After Twitter slapped a fact-check label on two of President Trump's tweets about mail-in ballots late Tuesday, the president ordered his staff to respond.
"The direction from on high was: 'Do something,'" a White House official with direct knowledge of the situation told Protocol.
What came next involved an old draft of an executive order that had been kicking around Washington since last year, one that threatened to strip tech giants of critical legal protections enshrined under Section 230 of the Communications Decency Act. That law shields tech platforms from being held liable for what other people post and gives them the ability to moderate those platforms "in good faith."
"They picked this [order] off the shelf and essentially rammed it through," said the official, who requested anonymity because the White House had not authorized the interview. Referring to a draft that leaked late Wednesday, the official said, "It reads like a rough draft, and in a lot of ways, it is."
The president signed the executive order on Thursday, with Attorney General William Barr standing by his side. Trump and Barr said Congress will introduce companion legislation soon. The White House didn't respond to Protocol's request for comment.
The first sign that such an order was coming came Wednesday evening when White House Press Secretary Kayleigh McEnany announced the president's intentions to reporters. The leaked draft, which was obtained by Protocol and largely mirrors the executive order formally announced Thursday, riled some White House officials and regulators, who say Trump and the White House Office of Digital Strategy circumvented the normal policy process in order to retaliate against Twitter.
Ironically, the hasty move also angered many lawyers and academics who have been fighting for Section 230 reform for years — and believe the administration's actions undermine their cause.
"Lots of people are upset with the tech industry for a lot of reasons, many legitimate and many illegitimate," said Mary Anne Franks, a professor at the University of Miami School of Law and president of the Cyber Civil Rights initiative, which fights against online revenge porn. "For someone to deliberately exploit that ambiguity makes it harder for us to have real, principled tech reform."
As described, the executive order requires the Department of Commerce to petition the FCC to conduct a review of Section 230 — a roundabout chain of command required because the White House cannot directly order the FCC, an independent agency, to do anything. It's unclear if the FCC even has the jurisdiction to conduct that review, said a former FCC official, a question that might need to be resolved in court.
The order also asks the FTC, another independent agency, to review allegations of anti-conservative bias collected by the White House and consider bringing legal action against the social media companies based on its findings. And it requires the U.S. attorney general to convene a group dedicated to rooting out bias on social media.
That provision could prove to be the most significant headache for companies like Facebook and Twitter, as it empowers states that have already expressed an interest in wielding consumer protection laws against companies accused of bias.
According to the White House official and a former FCC official, the executive order was originally authored by James Sherk, a special assistant to the president for domestic policy. The draft had been circulated to agencies like the FCC and the FTC for feedback last year, but according to the former FCC official, who was involved in those discussions and also requested anonymity to speak candidly, the draft had been "panned by all the agencies."
Little came of those conversations, at least until this week, when Twitter fact-checked President Trump's tweets. "Twitter is completely stifling FREE SPEECH, and I, as President, will not allow it to happen!" Trump tweeted Tuesday.
According to the White House official, the order had support within the Office of Digital Strategy, particularly from its chief digital officer, Ory Rinat, as well as from White House social media director Dan Scavino. But as of Wednesday, it hadn't gone through the traditional policy process, during which the staff secretary typically adjudicates concerns before an executive order heads to the president's desk.
By Thursday, the White House official said, the administration was trying to fast-track those procedures. "The policy process is racing to catch up with this thing," the official said.
Even Republican FCC Commissioner Michael O'Rielly on Thursday tweeted that he hadn't seen the executive order yet. "Everyone take deep breath on EO, which I haven't seen," he wrote.
O'Rielly offered a soft rebuke of the draft order. "As a conservative, I'm troubled voices are stifled by liberal tech leaders," O'Reilly said. "At same time, I'm extremely dedicated to First Amendment, which governs much here."
Meanwhile, some of Section 230's chief critics raced to distance themselves from President Trump's proposal. "I don't know anyone interested in Communications Decency Act reform who thinks an executive order is the way to improve the status quo," said Carrie Goldberg, a New York-based lawyer who has represented online harassment victims in cases against companies like Grindr. "There are a number of serious reform proposals, all of which contemplate congressional action. We want to see reform done the right way."
Goldberg is part of a growing group of lawyers and scholars interested in reforming Section 230 so that companies can be held liable for some of the harassment and online harms that take place on their platforms.
At a Department of Justice summit on Section 230 in February, Goldberg, Franks and others spoke passionately about how Section 230 has enabled the worst forms of online harassment, leaving victims with no legal recourse to go after the platforms that host that harassment. They talked about women tormented by revenge porn, men targeted with rape threats by abusive exes, and tens of millions of reports of child sexual abuse imagery flooding the National Center for Missing and Exploited Children every year. None focused on political bias.
With the executive order, the president has staked out perhaps the one corner of Section 230 reform that not even the reformers have embraced.
"The harms I'm talking about that so desperately require redress could not be more different than what Trump is fighting for," Goldberg said. "While my clients want the right to hold companies accountable when their lives are overturned by the weaponization of tech, Trump wants to bully these companies away from moderating the speech of the powerful."
Franks agreed: "The tech industry has essentially allowed people like Trump and other powerful people to harass and intimidate and threaten and chill the speech of other people," Franks said. "That's the free speech issue here."
Annie McAdams, a Houston-based personal injury lawyer who has brought liability cases against Facebook and Salesforce, said she welcomes any government review of Section 230, but she condemned the retaliatory nature of the White House's proposal. "If a private business facilitates unlawful activity, the court should be knocking on the door," McAdams said. "If it's simply the president doesn't agree with how a private business does business with regard to him, that's dangerous ground."
The order is likely to face opposition from courts. Moreover, the White House official said, the president's order is no guarantee that the FTC or FCC will undertake the reviews he's asking for.
"This is asking agencies he doesn't control to enact a policy they haven't traditionally been that interested in," the official said.
The former FCC official predicted that the order "isn't going anywhere," though it could "open up an Overton window" in how conservatives approach taking on Big Tech.
But no matter what happens with the executive order, Franks worries it could still have the desired effect. Already, she noted, Mark Zuckerberg has gone on Fox News to ding Twitter for fact-checking Trump. Franks fears the "theatrics" of Trump's proposal will spook tech platforms into submission.
"It's a little bit like a domestic abuse dynamic. As long as you keep me happy, I won't hurt you," Franks said. "What I really hope people understand is … he's going to hurt you anyway."
