More Thoughts On The Senate's SESTA Hearing
from the what-is-the-plan-here dept
So far this week, we've explained why SESTA is such a bad bill and how it will create a massive chilling effect that could impact nearly every online service. And while the Senate hearing on the bill wasn't as bad as we feared it would be, it certainly had its problematic moments -- such as when the bill's co-author, Senator Richard Blumenthal, argued that companies that couldn't afford to moderate/filter everything should be prosecuted. However, in the days since the hearing, I've had a few thoughts about aspects of the debate that are, to say the very least, troubling.
"Do Something Now!": While it was good to see many Senators at least pay lip service to the idea that the bill needed changes to not have massive unintended consequences for the entire internet, it was troubling the way they approached this process. Prior to the hearing, Emma Llanso wrote up a list of four important questions Senators should ask during the hearing -- and none of them were asked. The key questions were fairly fundamental ones: what actual gap is there in the law and will this fix it? It was disturbing that no one seemed to discuss that at all.
After all, under CDA 230 today, nothing stops federal law enforcement from going after Backpage (other than if the DOJ doesn't think Backpage broke the law). CDA 230 does not cover federal government law enforcement. Similarly, CDA 230 does not cover content "developed" by a company itself. So, if as many people claim, Backpage develops illegal content itself, it's still liable. Finally, just a few years ago, Congress passed the SAVE Act, with the exact same stated intent: to carve a hole in CDA 230 to go after Backpage by making it a federal crime to advertise sex trafficking. That law hasn't been used -- and none of the Senators seem to be asking why.
Instead, there's very much the traditional politician's syllogism of "we must do something, this is something, we will do it." A few times during the hearing, Senators demanded from the two opponents to SESTA that they provide better language if they're concerned about this language. Notice the problem here: they were admitting that this language is problematic, but seemed to have no interest in understanding why or how to fix it -- instead, demanding that others give them new language, with the implicit threat that if they don't, this language will stay because this is "something."
That may be all too common, but it seems like a dreadful way to make policy.
The knowledge standard is a mess: This is important, and got some discussion during the hearing, but not nearly enough. The "knowledge" standard in the bill is a complete and total mess. The supporters of the bill brushed it off as no big deal, often by misstating what the bill actually says. California Attorney General Xavier Becerra focused solely on the criminal standards for knowledge, saying he needed to prove "beyond a reasonable doubt" that there was intent, while NCMEC's Yiota Souras insisted the knowledge standard was very narrowly tailored.
Both of them are wrong -- in somewhat staggering and dangerous ways. Again, the actual text of the bill says the following:
The term ‘participation in a venture’ means knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation [of sex trafficking laws.]
This is problematic on multiple levels. First "knowing conduct" by itself is vague and not clearly defined. As Professor Eric Goldman suggested during the hearing, knowing conduct could just mean that a platform knows it's doing something, but has no idea of the outcome. For example, if we knowingly allow users to post comments on our site -- and someone uses that to post sex trafficking ads -- even though we didn't know they were posting sex trafficking ads, our conduct in enabling comments was "knowing." If that sounds like a crazy scenario to you, fair enough -- but shouldn't the law state that much more clearly? Make it clear that the knowledge is not just of its own conduct, but that the conduct is specifically targeted at breaking the law.
The second problem with the knowledge standard is the claim that you can violate the law if your "knowing conduct" "by any means"... "assists, supports or facilitates a violation" of sex trafficking laws. As we explained earlier, assists, supports or facilitates is super broad. It's possible to read this to mean that hosting a website where someone sets up a blog to advertise sex trafficking makes you automatically liable -- even if you knew nothing of the actual content. After all, you did "knowing conduct" (hosting a website) and that website was used to "assist, support or facilitate" a violation of sex trafficking laws. We would not read the law this way, but as the language is currently written, it could very well be read that way.
And that means it will be read that way by someone. We've seen tons of civil lawsuits filed against deep-pocketed companies (and not so deep-pocketed companies) on a much more flimsy basis. If you don't think a bunch of lawyers won't be searching for such cases to bring, you haven't paid much attention.
And these lawsuits can be very costly and time-consuming. Remember the Viacom v. YouTube case? That was an intermediary liability case that was almost entirely focused on the question of whether YouTube had the requisite knowledge to be liable (sound familiar?). And it went on for more than seven years before it was finally settled, rather than having a court issue a final ruling. With such a weak knowledge standard (even weaker than the DMCA's that was fought over in the Viacom case), you can bet there will be long and costly lawsuits over just what the hell Congress meant by "knowledge."
It's fairly stunning and concerning that those pushing for the bill insist there's no problem with the knowledge language. It's as if they have no idea of the fairly recent litigation history over this very issue.
A lack of enforcement isn't fixed by blaming intermediaries: As mentioned, nothing in CDA 230 stops the Justice Department from going after intermediaries if they break the law. When this was (barely) brought up during the hearing, one response was that the DOJ is either overwhelmed or isn't doing its job -- and by opening up prosecutions to state law enforcement, it would allow more of these kinds of cases to be brought. And while that may be true, that seems like a really weird way to solve the problem. If the true problem is a lack of willingness or resources by the DOJ to take on these cases, then why isn't the discussion and legislation directly targeting that problem? Why isn't there a discussion of allocating more resources, or finding out why the DOJ isn't bringing these cases, and offering legislation or resources to solve whatever may be blocking action.
Instead, it seems like a very strange approach to say the answer to a lack of will or resource is... to make more companies liable.
A profound misunderstanding of CDA 230. This one bothers me quite a bit. If we're talking about amending CDA 230, at least get the facts on CDA 230 right. Unfortunately, many Senators and some of the witnesses did not. There's this incorrect belief that CDA 230 leaves no recourse for victims of sex trafficking. That is not even remotely true. The actual perpetrators of sex trafficking are still very much in violation of the law. And, again, if platforms actually develop illegal content themselves, then CDA 230 protections don't apply.
Finally, so many of the Senators and commentators act as though because of CDA 230, no company does anything to moderate their platforms. This is laughable. Basic public pressure has lead most platforms to moderate their platforms thoroughly -- and that's one of the features of CDA 230, in that it says that any effort to moderate/filter your platform to remove content you don't want to see (even if legal) does not attach any liability. SESTA changes that standard (even as its authors claim it doesn't). Because of the "knowledge" standard, moderating content may now be seen as evidence of "knowing conduct." So this effectively wipes out one of the most important tools that platforms have used to stop their platforms from being used for sex trafficking -- and no one seems to want to acknowledge that.
Unless the supporters of this bill are willing to face up to these basic facts and problems with the bill, their headlong rush into "doing something" seems likely to cause a lot more harm than good.
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Filed Under: cda 230, intermediary liability, knowledge, sesta
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This is interesting. If you are backing the bill and it has problematic language then YOU will be responsible for the harms such broad/bad language will cause so YOU are the one responsible to come with better language. If I agree with the general point of the bill but won't vote/back it I MAY suggest changes and I WILL fight against the bill but what I won't be is responsible for harms that come afterwards.
It's YOUR responsibility to legislate wisely. If nobody can come with better language then don't make it into law.
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Re: hand wringing
...not stunning at all -- if one is familiar with history and American government processes.
Arbitrary, fickle, counterproductive, and often malicious legislation/regulation are the demonstrated standard. This would be obvious to all educated people, but political ideology clouds their vision.
Constant hand wringing over the the very normal and very predictable dysfunction in Congress is a fool's game.
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Re: Re: hand wringing
Yea, um... this is not TD or its audiences strong point. Facts don't matter, just their feelings.
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Re: Re: Re: hand wringing
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Re: Re: Re: Re: hand wringing
But thanks for projecting... we all needed that one.
I operate outside of your bullshit political sycophantic fantasies.
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Re: Re: Re: Re: Re: hand wringing
Oh look, a centrist.
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Re: Re: Re: Re: Re: Re: hand wringing
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Re: Re: Re: Re: Re: Re: Re: hand wringing
It does not mean that you are any more or less coherent than any other political hack. Humans are little bags of shit that think they do not stink.
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Re: Re: Re: Re: Re: Re: Re: Re: hand wringing
And tossing out the trite cliché of “mindless sheep” is totally an example of that, right?
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Re: Re: Re: Re: Re: Re: Re: hand wringing
seems really annoying to the leftish here
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Re: Re: Re: Re: Re: Re: Re: Re: hand wringing
Looks more like a kid in the middle of a teeter totter war being run by crazy sugar blasted adolescents.
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Re: Re: Re: Re: Re: hand wringing
This should be good :)
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Re: Re: Re: Re: Re: Re: hand wringing
I guess you are not as intelligent as you like to think? The assumption that I am on the other side because I am not on your side is part of a bullshit political sycophantic fantasy.
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Re: Re: Re: Re: Re: Re: Re: hand wringing
I agree to the bullshit and the political, but it does not come close to sycophantic and is hardly a fantasy.
Now, if you had a sense of humor .....
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Re: Re: Re: Re: Re: Re: Re: hand wringing
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Re: Re: Re: hand wringing
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Re: Re: Re: hand wringing
Say what? Not sure where you are getting that from.
Mike has ALWAYS stated that policy should be based on empirical data. Just look at the multitude of posts concerning copyright laws where he argues that policy should be based on verifiable data as opposed to the MIAA/MPAA's emotional pleas of "Piracy is stealing! We need more enforcement!".
Here is an example from 2014:
He's arguing pretty much the same thing about SESTA. Let's look further than "Human trafficing is bad!" to see what this bill is really about and how it won't actually solve the problem SESTA is trying fix and will create many more other problems instead.
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Re: Re: hand wringing
If that is not exiting enough for you, there is the "Woa is Me" board game where you hold your head in sorrow because there is nothing that can be done.
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Re: Re: Re: hand wringing
You are just not special, my generation grew up thinking they were special because some dumb fucking teacher thought it would be great for people to have self-esteem. If you have esteem for yourself, then you automatically think less of everyone else by that virtue alone.
I did not buy into this bullshit garbage. I quickly realized that most of the other sissies are going face plant right into life and get laughed out for being a bunch of self entitled pricks. Now all I hear is how does a high school drop out earn 3 or 4 times more than their college educated asses. whine, Whine, WHINE... that is all I hear. Meanwhile they call me an idiot because I don't think or believe like them.
This is what the world wants from you.
https://www.youtube.com/watch?v=Q4PE2hSqVnk
You are not special, you either in a position to improve yourself or help others or you just are not. There is a lot of luck, who you know, and what you are prepared to do involved. I have found that "what you are prepared to do" is most peoples short comings.
so yea, constant reminding of how not special you are as a human is necessary.
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Re: Re: Re: Re: hand wringing
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Re: Re: Re: Re: Re: hand wringing
Just letting the rest of you know that you are not either.
I know I am not special and why, do you know why are you are not special?
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Re: Re: Re: Re: Re: Re: hand wringing
Thank you, Tyler Durden.
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Re: Re: hand wringing
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Oh, there's LOTS on phrases to put a hook on. Let's look at "good faith":
You've quoted this previously: "No provider or user of an interactive computer service shall be held liable on account of-
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected..."
And hold that it protects Techdirt from liability for comments. But "good faith" is required right up front.
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Re: Oh, there's LOTS on phrases to put a hook on. Let's look at "good faith":
Similarly, say a site's owner responded angrily to a commenter who was well within common law, took no action when that commenter was targeted for ad hom, never answered dozens of complaints except to defend vile ad hom as "a joke": then clearly the site owner is NOT acting in "good faith", so has no protection under CDA 230.
"Good faith" requires FAIRNESS.
That's the support in CDA itself for why I say a "platform" must BE impartial, not be openly and secretly partisan, and allow those aligned with it to do as please, while targeting, hindering, and hiding other viewpoints.
And BTW: over-arching common law and other precedent still applies. Statute is "mere statute", not an absolute.
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Re: Re: Oh, there's LOTS on phrases to put a hook on. Let's look at "good faith":
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Re: Re: Re: Oh, there's LOTS on phrases to put a hook on. Let's look at "good faith":
Distinction without a difference.
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Re: Re: Oh, there's LOTS on phrases to put a hook on. Let's look at "good faith":
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Re: Re: Oh, there's LOTS on phrases to put a hook on. Let's look at "good faith":
Tell me something, Mr. SovCit: How does “common law”—whatever that means—trump federal law, how does ad hominem name-calling without a provable intent to defame rise to the level of violating federal law, and how do you define “fairness” in this case?
Also: If a platform must be impartial, how should the law treat, say, a white supremacist forum that disallows anti-Klan/pro-Black Lives Matter rhetoric?
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Re: Re: Oh, there's LOTS on phrases to put a hook on. Let's look at "good faith":
Congrats. You've done something impressive: presented the most incredibly wrong legal analysis I've seen this year.
Good work. Nothing in what you state above matches what the actual law is, says, or means. You have done something truly special. Take a bow.
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Re: Re: Re: Oh, there's LOTS on phrases to put a hook on. Let's look at "good faith":
Well, he is one of those “sovereign citizen” people. They always have…let’s say, a unique take on the law.
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Almost impressive
Given some of the cases TD has covered in the last year that is not a low bar, so in a way it's almost impressive how wrong they can be on a consistent basis.
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Re: Re: Oh, there's LOTS on phrases to put a hook on. Let's look at "good faith":
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If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
You've also stated that believe "platforms" have practically unlimited "right" to keep any content OFF, and in the quote given by some helpful AC above, CDA 230 includes even if Constitutionally protected.
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Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
Now, you may well be right that this is all for show by politicians. So too is any "law". But bad actions require enforcement, taking cases to a jury, and that's less likely if everyone does a Masnick: blind yourself to reality and deny especially corporate responsibility to civil society.
LIFE requires you to do something, not just stand around and say nothing can be done. -- IF agree with the stated goals, then show how better achieved. -- And don't waffle that everything is okay now, that's inaction again.
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Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
And you're not really one to talk about waffling that everything is okay. That's what you do about copyright law abuses.
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Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
Umm, okay. I'm with Techdirt / you when believe right. I'm for musicians over middle-men, if it helps you understand my position, but you'll need a specific for more...
>>> Which you would have realized, except you've already proudly admitted to never reading the articles, which you think gives you the licence to spout garbage.
>>> And you're not really one to talk about waffling that everything is okay. That's what you do about copyright law abuses.
Strawman. I rarely waffle. I like copyright. It's a RIGHT that's in the US Constitution. Where law is "abused" -- as in Righthaven, say: I'm for literally hanging those lawyers for lying, though still support copyright laws that they used for premise.
I've stated that don't need to read to know Masnick's slant: it's always the same pro-corporate, here saying corps should not be in least responsible -- unless they don't want to host speech that they don't approve off, then they're empowered to control speech of "natural" persons to any degree. That IS Masnick's position.
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Re: Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
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Re: Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
Two things.
The only “pro-corporate” stance in this article is the one that says “CDA 230 carves out specific protections, SESTA will undermine those protections, and even corporations deserve those protections so long as they do not violate the law”.
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Re: Re: Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
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Re: Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
Your only consistent perspective is a deep-seated loathing for anyone and anything that disagrees with you, such as fair use. Which is why you can't stand the fact that Techdirt exists, you Shiva Ayyadurai fanboy. Sucks that your boy from Massachusetts got his ass kicked, doesn't it?
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Re: Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
"I like copyright. It's a RIGHT that's in the US Constitution."
Why should anyone take you seriously where you spout such egregiously incorrect nonsense as this?
"I've stated that don't need to read to know Masnick's slant: it's always the same pro-corporate, here saying corps should not be in least responsible."
Again, when you make claims about Mike's position that are opposite of what's written in the article, you're only going to get laughed at and ridiculed.
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It's... something, kinda
Again, when you make claims about Mike's position that are opposite of what's written in the article, you're only going to get laughed at and ridiculed.
Credit where it's due though, they were at least honest enough to admit that they deliberately attack strawmen by ignoring what's actually written and instead going off of what they assume Mike's position is.
The momentary glimpse of honesty doesn't even come close to balancing out the dishonesty of repeatedly lying and strawmaning, but it's at least something in the positive category.
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Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
If the DOJ lacks the resources to go after sex traffickers and sites like Backpage under current laws, changing the law will not give them more resources. If the law already provides a path for prosecuting Backpage, changing the law will only broaden how many people can be prosecuted for vague, broadly-worded violations of the law. SESTA will not fix any of the issues already present with current enforcement of the law—if anything, it will make enforcement much more contingent on “the need to do something” rather than, say, a site actually aiding and abetting sex traffickers.
Much like doing something to answer a “wouldn’t if be cool if” question, doing something only for the sake of doing something—or being seen as doing something—does not tend to work out well. SESTA is a case of doing something for the sake of doing something; if it passes into law, the results will not turn out well for anyone.
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Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
*Now, you may well be right that this is all for show by politicians. So too is any "law". But bad actions require enforcement, taking cases to a jury, and that's less likely if everyone does a Masnick: blind yourself to reality and deny especially corporate responsibility to civil society.
LIFE requires you to do something, not just stand around and say nothing can be done. -- IF agree with the stated goals, then show how better achieved. -- And don't waffle that everything is okay now, that's inaction again.*
Law isn't to be left up to politicians. It requires YOUR support. All we can hope is that law sets standards from the folk that our civil servants will enforce. -- Do you support Backpage in all? -- I doubt it, but you do clearly believe in attacking people who want SOMETHING done in light of actual crimes done by / on Backpage.
(PS: "Folk" is not "dog whistle" code implying that I'm a Nazi. Just forestalling what can of expected silly off-topic distractions.)
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Re: Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
I believe in criticizing laws made for no reason other than “something must be done”, especially when that “something” is “ignore the real issues and make a new law”. Again: If the DOJ needs resources to prosecute sex traffickers and sites like Backpage under current law, making a new law will not fix that issue.
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Re: Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
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Re: Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
Nobody supports Backpage if they are engaged in criminal activity (and it seems from the developments of their story that they are and they may end up in jail WITHOUT SESTA). A lot of people also doesn't support a bad, broadly, vaguely written law. Opposing SESTA doesn't mean supporting trafficking or something. I know it's very hard for you and it must hurt but you need to understand that simple concept.
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Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
So if I read you right, you think the law forces you to let someone force their way into your home and say whatever they want to whether you want to hear it or not. At least that's the best conclusion I can get over your idea what it means when speech is "Constitutionally protected".
The Constitution prevents the government from restricting speech. It does not and CANNOT be made to prevent individuals from restricting speech within their own spaces. This makes perfect sense and has always been the position of TD.
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Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
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Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
It's a miracle I hit on the right topic, isn't it? Sheesh. You are clearly WRONG with this TRITE attack.
>>> So if I read you right,
As shown, you don't.
>>> you think the law forces you to let someone force their way into your home and say whatever they want to whether you want to hear it or not.
This is not Masnick's nor your home: it's a PUBLIC forum on the internet run by a business that asked the public for permission to exist, and explicitly solicits and facilitates two-way comments with HTML for the purpose. Given Techdirt's stated positions and beliefs, especially for free speech, just by that forms contract it's required to show all comments that are non-commercial and within common law. Further, like a bar, it's required to police the site against egregious blowhards who, say, call others "ignorant motherfucker", especially when that ad hom is made out of the blue and not as part of any exchange.
>>> At least that's the best conclusion I can get over your idea what it means when speech is "Constitutionally protected".
You admit severe inability at making your strawman argument work, is all.
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Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
No. No, it is not. Nothing in the law says Techdirt must police the site against ad hominem attacks in the comments, especially ones that are either opinions (“ignorant”) or obvious exaggerations (“motherfucker”). MyNameHere could call me a foul-smelling asshole whose intellect is dwarfed by that of fictional serial killer Jason Voorhees and Techdirt would still have no obligation to delete his comment unless I produced a legal order that says otherwise.
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Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
"run by a business that asked the public for permission to exist"
Golden comedy here! Nobody at TD asks permission to run their business. And the fact that they are there for over 20 years show they are doing it right because people keep rewarding them with eyeballs and money (which, amusingly, includes you).
"it's required to police the site against egregious blowhards who, say, call others "ignorant motherfucker""
LOOOL. Nope. You ignorant motherfucker. TD could censor this at their discretion if they wanted. The government can't (remember, Constitution? That thing you fail epically at understanding?).
"You admit severe inability at making your strawman argument work, is all."
You don't have to admit. In your case it's glaring, written all over your ignorant ramblings.
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Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
If such policing were required MyNameHere would have had his ass and fetish for PaulT/Hamilton fanfiction kicked to the curb.
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Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
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Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
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Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
Where do you get this stuff? Just because you filled out a web form to create a comment does not create any sort of legally binding contract between you and Techdirt. That's just plain silly. I might also add, even if it was a binding contract (which it's not), you aren't even using your legal name.
Um, bars do not police against people calling other people names. I've been to plenty of places where people have been called dumb motherfuckers and much worse. Bars will ask patrons who are disruptive, unruly, loud and rude (like you are here on Techdirt) to leave and ban them from ever coming back. I'm not sure how your bar analogy supports your point, when it seems support just the opposite.
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No moderation for me, ALL the moderation for thee
It's almost funny the various 'arguments' they come up with that boil down to 'TD should be required to show my comments, no matter what the community wants, and people who say mean things about me should have their comments moderated.'
Besides their hilariously wrong interpretation of the law, the sense of entitlement to use someone else's platform for their speech is stunning.
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Re: No moderation for me, ALL the moderation for thee
The passing of Hamilton probably left a deep, empty void in their hearts and now they have to endlessly spam the site to get over their personal tragedy.
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Re: Re: Re: If clearly specific, you'd argue "ineffective"; if a bit broader, you'd argue "overbroad".
"This is not Masnick's nor your home: it's a PUBLIC forum on the internet run by a business that asked the public for permission to exist..."
You cannot possible be stupid enough to actually believe that. Gotta be trolling...
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Anyone who owns property within 100 miles or so of Silicon Valley might to sell and get out while the gettin's good.
when SESTA passes and companies are forced to leave the United States to avoid this law, it will make overly inflated property values come crashing down.
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Since DailyMotion is headquarted in Paris, France, they are not subject to American law. DailyMotion, is only subject to French laws, and is not subject to American law.
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Re:
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Re: Re:
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Not surprising
If someone held their feet to the metaphorical fire and forced them to answer those points it would completely destroy the justifications and defenses they've presented for why the law is needed and why it's not open to abuse.
Since that would be counter-productive to easy PR apparently no-one was overly interested in doing so.
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