Preventing Online Censorship, 34079-34083 [2020-12030]

Agencies

• Executive Office of the President

[Federal Register Volume 85, Number 106 (Tuesday, June 2, 2020)]
[Presidential Documents]
[Pages 34079-34083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12030]



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Vol. 85

Tuesday,

No. 106

June 2, 2020

Part V





The President





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Executive Order 13925--Preventing Online Censorship


                        Presidential Documents 



Federal Register / Vol. 85 , No. 106 / Tuesday, June 2, 2020 / 
Presidential Documents

___________________________________________________________________

Title 3--
The President

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                Executive Order 13925 of May 28, 2020

                
Preventing Online Censorship

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, it is hereby ordered as follows:

                Section 1. Policy. Free speech is the bedrock of 
                American democracy. Our Founding Fathers protected this 
                sacred right with the First Amendment to the 
                Constitution. The freedom to express and debate ideas 
                is the foundation for all of our rights as a free 
                people.

                In a country that has long cherished the freedom of 
                expression, we cannot allow a limited number of online 
                platforms to hand pick the speech that Americans may 
                access and convey on the internet. This practice is 
                fundamentally un-American and anti-democratic. When 
                large, powerful social media companies censor opinions 
                with which they disagree, they exercise a dangerous 
                power. They cease functioning as passive bulletin 
                boards, and ought to be viewed and treated as content 
                creators.

                The growth of online platforms in recent years raises 
                important questions about applying the ideals of the 
                First Amendment to modern communications technology. 
                Today, many Americans follow the news, stay in touch 
                with friends and family, and share their views on 
                current events through social media and other online 
                platforms. As a result, these platforms function in 
                many ways as a 21st century equivalent of the public 
                square.

                Twitter, Facebook, Instagram, and YouTube wield 
                immense, if not unprecedented, power to shape the 
                interpretation of public events; to censor, delete, or 
                disappear information; and to control what people see 
                or do not see.

                As President, I have made clear my commitment to free 
                and open debate on the internet. Such debate is just as 
                important online as it is in our universities, our town 
                halls, and our homes. It is essential to sustaining our 
                democracy.

                Online platforms are engaging in selective censorship 
                that is harming our national discourse. Tens of 
                thousands of Americans have reported, among other 
                troubling behaviors, online platforms ``flagging'' 
                content as inappropriate, even though it does not 
                violate any stated terms of service; making unannounced 
                and unexplained changes to company policies that have 
                the effect of disfavoring certain viewpoints; and 
                deleting content and entire accounts with no warning, 
                no rationale, and no recourse.

                Twitter now selectively decides to place a warning 
                label on certain tweets in a manner that clearly 
                reflects political bias. As has been reported, Twitter 
                seems never to have placed such a label on another 
                politician's tweet. As recently as last week, 
                Representative Adam Schiff was continuing to mislead 
                his followers by peddling the long-disproved Russian 
                Collusion Hoax, and Twitter did not flag those tweets. 
                Unsurprisingly, its officer in charge of so-called 
                ``Site Integrity'' has flaunted his political bias in 
                his own tweets.

                At the same time online platforms are invoking 
                inconsistent, irrational, and groundless justifications 
                to censor or otherwise restrict Americans' speech here 
                at home, several online platforms are profiting from 
                and promoting the aggression and disinformation spread 
                by foreign governments like China. One United States 
                company, for example, created a search engine for the 
                Chinese Communist Party that would have blacklisted 
                searches for ``human rights,'' hid data unfavorable to 
                the Chinese Communist Party,

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                and tracked users determined appropriate for 
                surveillance. It also established research partnerships 
                in China that provide direct benefits to the Chinese 
                military. Other companies have accepted advertisements 
                paid for by the Chinese government that spread false 
                information about China's mass imprisonment of 
                religious minorities, thereby enabling these abuses of 
                human rights. They have also amplified China's 
                propaganda abroad, including by allowing Chinese 
                government officials to use their platforms to spread 
                misinformation regarding the origins of the COVID-19 
                pandemic, and to undermine pro-democracy protests in 
                Hong Kong.

                As a Nation, we must foster and protect diverse 
                viewpoints in today's digital communications 
                environment where all Americans can and should have a 
                voice. We must seek transparency and accountability 
                from online platforms, and encourage standards and 
                tools to protect and preserve the integrity and 
                openness of American discourse and freedom of 
                expression.

                Sec. 2. Protections Against Online Censorship. (a) It 
                is the policy of the United States to foster clear 
                ground rules promoting free and open debate on the 
                internet. Prominent among the ground rules governing 
                that debate is the immunity from liability created by 
                section 230(c) of the Communications Decency Act 
                (section 230(c)). 47 U.S.C. 230(c). It is the policy of 
                the United States that the scope of that immunity 
                should be clarified: the immunity should not extend 
                beyond its text and purpose to provide protection for 
                those who purport to provide users a forum for free and 
                open speech, but in reality use their power over a 
                vital means of communication to engage in deceptive or 
                pretextual actions stifling free and open debate by 
                censoring certain viewpoints.

                Section 230(c) was designed to address early court 
                decisions holding that, if an online platform 
                restricted access to some content posted by others, it 
                would thereby become a ``publisher'' of all the content 
                posted on its site for purposes of torts such as 
                defamation. As the title of section 230(c) makes clear, 
                the provision provides limited liability ``protection'' 
                to a provider of an interactive computer service (such 
                as an online platform) that engages in `` `Good 
                Samaritan' blocking'' of harmful content. In 
                particular, the Congress sought to provide protections 
                for online platforms that attempted to protect minors 
                from harmful content and intended to ensure that such 
                providers would not be discouraged from taking down 
                harmful material. The provision was also intended to 
                further the express vision of the Congress that the 
                internet is a ``forum for a true diversity of political 
                discourse.'' 47 U.S.C. 230(a)(3). The limited 
                protections provided by the statute should be construed 
                with these purposes in mind.

                In particular, subparagraph (c)(2) expressly addresses 
                protections from ``civil liability'' and specifies that 
                an interactive computer service provider may not be 
                made liable ``on account of'' its decision in ``good 
                faith'' to restrict access to content that it considers 
                to be ``obscene, lewd, lascivious, filthy, excessively 
                violent, harassing or otherwise objectionable.'' It is 
                the policy of the United States to ensure that, to the 
                maximum extent permissible under the law, this 
                provision is not distorted to provide liability 
                protection for online platforms that--far from acting 
                in ``good faith'' to remove objectionable content--
                instead engage in deceptive or pretextual actions 
                (often contrary to their stated terms of service) to 
                stifle viewpoints with which they disagree. Section 230 
                was not intended to allow a handful of companies to 
                grow into titans controlling vital avenues for our 
                national discourse under the guise of promoting open 
                forums for debate, and then to provide those behemoths 
                blanket immunity when they use their power to censor 
                content and silence viewpoints that they dislike. When 
                an interactive computer service provider 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. It is the policy of the United 
                States that such a provider should properly lose the 
                limited liability shield of subparagraph (c)(2)(A) and 
                be exposed to liability like any traditional editor and 
                publisher that is not an online provider.

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                    (b) To advance the policy described in subsection 
                (a) of this section, 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. In addition, within 60 days of the date of this 
                order, the Secretary of Commerce (Secretary), in 
                consultation with the Attorney General, and acting 
                through the National Telecommunications and Information 
                Administration (NTIA), shall file a petition for 
                rulemaking with the Federal Communications Commission 
                (FCC) requesting that the FCC expeditiously propose 
                regulations to clarify:

(i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, 
in particular to clarify and determine the circumstances under which a 
provider of an interactive computer service that restricts access to 
content in a manner not specifically protected by subparagraph (c)(2)(A) 
may also not be able to claim protection under subparagraph (c)(1), which 
merely states that a provider shall not be treated as a publisher or 
speaker for making third-party content available and does not address the 
provider's responsibility for its own editorial decisions;

(ii) the conditions under which an action restricting access to or 
availability of material is not ``taken in good faith'' within the meaning 
of subparagraph (c)(2)(A) of section 230, particularly whether actions can 
be ``taken in good faith'' 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; and

(iii) any other proposed regulations that the NTIA concludes may be 
appropriate to advance the policy described in subsection (a) of this 
section.

                Sec. 3. Protecting Federal Taxpayer Dollars from 
                Financing Online Platforms That Restrict Free Speech. 
                (a) The head of each executive department and agency 
                (agency) shall review its agency's Federal spending on 
                advertising and marketing paid to online platforms. 
                Such review shall include the amount of money spent, 
                the online platforms that receive Federal dollars, and 
                the statutory authorities available to restrict their 
                receipt of advertising dollars.

                    (b) Within 30 days of the date of this order, the 
                head of each agency shall report its findings to the 
                Director of the Office of Management and Budget.
                    (c) The Department of Justice shall review the 
                viewpoint-based speech restrictions imposed by each 
                online platform identified in the report described in 
                subsection (b) of this section and assess whether any 
                online platforms are problematic vehicles for 
                government speech due to viewpoint discrimination, 
                deception to consumers, or other bad practices.

                Sec. 4. Federal Review of Unfair or Deceptive Acts or 
                Practices. (a) It is the policy of the United States 
                that large online platforms, such as Twitter and 
                Facebook, as the critical means of promoting the free 
                flow of speech and ideas today, should not restrict 
                protected speech. The Supreme Court has noted that 
                social media sites, as the modern public square, ``can 
                provide perhaps the most powerful mechanisms available 
                to a private citizen to make his or her voice heard.'' 
                Packingham v. North Carolina, 137 S. Ct. 1730, 1737 
                (2017). Communication through these channels has become 
                important for meaningful participation in American 
                democracy, including to petition elected leaders. These 
                sites are providing an important forum to the public 
                for others to engage in free expression and debate. Cf. 
                PruneYard Shopping Center v. Robins, 447 U.S. 74, 85-89 
                (1980).

                    (b) In May of 2019, the White House launched a Tech 
                Bias Reporting tool to allow Americans to report 
                incidents of online censorship. In just weeks, the 
                White House received over 16,000 complaints of online 
                platforms censoring or otherwise taking action against 
                users based on their political

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                viewpoints. The White House will submit such complaints 
                received to the Department of Justice and the Federal 
                Trade Commission (FTC).
                    (c) The FTC shall consider taking action, as 
                appropriate and consistent with applicable law, to 
                prohibit unfair or deceptive acts or practices in or 
                affecting commerce, pursuant to section 45 of title 15, 
                United States Code. Such unfair or deceptive acts or 
                practice may include practices by entities covered by 
                section 230 that restrict speech in ways that do not 
                align with those entities' public representations about 
                those practices.
                    (d) For large online platforms that are vast arenas 
                for public debate, including the social media platform 
                Twitter, the FTC shall also, consistent with its legal 
                authority, consider whether complaints allege 
                violations of law that implicate the policies set forth 
                in section 4(a) of this order. The FTC shall consider 
                developing a report describing such complaints and 
                making the report publicly available, consistent with 
                applicable law.

                Sec. 5. State Review of Unfair or Deceptive Acts or 
                Practices and Anti-Discrimination Laws. (a) The 
                Attorney General shall establish a working group 
                regarding the potential enforcement of State statutes 
                that prohibit online platforms from engaging in unfair 
                or deceptive acts or practices. The working group shall 
                also develop model legislation for consideration by 
                legislatures in States where existing statutes do not 
                protect Americans from such unfair and deceptive acts 
                and practices. The working group shall invite State 
                Attorneys General for discussion and consultation, as 
                appropriate and consistent with applicable law.

                    (b) Complaints described in section 4(b) of this 
                order will be shared with the working group, consistent 
                with applicable law. The working group shall also 
                collect publicly available information regarding the 
                following:

(i) increased scrutiny of users based on the other users they choose to 
follow, or their interactions with other users;

(ii) algorithms to suppress content or users based on indications of 
political alignment or viewpoint;

(iii) differential policies allowing for otherwise impermissible behavior, 
when committed by accounts associated with the Chinese Communist Party or 
other anti-democratic associations or governments;

(iv) reliance on third-party entities, including contractors, media 
organizations, and individuals, with indicia of bias to review content; and

(v) acts that limit the ability of users with particular viewpoints to earn 
money on the platform compared with other users similarly situated.

                Sec. 6. Legislation. The Attorney General shall develop 
                a proposal for Federal legislation that would be useful 
                to promote the policy objectives of this order.

                Sec. 7. Definition. For purposes of this order, the 
                term ``online platform'' means any website or 
                application that allows users to create and share 
                content or engage in social networking, or any general 
                search engine.

                Sec. 8. General Provisions. (a) Nothing in this order 
                shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or 
the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget 
relating to budgetary, administrative, or legislative proposals.

                    (b) This order shall be implemented consistent with 
                applicable law and subject to the availability of 
                appropriations.

[[Page 34083]]

                    (c) This order is not intended to, and does not, 
                create any right or benefit, substantive or procedural, 
                enforceable at law or in equity by any party against 
                the United States, its departments, agencies, or 
                entities, its officers, employees, or agents, or any 
                other person.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    May 28, 2020.

[FR Doc. 2020-12030
Filed 6-1-20; 11:15 am]
Billing code 3295-F0-P