If - *if* - this is the genuine thing (a draft of the Executive Order to be issued in the USA against social media platforms), wow. https://twitter.com/Klonick/status/1265863601191092224

I’ve seen a few lawyers and others whose work I’ve read for years verify that it is genuine, so it’s a shame that there’s a nagging doubt it my mind that this could well be a joke, using an example they’ve previously written about how not to answer a student essay question.

The mainstay of the order is to restrict when platforms are able to rely on legal protections from liability for the actions of users.

The gist - it’s not well-written - is an attempt to define what constitutes behaviour which brings a platform outside the scope of the shield.

It also empowers / requires the US telecoms regulator - the FCC - to set out when the shield applies

There’s an assertion within the instrument that social media platforms are “public fora”, and that free speech principles apply to what people say on these private companies’ “public fora”.

Not exactly a new argument, nor one with much legal support AFAIK.

I suspect that whoever was required to put this together in such a tight timeframe did their best to do what was asked of them, probably appreciating the paucity of legal support for some of the views set out in it.

It’s a pre-emptive strike, which doesn’t need to survive, IMHO.

We’re going through a process with a similar end goal in the U.K.: to empower a regulator to dictate what is “harmful”, mandating platforms to tackle user speech which falls into those categories.

If - *if*- there is an Executive Order in the USA, and *if* it looks like this, we’re in for an interesting time.

(Says Neil, hoping for more decentralised, distributed platforms, for many reasons.)

Predictions for confusion we will see today in particular:

- private platforms v public fora
- state actions v a company’s actions
- “but they’re a publisher”
- the immortal “they must ban the speech I don’t like while ensuring all speech I do like”

It’s worth noting that the seeming trigger for this was not a platform choosing to edit someone’s speech, or restrict someone’s speech, or remove someone’s speech.

It was a small box below speech, pointing out that there were contradictory views on issues of fact.

As an aside, readers from the U.K. may remember when a certain Twitter account rebranded itself as a “fact checker” during election debates. https://www.theguardian.com/politics/2019/nov/20/twitter-accuses-tories-of-misleading-public-in-factcheck-row

I just can’t shake from my head that, given numerous complaints about biased media, fake news, and dissemination of misinformation, it was an attempt by a platform to tackle these issues which seems to have led to this.

There is plenty of nuance of US law and policy where others are far better placed to comment than I am, and indeed some of that commentary suggests that the cases cited in that document may not be authority for the propositions set out in it.

Legislative history?

1) Platforms are not moderating enough. Give them legal protections to enable them to do so.

2) Platforms are not moderating the way we want. Stop them.

Anyway, I’ll shut up now.

It’s the middle of the night in the USA so, even if this is a genuine draft, it may well change before it is ordered. If it is ordered.

And here are other, very knowledgable, people to follow on this issue: https://twitter.com/neil_neilzone/status/1265880305975595008