July 7, 2020

Volume X, Number 189

July 07, 2020

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July 06, 2020

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President Signs Executive Order Directing Agencies to Probe the Contours of CDA Immunity

President Trump signed an Executive Order today attempting to curtail legal protections under Section 230 of the Communications Decency Act (“Section 230” or the “CDA”). The Executive Order strives to clarify that Section 230 immunity “should not extend beyond its text and purpose to provide protection for those who purport to provide users a forum for free and open speech, but in reality use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints.”

Section 230 protects online providers in many respects concerning the hosting of user-generated content and bars the imposition of distributor or publisher liability against a provider for the exercise of its editorial and self-regulatory functions with respect to such user content.  In response to certain moderation efforts toward the President’s own social media posts this week, the Executive Order seeks to remedy what the President claims is the social media platforms’ “selective censorship” of user content and the “flagging” of content that does not violate a provider’s terms of service.

The Executive Order does a number of things. It first directs:

  • The Commerce Department to file a petition for rulemaking with the FCC to clarify certain aspect of CDA immunity for online providers, namely Good Samaritan immunity under 47 U.S.C. §230(c)(2). Good Samaritan immunity provides  that an interactive computer service provider may not be made liable “on account of” its decision in “good faith” to restrict access to content that it considers to be “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.”
    • The provision essentially gives providers leeway to screen out or remove objectionable content in good faith from their platforms without fear of liability. Courts have generally held that the section does not require that the material actually be objectionable; rather, the CDA affords protection for blocking material that the provider or user considers to be “objectionable.” However, Section 230(c)(2)(A) requires that providers act in “good faith” in screening objectionable content.
    • The Executive Order states that this provision should not be “distorted” to protect providers that engage in “deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they disagree.” The order asks the FCC to clarify “the conditions under which an action restricting access to or availability of material is not ‘taken in good faith’” within the meaning of the CDA, specifically when such decisions are inconsistent with a provider’s terms of service or taken without adequate notice to the user.
    • Interestingly, the Order also directs the FCC to clarify if there are any circumstances where a provider that screens out content under the CDA’s Good Samaritan protection but fails to meet the statutory requirements should still be able to claim protection under CDA Section 230(c)(1) for “publisher” immunity (as, according to the Order, such decisions would be the provider’s own “editorial” decisions).
    • To be sure, courts in recent years have dismissed claims against services for terminating user accounts or screening out content that violates content policies using the more familiar Section 230(c)(1) publisher immunity, stating repeatedly that decisions to terminate an account (or not publish user content) are publisher decisions, and are protected under the CDA. It appears that the Executive Order is suggesting that years of federal court precedent – from the landmark 1997 Zeran case until today – that have espoused broad immunity under the CDA for providers’ “traditional editorial functions” regarding third party content (which include the decision whether to publish, withdraw, postpone or alter content provided by another) were perhaps decided in error.

 

The Executive Order also directs:

  • Federal agencies to review spending on social media advertising and determine whether any content practices by such platforms are “problematic vehicles for government speech.”
  • The White House Office of Digital Strategy to submit complaints it received in 2019 on its online bias reporting tool to the FTC. The Order suggests that the FTC consider using its power to regulate deceptive practices and examine those platforms that qualify for Section 230 to the extent they restrict speech in ways that do not match with posted terms or policies.
  • The U.S. Attorney General to establish a working group with state attorneys general to consider the application of state consumer protection and similar laws to the practices of online platforms. The working group would study any publicly available information concerning the use of algorithms and policies that place increased scrutiny or somehow limit users based on their content decisions and online interactions. The group would also look into, among other things, policies for handling impermissible behavior from anti-democratic associations or governments.
  • The U.S. Attorney General to draft proposed legislation (i.e., a CDA reform bill) to accomplish the policy objectives of the Order.

Given that the CDA is a statute passed by Congress and interpreted by the courts, it is doubtful that, without an accompanying piece of legislation, one executive order could overturn Congress’s mandate and decades of judicial opinions broadly interpreting the scope of CDA immunity. Moreover, it’s not clear that the FCC possesses the authority to regulate online edge providers in the manner the Executive Order requests, when the agency has previously asserted its “light touch” regulation of ISPs with respect to net neutrality.  Lastly, the FTC already has the power to investigate unfair and deceptive practices of online providers, so the Order’s provision outlining the potential for FTC enforcement of online providers is non-revelatory.

So, is this Executive Order simply “Much Ado about Nothing”?  Likely. Yet, the larger picture is more interesting.

Putting aside the expected legal challenges to such an order, the President’s action can be seen as the latest broadside against Section 230: in 2018 FOSTA was passed to limit the CDA’s scope for certain sex trafficking content and since then, members of both parties in Washington, though perhaps for different reasons, have suggested the CDA should be reined in further (including the presumptive Democratic nominee, Joe Biden).  Given that the CDA is likely the most important law governing internet speech and e-commerce and the online ecosystem, we will closely be monitoring the ongoing debate surrounding the CDA and in what manner Congress or the Administration might seek to curtail its scope or regulate some of the excesses of the online world (presumably without damaging the vibrancy of the internet).  One wonders how (or if) this balancing act could be achieved. Still, as the old adage goes, politics makes strange bedfellows, and if Benedick and Beatrice can find love in the Shakespeare play, then it is always possible that Congress can find further common ground to rein in the contours of CDA immunity.

In the meantime, it appears that the Administration (and perhaps some state attorneys general in consultation with the Administration) is seeking to hold social media sites to be accountable to their terms of use as the Executive Order refers to such terms in a number of places as a yardstick against which conduct would be measured. Today’s Order appears to challenge any action that might restrict speech which is not provided for in those terms. Thus, this would be a good time for service providers of all types to review their terms and content policies to make sure that “they are covered,” that is, out of abundance of caution, to ensure that the types of activities that they engage in (or may engage in) under the protection of Section 230 are addressed in their terms of use and relevant policies.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 150

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About this Author

Jeffrey D Neuburger, Proskauer Rose Law Firm, Technology Attorney
Partner

Jeffrey Neuburger is co-head of Proskauer’s Technology, Media & Telecommunications Group, head of the Firm’s Blockchain Group and a member of the Firm’s Privacy & Cybersecurity Group.

Jeff’s practice focuses on technology, media and intellectual property-related transactions, counseling and dispute resolution. That expertise, combined with his professional experience at General Electric and academic experience in computer science, makes him a leader in the field.

As one of the architects of the technology law...

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