Boots & Sabers

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Everything but tech support.

1219, 28 May 20

Trump To Issue Executive Order to Clarify Rules Around Liability for Internet Platforms

I’m very wary of things like this.

The order would push the Federal Communications Commission to write rules on when and how platforms can remove content from their platform and still maintain liability protection granted them under Section 230 of the Communications Decency Act. The law as it stands largely exempts those publications from being held liable for much of the content on their websites.

The working order, which cites Twitter by name, would encourage the Federal Trade Commission to take action against companies that engage in “deceptive” acts of communication.

Outside of the current kerfuffle between Trump and Twitter, this debate has a deep history with huge implications. The debate revolves around the legal responsibility of people and companies who provide information platforms, carry/transport information, and perhaps operate a monopoly. Let’s take this blog, for example. Am I legally liable for what a commentator writes? In general, no. Part of what bolsters that relative protection is the fact that we don’t censor comments here. With rare exception – direct threat, spam, etc. – commentators can write whatever they want. If we got in the business of curating or filtering comments, then that liability potential increases. If I am curating the content, do I then own it? Someone might argue “yes.”

The discussion has roots back to medieval common carriage laws and norms. Here’s a great paper on some of the history and modern implications. It was written as part of the net neutrality debate, but has application here. Here’s a part:

Looking at the matter from a fresh perspective, it seems important to look at the entire regime of common carriage, not simply interconnection and non-discrimination—or even rate regulation and liability. And what emerges is a bargain that gives special legal liability in return for the carrier refraining from using some market power to further some public good. On one hand, the carrier gives away the right to discriminate on the basis of sender or content and in return receives immunity for liability for the content therein. On the other hand, the carrier agrees to moderate monopoly power against competitors, perhaps provides access to competitors in return for immunity from antitrust suit. Similarly, the increased standard of care reflects the market power of dominant communication and transportation firms enjoy vis à vis individual customers—and can be seen as a return for the privileges common carriers enjoy such as right of access etc.

In this regard, common carriage is a deal. The regulated industry has something the government wants—a universal communications platform that provides a valuable public good, notably free speech to further democratic deliberation. But, in return, the regulated industry receives preferential treatment from the government.

In the case of Twitter and Facebook, Trump is arguing, in his clumsy way, that those companies have surrendered their liability for content when they got into the business of regulating speech. If Twitter, for example, is going to curate, edit, and regulate content, do they also get to continue to enjoy liability protections for that content? If that’s the case, then shouldn’t such liability protections be extended to anyone to generates content?

Twitter, Facebook, and the like are going to have to make a choice. Either they can be agnostic platforms that carry content created by other people, in which case they enjoy certain legal liability protections for that content, or they can be content creators that create, modify, and curate content for consumption based on achieving their political or business objectives, in which case they are liable for the content. They can’t have it both ways.


1219, 28 May 2020


  1. jonnyv

    Can this tie in to the Net Neutrality issue as well? Can an ISP be liable for information that is transmitted on their wires if they choose to regulate (slow down, speed up, etc) certain sites or give priority to others? The ISPs argued that was freedom of speech.

    How does this work with FB? Their algorithm is set to feed you specific content, similar to what you already interact with. Hiding other content from your feed. Is that a form of “censorship”? Twitter does the same thing but gives you the option of the timeline as well.

    And Twitter did not censor anything, they simply flagged his message with content clarification on mail in voting laws. How would that be different than if they sub-tweeted the same thing and pinned it to the top of his Twitter responses.

    Does Twitter have freedom of speech themselves on their own platform?

    Trump is trying to bypass congress and the courts here. I believe they call that a “tyrant” or “dictator”. There is already well established law on this subject. The man is truly a baby.

  2. jjf

    I’m very wary of things like this.  […]

    Outside of the current kerfuffle between Trump and Twitter,

    Build me up, then dash me to the ground.  I thought for a second there you might say something bad about Trump.  Or maybe about the influence of Russian and Chinese bots on our national discourse.

    Did Twitter delete his tweets?  Or did they merely comment on them?

    Is it curation when a blog owner simply disappears all the comments on a post, after a bunch of people were commenting there?

    This will be a Big Day for Social Media and FAIRNESS!

    He’s Using Capital LETTERS!

    I dunno, if he actually signs it, will you be very very wary?

    What words would’ve been used in an alternate universe where Obama would’ve made such an executive order?

  3. Randall Flagg

    Yet more proof Trump is the biggest snowflake of them all, and is trying to use an executive order to create a safe space for himself.

  4. Pat

    President Karen

  5. Randall Flagg

    >>>President Karen

    and his faithful disciple (and fellow snowflake) Karen Scheuneman

  6. Randall Flagg

    Thanks for being a fan dud69.

  7. Mar

    “President Karen” Coming from a lying, racist bigoted and anti-woman vile person.
    Way to go Lying Racist Bigot Pat.

  8. Randall Flagg

    “Coming from a lying, racist bigoted and anti-woman vile person”   Hey that’s another great description of Trump.

  9. Pat

    Thanks Mar!

  10. Mar

    So, what are you going to do tonight Pat? Dress up in you KKK robes while you call a woman a ho while fat shaming her.
    You do they don’t allow that Mendota..

  11. Mar

    Actually, it kind of fits Joe Biden Randall.
    Surely you know that Biden is far more racist than President Trump.

  12. Pat

    A little unhinged again, Mar? You‘ve lost any speck of credibility you had left when the best you have are emotional insults.

  13. jjf

    Funny nicknames!  They must be right if they can do that!

  14. Mar

    Lying Pat, you are the one who posted a racist, bigoted, anti-woman article and refused to disown it.
    And you call me unhinged.
    So yes, you are a lying, racist, bigoted anti-woman and hating person.
    Where am I wrong?

  15. jjf

    Big business lobbying for deregulation and immunity from claims.

    Golly, which party has that as a plank in its platform?

  16. Pat


    At pretty much everything. But don’t just take my word for it. I’m positive you’ve heard it from others.

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