Trump wants to strike back at Big Tech. There’s not much he can do.
He's already exhausted most of his options.
Photo: Oliver Contreras/Getty Images
President Trump has been telling anyone who will listen that he wants to do something to strike back at Big Tech in the final days of his presidency, promising a "big announcement" soon after Twitter permanently banned him last week.
In a statement that Twitter has taken down multiple times, Trump hammered usual targets — Section 230, the "Radical Left" controlling the world's largest tech platforms — and pledged he would not be "SILENCED." But at this point, as he faces a second impeachment and a Republican establishment revolting against him in the waning days of his presidency, there's likely very little that Trump can actually do that would inflict long-lasting damage on tech companies.
With a little more than a week left in his presidency, and facing existential questions about the role that he played in inciting violence in the nation's capitol last week, Trump and top Republicans have every incentive to change the conversation to target Big Tech, their favorite bogeyman. But any efforts would likely amount to performative theatrics that do nothing to wear down the power of the tech platforms, and simply serve to distract from the conversation about whether the president should be immediately removed from office after helping to incite a riot.
"I don't think he has any power," said one Republican technology adviser who is sympathetic to the president's efforts. "It's not like he has any friends right now."
Rachel Bovard, a Capitol Hill veteran and senior adviser for the right-wing Internet Accountability Project, said she would like to see the White House act aggressively against the tech companies, but she's unconvinced the president "can do anything at this point." President-elect Joe Biden could immediately reverse most moves from Trump after his inauguration, which is nine days away.
"Any executive order he puts out will be undone, there's no more regulatory road he can go down with the [Federal Communications Commission]," Bovard said. "I don't know what else can be done."
The Trump administration has already launched significant antitrust investigations and lawsuits into the major platforms, including Google and Facebook. The president signed a social media executive order that went largely ignored by the FCC, Federal Trade Commission and executive branch. (FCC Chairman Ajit Pai confirmed to Protocol last week that he would not move forward with a rule-making on Section 230, one of the executive order's central requests.) And Trump lost his political clout on Capitol Hill virtually overnight last week: As Democrats took back the Senate, Republican senators condemned his involvement in the riots on Capitol Hill, which resulted in five deaths.
Trump won't be able to push through a Section 230 repeal at the eleventh hour as his top allies in Congress are enduring their own controversies over their refusal to certify the Electoral College vote. Though Trumpworld advisers, including Trump's former campaign manager Brad Parscale, are newly calling for antitrust reform to beat back the unprecedented power of the platforms, serious efforts to reform the antitrust laws hit roadblocks from Republicans, including Trump ally Rep. Jim Jordan, last year.
Trump is expected to make a public statement about Big Tech this week, two sources familiar with conversations at the White House told Protocol, though it's unclear what the medium or message would be. He's been suspended from Facebook, Twitter and many other social networks. (There's always cable news, though.)
There's a number of levers he could try to pull, experts said. After all, he is still the most powerful political leader in the world, with access to a range of unilateral executive powers that he's tapped throughout his presidency.
It's within his power to sign an executive order barring federal agencies from using Twitter and Facebook, for example, though agencies have largely ignored the last social media executive order's request to pull back their ad spending from major social media platforms.
"The main power at his disposal is still executive orders," said Daniel Castro, vice president of the Information Technology and Innovation Foundation, a tech-funded think tank. But any effort to pull federal agencies off of social media likely would prove a bigger headache for the government than for the platforms. "It would be disruptive, it would cause confusion, it would be trending on Twitter, but it wouldn't cause any permanent impact, especially because the Biden administration would probably ask them just to undo those changes," Castro said.
Trump could tap his Justice Department to bring a splashy lawsuit against Twitter or Facebook for censoring him. That would've been easier before former Trump loyalist Attorney General Bill Barr resigned amid escalating tensions with the White House last month. And a lawsuit against any of the tech platforms would immediately face the near-insurmountable roadblock of Section 230.
A lawsuit "wouldn't be quick," said Ellen Goodman, a professor at Rutgers University who specializes in information policy law. "And as long as they have 230 immunity, it won't succeed."
Trump could model a lawsuit against the platforms after PragerU's suit against YouTube, in which the conservative group claimed that YouTube violated the Lanham Act, which protects against misleading advertising, when it filtered out PragerU's videos. That attempt was shot down by a judge who said YouTube, a private company, isn't bound by the First Amendment and can therefore remove any content that its policies deem offensive.
There's a nuclear option that Trump could turn to, which some policymakers have been warning about for years: Under Section 706 of the Communications Act of 1934, the president is empowered to to shut down or take control of "any facility or station for wire communication" if he declares that there is a threat of war in the U.S.
"They could claim Parler is being blocked from Google's service and that's a disruption," said Berin Szóka, president and founder of TechFreedom, a tech think tank. "It has not been used, so it's a little hard to know exactly how far the president could go."
But there is no indication that Trump or his advisers have considered that option, or any other aggressive move that could actually harm the tech platforms, especially beyond Jan. 20.
Trump has signaled that he's interested in setting up his own social media network to compete with the platforms that booted him this week. That long-shot effort would likely require enormous amounts of money, time and resources, especially given that he'd likely have to own every part of the internet stack that his network would rely on to ensure it isn't kicked offline. "Trump would have to have a cable company, his own web servers, his own DNS provider, his own version of Cloudflare," Goodman said.
Trump is the most powerful politician in the world, but ultimately, he may be no match for the tech platforms.
Emily Birnbaum ( @birnbaum_e) is a tech policy reporter with Protocol. Her coverage focuses on the U.S. government's attempts to regulate one of the most powerful industries in the world, with a focus on antitrust, privacy and politics. Previously, she worked as a tech policy reporter with The Hill after spending several months as a breaking news reporter. She is a Bethesda, Maryland native and proud Kenyon College alumna.