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.