Trump's new executive order on social media seeks to turn the FCC into the internet 'speech police,' something it has spent years trying to avoid

• Trump's new executive order, which puts social media companies in its crosshairs, wants to revise provisions that have long protected them.
• But the order wants the FCC to do the rulemaking. One problem: the FCC has spent years distancing itself from internet content regulation.
• To do so would be at odds with a position the FCC has put itself in. "They got out of the content business decades ago," said one expert.
• "An executive order that would turn the FCC into the President's speech police is not the answer," said one of the FCC commissioners.
• Visit Business Insider's homepage for more stories.

This week, President Donald Trump signed an executive order which takes aim at the protections enjoyed by internet companies.

The triggering event was Trump's spat with Twitter, which started adding fact-checks to Trump's tweets. Trump argued that by adding fact-checks and deleting messages, social media platforms were acting as editors and therefore shouldn't be shielded by Section 230, the key piece of legislation that has protected internet service companies from liability for the content on their platforms.

As part of the executive order, Trump wants the Federal Communications Commission (FCC) to review Section 230 and establish rules to limit what the law should and shouldn't protect. In addition, the president called on the Federal Trade Commission (FTC) to investigate whether internet companies "restrict speech in ways that do not align with those entities' public representations about those practices."

But because the FCC is an independent agency that is not part of the executive branch, the Commerce Department has been ordered to petition the FCC to make it happen.

Experts have pointed out several problems with the executive order, but here's another: the FCC has spent years trying to avoid regulating internet content, and now Trump is trying to push it to do exactly that.

The FCC, which is directed by five appointed commissioners and regulates communications by radio, television, satellite, wire, and cable, has typically had little to do with the internet beyond infrastructure.

"The FCC generally, and Republican FCC commissioners in particular, for decades have tried to remove as much of a role in content regulation as they possibly can," Andrew Schwartzman, a lecturer in law at Georgetown and senior counselor at the Benton Institute for Broadband and Society, told Business Insider.

Just last month, the FCC announced it would not pursue claims made by the group Free Press about the spread of COVID-19 misinformation during White House broadcasts.

"In short, we will not censor the news," said the FCC in its response. "Instead, consistent with the First Amendment, we leave it to broadcasters to determine for themselves how to cover this national emergency, including live events involving our nation's leaders."

The FCC also pulled back its own regulatory control over internet service providers when it repealed net neutrality regulations in 2018. In short, this is a fight it's tried to stay out of.

"They got out of the content business decades ago," said Schwartzman. "This would run absolutely counter to the standard position of Federal Communications Commissioners."

And the FCC is already divided in its response to the order.

"Social media can be frustrating. But an Executive Order that would turn the FCC into the President's speech police is not the answer," wrote Democrat FCC commissioner Jessica Rosenworcel in a statement shared with Business Insider ahead of the order's signing.

Mike O'Rielly, a Republican FCC commissioner, tweeted that he hadn't seen the EO, but that, "As a conservative, I'm troubled voices are stifled by liberal tech leaders. At same time, I'm extremely dedicated to First Amendment which governs much here."

FCC Democratic Commissioner Geoffrey Starks also warned that this could also be an unwanted distraction for the commission. "The First Amendment and Section 230 remain the law of the land and control here," he wrote in an emailed statement to Business Insider.

"Our top priority should be connecting all Americans to high-quality, affordable broadband.  The fight against COVID-19 has made closing the digital divide—and helping all Americans access education, work, and healthcare online—more critical than ever. We must keep our focus on that essential work."

There's no guarantee that the FTC or FCC will actually do what Trump is asking, and as legal experts have pointed out, the FCC doesn't have the authority to enforce anything itself. "The FCC has no jurisdiction here. Congress hasn't delegated it rule-making authority on Section 230," wrote Eric Goldman, a professor at Santa Clara University School of Law who specializes in digital law.

This week Protocol reported that the order was "rammed" through with little consideration to how the FTC or FCC operate.

"This is asking agencies he doesn't control to enact a policy they haven't traditionally been that interested in," one anonymous White House official told Protocol.

A similar executive order to the one passed week was reported to be in the works last year, but didn't make it off the ground. Those plans reportedly also put the FTC and FCC in charge of overseeing claims of censorship on social media.

According to a report from CNN in August, as plans were reportedly being drawn up, officials from the FCC and FTC had expressed concerns about being put in charge of censorship oversight.

FCC Chairman Ajit Pai also responded to Trump's executive order with a statement: "This debate is an important one. The Federal Communications Commission will carefully review any petition for rulemaking filed by the Department of Commerce."

But while Pai has been outspoken about how platforms like Twitter choose to censor, he has stopped short of suggesting the FCC should play any role in regulating their content.

In 2015, responding to President Obama's proposals to regulate the internet as a public utility, Pai criticized what he called a "monumental shift" towards government control.

"It gives the FCC the power to micromanage virtually every aspect of how the Internet works. It's an overreach that will let a Washington bureaucracy, and not the American people, decide the future of the online world. It's no wonder that net neutrality proponents are already bragging that it will turn the FCC into the 'Department of the Internet.'"

But with Trump's new executive order, the FCC is now being asked to be just that: the Department of the Internet.

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