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On Trump’s Executive Order regarding platforms and what it means for India

The battle between Twitter and Trump is escalating, and this might not end well for the rest of us. Twitter today restricted a tweet from Trump, soon after he issued an executive order signaling for scrutiny of online platforms for political bias. Trump’s order achieves little, but it remains a threat that could change the way the Internet works, especially in countries where institutions are not very strong and governments are already pushing for changes on how social media is being regulated.

How platforms are able to allow us to upload our content online

The reason why we can upload content on sites like YouTube, Facebook, Reddit, Twitter, every forum, all blogs (and write comments) is because Section 230(c) of the US Communications Decency Act provides safe harbor: the platform or the ISP is not liable for content that you and I create.

Only we are liable for our content.

This is why Facebook allows you to post on Facebook. Blogs and Reddit allow you to comment. YouTube allows you to upload your videos. ISPs allow you to create your own website. Therefore, Section 230 (c) of the Communications Decency Act 230 (in India, Section 79 of the Information Technology Act) actually protect the platforms that enable our free speech.

Section 230(c) of the CDA. Source: govinfo.gov

Section 230(c) allows these platforms to impose their own community standards and “in good faith”, actually violate free speech rights of US citizens by restricting access to content which might not abide by these standards. It’s called “Good Samaritan blocking”.

In today’s day and age, when so much of our speech is on the Internet, it is just as important to protect the carriers of our speech, as speech itself.

Trump’s Policy Goals with this executive order

A lot rides on that phrase “good faith”. Trump’s executive order has the following policy goals:

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1. Act against platforms not acting in “good faith”; which are engaging in “deceptive or pretextual actions” to “stifle viewpoints with which they disagree.”

The order cites 16,000 complaints of online platforms censoring or otherwise taking action against users based on their political viewpoints an anti-right winged bias wrt Twitter in his executive order. This will resonate in India.

Last year, the Anurag Thakur led Parliamentary Standing Committee on IT had also hauled up Twitter India for allegedly having a bias. There had been protests against Twitter outside their Delhi office:

2. Address platform power and neutrality: The order decries what it says is a handful of companies controlling “vital avenues for our national discourse under the guise of promoting open forums for debate”, while having “blanket immunity when they use their power to censor content and silence viewpoints that they dislike”.

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3. Act against platforms that act beyond the criteria in Section 230 (c)(2)(A): When a platform “removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct”, and should be exposed to liability like any traditional editor and publisher.

What Trump has asked for

Trump has asked for the following action to be taken:

1. “All executive departments and agencies should ensure that their application of section 230(c) properly reflects the narrow purpose of the section and take all appropriate actions in this regard.” This won’t help him because it’s pretty broad provision and the only part that can be challenged is the “good faith” bit. Which will go to court. Where the White House can easily lose.

2. The FCC has been asked to propose regulations to clarify how the two parts (A and B) interact. And the conditions under which an action restricting access to or availability of material is not “taken in good faith”, especially if they are:

(A) deceptive, pretextual, or inconsistent with a provider’s terms of service; or
(B) taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard.

These are tricky, especially the adequate notice bit, and an opportunity to be heard be provided. All platforms have automated takedowns and peoples tweets and updates get censored regularly.

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But it’s unlikely that the request for the FCC to act is going to fly without much friction. Two FCC Commissioners have already indicated that diluting 230(c) won’t be acceptable to them, with one of them, Jessica Rosenworcel, saying:

“This does not work. Social media can be frustrating. But an Executive Order that would turn the Federal Communications Commission into the President’s speech police is not the answer. It’s time for those in Washington to speak up for the First Amendment. History won’t be kind to silence.”

What the actual problem is

The actual problem with the executive order is what it signals for platform regulation worldwide. The White House is signaling that it’s okay to add further regulations on platforms re: how they deal with content. This is especially bad for India. India is already amending its IT rules, and is considering enforcing, among other things, these two key changes:

1. Traceability of originators of a message or update.
2. Proactive takedown of content.

So this might lead to India’s IT Minister Ravi Shankar Prasad saying his Ministry is justified in proposing/demanding these amendments. And we’ve seen that from him before. When US, UK and Australia urged Facebook to not implement end to end encryption on its messaging platforms, Prasad used that as a justification for pushing for traceability on WhatsApp.

So, watch this space.

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Written By

Founder @ MediaNama. TED Fellow. Asia21 Fellow @ Asia Society. Co-founder SaveTheInternet.in and Internet Freedom Foundation. Advisory board @ CyberBRICS

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.

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