(1) Long threat alert: yesterday, I laid low about the EO on “online censorship” because I didn’t want to be lured into, and be trolled by, absurd distortion of Section 230 and ultra vires nonsense. I have written about and worked on 230 reform for too long and too hard.

(2) For some of my work, see 2009 @BULawReview “Cyber Civil Rights” where I call for conditioning legal shield for under-filtering on reasonable standard of care, 2014 book Hate Crimes in Cyberspace where I argue that legal shield should not apply to sites soliciting illegality

(3) and primarily hosting illegality, 2017 article with @benjaminwittes “The Internet Won’t Break: Excluding Bad Samaritans from Section 230 Immunity” in @FordhamLRev, “Cyber Mobs, Disinformation, and Death Videos” in @michlawreview, and

(4) forthcoming with @ma_franks in @UChiLegalForum “The Internet as a Speech Machine and Other Myths Confounding Section 230 Reform” and congressional testimony and lots of hard work with federal lawmakers with @ma_franks in behalf of @CCRInitiative

(5) Done with the backstory: I’m trying to make sense of this EO, which is clearly a play to distract us, chill platforms (go @jack for refusing to be chilled), coerce obedience (see Mark Zuckerberg’s embarassing statements), and grab power EO lacks.

(6) after a bunch of hand waving as @daphnehk brilliantly puts it, Section 2(a) settles in for the *only* semi-coherent (still ridiculous) point. To windup, 230(c)(2) secures a shield from liability for sites that filter or block objectionable content if done in “good faith”

(7) EO says that sites aren’t acting in good faith (and thus should lose the legal shield) if they filter (“censor”—a loaded negative gloss), block, or mute user content in a “deceptive” way or to silence certain political views

(8) the only real impact this has is as a suggestion to courts in how they should interpret 230(c)(2) in a motion to dismiss claims. This is 230 theater because what claims will parties bring against sites for filtering or blocking them? There aren’t any.

(9) The EO says if sites “censor” political views then they will be considered the content creator—again, it is making a suggestion to courts interpreting 230c2 to treat sites as publisher or speaker of the filtered content. For a defamation claim maybe this is coherent.

(10) EO goes off the rails after section 2(a). Section 2(b) tells independent FCC to issue regulations whose substance is neither coherent nor within its power to so create policy. Here is where I draw the line and refuse to be trolled. Section 2(b) is Ulysses level gibberish.

(11) Section 4 tells independent FTC to use Section 5 “as appropriate” to investigate platforms for engaging in deception for acting inconsistently with their TOS speech policies. This command is a waste of time. Courts will and have dismissed similar efforts under 230(c)(1)

(12) 230(c)(1) provides legal shield for under-filtering user generated content—so when sites fail to take down UCG (or even solicit illegality) they are off the hook.

(13) Already I have gone on too long and taken the EO more seriously than it deserves. The EO is all gesture, no meaningful legal bite, but it has the destructive effect of likely wasting career FTC and FCC staff energy and brain cells. It angers me in its call for state AGs

(14) to waste precious time thinking of UDAP claims along lines of the ineffectual and nonsense FTC claims. State AGs are too important to privacy policymaking. Leave them alone, see my @NotreDameLRev article about their crucial work.

(15) the other nonsense I leave to the more tolerant friends who have worked on this issue alongside me. We have not always agreed but I respect you immensely.

(16) I’m sad to have wasted time reading the EO and the time my colleagues wasted and the time career staff will waste. I regret that this makes meaningful reform on 230 more difficult. @ma_franks and I just posted a piece on the myths confounding meaningful 230 reform.

(17) Sadly we need to update our article https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3532691