So, since a number of people have asked me, let's go through the thought experiment together. You are WH counsel. The President is upset at Twitter putting a link in his tweet about "getting facts" and wants an EO to "regulate" them. What do you write? (Thread)

Now this is a thought experiment. The legal question is what *could* you right (presuming you had no specific objection to the concept and wanted to keep your job), and actually do something. EOs can't change the law after all.

The first step is to identify what you target. The most likely answer to that is CDA 230. It's been a bogeyman for politicians (of various stripes) for a while now, and many want to limit its applicability.

So what does CDA 230 actually do here? Primarily it does the following:

230(c)(1): "No 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."

So, we need to break that down, but here is where the much-vaunted Platform/Publisher Internet lawyering comes into play.

In short (paraphrasing for clarity), it says no provider of a simple platform will be treated as having published the content provided by one of its users.

So, if Joe Blow writes something defamatory about Jane Blow on Twitter, Twitter can't be dragged into the law suit simply for facilitating the communication of the defamation.

But where things really confuse folks is in the definitions. Sure Twitter is a provider of an interactive computer service, but that doesn't mean it can't also be an "information content provider".

230(f)(3): "The term “information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."

After all, when the Twitter account tweets something they don't get a shield from defamation simply because they also own the platform. If they defamed Jane Blow in their own tweet, they would still be liable.

So the key is in that "another".

"No 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." (emphasis added)

You're always responsible for your own content.

So, if you are WH counsel, the best possibility to say *anything* in an EO would seem to be to "make clear" (i.e. newly assert), that when the provider of an interactive computer service adds an editorial link to a user's content...

...they will be deemed to be the "information content provider" not just of their editorial comment, but of everything they included or otherwise highlighted within the linked page.

That is to say, the EO would highlight that w/r/t an editorial link, the platform will be deemed "responsible...in part...for the...development of information" as necessary for section 230(f)(3), such that the platform would be liable as if it had written the linked material.

Now, one could argue that that is pretty close to the case as it stands (though there would definitely be a fight about the linked materials), but it *would* likely deter platforms (on the margins) from engaging in the fight.

Now this thread is not arguing for the rightness or wrongness of such a position, just trying to posit what the WH counsel could possibly put together for tomorrow, since it seems so nebulous.

Please let me know your thoughts, and thanks for checking out the thread.