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.