The year 2020 has brought times of physical isolation and the world has turned to the Internet as a bridge to normalcy. It is not uncommon for a person to wake up and grab his or her phone and consult it (rather than a newspaper) to gather news, browse through friends’ video “stories” shared overnight, check what is “trending” via Twitter, or even stream a popular video on YouTube. During the COVID-19 pandemic, the Internet is more important than ever before and its key to success is its immediacy.
The most compelling aspect of the Internet is the ability for users to participate in a global platform at the press of a button. For example, an individual can be home watching her favorite musical artist perform live on television and thrust herself into ongoing online discussions with millions of other users who are watching the same program as if they were in the same room. It is this very reason, the immediate transfer of information without delay, almost at Einstein’s speed of light, that the Internet has become the most consumed platform of the Millennial generation. Online websites designed to capitalize on this immediacy, such as Facebook and Instagram, foster this frantic pace by placing the ability to share content in the hands of the user. They boast well upwards of 100 million profiles registered in the United States alone.
Now imagine the next time you attempted to share a post or status update that you were to receive a message warning you that there would be a delay in the publication of your post. This delay would be due to a mandatory screening process intended to ensure that no illegal or deceptive information is shared, such that the platform would not be legally liable for your post. With hundreds of millions of users worldwide, sharing the post could hypothetically take up to the same amount of time as mailing a letter and would tarnish the appeal of using the site. This scenario is one which is at the center of President Trump’s “Executive Order on Preventing Online Censorship” (“EOPOC”).
Executive Order No. 13925 – The Stop Sign
On May 26, 2020, without any supporting evidence, President Trump tweeted to the effect that the institution of “Mail-In Ballots” would be nothing less than “substantially fraudulent.” Twitter then placed a “fact check” notation on the President’s tweets suggesting that he had been sharing misinformation. Twitter neither removed nor altered his tweet, with the exception of adding the mark. Just two days later, on May 28, 2020, the President retaliated by signing into action the EOPOC. The purpose of the order is to remove effectively the protections to which online platforms and/or providers are entitled by way of Section 230 of the Communications Decency Act of 1996.
Section 230 provides, among other things, that online service providers are exempt from liability for defamation because they are not “publishers” In essence, by way of Executive Order No. 13925, President Trump is attempting to hold Twitter liable by reversing course and labeling Twitter a content publisher, effectively removing its Section 230 immunity. Trump’s claim is that the “fact check” mark placed on his tweets suppressed his “free speech” on the internet, placing the Communications Decency Act at odds with the Constitution.
The Communications Decency Act of 1996 – The Global Cyber-Freeway
In 1998, Congress was tasked with enacting federal legislation to respond to the Internet web being exponentially spun throughout the nation. With the intent not to stifle communication or information on the Internet, Congress adjusted the traditional publisher liability rules of the physical world to allow Internet providers and platforms to emerge. The policies behind doing so included promoting the development and free marketplace of the Internet, encouraging greater user control, and supporting voluntary use of filtering by providers. Thus, since its passing, the CDA of 1996 – and more specifically Section 230 of the CDA – has largely become known as “the twenty-six words that created the Internet.”
Section 230 states, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Essentially, this immunity protects everyone online from liability for information posted by another user. Even this statute has its limits, however, as there is no “Section 230 Immunity” for the user/provider if the content if the post involves an infringement of intellectual property (which involves a different procedure), federal Electronic Communications Privacy Act (ECPA) claims, Fight Online Sex Trafficking Act (FOSTA) claims, or any federal crimes. Further, it does not immunize websites from their own unlawful or tortious conduct, such as breaching their “Terms of Service.” Absent these exceptions, the only way to pierce the immunity is by a convincing showing that the provider has conducted itself in a manner so as become the “speaker” or “publisher.”
Judicial Treatment of “Section 230 Immunity”
What conduct is sufficient to turn an internet provider into the “speaker” of the post itself? Federal courts have largely held that knowledge of unlawful content, editorial control, and decisions to remove or repost materials are all notsufficient enough to, for example, hold Twitter responsible for the contents of an individual’s tweet. Perhaps the most cited decision for this matter, Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, held that Roommates.com’s own acts of requiring users to answer questions of illegal preferences that Roommates.com itself posed was enough to label Roommates.com as a “speaker.” The court found, for example, that by having users check boxes allowing them to select a gay or lesbian roommate, Roommates.com effectively created content. However, an “Additional Comment” section on the same site which gave the user discretion to type whatever they’d like – very much like a tweet – was not enough for the site to be considered a “speaker” of those comments. Thus, what Roommates.com clarifies is that there must be a showing of involvement near the level of requirement for information content providers to lose their “Section 230 Immunity.”
Full Speed Ahead!
Executive Order No. 13925 conflicts with over twenty years of federal legislation and judicial decisions. Federal courts have made clear that the actions Twitter took by placing a simple “fact check” mark is exactly the type of behavior which Congress intended to protect when it enacted Section 230. Twitter did not require its user, in this scenario President Trump, to tweet any content whatsoever and did not restrict his ability to do so. Twitter simply placed a mark on his tweet. “Section 230 Immunity” was created to protect from liability a provider who has undergone a good-faith effort of filtering illegal or misleading content on its site, rather than considering the provider as having availed itself of liability simply by acknowledging the illegal content. This protection is something expressly elucidated by Section 230(c), which gives platforms the green light to restrict access to material they deem questionable.
With obvious Congressional intent, as well as convincing federal case law interpreting when a provider has immunity, it seems likely that providers will continue their usual practices in the face of the order. To treat these providers any differently now would ironically bring about more opportunities for censorship and likely bring a screeching halt to the world’s bustling cyber-freeway. The Internet, as we know it, would cease to function if Executive Order No. 13925 took effect since platforms would not be willing to provide services if they could be held liable for users’ actions and/or they were afraid to take action when problematic content appeared.