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An executive order by President Donald Trump that targeted Twitter Inc. after the microblogging site flagged some of his tweets potentially could weaken a liability shield in place for internet service platforms, but it’s unlikely to have an effect anytime soon, observers say.
Congressional action would be required to modify 1996’s Communications Decency Act, whose Section 230 protects internet services providers from liability arising from content created by third parties, experts say.
“Congress has passed a law, and the president can’t change the law through an executive order,” said David D. Oxenford, a partner with Wilkinson Barker Knauer LLP in Washington, who focuses on broadcast and digital media law.
A media underwriter says online companies purchase media liability insurance despite the immunity provided by the CDA, but at this point he does not anticipate the situation will lead to higher rates.
President Trump became angered last month after Twitter used a “fact check” label on two of his tweets, which charged that mail-in ballots were “fraudulent” and that ballots would be stolen and forged, leading to a “rigged election.”
Links inserted into the tweets urged people to “get the facts” about voting by mail and led to a CNN story and a list of bullet points rebutting the inaccuracies. Twitter CEO Jack Dorsey later said in a tweet that the president’s tweets could mislead people.
The president later issued an executive order stating that online platforms “are engaging in selective censorship that is harming our national discourse.”
The order directed the Federal Communications Commission to start a rule-making process to clarify when social media companies can restrict access to content; instructed the Department of Justice to review the “viewpoint-based” speech restrictions imposed by each online platform; and directed the Federal Trade Commission to “consider taking action … to prohibit unfair or deceptive acts or practices.”
Last week, a Washington-based advocacy group, the Center for Democracy & Technology, which was established by internet companies and public interest groups, filed a lawsuit challenging the executive order in U.S. District Court in Washington. The suit states that the order seeks to circumvent Congress and the courts by dictating a new interpretation of a federal law.
“Under longstanding precedent, Section 230 protects online content providers from liability for making decisions about what content may be published on their platforms,” the suit states.
When suits have been brought against internet service providers over content they have hosted, courts have generally upheld their immunity. In a 2019 case, for instance, a federal appeals court cited the CGA when it upheld the dismissal of litigation filed against a dating app that was used by a disgruntled former boyfriend to harass and stalk the plaintiff.
The U.S. Supreme Court later refused to reconsider the ruling.
The president’s executive order, which will have “a chilling effect on internet speech,” could increase internet companies’ potential liability “because it certainly signals that the president thinks it’s a bad law,” said Ian C. Ballon, a shareholder with Greenberg Traurig LLP in East Palo Alto, California, who is co-chair of his firm’s global intellectual property & technology practice group.
“Foreign regulators, particularly in Europe, who have their focus on U.S. technology companies, may feel freer to seek burdensome regulation that will hurt the U.S. competitively, knowing that the president of the United States is attacking these same companies,” he said.
The order could also influence judges, Mr. Ballon said, adding that immunity provided under the CDA “is one of the things that has allowed the internet to grow and flourish economically.”
In addition to social media platforms, the CDA provides protection for companies that provide consumer reviews, such as San Francisco-based Yelp Inc. and Needham, Massachusetts-based TripAdvisor Inc., observers say.
Jeremy M. Goldman, a partner with Frankfurt Kurnit Klein & Selz P.C. in Los Angeles, who has expertise in intellectual property issues, said that if court challenges fail, the executive order potentially could lead to limitations on immunity for Twitter and other companies, but “the president cannot make law” or use an executive order’s authority to overturn it.
“The executive order doesn’t really do anything yet. It just starts a number of processes,” said Jeffrey D. Neuburger, a partner with Proskauer Rose LLP in New York and co-head of the firm’s technology, media and telecommunications group.
“I don’t think internet service providers have to do anything yet to deal with it, and it’s likely the challenges will be somewhat successful,” he said.
He noted, however, that an amendment to the act that excludes online sex trafficking was signed into law in 2017.
“It’s likely there’ll be bipartisan support to amend the CDA in some way, but I don’t think the Trump executive order is the way it’s going to get done,” Mr. Neuberger said.
“The executive order, without further legislative reform, wouldn’t be able to change the impact of the statue and many years of court decisions,” said Carolyn Toto, an intellectual property partner at Pillsbury Winthrop Shaw Pittman LLP in Los Angeles.
Most court decisions have construed the scope of the immunity clause quite broadly, she said, but added that Mr. Trump’s action may spark more debate over reforming the law.
Stewart A. Baker, of counsel at Steptoe & John LLC, who manages his firm’s technology law practice, said of the various directives described in the executive order, the most promising for the president is his asking the aid of the FTC, which “has 10 years of history in saying to companies, ‘You didn’t live up to your promises.’”
There likely won’t be any action on the issue before the presidential election in November, he said.
David Derigiotis, Farmington Hills, Michigan-based senior vice president and national professional practice leader for Burns & Wilcox Ltd., said that despite the immunity provided by the CDA, internet services providers still buy media liability coverage as well as cyber liability and privacy coverage to protect them as passive content providers.
Media companies “walk a very fine line between publisher and passive distributor of information,” and as they start moving more into editing and modifying posts, they “start to move closer into the waters of actual publishing,” he said.
Insurers likely won’t increase prices or change wordings unless Congress takes any action on the law, Mr. Derigiotis said.