Now It's The Democrats Turn To Destroy The Open Internet: Mark Warner's 230 Reform Bill Is A Dumpster Fire Of Cluelessness
from the what-the-fuck-is-this-I-don't-even... dept
For the past few months we've been seeing a ton of terrible/ridiculous/awful/unconstitutional bills coming from mostly Republicans to try to wipe out or undermine Section 230. Most of those were focused on trying to force websites to do less content moderation. Now that the Democrats are back in power, it appears we're going to be getting the opposite. Senator Mark Warner has introduced his new Section 230 reform bill, called the SAFE TECH Act ("Safeguarding Against Fraud, Exploitation, Threats, Extremism, and Consumer Harms Act" co-sponsored by Senators Mazie Hirono and Amy Klobuchar), and it is one of the worst Section 230 bills I've seen. It is difficult to explain just how bad this bill is concisely, because it has so many bad ideas crammed into one single bill. It's as if none of these three Senators or their staff spoke to anyone who actually understands how the internet works, or how content moderation/trust and safety works. It's stunning in the ignorance it displays.
About the only good thing I'll say about it, is that (unlike most bills) at least Warner released a redline version to show how it would actually (massively) change Section 230. He also put out an incredibly disingenuous FAQ that flat out lies about... nearly everything. We'll go through that in a bit.
Basically, this bill takes nearly every single idea that people who want there to be less speech online have had, and dumped it all into one bill. There's a lot in there, and nearly all of it is bad. Last week I wrote about a draft bill in the House that suggested carving out civil rights law from Section 230. In my analysis of that bill, I noted that it appeared to come from a well meaning place, but was simply misguided. This bill, which also includes a carveout for civil rights law, does not come from a well meaning place. The drafters of the bill are either malicious or ignorant. It's not a good look for Senators Warner, Hirono, and Klobuchar.
A key thing to recognize is that it's obvious that the drafters of this bill believe the myth that 230 protects "big" tech companies. The bill is written as if it is only talking about Facebook, YouTube, and Twitter. Warner handwaves away the idea that the bill would destroy smaller companies in his announcement by ridiculously (and against all evidence to the contrary) saying that startups are too small to sue, so it would only be used against larger companies.
The most devious and nefarious part of this is that the bill effectively wipes out Section 230 protections for the entire internet while pretending it's just a minor change. This bill is about as close to a full repeal of Section 230 as you can get realistically. In the press release about the bill, Warner claims that it's just a tweak to 230 because "these changes to Section 230 do not guarantee that platforms will be held liable in all, or even most, cases," but that would also be true with repeal. Because most things that people want to blame on internet websites are not actually violations of the law. And, assuming a form of distributor liability is what the courts decide on, that would mean websites wouldn't be liable for most things on their site anyway -- but would result in long and costly legal battles before they could prove that.
And this bill guarantees the same exact thing. The biggest, most consequential change, is that it takes the famous "26 words," which are Section (c)(1) of the current law, removes the protections entirely if money exchanges hands, and then changes it from an immunity to merely "an affirmative defense." That may not seem like much, but it basically wipes out all of the actual benefits of 230.
Saying that you don't get (c)(1) if money exchanges hands, basically wipes out Section 230 for many, many services. All web hosting would no longer be protected by Section 230. If, as many people have been demanding, social media offers up paid options (say, to remove ads), doing so would remove their 230 protections. Incredibly, this bill is coming from the same people who have been saying that Facebook and Twitter should offer a "paid version" without ads or tracking -- but, under this bill, if they do that, they'd lose 230! Incredibly, under this bill, the two cases that inspired Section 230 -- the CompuServe case and the Prodigy case -- would not be eligible for 230 protections, because both were paid services!
The switch from (c)(1) being an immunity to being "an affirmative defense" in which the website "has a burden of proving by a preponderance of the evidence" basically erases the key procedural benefits of Section 230 -- which is that it gets cases tossed right up front. This gets somewhat deep in the weeds of civil procedure, but having (c)(1) as an immunity allows companies to file a relatively straightforward motion to dismiss upfront, without having to do a lot of expensive legal work, and argue that, because of 230, there is no legitimate claim in the complaint, even if everything in that complaint is accurate. This is the key benefit of 230 in protecting websites.
But by making it an affirmative defense, which the website has to prove by a preponderance of evidence, you've just made everything a lot more expensive and it will take a lot longer to deal with. Not only are you going to have to pay a lot of expensive lawyers a lot more money to make a preponderance of the evidence claim, many courts find that such determinations are issues of fact, not law, meaning that they need to go to a jury. If a case goes to trial and has a jury, you're talking about it costing at least a million dollars for any company, and probably a lot more.
This wipes out the entire benefit of Section 230 by itself. Most companies, of course, will then try to avoid just having to face this by quickly taking down anything even remotely questionable or anything that people complain about. And they'll still get sued. This bill would absolutely destroy most of the open web.
The second massive change, is that it would exclude Section 230 entirely from "injunctive relief" claims for failing to remove "harmful" content. In other words, this would allow a bevy of lawsuits from people who just want something taken offline (and aren't asking for monetary damages), that they will claim creates "harm" to them, and the websites can no longer respond with 230. While supporters of this bill might argue that filing such a lawsuit alone would be expensive, so this wouldn't be abused, that ignores how frequently we've seen especially the rich and powerful try to use any legal means possible to remove content they dislike from the internet. This clause is like a free shot for the rich and powerful to silence criticism. It's like a pro-SLAPP clause!
The bill then adds a bunch of other carveouts from 230: civil rights law, antitrust, harassment, stalking, human rights law and wrongful death. As we already discussed, while it may sound good to say this can't be used to block civil rights cases, in actual practice a bunch of recent "civil rights" cases have involved white supremacists, out-and-out misogynists, and other terrible people claiming that their civil rights were violated by being kicked off of platforms. Enabling such lawsuits seems incredibly short sighted.
This bill is dangerous.
And what's truly obnoxious about it is that in the FAQ about it, Mark Warner pretends otherwise.
Q: Won’t removing Section 230 immunity bring back the perverse incentive structure Section 230 was meant to address and actually lead to less content moderation?
A: No. Section 230 effectively cut off the development of case law for the past 25 years based on the flawed reasoning of a single state court judge. By peeling back Section 230 immunity for particularly serious harms—such as civil rights violations, stalking, and harassment—internet platforms will be incentivized to ramp up their address problems in these areas, problems that have otherwise been allowed to fester and grow without exposure to potential liability. These reforms do not render ICS providers liable for all – or even most – third-party content, including where they engage in moderation activity. Nor do these reforms alter the already-steep hill plaintiffs must already climb. Rather, these reforms allow victims an opportunity to seek redress where they can potentially show that a platform has directly contributed to their injury.
This is magic wand thinking. Oh, if we just make websites potentially liable for what people do on them, won't the websites magically fix these societal level problems? No, that's not what happens. Instead, smaller websites decide it's not worth the hassle at all and stop accepting 3rd party content, and larger companies just get more aggressive in policing all sorts of protected speech. Would a "#MeToo" situation ever be allowed to happen if this law was in place? No fucking way. Harvey Weinstein and all sorts of powerful rich men would sue the shit out of Facebook and Twitter to stop that.
The final sentence above is the most pernicious of all. Section 230 already does not apply if the platform contributed to the injury. It already doesn't apply if the platform helped to create the injurious content. What this bill does is not allow for that which is already allowed. It completely wipes most 230 protections off the map.
Q: Will making internet platforms liable for third-party content lead internet platforms to overreach in their content moderation efforts thereby chilling speech from the very groups you’re looking to protect?
A: No. The SAFE TECH Act was developed in partnership with, and has the strong support of, a wide array of civil rights groups. We need to recognize that threats, harassment, and targeted intimidation silence the voices of far too many racial minorities, women, and other marginalized groups by driving them from social media and other online platforms. Under the status quo, platforms have been able to ignore these harms – even where their continued inaction, and even their product design, contributes to these injustices. As these online harms spread to the real world—in places like Charlottesville, Kenosha, and at the U.S. Capitol—their negative impact has only become more unmistakable. The SAFE TECH Act simply allows victims an opportunity to hold platforms accountable when their deliberate inaction or product design decisions produce real-world harm, making the online world a more open and welcoming environment for all to participate.
What?!? Note that they don't say that the bill was developed with actual content moderation experts. To say that this wouldn't be used to stifle and chill speech from vulnerable groups and people is ludicrous. Of course it will. Everything about the bill is designed in a way that opens it up to abuse by the rich, powerful and privileged. Everything about the bill allows them to file costly lawsuits (or threaten to do so) and pressure websites to pull down all sorts of criticism.
That Warner and his co-sponsors deny this suggests that they have absolutely no understanding about how any of this works.
Q: Will exposing small tech companies and startups to liability and increased litigation costs drive them out of business and simply entrench the dominant player (e.g., Google, Facebook)?
A: This concern is gravely exaggerated. As an initial matter, smaller players do not have the reach of the Googles and Facebooks of the world and, as a result, are less likely to cause significant harm. Moreover, potential plaintiffs are unlikely to bring an action against a small tech company or startups out of fear being able to collect sufficient damages to make the effort and cost of litigation worthwhile. Indeed, in many cases plaintiffs’ attorneys would not even take these cases given the low likelihood of meaningful damages. In addition, a string of judicial decisions on standing requirements over the last 10 years, along with a range of tort reforms enacted by state legislatures (including anti-SLAPP laws to penalize frivolous or bad faith lawsuits), have significantly altered the legal landscape since Section 230 was enacted in 1996.
More importantly, things like protecting civil rights and preventing harassment should be built into internet platforms by design. Today’s online giants claim that their massive scale makes it too difficult to effectively moderate content – a social cost borne by users and vulnerable communities. Had these companies been exposed to potential liability from their inception, in many cases they would have designed their platforms
This is... again... completely disconnected from reality. There are so many stories of smaller platforms being sued for 3rd party speech. Hell, I was sued for third party speech and protected by 230. Under this bill, that case would have been a lot more expensive and almost certainly would have bankrupted us. Many of these lawsuits are not about "collecting sufficient damages" but about forcing the small tech company or startup to have to waste all their money on the lawsuit. How disconnected from reality are these Senators?
And, sure, it might not be as bad if there were strong anti-SLAPP laws in every state and a strong federal anti-SLAPP law, but we don't have that. In fact, many courts won't even apply state anti-SLAPP laws in federal court. At best, I'd say maybe 20% of cases that should be protected by anti-SLAPP laws have access to them. So to say "oh, no big deal, anti-SLAPP will cover it" is again nonsense.
That final paragraph is also completely disconnected from reality. This country has spent decades trying to solve for systemic racism and civil rights violations, and we're still failing. The government has failed in so many ways on this, and now Warner's saying "oh, tech companies can magically solve this if only they could be sued." This is fantasy land thinking.
Q: What is the scope of the carve-out for paid content? Does it cover anything beyond paid advertisements?
A: The SAFE TECH Act makes clear that Section 230 immunity does not apply to any paid content. This would include advertisements as well as things like marketplace listings.
Uh, no. From the language of the bill itself, it says:
"... except to the extent the provider or user has accepted payment to make the speech available..."
That certainly looks like it applies to all paid content. And, even worse, to things like web hosting. Or if Facebook or Twitter ever offered accounts where you pay to remove ads. Or, hell, to us on Techdirt, where some of our community have paid to support us, and we provide them extra features. Based on this, if any of our financial supporters (a key source of revenue for us) says anything that we get sued over, we can no longer claim 230 protections against it. That's ludicrous. Not only would we have to shut down our comments, we'd likely be unable to let people support us directly any more (meaning we'd likely shut down entirely).
Q: Will the SAFE TECH Act break the internet?
A: No! The internet was a far different place when Section 230 was passed. The scope, influence, and impact of modern internet platforms were unimaginable in 1996. Like all regulation, Section 230 must be updated to address the current state of affairs – including the unintended consequences of the law. The SAFE TECH Act brings Section 230 into the modern age by addressing those areas in which the law has been abused by platforms—such as civil rights, stalking, and harassment—in a targeted way. It is also important to remember, that even with the changes proposed in the SAFE TECH Act, Section 230 does not impose liability on anyone. There must still be a violation of some law and plaintiffs must still prove causation, harm, and damages. And the application of that law to an internet platform still cannot run afoul of the First Amendment.
To say this after misunderstanding (1) how content moderation works, (2) how civil liability works, and (3) the nature of vexatious lawsuits works... is just astounding. This bill would absolutely gut much of the internet. Smaller websites would likely have to shut down key services (and may have to shut down entirely). A massive wave of ambulance chasing, SLAPP suits would come next. Trolls and racists would flip the law on its head to sue companies. This would be an utter disaster.
And tragically, reporters are falling for Warner's framing. The Washington Post's article on this claims that the bill "preserves the thrust of Section 230." It absolutely does no such thing. It guts every bit of 230 to its core.
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Filed Under: affirmative defense, amy klobuchar, antitrust, civil rights, mark warner, mazie hirono, preponderance of the evidence, section 230
Reader Comments
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How likely is the bill to pass? how many Democrats would back this bill?
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They're all fucking lawyers....
Not even getting civil liability remotely right? The Senate is stuffed up to the ass with lawyers. That is clear bad faith.
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Honeymoon period
I was wondering how long my good feelings about the Democrats being in charge would last. We have an answer. 16 days.
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Re: Honeymoon period
This is not most Democrats, we will have to see if this bill has any momentum.
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Re:
It’s too early to tell. Just remember that the Democrats, while more United for content moderation, aren’t exactly United on how much content moderation should be utilized. But since the Democrats both have the senate and house, it does make bills easier to pass.
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Re: Honeymoon period
I am still happy that the Donald Trump fascists are no longer in charge, although they still need a watchful eye as they are crazy and who knows what stupid things they will do next.
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“This bill is supported by Mark Warner, Mazie Harino, and Amy Klobachar.”
Because of course Klobachar would support something like this.
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From Cristiano Lima, tech reporter for Politico:
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Re: Re:
It look like it wont be easy to pass seeing the senate is a 50/50 split and I dont see the republicans backing this bill. would this bill even be constitutional?
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Re:
Plus remember that the Democratic Party have an extremely narrow control on the Senate (50-50). If one or two Democratic senators opposes the bill, then the bill would be dead on arrival or be stuck on a tie. Ron Wyden, probably the only senator who actually knows how the internet works, would likely oppose the bill, so I wouldn’t worry too much. But Again, It’s still too early to tell if this bill would have any momentum.
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Most devious and nefarious
No. The most devious and nefarious part of this bill is what it doesn't do — that it does not effectively wipe out § 230.
People do think that 47 USC § 201(a) should apply to Comcast, Verizon and AT&T.
But Comcast, Verizon and AT&T can quite reasonably point to the definition in § 230(f)(2)
Senators Warner, Hirono, and Klobuchar are coming from the same place as the notorious Marsha Blackburn. That's the most devious and nefarious part of this.
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The example that immediately sprang to my mind was someone running a Mastodon instance and taking Patreon subscriptions to pay for hosting. Bye bye, fediverse!
Some of us have been working for years to create alternatives to Big Social Media. The last thing we need is a regulatory regime that Big Social Media can survive but we can't. Facebook and Twitter aren't the whole of the Internet today, but with the wrong law, they sure will be.
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Various attorney generals against backpages says otherwise.
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Re: Honeymoon period
To be fair, some Dems wanting to trash Section 230 is not new. Both parties have been wanting to slam "Big Tech" for content moderation (though perhaps for not all the same reasons).
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Uh, Spoke too soon:
https://mobile.twitter.com/viaCristiano/status/1357764821895233543
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No, they can’t. Internet access providers (a.k.a. what everyone else calls ISPs) are common carriers — their whole schtick is that they (are supposed to) offer a dumb pipe to the Internet. Twitter, by contrast, is an Internet service provider in the more accurate sense of the term: It provides an Internet-based service to those who wish to use it. You don’t need (and can’t use) Twitter to access the Internet, but you need Internet access to use Twitter.
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Re:
No. They are not, Stone. You are simply intentionally mis-stating the facts because you want the law to say something it just doesn't fucking say.
I don't care how much you want the law to say something that it doesn't say. The courts do not have your emotional commitment to that mis-statement of fact. The courts start with the text of the statute.
And when the text of the statute is clear, that's all they need.
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More from Wyden
Reported by Dell Cameron in Gizmodo:
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Re: They're all fucking lawyers....
A lawyer is also a professional liar.
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Re:
Between 0 and 100%, and 0 and however many are in office.
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Re: Honeymoon period
You've probably just blocked out the trauma to save your sanity.. Everything doesn't have to be perfect to be happy the mountain men from deliverance aren't in charge anymore
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As wrong as they are dishonest
Honestly you would be giving them way too much credit to assume that they're simply confused, with how insanely wrong they are, and how this is not a new issues I say assume they're lying through their teeth until proven otherwise.
'Small sites wouldn't be sued, there's no money in it' positively reeks of someone who has literally never even heard of SLAPP suits, and given we're talking about politicians here that's simply not believable in the slightest.
At best this strikes me as an attempt to kill 230 without having the courage to actually come forth and say they want to kill 230, with the alternative even worse, that of trying to do as much damage as possible to speech and platforms online, but whether cowardice or outright malice they absolutely deserve to be condemned and called out for the attempt and the damage they are trying to inflict.
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Yes, the text of the statue is clear. Funnily enough, what you "quoted" isn't the text of the statue. It seems you did some edits in it.
Lets compare what you "quoted" to what it actually says.
Your quote:
The real text of §230(f)(2):
Seems you are the one misstating facts. Actually, you aren't misstating, you are willfully lying by omission.
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"saying that startups are too small to sue,"
I wonder if he understands LAW?
REALLY, what the hell?
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Re: Re: Re:
I understand that you would rather distract people by focusing and emphasizing the parts of the definition that are not relevant to the provision of “access to the Internet” by Comcast, Verizon and AT&T.
But you can't deny that the part I quoted and highlighted is the relevant provision when it comes to provision of “acess to the Internet” by Comcast, Verizon and AT&T.
Those providers aren't “libraries or educational institutions”. You can't deny that fact.
No more than you can deny that our current Supreme Court — the Roberts court — has the noted textualists Gorsuch and Kavanaugh sitting on it. Along with their new associate justice. They will read the text of the statute.
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Re: Re: Honeymoon period
" Everything doesn't have to be perfect to be happy the mountain men from deliverance aren't in charge anymore"
Hahahaha - can you squeal like a pig?
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Re: Re: Re:
A portion of the 1996 Telecommunication Decency Act was found unconstitutional, but that didn't stop congress at the time. Of course, the part that wasn't gave us section 230.
Big tech is currently very hated by Republicans. Perhaps the atmosphere is now ripe for the Democrats to throw the Republicans a bone, and if they do, I say there's a high probability of something bipartisan passing into law. Not that I agree with any of it. I'm just making a prediction based on the most likely scenario.
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Seems it's you are trying to distract people by lying what the law actually says.
You do understand you can't just dismiss parts of the text in a law to fit your narrative, right? The context of the text is in the title for §230(f)(2), Interactive computer service, not "Internet service provider". Regardless, I can deny it for a very simple reason, I've read what the creators of section 230 has said about it. Have you?
In contrast, they will actually read the whole text, not cherry-picked parts placed in the wrong context.
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Re: Honeymoon period
The Section 230 Status Quo's days are numbered. So are the Internet's Wild West days of no responsibility, no gatekeepers, & no moderation...unless you happen to violate Big Tech's groupthink. In the real world, including within both Democratic & Republican bases, Big Tech isn't popular (for the opposite reasons, as stated before).
One of Warner's quotes is absolutely true: “A law meant to encourage service providers to develop tools and policies to support effective moderation has instead conferred sweeping immunity on online providers even when they do nothing to address foreseeable, obvious and repeated misuse of their products and services to cause harm.”
The tech community, from the biggest companies to the smallest, needs to sit down, acknowledge that they were given a blank check & abused it to both profit from hateful rhetoric and ban without accountability, and figure out a way to change their business models, do a better job of moderation (the economy could sure use the jobs), and provide for larger scale appeal procedures. The Good Old Days are Over.
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A possible scenario. But the Republican Party hates section 230 for the opposite reasons. because they believe that Big tech is biased against right-wing conservatives. This is a bullshit claim, but the silver-lining is that this could be what prevents bi-partisan support for the three horsemen of the digitalpocalypse.
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Re: Re: Honeymoon period
May I remind that in a world of publication controlled by gate keepers, that is the world before the Internet, very few people got their words published, and most were kept silent. That is a world that suites politicians, because they can get their words published, and not have the public argue back.
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Re: Re: Honeymoon period
Okay Doomer.
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You’ve been misrepresenting, lying about, and otherwise shitting on 230 for months in an attempt to get people here to agree that 230 needs changing or revoking in some way. Don’t make things worse by stacking another lie on top of that.
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Let’s assume all of that is true.
How do you change this “status quo” without pissing on the First Amendment/advocating for a communist takeover of social media services?
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47 § USC § 230(c)(2) uses the subsection (f)(2) definition.
The paragraph (2)(A) bar on liability for “any action… to restrict access” is directly at odds with a § 201(a) “duty … to furnish such communication service upon reasonable request”.
No, I can't just dismiss parts of the text in a law. You, though, seem to want to very badly. You have feelz. Emotional commitments.
You should understand by now that the statements of drafters, made later, after Congress has enacted a law, even when they are presented to a court in an amicus brief, do not control the court's reading of the statutory text. Even legislative history, such as statements made on the floor have varying degrees of pursuasive value(*), and only when the text is ambiguous.
(*) The late justice Scalia's views on legislative history are too well known to bother repeating.
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Being held responsible for the actions of another .. what a great idea.
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Re: Re: Honeymoon period
The same argument can be applied to gun manufacturers, car manufacturers etc. Also, a demand by the government that companies do something about speech under pain of legal action is government censorship.
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Too many legislators are Lawyers
This primary fault of this bill is a common problem: too many legislators are lawyers.
Lawyers have a professional need to delude themselves winning or losing a case is what matters. They have a very hard time understanding that even being a participant for more than the single round of filing needed to get a case dismissed with prejudice is already more than many "winning" parties can bear.
After all, how else would they get paid?
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Re: Re: Re: Re: Re: Re:
I'm not the one misrepresenting what the law says, that's you. Lying and misrepresenting things are a sure indicator of emotional investment, or to use your own words: You have feelz.
You keep coming back to §230(f)(2) and try to tie it to §201 erroneously. Taking things out of context may make it seem you are right, but you are not. And it's easy to prove: §230(f)(1) defines "internet", §230(f)(2) defines "interactive computer service", which means §201(a) has no bearing on §230(f)(2). That §230(f)(2) mentions "internet" is in the context of using it to reach a service or system that is an "interactive computer service".
As I said, you can't just cherry-pick things from a law that seem to fit your narrative.
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Re: Re: Re: Re: Re: Re: Re:
The law is the Communications Act of 1934, and specifically Title II of that act.
People, the overwhelming majority, on both sides of the partisan divide, including myself, do want Title II common carriage obligations to apply to Comcast, Verizon, and AT&T's provision of internet access.
State it more clearly: §201(c)(2)(A), including the definition of §230(f)(2), is a more specific provision. That more specific provision over-rides the more general statement of duty imposed on common carriers by §201(a).
People want §201(a)'s imposition of a duty on Comcast, Verizon and AT&T's provision of internet access.
But what Warner, Harino, and Klobachar are actually getting is your support for the position held by Blackburn's corporate sponsors. That's the god-damn devious and nefarious part of this.
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Re: Re: Enemy danger rating
Republicans: the demons from doom who just come at you on ultra nightmare
Democrats:actual cunning enemies you have to watch out for becuase they are crafty
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Re: Re: Re: Re: Re:
Thus the "throw them a bone" strategy, which I think is nearly guaranteed to work. Similar to how the Telecommunications Decency Act of 1996 was a bipartisan approach to rid the internet of obscenity, it could be possible for both sides to attempt to take down social media. I think it would be easy to get at least 10 republican Senators, perhaps 20 if necessary to make up a deficiency of Democrat senators.
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No, §201 has no bearing on §230 since it has a different scope. §201 is about carriers, §230 is about interactive computer services which rely on carriers.
I have only pointed out that you are wrong in that ISP's can use §230(f)(2) since they aren't interactive computer services, they are a carriers. Saying otherwise would also mean that they could monitor conversations and kick you off if you say something they don't agree with, and it would also suddenly open them up to a whole host of problems relating to liability.
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mad masnick
This piece is bogus. So filled with exaggerations and misunderstandings. But I'm not going to waste time on that. Instead, I'll ask Masnick, who loves to toss snotballs while pulling his pud, to come up with a real solution for once. Go write smart legislation and tell Congress how to do its job.
Can't do it? Yeah, we know you can't.
What a rag. Useless.
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Dude. At this point, you're not even stating your own position clearly.
What did you intend by “you are wrong in that ISP's can use §230(f)(2)”? I got that you think I'm wrong.
But if you're trying to argue that “a service or system that provides access to the Internet” excludes any of the entities defined in § 153, then point to the text where the statute says that.
The act does not define “a (sic) carriers”. Nor does it exclude “a (sic) carriers” from the definition in § 230(f)(2).
At best, right now, there's Justice Thomas's opinion in Brand X (2005).
Since Brand X was decided, there are now seven new justices on the nine-member court. Gorsuch and Kavanaugh, in particular, are known for their textualist approach.
Arguing from text to forseeable consquences, like you're trying to do with “Saying otherwise would also mean that…”, probably isn't going to carry a whole of weight with the committed textualists.
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Re: Re: Re: Re: Re: Re: Re: Re: Re:
My longer reply just got held for moderation. I guess that must mean you won the argument here today. Congratulations on your win here at Techdirt.
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If someone wants harmful content removed, and isn't suing for money, it means that the host insisted on keeping the content up.
In the Guy Babcock case that's a very reasonable way to let him clear his name -- reasonable to anyone whose goal isn't to harm someone else's reputation.
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Re:
"Let’s assume all of that is true. How do you change this “status quo” without pissing on the First Amendment/advocating for a communist takeover of social media services?"
I'd say eliminate the single-publication rule, make the host affirmatively prove third-party authorship (an anonymous third party "defaults" and loses the speech), and allow anyone defamed to get injunctive relief declaring the speech to be false. Hopefully sites which want credibility would not ignore such declarations. Making internet libel cases multi-district litigation (MDL) would also solve many jurisdictional problems.
I'd also say that denying something like a job to someone based on internet searching should be considered a republication of the defamation (meaning if they did it based on a lie they'd be liable), and people should have the right to know when such searches are being conducted. Maybe make "doxing" illegal as well, since even if it's public data, a private citizen calling attention to the data is what can be banned.
If you had the above you would not need to eliminate Section 230 because individual reputations would be protected.
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Re:
It's attorneys general, as they noted during their last lunch at McDonald's over Quarters Pounder.
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I Have A Question
What will Republicans think of this?
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And you’ve already lost me.
First, you’ll have to define “single-publication rule” with an Internet context in mind. Is it a “secondary” publication if a user retweets a defamatory tweet — and if so, should everyone who retweeted that tweet be on the same hook for defamation as the person who wrote the initial tweet? In some cases, that could be thousands of people.
Should “bots” (i.e., automated accounts) that retweet defamatory tweets put their creators on the hook? Should the owners/operators of a search engine that has no way of knowing without being told (ostensibly by a court of law) whether a given bit of speech is defamatory be on the hook if their search engine automatically indexes that speech?
For what reason, other than revenge and greed, should literally anyone other than the person(s) who made the defamatory statements be held legally liable for making those statements?
A decent idea, but I still can’t think of a good reason to do that.
This sounds like “small claims court, but for defamation”, which leads me to believe this is a bad idea.
Most sites generally don’t ignore court rulings that say “this speech is defamatory, take it down plz”.
That runs into the “libel tourism” problem, especially if more plaintiff-friendly laws end up governing multi-district defamation suits. Man, are you full of shitty ideas designed for petty revenge.
I can’t even put into words how ridiculous this idea is.
Again: a decent idea, but also loaded with possible issues, especially when you bring public data into the mix. How can it be “doxxing” if the data is available to anyone and it isn’t being kept secret(-ish)? For what reason should pointing out publicly available information about someone be made illegal? Would it count as “doxxing” if someone posts the publicly available contact information of a business that did something heinous (e.g., deny service to gay people because they’re gay) with the intent of letting people contact that business for the sake of civil protest? I’m sure other questions could be asked by people far smarter than I am, but those should make for a good start.
And if we had all of the above, we’d also have a court system clogged with baseless defamation cases filed to silence people/services by way of a legal war of attrition (which could be won without the other side firing a single shot). Hell, threats of a lawsuit/legal action would be enough to make people take down speech even if it isn’t defamatory. And all so you can get some measure of petty revenge against someone who probably doesn’t even know you exist outside of this comments section.
I know this is rich coming from me, but goddamn, son — get a fucking life.
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Re:
The single-publication rule would apply to stale content that keeps turning up on websites that can still be edited. Right now people can get blitzed by being defamed on multiple sites and if it lasts longer than a one-year limit it can be permanent. A website "republishes" every day. It's not like a newspaper that can't be recalled.
The other ideas helps someone like Guy Babcock without harming 230. He should have no difficulty finding work (employers shouldn't act out on defamation), nor should he have to explain himself to someone he meets. At least let him get a declaration that X is false. Then sites that don't cover that part might be defaming him.
230 isn't going to survive if it harms people like Babcock so something has to be done there. Neutrality isn't even really an issue as much as the collateral damage of individual reputations.
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An honest person would call this...
The Lawyer's Perpetual Employment Act, part 193 (and counting).
Ya know, Al Gore claimed to`be the Father of the Internet because he's the one who cast the deciding vote in funding DARPA, way back when. But Ron Wyden is the one who gave us a usable Internet, warts and all. I daresay that the anti-230'ers are damned lucky that Wyden doesn't sue them for tortious interference with a proven mechanism for empowering the citizenry of the USA.
Shakespeare had it right.....
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Re: Re: Honeymoon period
Hey, at least that kid played a mean banjo. I haven't seen evidence of similar levels of talent from the previous administration.
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Re: Re:
"The single-publication rule would apply to stale content that keeps turning up on websites that can still be edited"
Define "stale content".
"Right now people can get blitzed by being defamed on multiple sites and if it lasts longer than a one-year limit it can be permanent"
Why one year? What makes it permanent after that year? Why have those sites not been asked to take down the content, and if they have why have they refused?
I suspect that the first 2 questions are arbitrary on your part and the third varies wildly between individual cases, but it would be nice if you could provide some reasonable basis for these arguments.
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If yes, then let me tell you, you have arrived at the genuine post, cause here in this post we have provided everything that you need to know about the Murphy USA Customer Experience Survey.
<a href="https://customerzsurvey.com/murphy-usa-survey-www-tellmurphyusa-com/">website</a&am p;gt;
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What is a civil Rights Group?
“ A: No. The SAFE TECH Act was developed in partnership with, and has the strong support of, a wide array of civil rights groups”
What groups?
One could argue that the Nazi party was a “civil rights group” - it just protected the civil rights of “Arians” over the rights if others.
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Re:
You fantasize over Masnick's kids, Jhon. You're in hardly any position to complain about reputation.
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230 didn’t harm Guy Babcock. An asshole with a computer, Internet access, and way too much free time did that. Hold that person liable instead of destroying a perfectly good law because you want to file SLAPP suits without 230 preëmptively shutting them down.
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I’m sure you’re likely aware of this, so please don’t take this comment as a potshot at you. It’s more a general grammar lesson for anyone and everyone who isn’t sure how to pluralize “attorney general”.
Think of the phrase “mother-in-law”. Assuming you had to pluralize that, you wouldn’t say “mother-in-laws”. That sounds weird no matter what. In that same vein, “attorney generals” sounds weird if you’re referring to someone with the job of Attorney General instead of military generals who happen to be attorneys.
In “attorney general”, “general” tells us the kind of attorney we’re talking about. Thus, you pluralize the main part rather than the descriptive part — which is how we get “attorneys general” (and, per the paragraph above, “mothers-in-law”).
And FYI: Since “quarter pounder” is technically a compound noun, “quarter pounders” is the correct pluralization. Except in Europe, I think. 😁
[TheMoreYouKnow.mp4]
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Re: Re:
"I'd also say that denying something like a job to someone based on internet searching should be considered a republication of the defamation (meaning if they did it based on a lie they'd be liable), and people should have the right to know when such searches are being conducted. "
Are you wanting to regulate searching?
No Timmy, you are not allowed to search for Lassie. Not on the internet and not in real life. wth?
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Re: Re:
"and if it lasts longer than a one-year limit it can be permanent."
At what rate does the internet archive its self? Annually?
LOL - I don't think so.
Once out there it is not retrievable. I suppose you would require the Flashy Thing be used to remove all memories of said "defaming" from those who had first hand knowledge.
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Re:
Sounds like a military court system, too bad they lack a code of ethics for AGs.
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Re: Too many legislators are Lawyers
Blame the players or blame the game?
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Re: An honest person would call this...
"Ya know, Al Gore claimed to`be the Father of the Internet"
Did Al Gore Say ‘I Invented the Internet’?
Don't believe everything you read on the internet
. Abraham Lincoln
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Re: Re: Honeymoon period
Don't start he "Both parties" stuff here, you'll get into a 4 day conversation on which is worse and why, you'll provide links and they will attack them, and then link to actual videos of what was said, and even then, it will be Trump's fault lol.
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Re: What is a civil Rights Group?
I suppose, but they were not very civil about it.
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Who is driving a lot of this?
The media. Traditional media organizations have been hurt the most by S230. Far from making the Internet like cable TV, the established news media interests would love it if the only speech on the Internet were blogs and bigger because that's a great way to rebuild their business model with minimal effort.
Who does 95% of the screeching about all of the ills of social media? Journalists and their employers.
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Re: Re: Re: Honeymoon period
[Projects facts not in evidence]
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Re: Re: Re: Honeymoon period
"Don't start he "Both parties" stuff here"
That is not both party bullshit, it is pointing actual facts.
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Re: Re: Re: Honeymoon period
Gone are the days when a politician could tell a different version of their story at each and every whistle stop and not be called out on it.
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Re: Re: Re:
Sites refuse to take down stale content because of 230 immunity. Many people are good and do the right thing, but some do not.
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Re:
Distributor liability (which 230 immunizes against) would allow Babcock to sue the ISPs and search engines that spread the defamation and amplify the damage caused by the original publisher. They are separate harms, as the law, the media, the politicians, and everyone except a few on this site seem to recognize.
In a world without Section 230, nothing defaming Guy Babcock appears online. Call that whatever you want, but there are those who would rather that be the case, and not because they want to sue anyone. If Babcock could just get a court order declaring the lies about him to be defamatory, that would work as well, but some don't seem to want him to have any redress.
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Re: An honest person would call this...
...did you just write a post complaining about pointless and vexatious litigation that has no purpose except to enrich lawyers, and then close it by saying a senator should frivolously sue other senators for violating a law that doesn't exist?
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Re: What is a civil Rights Group?
Yeah, knowing which groups those are would certainly be helpful for their donors to know who not to give money to, because if they looked over this and gave it the stamp of approval either they didn't get anyone knowledgeable in the field to check things over before approving it, or they also don't care about the huge damage it stands to cause. Either way, not a group people should be supporting, or at the very least a good one that screwed up in a major way and needs to be called on it.
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Here’s the issue with that idea: You’re saying IAPs and search engines are “spread[ing] defamation” as if the operators of those services are knowingly, willingly, and actively spreading defamatory content. Unless you can prove that they’re doing that shit themselves, they shouldn’t be on the hook for “distributor liability” — no matter how much you or anyone else wants both revenge and an easy target for it.
The rest of the world doesn’t have a Section 230. They still have to deal with defamation cases involving the Internet. But those countries don’t need a 230 equivalent because they already have laws and traditions in place that preclude the need for a 230 equivalent.
And as for the assertion that a lack of 230 would prevent Guy Babcock from being defamed? You’re sort of right…because without 230, U.S.-based services of any size likely wouldn’t host any third party speech at all to avoid any and all legal liability for it.
Half-right. People who want 230 gone want it gone mostly because they want to either sue someone into the ground or force their speech onto a platform that told them “we don’t allow that here”. The “kill 230” position is, with rare exception, about one thing: legalized vengeance.
If he gets a court order to that effect, good. But we shouldn’t put shortcuts in jurisprudence, place potentially innocent people on the hook, and allow people to seek life- and service-destroying vengeance via the courts because someone thinks they were defamed (regardless of whether they actually were defamed). That way lies madness.
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Re: Re:
Why are you so adamant in supporting the defrauding of courts?
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The Internet Must Be Destroyed!
I don't think you folks actually 'get it'.
The Internet MUST go.
It is an absolute necessity.
A Fascist Regime cannot survive for long in an environment where official falsehoods can be instantly called out and corrected and then broadcast to the public, by the general public itself. Fascism depends on its ability to lie outright daily to the public, without fear of correction by anonymous authorities among the public population.
Fascism is itself a lie.
Posing as a political ideal, it is nothing more than a very old and well-tested business model designed specifically to allow very wealthy citizens to liquidate their own nation's wealth. Legally.
These people will not stop until they succeed in destroying the one thing standing between them and full control of the false information the public perceives as the daily news.
The Internet must be destroyed.
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You got anything other than fearmongering that can be expanded to any communication technology more complex than, and able to communicate faster and wider than, pen-and-paper letters? Because I’ve heard this song before and it hasn’t gotten any better.
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I wonder why this keeps happening. Idiocy, cluelessness or agenda?
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Re: Re: An honest person would call this...
No, I alluded to how the good Senator from Oregon (not my home state, BTW) does not stoop to that level. Which in turn makes them lucky, for he'd pretty much embarrass them beyond endurance, I'm sure.
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Re: Re: An honest person would call this...
Well, lessee here....
I didn't use the word "invented", I said "Father" - but that was not the best choice of words, I admit and agree. I should've said something like "he helped kickstart it by both proselytizing for it and voting for necessary funding, starting in 1977 as a House Representative." Even at that time, well before Tim Berners-Lee did invent the Internet, he saw something like what we finally got, though no one at the time was sure what to call such a beast as a collection of widely spread out computers from all sorts of places.
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Re:
Yes.
I imagine it's a mix of 'journalists' who think the job is to simply report what someone said without any commentary and who've thus become little more than stenographers, those who don't dare call those they're reporting on liars for fear of losing any potential interviews/comments, and those that have a vested interest in seeing online platforms take a beating due to the competition they pose to more 'traditional' sources of news.
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"Sites refuse to take down stale content because of 230 immunity."
Again, define "stale content". What makes it "stale"? How long does it take to get to that state? Also, "stale" suggests outddated and not updated for a long time. If this is the case, why would Google be returning those results instead of the more up to date information?
"Many people are good and do the right thing, but some do not."
Do you have an example of a site that's been requested to take down "stale" content for good reason, and refused to do it? What was the reason given? What was their explanation for ignoring the request?
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Re:
"Idiocy, cluelessness or agenda?"
Those plus other things. Politicians are often pushing for idiotic things they don't understand because they're always thinking about re-election and need to be seen to "do something". Since they never experience backlash from that "something" being stupid or even achieving the opposite of their supposed aims, they don't have the incentive to properly examine what they're presenting, so long as they present something.
That should be the job of the press to keep these people in line. But, actual journalism is at a premium, and even those doing their jobs properly might be swayed by editorial demands. In the case of the Post, I'm not sure what that is since it's owned by Jeff Bezos and Amazon could face a lot of problems if it suddenly because liable for anything done on AWS, but it's unlikely he directly controls anything the editors say and they have their own incorrect opinion on what should be done to "protect" their legacy business models.
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DECLARATORY RULING, REPORT AND ORDER, AND ORDER
(WC Docket No. 17-108), p.39
(Footnote omitted.)
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Re: Re: Re: Re: Re:
According to the Right To Force Forgetfulness, "stale content" is any factual and relevant information that career frauds don't want their victims to be able to find.
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Re: Honeymoon period
"I was wondering how long my good feelings about the Democrats being in charge would last. We have an answer. 16 days."
Well, we always knew the best we could hope for was "business as usual" if Trump lost.
It's just that the democrats worst still isn't half as bad as Trump's best. There were no good options on the table, only bad and a lot worse.
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Re: What is a civil Rights Group?
"One could argue that the Nazi party was a “civil rights group” - it just protected the civil rights of “Arians” over the rights if others."
err...no, not really. A Civil rights group tries to raise the members of the group they represent.
A terrorist group would be the one who, like the nazis, sought to bring the rest of society down instead.
That's why the KKK and the nazis are domestic terrorists, not civil rights groups. They are far less interested in bringing themselves up than they are at raising black people and jews by way of a noose.
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Re: Honeymoon period
Because four years of fascism, epic corruption, bribery, grift, felonies, and malfeasance culminating in hundreds of thousands of needless deaths were so preferable to one misguided bill?
You're a bad joke.
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Re: Re: Re: Re: Honeymoon period
It is NOTHING but bothsides bullshit and it is insupportable. Run along back to your MAGAtroll superspreader convention, hon.
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Re: Re: Re: Enemy danger rating
Lay off the video games and the social media, pal, if you want to have one remaining functional brain cell left.
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Re: Re: Re:
Constitutional? After four years of Anus Tangerinus' assaults on every part of the Constitution and our republic, culminating in last month's delightful coup-coup? Rapeublicunts have been dying to gut 230 for years and dRUMPf made a concerted effort because social media dared to piss off His BunkerBitchness. The only reason they'd vote against this would be to cut off their nose to spite their face, which is actually possible given that GANGreene is the face of their party now.
Fixed it all for you. Don't bother trying to respond; you're too stupid to bother schooling further.
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I’m not exactly what you’d call a “fan” of Republicans and their Dear Leader. But good lord, dude, you sound like a bad parody of “leftists” written by a right-wing whackjob who thinks everyone one step left of center talks like that.
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Re: Re: Re: Re: Re: Honeymoon period
"It is NOTHING but bothsides bullshit and it is insupportable."
Bothsiderism is indeed bullshit and insupportable when it comes to the MAGA crowd trying to look like slightly dirtier democrats, but adopting the language and mannerism of the alt-right stormfront refugees doesn't serve to make that distinction clear.
What really makes the "both sides" debate remain nonsense is the fact that no matter how bad the democrats get they aren't supporting domestic terrorism, racism, bigotry or the bloody KKK. Nor do they subscribe to the conspiracies of jewish space lasers, the satanist child-trafficking ring run by Kenyan Muslims out of pizza parlors, or the sinister plot to turn the frogs gay because...uh, evil liberal plot or something...
You may not want to support crooked and inept democrats but you'd better have their backs when the only alternative is to support lunatics and outright monsters instead.
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" "stale content" is any factual and relevant information that career frauds don't want their victims to be able to find."
Naturally. Baghdad Bob's angle has been, for ten years going, impotent rage at the idea that the internet makes fraud so much harder to commit at scale. He still hasn't gotten over his "stolen" mailing list which was supposed to make him millions.
I guess that's why this self-defined genius of business, IT, law and marketing, this paragon of unique, heaven-defying artistry, spends his days around here blubbering about how we'll all pay for being mean to him rather than going out and getting rich off his prodigious talents. Ah, if it just werent for factual reality getting in his way all the time, he'd be rich.
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Re: Re: Re: Re: Re: Honeymoon period
Unsupportable? Pick your news source of choice, there's plenty of information out there about how both parties want to go after section 230.
https://www.google.com/search?q=republican+attacks+on+section+230
https://www.google.com/search ?q=democrat+attacks+on+section+230
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Re: I Have A Question
They would oppose it.
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Re: Re: Re: Re: Re: Re: Honeymoon period
Only on planet Htrae are "I want more disinformation" and "I want less disinformation" equivalent.
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Re: Re: Re: Re: Re: Re: Re: Honeymoon period
I didn't say they're equivalent; I said both parties want to amend or repeal section 230.
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Re: Re: Re: Re: Re: Re:
Section 230 was actually an independent bipartisan approach from the rest, and the Democrats and Republicans are so diametrically and fundamentally opposed to each other on how §230 should be changed that I doubt that there’d be enough bipartisan support on this.
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Danielle Citron’s involvement
Hi Mike,
While you rightly lambaste the Senators that sponsored this bill, I’m noticing that you have no mention here of Danielle. I only caught this interview she did, https://www.law.virginia.edu/news/202102/cutting-edge-free-speech-citron-advocates-reform, where it makes clear that played what it appears to be an advisory role in crafting this bill. She is certainly a credible privacy activist, and yet it feels like she somewhat missed the mark here? Where’s the deserving criticism for her positions here given that she ought to know better? Perhaps her interview helps explain the context of her positions, though it still feels off to me.
Thoughts?
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