The ACLU condemns the bald-faced lies that President Trump repeatedly propounded after decisively losing the Nov. 4 election, and we called for his impeachment for his concerted effort to subvert our democratic process, leading to the Jan. 6 assault on the U.S. Capitol. We also recognize that Facebook is a private entity with its own First Amendment rights to control the content it publishes. But Facebook’s decision to ban Trump nonetheless illustrates serious shortcomings in its content-related decision making — as its own Oversight Board (OB) properly declared yesterday in reviewing the decision. Facebook exercises quasi-monopoly power over a critical forum in our marketplace of ideas, and for many of the same reasons that we would be suspicious of a central government authority controlling what can and cannot be said, we have concerns with Facebook exercising such unchecked power.

The OB ruled that Facebook’s initial decision to suspend former President Trump’s account for 24 hours on Jan. 6, 2021, after the attack on the Capitol, was proper, but that its subsequent decision to suspend his account indefinitely — a sanction that is not mentioned in Facebook’s policies — was inappropriate. The board put the decision about a permanent ban back in Facebook’s hands, to be made in the next six months according to the rules the company applies to other users.

As pernicious as Trump’s speech was, the decisions by Facebook and other social media companies to remove Trump from their platforms highlight the immense power these corporations wield over our collective ability to speak online. For the foreseeable future, Facebook, Twitter, and a handful of other corporations will make some of the most consequential decisions affecting free expression. They present themselves as platforms for free speech rather than edited or curated newspapers. But historically they have failed to apply their own rules consistently, equitably, and transparently, or to adhere to basic notions of fair process in how they exercise the awesome power to decide what gets published on, and who can access, their forums.

Perfectly consistent content moderation is impossible in light of the scale at which these platforms operate. But Facebook’s failure to abide by basic principles of fairness and transparency are unacceptable given the influence they exert over our national debate. Facebook and similar platforms should err on the side of free expression, not censorship, while also offering users direct control over the content they see. Facebook effectively determines the boundaries of political speech for billions of users, even as it remains beholden to its bottom line, not the public interest.

In an attempt to add some accountability and transparency, Facebook created an Oversight Board to help it review hard questions regarding content moderation. But the company still holds too much unaccountable power over the process. The OB rightly highlighted many concerns with Facebook policies and practices that we share, but the decision also leaves crucial questions unanswered. Below we break down our take on this issue and the board’s decision.

What does the ACLU think of the Oversight Board’s decision?

Facebook’s initial decision to suspend Trump’s account for a defined and limited time, and the OB’s decision to uphold it, is understandable in light of the events of Jan. 6 and Trump’s part in spreading outright lies about the electoral process in the weeks and days leading up to those events. But the rule Facebook claimed to apply here — its community standard prohibiting “praise and support of dangerous individuals and organizations” — is too vague, and its application in this case offers little clarity. That standard, which Facebook explains is meant “to prevent and disrupt real-world harm,” bans those who “proclaim a violent mission or are engaged in violence” from the platform, including those engaged in “terrorist activity,” “organized hate,” and “organized violence or criminal activity.” It also bans content that “expresses support or praise for [the people and organizations] involved in these activities.”

That’s a disturbingly nebulous and far-reaching standard. Indeed, it’s worth keeping in mind that on Jan. 6, Facebook also banned “calls for protests – even peaceful ones — if they violate the curfew in D.C.” It’s not hard to imagine Facebook’s rule against “organized … criminal activity” getting misapplied to any plans for protests after curfews, whether in Kenosha, Wisconsin last summer or Elizabeth City, North Carolina today.

In addition, as the board’s lengthy opinion makes clear, when assessing the potential for speech to cause “real-world harm,” context matters. Words typed on a screen are often not enough to stoke “real-world harm” on their own, nor do they suffice to assess likely impact, yet that is often all that Facebook relies upon. In this week’s decision, the board properly calls on Facebook to consider context when assessing “issues of causality and the probability and imminence of harm” for posts by politicians and other “influential users.” We call on Facebook to consider context for all users.

As the board also properly noted, the penalty of indefinite suspension raises concerns. Unlike removing content, suspending an account for a limited period of time, or removing an account entirely, “indefinite suspension” appears nowhere in Facebook’s own rules. Facebook needs to make clear to users when, how, and according to what standards the company will indefinitely suspend accounts — particularly given that such a blunt tool removes a speaker from the platform entirely rather than focusing on specific content that violates policies in a more tailored way. Again, we condemn the pernicious, baseless, and demonstrably false statements Trump often made, but the issue here is bigger than Donald Trump.

Should there be special rules for political figures?

The ACLU believes that political speech deserves the greatest protection to ensure the functioning of our democratic system. We have parted company with other advocacy organizations that have been more willing to limit the speech of political leaders on social media platforms. The ACLU believes that the speech of former President Trump should be presumed important to the functioning of our democratic system given his prior role in government. Most of what politicians and political leaders say is, by definition, newsworthy, and can at times have legal or political consequences. While their words may have greater capacity for harm, there is also a greater public interest in having access to their speech. For example, courts considered President Trump’s tweets as evidence in several challenges to his official acts, including the transgender military ban and the Muslim ban. Given the importance of protecting political speech by political figures, Facebook’s primary recourse should be striking discrete statements by President Trump that run afoul of its standards, rather than imposing a lifetime, outright ban.

At a minimum, statements of political leaders relate to government transparency. We agree with the OB that for transparency and accountability purposes, if Facebook decides to censor a public official, the company should have a consistent plan in place for preserving the offending speech for transparency, research, and historical record purposes. In addition, Facebook should publicly explain its rules for removing posts and accounts of political figures. And its rules, as the OB recommended, must take into account the needs of human rights advocates, researchers, journalists, and others to access rule-violating content.

What else did we learn about Facebook’s relationship with the Oversight Board in this decision?

This week’s decision also highlights a number of the problems with Facebook’s approach to the Oversight Board. The board is only as powerful as Facebook lets it be, and that is problematic. For example, as the board’s decision makes clear, Facebook refused even to answer several questions the OB found relevant to its review. These included “questions about how Facebook’s news feed and other features impacted the visibility of Mr. Trump’s content,” “whether Facebook has researched, or plans to research, those design decisions in relation to the events of Jan. 6, 2021,” “questions related to the suspension of other political figures and removal of other content,” and “whether Facebook had been contacted by political officeholders or their staff about the suspension of Mr. Trump’s accounts.” Facebook should answer these questions.

In addition, Facebook denies users whose accounts it has suspended any opportunity to appeal to the board. That means that if Facebook permanently bans Trump’s account, the OB will have no say over the decision — unless, of course, Facebook itself asks for the OB’s opinion a second time. Facebook should enable users who are subjected to Facebook’s bluntest tools the option to appeal to the Oversight Board.

The OB is purportedly an effort to ensure that content moderation decisions are accountable. We approve of that impulse. We don’t want Mark Zuckerberg making these important decisions alone. The process and transparency the OB has the potential to provide are important, but this week’s decision makes clear that many roadblocks still stand in the way of fulfilling that goal.

Will this decision have an impact on regular Facebook users?

Not really — and that suggests a problem with the selection process of cases for the board. High-profile decisions like this might be interesting, but they’re not the ones that actually matter for most users, including, importantly, those who don’t have other outlets to speak online — as President Trump does. Account suspensions and deactivations can be devastating for such users.

The board’s decision doesn’t tell regular users looking at Facebook’s standards — including the “praise” standard applied here, what those standards mean for them. And regular users whose accounts are suspended don’t have the opportunity to appeal to the Oversight Board. The precedent set by this decision is very limited. The board repeats throughout that its ruling is fact-bound. In other words, it doesn’t address important questions about regular people’s use of Facebook.

Again, Facebook is a private entity not governed by the First Amendment. And President Trump’s actions in the wake of the Nov. 4 election were deplorable. But the broader issue here is how an extraordinarily powerful private corporation regulates access to one of the country’s most important forums for discussion and debate. We believe Facebook can and must do more to ensure that it operates its platform consistent with principles of free expression and fair process for all. We’ll be paying close attention to see how Facebook’s approach evolves, and whether the Oversight Board plays a meaningful role in protecting political speech and free expression rights online.

This article was first published on Just Security.

On Friday night, in response to transparency lawsuits filed by the ACLU and the New York Times, the Biden administration released a redacted version of President Trump’s rules for the use of lethal force against terrorism suspects abroad. During the Trump administration, the Times and other media reported that the Trump rules weakened even the loose policy safeguards put in place by the Obama administration in 2013, which were also released in response to litigation in 2016. Despite redactions, the newly-revealed Trump rules show how far that administration went in casting aside any meaningful constraint on the United States’ use of lethal force abroad without meaningful oversight by Congress or the judiciary, and with devastating consequences for people’s lives.

Trump’s rules are in many ways an unsurprising extension of U.S. government logic and policy justifications for killing couched in legal language. Over now four administrations, the U.S. government has sought to justify an unlawful lethal strikes program that has exacted an appalling toll on Muslim, Brown, and Black civilians in different parts of the world. Now, almost 20 years into the U.S. government’s war-based approach, it’s clear that U.S. legal or policy justifications for this program do not actually demonstrate adherence to domestic or international law, they fundamentally undermine it.

Here are initial takeaways:

Message to Agencies: Lethal Force is Core to U.S. Strategy and Rules and Safeguards May Easily Be Cast Aside

From the outset, Trump’s Principles, Standards, and Procedures for U.S. Direct Action Against Terrorist Targets (PSP) is striking for the bellicose and nationalistic tone it sets and the message it sends to agencies involved in lethal operations. It starts by emphasizing flexibility to take “direct action”—a euphemism for lethal force as well as capture operations—as “a critical component” of U.S. counterterrorism strategy. It signals that heads of agencies have primary responsibility for proposing and taking these actions, and the president can swiftly give them more flexibility if they ask for it. It refers to “core principles” of the law of armed conflict, but in doing so, further transforms these legal rules that give states greater license to kill in the exceptional context of war into a blur of policy and preference that may, at the discretion of the president, apply outside of any recognizable battlefield. This is not new in assertions of unilateral authority by American presidents to kill in the last 20 years, but where President Obama sought to signal policy constraint, regulation, and layers of internal executive branch oversight for his killing rules, Trump explicitly signaled that the gloves were off to “further U.S. national security interests.”

To understand the Trump rules, it helps to understand what they changed, with the caveat that at least some of the redactions in the PSP likely hide important information, which could include further articulations of legal and policy positions, the role of agencies like the CIA, and procedures governing foreign governments’ involvement (or not) in lethal or capture operations.

By the end of the Obama administration, the U.S. government had established a policy and bureaucracy framework for use of lethal force against terrorism suspects that applied to “areas outside of active hostilities.” The Obama administration did not define “areas outside of active hostilities,” a term that has no basis in domestic or international law, but it was commonly understood to mean locations outside of recognized battlefields, where the laws of war clearly apply. Afghanistan, Iraq, and Syria were (and are) armed conflict zones, and the U.S. government asserted it would adhere to its law-of-war obligations in those conflicts. The Obama-era rules were understood to apply to the rest of the world, and more specifically, at various points, in Pakistan, Yemen, Somalia, and Libya.

For those “areas outside of active hostilities,” the Obama administration cobbled together a set of made-up rules that cherry-picked from a variety of legal frameworks that are intended to safeguard individual life and international peace and security—the laws of war, human rights law, and law governing states’ use of extraterritorial force in self-defense. In doing so, as rights groups, United Nations experts, and scholars have explained, the U.S. government has invoked war-based rules to permit killing that under international and domestic law is prohibited and constitutes extrajudicial execution. Even as it sought to justify unilateral executive use of lethal force, the Obama framework tried to impose policy limits based loosely on a combination of proxies for geographic scope, who could be killed, and with what precautions.

Perhaps most significantly, the Trump rules further scrambled—and surely created greater uncertainty about—what legal constraints applied where, and to whom. Unlike the Obama rules, the public PSP contains no mention of “areas outside of active hostilities.” The PSP doesn’t even bother referring to “affiliate forces” of ISIS or Al Qaeda in identifying potential targets of operations—rather, it refers to their purported networks “across the globe.” As a result, the Trump killing rules applied to all parts of the world outside the United States, including countries in which there is recognized armed conflict. With this sweeping application, the Trump rules may have destabilized the entire 20-year-old cobbled-together U.S. lethal force regime—and possibly set it up to further fail as a matter of law and practice. Like the Obama rules, the Trump rules authorized lethal strikes in countries where Congress has not authorized force and human rights law strictly prohibits extrajudicial killing. Unlike the Obama rules, the PSP applied to recognized conflicts, likely requiring commanders to obtain permission to apply humanitarian law, with its more permissive killing rules—or perhaps even act under a mix of the made-up rules.

The first Trump “Policy Standard” (Section 2A) authorizes use of force against any “terrorist group” against which the United States may “lawfully” use force and that is “engaged in ongoing hostilities” against the United States or pose a “continuing imminent threat.” This standard appears to be a loose articulation of authority to use force against a broad, unidentified range of unspecified groups. A later standard (Section 2G) reinforces the breadth of authority Trump claimed, asserting that the United States could use lethal force if “reasonably necessary to U.S. efforts to address the threat posed by” a terrorist group.

In other words, where international law generally only countenances use of force in the territory of another state in response to an “armed attack,” and the Obama administration stretched that concept to a “continuing and imminent threat,” the Trump rules further departed from law by allowing force in response to a mere “threat.” In doing so and despite the lip service the PSP pays to the requirements of international law, Trump could easily cast aside the fundamental U.N. Charter rules that are a cornerstone of international law and the international community’s means of protecting global peace and security.

The Obama rules also instructed the U.S. lethal force bureaucracy to account for other related important policy considerations in deciding to use lethal force: the sovereignty of states in whose territory strikes are carried out; considerations of consent by those states; whether a state was “unwilling or unable” to address threats. In this way, smart administration lawyers sought to advance technical arguments navigating the requirements of international humanitarian and human rights law and the U.N. Charter even as they fundamentally deviated from them. Smart scholars debated in these pages and elsewhere the efficacy and legality of the Obama frameworks and U.S. rules.

Trump easily did away with virtually all the policy constraints and scholarly debates. His rules glance at law, and lay bare how easily a president thinks it may be set aside in service of vague “national security interests.” It’s hard not to see these rules as a license to kill.

Measures to Protect Civilians and Prioritize Capture are Malleable

The Obama rules included a few measures to protect life and serve intelligence-gathering goals, such as a requirement of near certainty that no civilians would be harmed in the locations where the policy applied; a requirement of near certainty that a target actually was present at a strike location; and, a preference for capture instead of killing. These too, were easily set aside.

The Obama administration required “near certainty” that “non-combatants” would not be injured or killed, but nevertheless permitted exceptions to that (and other) policy standards (see Section 5B of the Obama Rules). The Trump rules repeat the near-certainty language (Section 2C) but do not include the requirement in a redacted Annex (Annex A) that sets out the minimal operating principles by which agencies must abide, again sending the signal that civilian life may be devalued. In the body of the PSP, agencies are told only to ensure “near certainty” with “reasonably available information and means of verification.” And as Charlie Savage reports, Biden administration officials discovered that Trump officials used the Trump rules’ latitude to kill men in some countries under a lower standard: “While it kept that [near certainty] rule for women and children, it permitted a lower standard of merely ‘reasonable certainty’ when it came to civilian adult men.”

The New York Times had reported that the Trump rules lowered the requirement of “near certainty” that a target would be present at a strike location to “reasonable certainty.” It appears that change was made in the relevant section of the Trump rules (Section 2B) but the Biden administration inexplicably has chosen to redact it, and it’s unclear how this redaction is at all justifiable.

The preference the Obama administration aimed to set for capture over killing is similarly watered down to the point of potential meaninglessness. The Obama rules required agencies to assess if capture would be feasible in their “operational plans”; the Trump rules express that capture is “general preferred,” and to be based on an extraordinarily low, discretionary, and vague standard of whether capture is “practical based on a risk analysis.” (Of note, the Obama rules asserted that in the event of capture, “in no event will additional detainees” be brought to Guantanamo; the PSP explicitly posits military commissions—currently only held at Guantanamo—as an option.)

Open-Ended Authorization to Kill

In short, the Trump rules served as open-ended authorization for the United States to kill virtually anyone it designates as a terrorist threat, anywhere in the world, without reference to the laws prohibiting extrajudicial killing under human rights law. The Trump rules may seem more extreme but in core ways they merely continue an unlawful U.S. extrajudicial killing program that is now a cornerstone of the “forever wars” that President Biden has pledged to end.

On his first day in office, President Biden suspended the Trump rules, and his administration then reportedly initiated a review and consideration of new policies, which was initially to take 60 days. It could now extend to 6 months, according to the New York Times. Meanwhile, although the president has announced the withdrawal of troops from Afghanistan by early September, Pentagon and other spokespersons have been careful to carve out the authority to launch remote lethal strikes regardless of the end of that conflict. This is a dangerous signal that the administration could be poised to repeat bad and harmful mistakes.

The U.S. lethal strikes program began under Bush and escalated under Obama and then Trump. The Obama administration prioritized flexibility and threat prevention, entrenching an architecture for a potentially global killing program with little transparency, no accountability, no meaningful public assessment of human and strategic costs and consequences, and a failure to properly consider the precedent it was setting. President Trump took what President Obama left, and did not have to do much to cast policy restraint aside. After all, just over a year ago, the Trump administration unilaterally took this country to the brink of conflict with Iran with the killing of Iranian General Qassem Soleimani. That’s in addition to his administration’s escalation of lethal strikes—and civilian deaths—in Yemen and Somalia.

Today, this country faces new domestic and global challenges in the form of climate change, the pandemic, mass displacement and migration—too often caused by conflicts our country has helped to unleash or sustain. President Biden has the opportunity to set a rights-promoting approach to foreign policy, including especially in the majority-Muslim countries in which people are devastated by U.S. lethal force without even acknowledgement or any accountability. If President Biden does not withdraw and disavow this country’s long-standing war-based approach to national security, his legacy could undermine our collective human security. The president can and should set the country on a new and necessary path.

This year, more than 30 states introduced laws banning trans students from participating in school sports. This is part of an ongoing assault on trans youth — particularly transgender girls — that has been brewing for years. In 2020, Idaho became the first state to pass such a law and the ACLU quickly filed suit along with Legal Voice and Cooley LLP. Yesterday, my colleague Chase Strangio argued in the first case about a law banning trans women and girls from sports to reach an appeals court. The decision in this case will be pivotal as other states adopt similarly discriminatory laws.

Shortly after the law in Idaho passed, runner Lindsay Hecox, a student at Boise State University, and Jane Doe, a cisgender high school athlete, challenged Idaho’s law in federal court. Last August, a federal judge barred the state from enforcing the law, ruling that the law discriminates against Lindsay based on her sex and transgender status and against both Lindsay and Jane because they are women. The judge observed that women athletes like Lindsay, who have been on hormone therapy for a year, have no competitive advantage over other women, so it is discrimination to treat them differently from other women. The NCAA, the International Olympic Committee, and World Athletics all recognize the same reality and allow women who are transgender to compete in women’s events.

The court’s injunction allowed Lindsay to try out for the Boise State women’s cross country team. She didn’t make the team, but that’s the way athletics are supposed to work — she was simply asking to be evaluated based on her athletic abilities, not pre-judgments by a profoundly misguided legislature. Yesterday in the U.S. Court of Appeals for the Ninth Circuit, the ACLU defended that right.

While Idaho was the first state to pass a ban on trans athletes, it was not the last. In 2021, the national ACLU and our state affiliate offices have fought sports bans in more than 30 state legislatures so far, with those bans becoming law in Alabama, Arkansas, Mississippi, Tennessee, and West Virginia. The Florida legislature passed its version of a ban just last week. We are preparing court challenges to several of these new laws as well, building on the decision in Lindsay Hecox’s case.

ACLU/Joshua Roper

Lindsay isn’t the only trans athlete to have had recent success in court. Andraya Yearwood and Terry Miller are two athletes who ran track in high school in Connecticut. Several cisgender high school girls sued the state athletic conference for allowing Andraya and Terry, who are transgender, to compete on the girls’ team. They argued that it is illegal to protect trans people from discrimination — an extreme claim that, if accepted by the courts, would have prevented states and schools from taking action to protect trans students from discrimination. Andraya and Terry joined in the lawsuit so that they could help the athletic conference defend its trans-inclusive policy. Just last week, a federal judge dismissed the cisgender girls’ lawsuit, leaving Connecticut’s affirming sports policy intact. It was a great moment for inclusive education.

This year’s fight is just beginning, but we’ve seen these types of cruel and misguided attacks before. The organizations leading these coordinated attacks on trans student athletes are the same ones that pushed false myths about trans people in restrooms a few years ago. Just as those legislative efforts were not actually about restrooms, these laws are not about sports. They are about excluding transgender people from public life and trying to prevent people from being transgender. They are about creating “solutions” to “problems” that do not exist while harming some of the most marginalized youth in the country.

No matter how long it takes, the ACLU will work alongside trans people like Lindsay, Andraya, and Terry to ensure that everyone gets an equal opportunity to participate in all aspects of public life, including sports.