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It seems that any Stack Exchange site could fall foul of the recent US "Executive Order on Preventing Online Censorship", which could put liability onto Stack Exchange if content is edited by representatives of the company.

I'm no lawyer, so I am asking to what extent this could apply to (i) paid staff of Stack Exchange, (ii) community moderators, (iii) high-reputation users, and (iv) others.

Should folks refrain from editing posts in the meantime? We could be in a situation where the folks who are most empowered to make edits are potentially most in the limelight here.

The site I use (Stack Overflow) most frequently is pretty anodyne, but there are other sites on Stack Exchange that could be more vulnerable to this order.

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    I propose we edit, close and delete this question and then you take it to court to see how deep we are in trouble .... – rene May 29 at 11:26
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    Do any Supreme Court judges have SE accounts? Maybe we can upvote their Q&A? In the case of disagreements between the Executive and Judiciary, a SC ruling is top trump? – Martin James May 29 at 11:55
  • What role does CC by-sa play in liability? – marcellothearcane May 29 at 11:58
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    Obligatory link: law.stackexchange.com/questions/51886/… – John Dvorak May 29 at 12:17
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    Why is this even relevant to Stack Exchange, which does not "purport to provide users a forum for free and open speech"? These sites are Q&A style knowledge repositories, not discussion & debate forums. Political content here is mostly irrelevant, or simply off-topic, except on some sites devoted to political matters. Besides, editing here isn't censorship, since the full edit revision history is always available. – PM 2Ring May 29 at 13:28
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    I suppose a case could be made regarding deleted posts, but even those are visible to members with sufficient rep, and anyone is free to challenge a deletion on the related meta site. Deleted comments are less accessible, but the network rules clearly state that all comments here have a secondary role and are subject to deletion at any time. – PM 2Ring May 29 at 13:31
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    arstechnica.com/tech-policy/2020/05/… is a really good, layman friendly analysis of the topic on Ars Technica – Journeyman Geek May 29 at 13:52
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    Does it apply to sites where the full edit history (with very few exceptions, like exposed passwords) is available? What about deletions? – P.Mort. - forgot Clay Shirky_q May 29 at 15:51
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    Here's a very pointed article by techdirt over what is the goal of the order: 1) distraction; 2) legally meaningless techdirt.com/articles/20200528/01321044592/… – Braiam May 29 at 16:51
  • I think that order is mainly directed at Twitter, for now there is no reason to assume SE even falls under that category. – Mast May 30 at 7:40
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Thank you for bringing this up. We want everyone to feel safe contributing to and maintaining our sites. I asked our legal folks about this, and the following (verbatim) is from them:

We are of course aware of the President’s executive order and Stack’s sites do not run afoul of it. While we cannot offer specific legal advise to individuals, because we are not a law firm, we do not believe the user edits and comments features on our sites would be deemed “censorship,” particularly since such activities on our site are transparent. Additionally we do not believe the site hygiene and maintenance our moderators do would be deemed censorship. When moderators act to ensure our terms of use are followed, they are serving to facilitate full participation by users and members of our community. We also have no reason to believe that any enforcement action would be directed at individual users or moderators of Stack’s sites.

I can't answer additional specific questions about it (I'm not a lawyer), except to reiterate that our attorneys aren't worried. Hopefully, this puts folks at ease.

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I'm not sure I can give a non sweary balanced response to what I think of said executive order. I hope cooler, saner heads prevail and that the first amendment which folks so often misunderstand is preserved in this case.

As a moderator, high reputation user and someone with at least a little say in how we do things for now

Should folk refrain from editing posts in the meantime? We could be in a situation where the folk who are most empowered to make edits are potentially most in the limelight here.

We absolutely should do things as we always have. While we're not the target of this I don't particularly relish that my fellow users should allow the tools of bullies affect our communities. We cannot let fear of vague punishments of vague 'crimes' and their chilling effects affect how we do things.

As a member of the mod council - should a proposal to attempt to set rules to comply, more precisely, give in to this order be brought up, I'd oppose it with every fiber of my being.

It is disappointing when political office is used to push political agendas or used for personal vendettas anywhere. I am sure that the legality of this order will be challenged, and while this is a horrible year, hopefully common sense might prevail for once.

I hope that Stack as an organisation has the common sense, and moral fortitude not to put in place restrictions on the off chance that they might fall afoul of this order.

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    I'm not sure what the (potentially offensive) political commentary adds to this answer. – Richard May 29 at 23:56
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    I'm unsure how one can be expected to address a political matter without policial commentary. Feel free to try. – Journeyman Geek May 30 at 0:10
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    @JourneymanGeek I think it’s a legal matter, and the obvious way is to do it without including your opinion? – Tim May 30 at 20:56
  • Attempting to totally disconnect the legal theory of the order from the political background which leads to its creation seems pretty pointless. The order is there being a thing, Stack Exchange is here doing what it does, only legal proceedings would tell for sure whether they conflict. Anyway, if the question sought purely legal answers on the strictly legal question, it would be asked on Law SE and it would be off-topic here. It's been tagged for discussion for a reason, and that's what JmG has answered. – Nij May 31 at 4:50
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It is unclear to me why anyone who read the text of the executive order would think that Stack Exchange would need to do something about it.

...subparagraph (c)(2) expressly addresses protections from “civil liability” and specifies that an interactive computer service provider may not be made liable “on account of” its decision in “good faith” to restrict access to content that it considers to be “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.” It is the policy of the United States to ensure that, to the maximum extent permissible under the law, this provision is not distorted to provide liability protection for online platforms that — far from acting in “good faith” to remove objectionable content — instead engage in deceptive or pretextual actions (often contrary to their stated terms of service) to stifle viewpoints with which they disagree.

To advance the policy described in subsection (a) of this section, all executive departments and agencies should ensure that their application of section 230(c) properly reflects the narrow purpose of the section and take all appropriate actions in this regard.

The EO doesn't introduce new regulations, it asks the FCC to propose new regulations to clarify the existing law.

Commission (FCC) requesting that the FCC expeditiously propose regulations to clarify:
(i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230
(ii) the conditions under which an action restricting access to or availability of material is not “taken in good faith” within the meaning of subparagraph (c)(2)(A) of section 230
(iii) any other proposed regulations that the NTIA concludes may be appropriate to advance the policy described in subsection (a) of this section.

This section protects companies from civil litigation. Whether that includes volunteer moderation as opposed to moderation by employees has never been tested in court AFAIK. Has Stack Exchange ever been sued for censorship or is it just people complaining about it by posting on the forum that supposedly censored them? Any case would likely have to go into arbitration regardless, so it seems to me that we should wait to see what the proposed regulations are before any action is taken.

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    "The EO doesn't introduce new regulations, it asks the FCC to propose new regulations to clarify the existing law." - This is pretty much the only relevant piece of information. The question assumes there are new guidelines and asks if we're going to issue guidelines ourselves. Literally nothing has changed. It just asks the FCC to come up with guidelines. The question is prematurely asking about something that hasn't even been created yet. – animuson May 30 at 13:37
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Highly active user here: I agree with the highly respected moderator. I have zero intention to worry about this executive "order", at least for now.

To say it less diplomatic, but without getting too political: the person who issued that new "regulation" is well known to create a lot of smoke, but rarely anything of real substance.

And even if the US Department of Justice follows up on this strange idea, they will not care about a place like Stack Exchange. Rest assured, this is solely about creating media outrage in order to create the illusion of strength and leverage. Because the real experts in the US government have not forgotten that this executive order is most likely in violation of the First Amendment.

Then note: the executive order targets the service providers, not the users. So if at all, the good people at SE Inc. have to make up their mind and decide what this obscure document means for their business model. I hope they stay cool and relaxed, and simply wait to see how that said sad excuse of "policy making" manifests itself in the real world.

Finally: of course such things often create a dynamic of their own. Maybe it just needs another 2, 3 "fact checked" tweets to trigger direct attacks and suspension of certain Twitter accounts. Leading to legal battles quickly. On the other hand, the US is in the middle of a pandemic and millions and millions of jobs were lost. That is what really matters much more out there in the real world. Simply do not forget about that part, no matter how loud some dogs are barking.

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    You create smoke by burning things. I am not saying that his actions do not have consequences. I am rather saying that one way of resistance is keep your cool, no matter how tantrumish certain people behave. – GhostCat May 29 at 12:32
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    @GhostCat may the bridges he burns light up the path for the rest of us. – John Dvorak May 29 at 12:33
  • Re "this executive order is most likely in violation of the First Amendment.": But isn't it about the First Amendment? Is it related to freedom of the press? Can you elaborate (e.g. by editing your answer)? – P.Mort. - forgot Clay Shirky_q May 29 at 15:58
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    The majority of articles I read considers it to be a first amendment issue. See theatlantic.com/ideas/archive/2020/05/… for example. – GhostCat May 29 at 16:28
  • I would argue that the EO, is attempting to protect the 1st amendments rights, for all citizens even those citizens that those that run social media websites disagree/agree with in this highly political environment. – Ramhound May 29 at 18:19
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    The usual misconception: the first amendment protects the people from government censorship. The first amendment doesn't apply between the users of a community and the private institution running that service. See my link above: that EO itself is a blatant attempt to tell the service providers what they are allowed to say. Meaning: the government tries to censor them. You will find very few legal experts arguing otherwise. See mobile.twitter.com/tribelaw/status/1265452803356590080 for example. – GhostCat May 29 at 18:39
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    This is literally the one case where "But free speech" is true. :D – Journeyman Geek May 30 at 0:11
  • "To say it less diplomatic, but without getting too political: the person who issued that new "regulation" is well known to create a lot of smoke, but rarely anything of real substance." - except until it gets overturned (if that actually happens), it's valid. The potential consequences are very real – Zoe The Lockdown Princess May 30 at 11:39
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    It needs to be applied, and then it will immediately be challenged in court. As said, the people who have to execute such things often know the situation much better and aren't eager to waste their time and reputation. – GhostCat May 30 at 13:11

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