On Thursday, President Trump took an ill-informed potshot at the U.S. Constitution in the form of an executive order purportedly designed to bring social media companies to the president’s heel. In reality, the order’s chief purpose is to soothe the president’s ego. Its chief effect must not be to draw our attention away from bringing real accountability to companies that have violated our civil rights and damaged our democracy.
Issued in response to Twitter appending mild fact checks to a few of the president’s tweets containing misinformation about voting, the order issues some tepid (and constitutionally questionable) directives to federal agencies. The Commerce department is tasked with petitioning the Federal Communications Commission for a rulemaking dealing with how much immunity platforms should have when they make content-moderation decisions. Complaints about political targeting are directed to the Federal Trade Commission. Federal agencies are asked to review their social media ad spending. But the meat of the order is hot-headed rhetoric about the First Amendment, designed to call criticism down on those the president believes are his enemies.
"All the sound and fury surrounding the order must not leave us too divided to fix some of the messes these companies have made entirely aside from those concerns."The order sparked a flurry of discussion surrounding what relationship internet platforms should have to freedom of speech, and some of those discussions are valuable. But all the sound and fury surrounding the order must not leave us too divided to fix some of the messes these companies have made entirely aside from those concerns.
Internet platforms have threatened our civil rights and privacy, stifled competition, and damaged our democracy. They have been called out and even sued for the way their system of targeting advertising limits fair access to housing, credit, and employment decisions. They continue to allow the spread of misinformation related to core democratic activities such as the census and voting by mail. Even when they do face consequences for privacy violations, those consequences fail to bring significant change. In addition, big tech platforms are under investigation for anti-competitive activity by multiple federal and state agencies, and by Congress.
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There are solutions out there. Congress needs to pass a federal baseline privacy law that empowers states to think creatively about the solutions that work for their residents while providing some basic guardrails about how our private information can and cannot be used by corporations. Congress should also mandate more disclosure for political advertising on the internet. The FTC should scrutinize big tech mergers and anti-competitive behavior more carefully, and should impose real consequences for violations of our privacy. The platforms themselves should take steps to provide more transparency around how content is targeted, and they need to do more to curb misinformation on their sites.
"What's really dangerous about orders like this is that they feed erroneous opinions about what the U.S. Constitution is and what it does, in service of a mere political ploy."
Of course what’s really dangerous about orders like this is that they feed erroneous opinions about what the U.S. Constitution is and what it does, in service of a mere political ploy. A great example from a few years ago was the so-called “Religious Freedom” executive order, which the president repeatedly and falsely claimed repealed the law that keeps 501©(3)s from engaging in partisanship. That order contained a lot of high-flying rhetoric designed to appeal to a segment of the president’s base, but continues to fuel misunderstanding of what the law actually says, and even whether it remains in force at all. The executive order from early in Trump’s presidency requiring that the infamous “wall” be built along the U.S. border with Mexico is another example of a purely performative, but nevertheless damaging, order. We can’t lose sight of how damaging that kind of posturing is simply because it seems to happen so often.
We need real accountability for the damage online platforms have done to civil rights, competition and our democracy—not more hollow and inflammatory rhetoric.