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In the BFD Zone: Congress's ignorance about 230, and why you can't trust Congress or Barr
In the BFD Zone: Congress's ignorance about 230, and why you can't trust Congress or Barr more than Silicon Valley to look out for American end users' best interests.If you've read the headline that social media heads are to testify before Congress, you should know the fine print about how long Congress' and Wm. Barr's attacks against Section 230 of the CDA have gone on, and how Congress is either trying to stall Barr's efforts or aid them. These days it's hard to tell.
Below, Techdirt offers information and analysis. There's a lot more on its site about 230; only three articles are shown here. If this is a long read, it's still too important to ignore.
These are yet more reasons for Millennials to join the rest of us and get involved in the 2020 election -- because they know that their leaders, AOC and The Squad, understand the importance of 230, and how Barr will amend it to enhance Trump's dictatorial powers and Russian influence.
If you were in a coma for the past 12 months ... to figure out what had happened in the last year or so solely based on new bills introduced in Congress, you would likely come to the conclusion that Section 230 was the world's greatest priority and the biggest, most pressing issue in the entire freaking universe.
I've completely lost track of how many new bills have been introduced this year -- in the midst of a pandemic -- that try to undermine and destroy the open internet enabled by Section 230 of the CDA. It's absolutely ridiculous.
Last week we had Lindsey Graham and his garbage Online Content Policy Modernization Act. Josh Hawley, the lying demagogue, has probably introduced half a dozen bills aimed at undermining Section 230, including one a few weeks ago. On Tuesday of this week we had Senators Manchin and Cornyn introduce their despicable and dangerous See Something, Say Something Act.
And then, on Wednesday, we got two more truly awful anti-230 bills. What's going on over there on Capitol Hill?
There have been so many dumb anti-230 bills that it's hard to rank which one's worse than the next, but this one is... just bad.
Basically, this would take Section 230 away from any site that tracks any information on its users, or presents an algorithmically generated feed for its users.
But, it would not apply if the users of those sites "knowingly and intentionally elect to receive" the algorithmically generated feed. And so sites that want to do that will just put it in their terms of service and make people agree to it and... what good does that do for anyone?
And what does this even have to do with Section 230 anyway? If you don't like algorithmically generated feeds, it would seem that
(1) you're going to have a 1st Amendment issue to overcome at some point and
(2) there are other tools in the toolbox and
(3) it's totally unrelated to the questions about Section 230.
This is just "old man yells at cloud... and writes weird legislation."
I've completely lost track of how many new bills have been introduced this year -- in the midst of a pandemic -- that try to undermine and destroy the open internet enabled by Section 230 of the CDA. It's absolutely ridiculous.
Last week we had Lindsey Graham and his garbage Online Content Policy Modernization Act. Josh Hawley, the lying demagogue, has probably introduced half a dozen bills aimed at undermining Section 230, including one a few weeks ago. On Tuesday of this week we had Senators Manchin and Cornyn introduce their despicable and dangerous See Something, Say Something Act.
And then, on Wednesday, we got two more truly awful anti-230 bills. What's going on over there on Capitol Hill?
There have been so many dumb anti-230 bills that it's hard to rank which one's worse than the next, but this one is... just bad.
Basically, this would take Section 230 away from any site that tracks any information on its users, or presents an algorithmically generated feed for its users.
But, it would not apply if the users of those sites "knowingly and intentionally elect to receive" the algorithmically generated feed. And so sites that want to do that will just put it in their terms of service and make people agree to it and... what good does that do for anyone?
And what does this even have to do with Section 230 anyway? If you don't like algorithmically generated feeds, it would seem that
(1) you're going to have a 1st Amendment issue to overcome at some point and
(2) there are other tools in the toolbox and
(3) it's totally unrelated to the questions about Section 230.
This is just "old man yells at cloud... and writes weird legislation."
https://www.techdirt.com/articles/20200930/23050145420/because-congress-apparently-has-nothing-all-important-to-work-it-introduced-two-more-section-230-bills-yesterday.shtml
Sorry Russian trolls (oh, and also all you people insisting that Section 230 doesn't and or shouldn't allow Facebook to kick trolls off its platform), but a court has made it clear that Facebook is clearly protected in kicking trolls off its platform.
In this case, the Federal Agency of News (FAN) was kicked off Facebook soon after the 2016 election, when Facebook realized that various Russian trolling outfits had used the platform to push propaganda, often directed by the Russian "Internet Research Agency."
Among the pages that Facebook removed was FAN's. For what it's worth, the "General Director" of FAN was one Aleksandra Krylova, who is among those who were indicted by Robert Mueller last year, for trying to influence the US election.
In this case, the Federal Agency of News (FAN) was kicked off Facebook soon after the 2016 election, when Facebook realized that various Russian trolling outfits had used the platform to push propaganda, often directed by the Russian "Internet Research Agency."
Among the pages that Facebook removed was FAN's. For what it's worth, the "General Director" of FAN was one Aleksandra Krylova, who is among those who were indicted by Robert Mueller last year, for trying to influence the US election.
And in regard to Americans' interests in 230:
At bottom, the United States Supreme Court has held that property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972).
Thus, simply because Facebook has many users that create or share content, it does not mean that Facebook, a private social media company by Plaintiffs’ own admission in the complaint, becomes a public forum.
In Professor Eric Goldman's discussion of this ruling, he notes that anyone supporting Senator Josh Hawley's silly bill to remove Section 230 protections from big internet platforms is effectively supporting Russian trolls like the ones who filed this case:
Just a reminder to anyone complaining about Facebook “censoring” them, arguing that Facebook is the new public square, or demanding that Facebook “must carry” content neutrally: you are making the exact same arguments as Russian trolls seeking to destroy our country.
Either that’s the goal you intentionally want, or you are so narrowly focused on your concerns that you don’t realize or care how Russian trolls are weaponizing your arguments against our democracy. Want to Make America Great Again? (or keep America great, if we never stopped being great). Stop trying to destroy the editorial freedom of online publishers to decide what’s fit to publish and what isn’t.
In particular, this case reiterates the depravity of Sen. Hawley’s “[Ending] Support for Internet Censorship Act.” FAN was promoting its own political viewpoints, so Sen. Hawley’s proposal would force Facebook and other major Internet companies to treat FAN’s trolling as equally legitimate as the Republican Party’s social media activities. (Please, no “jokes” about how Republicans have become unexpectedly enthusiastic supporters of Russia’s policy and world views). Why would Sen. Hawley–and the few supporters of his bill–want to prevent online crackdowns against Russian trolls? It appears Sen. Hawley doesn’t understand the consequences of his bill–or worse, perhaps he does.
Thus, simply because Facebook has many users that create or share content, it does not mean that Facebook, a private social media company by Plaintiffs’ own admission in the complaint, becomes a public forum.
In Professor Eric Goldman's discussion of this ruling, he notes that anyone supporting Senator Josh Hawley's silly bill to remove Section 230 protections from big internet platforms is effectively supporting Russian trolls like the ones who filed this case:
Just a reminder to anyone complaining about Facebook “censoring” them, arguing that Facebook is the new public square, or demanding that Facebook “must carry” content neutrally: you are making the exact same arguments as Russian trolls seeking to destroy our country.
Either that’s the goal you intentionally want, or you are so narrowly focused on your concerns that you don’t realize or care how Russian trolls are weaponizing your arguments against our democracy. Want to Make America Great Again? (or keep America great, if we never stopped being great). Stop trying to destroy the editorial freedom of online publishers to decide what’s fit to publish and what isn’t.
In particular, this case reiterates the depravity of Sen. Hawley’s “[Ending] Support for Internet Censorship Act.” FAN was promoting its own political viewpoints, so Sen. Hawley’s proposal would force Facebook and other major Internet companies to treat FAN’s trolling as equally legitimate as the Republican Party’s social media activities. (Please, no “jokes” about how Republicans have become unexpectedly enthusiastic supporters of Russia’s policy and world views). Why would Sen. Hawley–and the few supporters of his bill–want to prevent online crackdowns against Russian trolls? It appears Sen. Hawley doesn’t understand the consequences of his bill–or worse, perhaps he does.
https://www.techdirt.com/articles/20190722/17444842636/section-230-works-russian-trolls-dont-get-to-sue-facebook-being-kicked-off-facebook.shtml
This is pretty similar to the two bills listed above. The only real difference is that this one adds in the promotion of "violent extremism" which you already know that this DOJ will use to include trying to force social media companies to take down Antifa and BLM content.
But, of course, as we discussed with the previous bills, this is clearly unconstitutional. It is a form of regulation of content that is not content neutral, and that's not allowed. Also, note what kind of content is not included here: racist, homophobic, hateful content would not be covered in many cases. Nor would spam.
Yes, in some cases it could be argued that such content is "harassing" or perhaps it might qualify for some of the other categories, but most of it would lead a site to not have 230 protections. Websites would still have 1st Amendment protections, but to fight that legal battle would be hugely expensive and destructive for most websites -- meaning that many will not fight at all.
The bill would also expand 230's exemptions such that federal civil actions were no longer exempt (as per the FTC's wish). It also includes a bunch of other carve-outs that I'm too tired to go through, but will note that it would appear to allow state Attorneys General to bring lawsuits against websites that were previously barred by 230...
The anti-terrorism one should be particularly concerning. We've wrote about a whole bunch of cases involving people who sued social media for "material support for terrorism" in response to a loved one being killed by terrorists. The arguments are, roughly, that because their family member was killed by a terrorist, and because some terrorist-connected individuals used social media, clearly, the social media companies are liable for their family member's death.
Courts have, rightly, been tossing these cases out on 230 grounds. But if the DOJ got its way, that would no longer be possible, and we'd likely see a ton of frivolous litigation in response.
Another change is an attempt to remove 230 protections for sites that fact check the President. This is not how it's framed of course, but it's pretty obvious why Bill Barr wanted this in there...
...Basically, fact check someone, and you can lose your 230 protections. Of course, again, this is unconstitutional, as it's an attempt to suppress the very thing that 230 (and the 1st Amendment) were designed to encourage: more open discussion. Indeed, for Bill Barr -- who has whined about "cancel culture" -- to include this in there is deeply ironic. This kind of thing will decrease incentives to add commentary or fact checks, thus suppressing speech
.
But, of course, as we discussed with the previous bills, this is clearly unconstitutional. It is a form of regulation of content that is not content neutral, and that's not allowed. Also, note what kind of content is not included here: racist, homophobic, hateful content would not be covered in many cases. Nor would spam.
Yes, in some cases it could be argued that such content is "harassing" or perhaps it might qualify for some of the other categories, but most of it would lead a site to not have 230 protections. Websites would still have 1st Amendment protections, but to fight that legal battle would be hugely expensive and destructive for most websites -- meaning that many will not fight at all.
The bill would also expand 230's exemptions such that federal civil actions were no longer exempt (as per the FTC's wish). It also includes a bunch of other carve-outs that I'm too tired to go through, but will note that it would appear to allow state Attorneys General to bring lawsuits against websites that were previously barred by 230...
The anti-terrorism one should be particularly concerning. We've wrote about a whole bunch of cases involving people who sued social media for "material support for terrorism" in response to a loved one being killed by terrorists. The arguments are, roughly, that because their family member was killed by a terrorist, and because some terrorist-connected individuals used social media, clearly, the social media companies are liable for their family member's death.
Courts have, rightly, been tossing these cases out on 230 grounds. But if the DOJ got its way, that would no longer be possible, and we'd likely see a ton of frivolous litigation in response.
Another change is an attempt to remove 230 protections for sites that fact check the President. This is not how it's framed of course, but it's pretty obvious why Bill Barr wanted this in there...
...Basically, fact check someone, and you can lose your 230 protections. Of course, again, this is unconstitutional, as it's an attempt to suppress the very thing that 230 (and the 1st Amendment) were designed to encourage: more open discussion. Indeed, for Bill Barr -- who has whined about "cancel culture" -- to include this in there is deeply ironic. This kind of thing will decrease incentives to add commentary or fact checks, thus suppressing speech
https://www.techdirt.com/articles/20200923/14472345369/justice-department-releases-dangerous-unconstitutional-plan-to-revise-section-230.shtml
19 replies
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= new reply since forum marked as read
-Laelth
I'd rather it wait until Biden and Democrats take new congressional seats in 2021.
Thanks for this thoughtful post. I do want to read more on this subject and study up a little.
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