-in-ballots." A political firestorm raged, and roughly 24 hours later on May 28th, the White House issued an executive order that invites fundamental changes to Section 230 of the Communications Decency Act'a narrow but important law that affords liability protection for a range of stakeholders in the online ecosystem.

The "Executive Order on Preventing Online Censorship" directs federal agencies to take a number of actions designed to narrow the scope of Section 230. Perhaps most notably, the Order requires the Department of Commerce (DOC) to petition the Federal Communications Commission (FCC) for clarifying regulations in ways that could ultimately lead to limitations on the liability shield afforded to online platforms under the law. For this reason alone the Order raises important questions regarding the scope of a law adopted in 1996 before the dawn of the modern internet. And with those questions considerable controversy follows'even an early lawsuit alleging violations of the First Amendment.

Because of the circumstances leading to the order and the nature of its introduction, some may dismiss the White House's directive as a political distraction without legal merit. But practitioners should consider whether a broader view is in order. The policy, political and legal environment surrounding Section 230 was already incendiary before May 28th. Congressional technology leaders on both sides of the aisle are exploring legislation designed to address the law in various ways. Attorney General William Barr had already called for courts to re-interpret the law more narrowly. And federal courts are still wrestling with a range of issues that call into question how far the Section 230 liability protections extend. For instance, does the law shield online retailers from product liability claims? The President's Executive Order will fan these legal and policy flames and prompt new attacks underlying the foundation of the law'regardless of the order's merits or the legal reasoning it relies on. This Advisory will explore these issues and examine potential developments in the near and longer term.

Executive Summary of Section 230

Before we address these issues, it is necessary to first understand what Section 230 does and does not do. Enacted as part of the Communications Decency Act of 1996, Section 230 shields certain online service providers from liability for hosting, removing or limiting access to user-generated content through two provisions. Under Section 230(c)(1), an "interactive computer service" provider'a term that includes internet service providers, online platforms and other access software providers'will not be treated as a "publisher or speaker" of information content provided by a third party. Section 230(c)(2) then prevents interactive computer service providers from being held liable when they act "in good faith" to restrict or remove content the provider considers objectionable. In other words, service providers cannot become subject to publisher liability for exercising limited editorial control over the content hosted on their sites.

While these provisions offer service providers broad protection, the liability shield is not absolute. For example, Section 230 does not protect service providers from prosecution under federal criminal, intellectual property, or sex trafficking statutes.¹ In addition, Section 230 liability protections do not apply when platform providers facilitate or contribute to the development of problematic content.² Likewise, courts have held that online platforms can be held liable under a negligence theory so long as claims...