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Politics

Trump’s Section 230 veto threat is probably DOA. Here’s what could actually happen.

The president is holding military spending hostage in hopes of repealing the foundational law governing the internet.

Trump’s Section 230 veto threat is probably DOA. Here’s what could actually happen.

The next steps will hinge on Senate Majority Leader Mitch McConnell.

Photo: Tom Williams/Getty Images

Pay raises for service members. Sexual harassment protections for troops. Suicide prevention measures for veterans. Those are just a few of the provisions included in the National Defense Authorization Act, which President Trump has vowed to veto if it doesn't include a repeal of the law that underpins nearly all speech on the internet.

The president's move to hold hundreds of billions of dollars in military spending hostage is just his latest attack on Section 230, which he has blamed for Facebook and Twitter's decision to fact-check his posts. On Tuesday, a group of Senate Republicans including Senate Committee on Commerce Chairman Roger Wicker floated a series of Section 230 reforms to House Democrats in an effort find a compromise with the White House — but those were summarily shot down, according to three aides familiar with the conversations.

Democrats, and even some key Republicans, have yet to blink at the president's threat; they're committing to move forward with the defense spending bill without Scotch-taping Section 230 language onto it. "There is zero chance that Section 230 repeal will be passed in the NDAA," said one Senate aide.

House Energy and Commerce Committee Chairman Frank Pallone said in a statement that Trump is "holding a critical defense bill hostage in a petulant attempt to punish Twitter for fact-checking him. Our military and national security should not suffer just because Trump's ego was bruised."

That leaves only a few possible paths forward, none of which give President Trump what he wants, but some of which could leave important military spending in limbo until President-elect Biden takes office.

"If he's actually just going to veto it and not sign anything, and we don't have a veto-proof majority, it will be terrible for our national defense and terrible for troops who were looking forward to a pay raise, stronger sexual harassment and sexual assault protections, things along those lines," said one congressional aide familiar with negotiations, who described the military spending provisions in the bill.

The first path leads to Senate Majority Leader Mitch McConnell. In the past, McConnell has chosen not to bring legislation to the floor that the president does not intend to sign. White House press secretary Kayleigh McEnany said during a press conference Wednesday that Trump is "serious" about his threat to veto the NDAA and plans to "put the pressure on Congress to step up on this."

One way McConnell could "step up" is by not even allowing a vote on the bill without a Section 230 repeal. But Trump's threat is emerging at a delicate period for Senate Republicans, who are facing a pair of pivotal races in Georgia that will determine whether they retain their majority. "McConnell is looking at Georgia," said Carl Szabo, vice president of the tech trade group NetChoice. "I think a lot of Republicans are recognizing the importance of getting this and the budget passed without any brouhaha that could upset their chances in Georgia."

McConnell has not yet commented on the Section 230 negotiations. "If Leader McConnell comments on this, we'll make sure to pass it along," a McConnell spokesman said in an email.

If McConnell does bring the bill to a vote, sources say it would likely pass, though the calculation is changing quickly. If it passed, President Trump could then veto the bill as promised, in which case Congress would have to override the veto with a two-thirds majority.

Some Republicans, including Rep. Adam Kinzinger, have already promised to do just that. But a veto-proof majority is hard to come by, particularly with a military spending bill that could rankle the fringes of both parties. "You typically lose a dozen or two dozen progressives who just want to cut defense spending," said the congressional aide involved in negotiations, "and you typically lose hard-line Republicans who want more defense spending or want to include things like border wall funding."

That's not to mention the diehard Trump allies in the House and Senate who came out in opposition to the bill following Trump's veto threat. "The NDAA does NOT contain any reform to Section 230 but DOES contain Elizabeth Warren's social engineering amendment to unilaterally rename bases & war memorials w/ no public input or process," tweeted Republican Sen. Josh Hawley, a fervent supporter of repealing Section 230. "I cannot support it."

If Congress can't overcome the president's veto, the task of passing the NDAA would likely fall to the Biden administration. Congress would have to pass a resolution to maintain the military's current funding levels and punt the complex legislative issues until next year.

Biden has also criticized Section 230 and the large tech companies that benefit from it in the past, but it seems unlikely he would try to force a repeal in a military spending bill.

Some activists say this ordeal should serve as a reminder to Democrats who have flirted with the idea of reforming Section 230 that they could be opening up a can of worms. "I hope this shores up Democrats in recognizing just how controversial this is and how dangerous it would be to open the door to changes to Section 230 at this juncture when we have these types of attacks on it," said Evan Greer, campaign director for the digital rights advocacy group Fight for the Future. "We can and always should be willing to talk about what policies are right. But strategically, when you open a door in Congress to changing a law, you don't always get to control what comes out the other side."

The last path, of course, is the one in which the bill passes through Congress, and President Trump, perhaps through some closed-door dealmaking, backs down from his threats. He already seems to have dropped his threat to veto an NDAA provision that would require U.S. military bases that honor Confederate soldiers to change their names.

"It's fair to say that most members are hopeful that this is just another hollow veto threat of a must-pass bill that has been passed every year for decades," the congressional aide said.

In a statement Wednesday, House negotiators announced they had come to an agreement on a final version of the NDAA. House Armed Services Committee Chairman Adam Smith and ranking member Mac Thornberry urged Congress and the White House to keep with tradition and pass the bill that they said involved months of "hard-fought negotiations" with half of the members of the House. "For 59 straight years, the NDAA has passed because members of Congress and presidents of both parties have set aside their own policy objectives and partisan preferences and put the needs of our military personnel and America's security first," they said. "The time has come to do that again."

Big Tech benefits from Biden’s sweeping immigration actions

Tim Cook and Sundar Pichai praised President Biden's immigration actions, which read like a tech industry wishlist.

Newly-inaugurated President Joe Biden signed two immigration-related executive orders on Wednesday.

Photo: Chip Somodevilla/Getty Images

Immediately after being sworn in as president Wednesday, Joe Biden signed two pro-immigration executive orders and delivered an immigration bill to Congress that reads like a tech industry wishlist. The move drew enthusiastic praise from tech leaders, including Apple CEO Tim Cook and Alphabet CEO Sundar Pichai.

President Biden nullified several of former-President Trump's most hawkish immigration policies. His executive orders reversed the so-called "Muslim ban" and instructed the attorney general and the secretary of Homeland Security to preserve the Deferred Action for Childhood Arrivals, or DACA, program, which the Trump administration had sought to end. He also sent an expansive immigration reform bill to Congress that would provide a pathway to citizenship for undocumented individuals and make it easier for foreign U.S. graduates with STEM degrees to stay in the United States, among other provisions.

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Emily Birnbaum

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.

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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.

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Emily Birnbaum

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.

We need Section 230 now more than ever

For those who want to see less of the kind of content that led to the storming of the Capitol, Section 230 may be unsatisfying, but it's the most the Constitution will permit.

Even if certain forms of awful speech could be made unlawful, requiring tech sites to clean it up would be even more constitutionally difficult.

Photo: Angel Xavier Viera-Vargas

Many conservatives are outraged that Twitter has banned President Trump, calling it "censorship" and solemnly invoking the First Amendment. In fact, the First Amendment gives Twitter an absolute right to ban Trump — just as it protects Simon & Schuster's right not to publish Sen. Josh Hawley's planned book, "The Tyranny of Big Tech."

The law here is clear. In 1974, the Supreme Court said newspapers can't be forced to carry specific content in the name of "fairness," despite the alleged consolidation of "the power to inform the American people and shape public opinion." The Court had upheld such Fairness Doctrine mandates for broadcasters in 1969 only because the government licenses use of publicly owned airwaves. But since 1997, the Court has held that digital media enjoys the same complete protection of the First Amendment as newspapers. "And whatever the challenges of applying the Constitution to ever-advancing technology," wrote Justice Antonin Scalia in 2011, "'the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary' when a new and different medium for communication appears."

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Berin Szóka

Berin Szóka (@BerinSzoka) is president of TechFreedom (@TechFreedom), a technology policy think tank in Washington, DC.

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Maybe they'll actually get something done this year.

2021 brings a new presidential administration, a new Congress and maybe — maybe — legislation that actually goes somewhere this time.

Photo: Joshua Roberts/Getty Images

When it comes to tech policy, 2020 was not exactly a banner year for "getting things done." Washington focused on hearings, bills that went nowhere, negotiations that hit roadblocks, executive orders that didn't amount to much and then some more hearings.

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Emily Birnbaum

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.

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Here’s how Big Tech is preparing for regulations in 2021

Companies know that the heat is only going to increase this year.

2021 promises to be a turbulent year for Big Tech.

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The open internet. Section 230. China. Internet access. 5G. Antitrust. When we asked the policy shops at some of the biggest and most powerful tech companies to identify their 2021 policy priorities, these were the words they had in common.

Each of these issues centers around a common theme. "Despite how tech companies might feel, they've been enjoying a very high innovation phase. They're about to experience a strong regulation phase," said Erika Fisher, Atlassian's general counsel and chief administrative officer. "The question is not if, but how that regulation will be shaped."

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Anna Kramer

Anna Kramer is a reporter at Protocol (@ anna_c_kramer), where she helps write and produce Source Code, Protocol's daily newsletter. Prior to joining the team, she covered tech and small business for the San Francisco Chronicle and privacy for Bloomberg Law. She is a recent graduate of Brown University, where she studied International Relations and Arabic and wrote her senior thesis about surveillance tools and technological development in the Middle East.

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