US President Donald Trump speaks in the Oval Office before signing an executive order related to regulating social media on 28 May 2020 in Washington, DC. Photo by Doug Mills-Pool/Getty Images.

US President Donald Trump speaks in the Oval Office before signing an executive order related to regulating social media on 28 May 2020 in Washington, DC. Photo by Doug Mills-Pool/Getty Images.

Few social media platforms have propelled President Trump’s political career like Twitter has. Conceivably, that's precisely the reason why its decision on 26 May to flag two of his posts as containing misleading statements related to the upcoming election, drew his ire. Just two days later, an executive order was signed, demanding immediate action from the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) to re-examine platform liability, allegations of political bias and federal ad spend on online platforms.

The stand-off between Donald Trump and Twitter accentuates two key issues in the global debate about the impact of Big Tech on human rights and democracy: freedom of expression and platform liability. In the US, while digital platforms have been protected from liability by Section 230 of the US Communications Decency Act (CDA), both the US Justice Department and the House Energy and Commerce Committee have started raising the issue of the provision's reform.

But Trump's executive order is fraught with misrepresentations about what the law originally set out to do as well as the nature of the companies he seeks to discipline. To a certain extent, this may be symptomatic of a common misunderstanding that legal scholars Danielle Citron and Mary Anne Franks have pointed out – the conflation of Section 230 with the First Amendment. The double whammy is that while the latter vests obligations in the government, not private actors, the former not only does not require ‘interactive computer services’ to be the conduits of all users' opinions, it actually urges them to moderate that content. The First Amendment actually protects these private actors too, as a lawsuit by the Center for Democracy & Technology challenging the executive order has outlined.

One could argue that under Section 230, Twitter's decision to flag a misleading post about the elections or later to obscure a post glorifying violence was appropriate and in ‘good faith’, as surely those posts would be deemed ‘objectionable’ or ‘excessively violent’. Facebook's decision not to fact-check or flag the same posts, is probably finding favour with the US president. Given the fact that Trump's executive order indicates that he has identified ad spend as useful leverage, Facebook may profit from this decision in other ways too.

A tale of misunderstandings

The executive order surfaces some common misunderstandings that compromise its stated goal and raise questions about its real purpose. For instance, despite the order's accusations of ‘political bias’, these private actors are under no obligation to be ‘neutral’. Even if that were the case, an interim report on Facebook's potential bias led by Republican Senator Jon Kyl indicates critics may need to look harder. The view that tech platforms are online simulations of a ‘public square’ may be a bit off the mark as well, as it doesn't factor in the network effects and information feedback loops involved in the social media ecosystem.

Moving forward, recurring tendencies to compare apples and oranges by claiming that social media regulation can follow a similar approach to that of earlier technologies, such as a telecommunications, or the conflation of social media with the internet as a whole, should be avoided. It's possible that tech policymaking requires new terminology and conceptualizations that can be easily popularized.

Freedom of expression: one right to rule them all?

Trump’s decision to posit protection of freedom of expression as the executive order's key motivation could force US-based tech companies to face challenging dilemmas in terms of the norms they propagate online. But that may be precisely the point. Twitter seems to be choosing to act on pressure to protect electoral integrity and public safety, while Facebook has doubled down on its defence of unrestrained freedom of expression, even when that polarizes society. A series of recent walkouts and resignations of Facebook staff may force the company to reconsider.

As set out in my 2019 paper on disinformation, the US approach to freedom of expression is not aligned with most other countries in which social media companies are operating. While other signatories to the International Covenant on Civil and Political Rights (ICCPR) may impose restrictions on this fundamental right for reasons such as protecting national security, public order, public health, or the rights and reputations of others, the US has ratified the treaty with reservations committing to adhering to the requirements and constraints of its own Constitution. But even in the US context, policymakers and legislators need to consider that treating freedom of expression as an absolute right and allowing incitement to violence or abusive statements online, in effect silences the victims and refuses them the exercise of their own fundamental rights.

Academic Aernout Nieuwenhuis attributed the US approach to freedom of expression to "a certain optimism about the operation of the 'free marketplace of ideas' that tends to be alien to Europeans". After destructive wars and the re-emergence of far-right movements, Europe is probably not inclined to put its faith in the invisible hand of that particular marketplace. Indeed, it tends to prioritize the protection of groups over the complete freedom of political debate.

While in the US, the First Amendment sets freedom of expression as the foremost priority, Article 17 of the European Convention on Human Rights prohibits the use of a right to conduct activity to destroy the rights set forth in the Convention, attempting to avert a situation whereby its provisions are used to weaken the ideals and values of a democratic society. The debate over freedom of expression in the digital space is ongoing. Still, inconvenient as it is, exporting the current US administration's interpretation of freedom of expression to the global market in which tech companies operate may become untenable for legal, cultural and political reasons.

Pending questions about Section 230 reform

Even though reform of Section 230 is overdue, basing it on misinterpretations of the role and obligations of tech companies, and what the international community – already frustrated by US tech companies' effect on online political discourse – is willing to accept, can pose existential risks for these companies. At the very least, any reform should consider the increased responsibility that political leaders and governments have by virtue of their credibility and reach when they are using these platforms.

In the end, the executive order will face so many obstacles – such as the fact the president can't really force a federal agency like the FCC to act, or that the US has already locked itself into a safe harbour system through the United States Mexico Canada Agreement – that one may wonder if its aim was not really the reform of Section 230. Daphne Keller, director of the Program on Platform Regulation at Stanford's Cyber Policy Center, has talked about what she calls the ‘anticipatory obedience’ by the big platforms, nudged by governments to proactively act in a certain way to avoid statutory regulation. In the end, maybe the executive order was more of a warning to Silicon Valley not to follow in Twitter's footsteps.