Dear all:
I wanted to make sure you were all aware of two particular issues happening
in US policy: (1) the White House Executive Order on "Online Censorship,"
and (2) the Copyright Office's report on the notice-and-takedown provisions
of the Digital Millennium Copyright Act.
*Executive Order on Online Censorship*
Today, the White House issued a Executive Order that is being characterized
as a "crackdown on social media." The focus of the Order is a part of US
law commonly called the Communications Decency Act ("CDA"), or "Section
230".
That law, essentially,* says that online platforms that host other people's
speech aren't held liable for that speech if it violates a civil law. It
also says that online platforms shouldn't be held liable for content
moderation. It's an important legal protection for Wikimedia projects,
since it means that the projects aren't held liable for user vandalism that
might be defamation, violations of privacy, etc.
While some press reports have characterize the executive order as removing
or altering Section 230, this overstates the case. Among other things, the
order:
1. offers a legal interpretation that says that a platform that blocks
certain viewpoints loses its Section 230 protections (this is contrary to
the text of the statute and court decisions interpreting it);
2. Asks independent federal agencies to pass rules that could exclude
content-moderating platforms from protection, or to investigate whether
viewpoint moderation by private platforms could be a violation of consumer
protection laws;
3. Sets up a working group to collect examples of purportedly biased
content moderation (including groups collecting lists of trolls and bad
actors) for review;
4. Tells the Attorney General to propose legislation that would serve the
purposes of the order.
While Wikimedia projects would fall within the scope of these discussions,
the order actually does very little to change existing law. Its legal
interpretations are not binding and do not change the statute or any prior
court interpretations. Also, the order's directions to executive agencies
ask them for things that they are likely unable to legally do. We will look
for the proposal from the AG's office and address that should it be
introduced in Congress.
However, the lack of legal effect from the executive order does not mean
that it has no effect on online platforms. This order comes in the context
of the White House accusing online fact-checkers and content moderators of
being biased against Trump and conservative voices, and the order is
designed to exert political and media pressure more immediately than legal
pressure. Part of this includes amplifying and directing criticism towards
online platforms and their content moderators.
We will be tracking any regulatory next steps stemming from this order, and
maintaining a legal defense for free expression on our projects.
*this is a simplification; the full text of the statute is available here
*Copyright Office DMCA report*
The US Copyright Office recently released a report on the Digital
Millennium Copyright Act ("DMCA"), which governs how the Foundation deals
with reports of copyright infringement on the Wikimedia projects.
The report makes several recommendations for changes in the law's
interpretation and application. Despite our comments and participation in
this process, and those of many other public interest and industry
stakeholders, many of the recommendations would make the notice and
takedown process more difficult for the Foundation. Other recommendations
would create more uncertainty for uploaders and editors, and increase the
risks that online services [ISPs only or also over-the-top services?] would
be required to disconnect users upon repeated allegations of copyright
infringement.
The report does not in itself make changes to the law, but it will be used
as part of a renewed push for the recommended changes. We will be looking
closely at it and working to bring our movement and other stakeholders
together to make sure that US copyright law does not create more
impediments to free knowledge.
--
Sherwin Siy (he/him)
Senior Public Policy Manager
Wikimedia Foundation