Senator Mark Warner Doesn't Seem To Understand Even The Very Basic Fundamentals Of Section 230 As He Seeks To Destroy It
from the this-is-astounding dept
On Monday morning, Protocol hosted an interesting discussion on Reimagining Section 230 with two of its reporters, Emily Birnbaum and Issie Lapowsky. It started with those two reporters interviewing Senator Mark Warner about his SAFE TECH Act, which I've explained is one of the worst 230 bills I've seen and would effectively end the open internet. For what it's worth, since posting that I've heard from a few people that Senator Warner's staffers are now completely making up lies about me to discredit my analysis, while refusing to engage on the substance, so that's nice. Either way I was curious to see what Warner had to say.
The Warner section begins at 12 minutes into the video if you want to just watch that part and it's... weird. It's hard to watch this and not come to the conclusion that Senator Warner doesn't understand what he's talking about. At all. It's clear that some people have told him about two cases in which he disagrees with the outcome (Grindr and Armslist), but that no one has bothered to explain to him any of the specifics of either those cases, or what his law would actually do. He also doesn't seem to understand how 230 works now, or how various internet websites actually handle content moderation. It starts out with him (clearly reading off a talking point list put in front of him) claiming that Section 230 has "turned into a get out of jail free card for large online providers to do nothing for foreseeable, obvious and repeated misuse of their platform."
Um. Who is he talking about? There are, certainly, a few smaller platforms -- notably Gab and Parler -- that have chosen to do little. But the "large online platforms" -- namely Facebook, Twitter, and YouTube -- all have huge trust & safety efforts to deal with very difficult questions. Not a single one of them is doing "nothing." Each of them has struggled, obviously, in figuring out what to do, but it's not because of Section 230 giving them a "get out of jail free card." It's because they -- unlike Senator Warner, apparently -- recognize that every decision has tradeoffs and consequences and error bars. And if you're too aggressive in one area, it comes back to bite you somewhere else.
One of the key points that many of us have tried to raise over the years is that any regulation in this area should be humble in recognizing that we're asking private companies to solve big societal problems that governments have spent centuries trying, and failing, to solve. Yet, Warner just goes on the attack -- as if Facebook is magically why bad stuff happens online.
Warner claims -- falsely -- that his bill would not restrict anyone's free speech rights. Warner argues that Section 230 protects scammers, but that's... not true? Scammers still remain liable for any scam. Also, I'm not even sure what he's talking about because he says he wants to stop scamming by advertisers. Again, scamming by advertisers is already illegal. He says he doesn't want the violation of civil rights laws -- but, again, that's already illegal for those doing the discriminating. The whole point of 230 is to put the liability on the actual responsible party. Then he says that we need Section 230 to correct the flaws of the Grindr ruling -- but it sounds like Warner doesn't even understand what happened in that case.
His entire explanation is a mess, which also explains why his bill is a mess. Birnbaum asks Warner who from the internet companies he consulted with in crafting the bill. This is actually a really important question -- because when Warner released the bill, he said that it was developed with the help of civil rights groups, but never mentioned anyone with any actual expertise or knowledge about content moderation, and that shows in the clueless way the bill is crafted. Warner's answer is... not encouraging. He says he talked with Facebook and Google's policy people. And that's a problem, because as we recently described, the internet is way more than Facebook and Google. Indeed, this bill would help Facebook and Google by basically making it close to impossible for new competitors to exist, while leaving the market to those two. Perhaps the worst way to get an idea of what any 230 proposal would do is to only talk to Facebook and Google.
Thankfully, Birnbaum immediately pushed back on that point, saying g that many critics have noted that smaller platforms would inevitably be harmed by Warner's bill, and asking if Warner had spoken to any of these smaller platforms. His answer is revealing. And not in a good way. First, he ignores Birnbaum's question, and then claims that when Section 230 was written it was designed to protect startups, and that now it's being "abused" by big companies. This is false. And Section 230's authors have said this is false (and one of them is a colleague of Warner's in the Senate, so it's ridiculous that he's flat out misrepresenting things here). Section 230 was passed to protect Prodigy -- which was a service owned by IBM and Sears. Neither of those were startups.
Birnbaum: Critics have said that small platforms and publishers will be disproportionately harmed by some of these sweeping Section 230 reforms, including those contained within your bill. So did you have an ongoing conversation with some of those smaller platforms before the bill was introduced? Are you open to any changes that would ensure that they are not disproportionately harmed while Facebook just pays more, which they can afford?
Warner:Section 230 in the late '90s was then about protecting those entrepreneurial startups. What it has transformed into is a "get-out-of-jail-free" card for the largest companies in the world, to not moderate their content, but frankly, to ignore repeated misuse abuse in a way that we've tried to address.
What an odd way to respond to a question about smaller websites -- to immediately focus on the largest companies, and not ever address the question being raised.
Lapowsky jumps in to point out that Warner is not answering the question, and that to just focus on the (false) claim that the "big tech" platforms use 230 as a "get out of jail free card" ignores all the many smaller sites who use it to help deal with frivolous and vexatious litigation. Lapowsky follows that up by noting, correctly, that it's really the 1st Amendment that protects many of the things that Warner is complaining about, and that Section 230 has the procedural benefits that help get such cases kicked out of court earlier. Her question on this is exactly right and really important: Facebook and Google can spend the money to hire the lawyers to succeed on 1st Amendment grounds on those cases. Smaller platforms (like, say, ours) cannot.
Warner, looking perturbed, completely misses the point, and stumbles around with a bunch of half sentences before finally trying to pick a direction to go in. But one thing Warner does not do is actually answer Lapowsky's question. He just repeats what he claims his law will do (ignoring the damage it will actually do). He also claims that the law is being used against the wishes of the authors (the authors have explicitly denied this). He also claims -- based on nothing -- that the courts have "dramatically expanded" what 230 covers, and that other lawmakers don't understand the difference between the 1st Amendment and 230.
And then things go completely off the rails. Lapowsky pushes back, gently, on Warner's misunderstanding of the point and intent of 230, and Warner cuts her off angrily, again demonstrating his near total ignorance of the issue at hand and refusing to address her actual point, but just slamming the table insisting that the big companies are somehow ignoring all bad stuff on their websites. This is (1) simply not true and (2) completely unrelated to the point Lapowsky is making about every other website. What's incredible is how petulant Warner gets when asked to defend just the very basics of his terrible law.
Lapowsky: There's also another part of your bill, though, that deals with affirmative defense requirements. And the idea is basically so defendants couldn't just immediately fast track to the 230 defense to get cases quickly dismissed. And this is something a lot of critics say, effectively, guts the main purpose of Section 230 protections. So tell me a little bit about why you introduced this requirement.
Warner: Are you saying that the original intent of Section 230 was to in a sense, wipe away folks' legal rights?
Lapowsky: Not the intent, but certainly—
Warner: But if we're gonna go back to the intent of the legislation, versus the way the courts have so dramatically expanded what was potentially the original intent, I think it's one of the reasons why we're having this debate. And candidly, some policymakers may not be as familiar with the nuance and the differential between First Amendment rights, which we want to stand by and protect, and what we think has been the misuse of this section and the over-expansion of the court's rulings. We want to draw it back in and to make sure that things that are already illegal — like for example, illegal paid scams that take place on a lot of these platforms, I actually think there should be an ability to bring a suit against those kinds of illegal scams. The idea that you can flash your "get-out-of-jail" Section 230 card up front, before you even get to the merits of any of those discussions, I just respectfully think ought to not be the policy of the United States.
Lapowsky: My understanding of the intent was that this was a bill that was meant to encourage good faith efforts to moderate content, but also protect companies when they get things wrong, when they don't catch all the content or when they take something down that they shouldn't have. And obviously, this was written at a time when the internet—
Warner: Can I just ask, are you saying that Section 230 has reinforced good faith intent on moderation? Again, if that's your view of how it's been used by the large platforms, we just have a fundamental disagreement. I think Section 230 has been used and abused by the most powerful companies in the world.
Lapowsky: I wouldn't—
Warner: [They've been allowed] to not act responsibly, and instead it has allowed whether it's abuse of civil rights, abuse of individuals' personal behaviors as in the Grindr case, whether it's for large platforms to say, "Well, I know this scam artist is paying me to put up content that probably is ripping people off, but I'm going to use Section 230 as a way to prevent me from acting responsibly and actually taking down that content." So if you don't believe those things are happening, then that's a position to have, again, respectfully, I would just fundamentally disagree with you.
Lapowsky: It's not my position—
Warner: Emily, are there other questions? I thought we were gonna hear from a variety of questions. I'm happy to do this debate but I thought that—
There's so much to comment on here. First, Lapowsky is asking a specific question that Warner either does not understand or does not want to answer. She's pointing out, accurately, what 230 actually does and how it protects lots and lots of internet users and sites, beyond the "big" guys. And Warner is obsessing over some perceived problem that he fundamentally does not seem to understand. First of all, no large online platform wants scammers on their website. They don't need to hide behind Section 230, because public pressure in the form of angry users, journalists exposing the bad behavior, and just common sense has every major online site seeking to take down scams.
Warner's bill doesn't do anything to help in that situation other than make sure that if a smaller platform fucks up and misses a scammer, then suddenly they'll face crippling liability. The big platforms -- that Warner is so sure are doing nothing at all -- have massive trust and safety operations on the scale that no other site could possibly match. And they're going to miss stuff. You know why? Because that's the nature of large numbers. You're going to get stuff wrong.
As for the Grindr case, that actually proves the opposite point. The reason the Grindr case was a problem was not that Grindr fucked up, but that law enforcement ignored Matthew Herrick's complaint against his vengeful ex for too long. And eventually they got it right and arrested his ex who had abused Grindr to harass Herrick. Making Grindr liable doesn't fix law enforcement's failures. It doesn't fix anything. All it does is make sure that many sites will be much more aggressive in stifling all sorts of good uses of their platform to make sure they don't miss the rare abusive uses. This is fundamentally why 230 is so important. It creates the framework that enables nearly every platform to work to minimize the mistakes without fearing what happens if they get it wrong (exactly as Lapowsky pointed out, and which Warner refuses to address).
At this point, Lapowsky again tries to explain in more detail what she's asking, and a clearly pissed off Warner cuts her off, ignores her and turns to the other reporter, Birnbaum, to ask if she has any other questions for him, snottily noting that he expected questions from listeners. Lapowsky tries again, pointing out that she thinks it's important to hear Warner respond to the actual criticisms of his bill (rather than just repeating his fantasy vision of what is happening and what his bill does).
Finally, Lapowsky is able to raise one of the key problems we raised in our article: that the SAFE TECH Act, by wiping out 230 protections for any content for which money exchanges hands, is way too broad and would remove 230 for things like web hosting or any kind of advertising. Warner goes on a long rambling rant about how he thinks this should be debated around conference tables as they "iterate," but then also says that the companies should be forced to come to hearings to defend their content moderation practices. Then, rather than actually responding to the point that the language is incredibly broad, he immediately focuses in on one extreme case, the Armslist case, and demands to know Lapowsky's view on what should happen with that site.
But... notice that he never actually answers her question about the incredibly broad language in the bill. It's incredibly ridiculous to focus on an extreme outlier to defend language that would basically impact every website out there by removing any 230 protections for web hosts. This is the worst kind of political grandstanding. Take one extreme example, and push for a law that will impact everyone, and if anyone calls you on the broad reach, just keep pointing at that extreme example. It's disgusting.
At the end, Warner states that he's open to talking to smaller platforms, which is kind of laughable, considering that his staffers have been going around trashing and lying about people like myself that have pointed out the problems with his bill.
Either way, the interview makes clear that Warner does not understand how content moderation works, or what his bill actually does. Clearly, he's upset about a few extreme cases, but he doesn't seem to recognize that in targeting what he believes are two bad court rulings, he would completely upend how every other website works. And when pushed on that, he seems to get angry about it. That's not a good way for legislation to be made.
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Filed Under: 1st amendment, big tech, civil rights, content moderation, emily birnbaum, free speech, intermediary liability, issie lapowsky, mark warner, safe tech act, scams, section 230
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let's be honest, none of these fuckers understand, except the ones who first introduced it, and the reason why it is so desperately required! add in that they also are being paid campaign contributions to destroy not just this but anything and everything that is of use and benefit to the American people, making it more and more likely that the Internet will be destroyed, just as is wanted by the entertainment industries! they get a little better grip every day and wont be content until they can control it completely and can prosecute everyone who does even the most minor thing that those industries dont like! the music industry has just released that it made $21.7Billion dollars last year! bear in mind that that was during a worldwide pandemic! however, from what i read, Joe Bloggs downloaded for free 1 track off of 1 album that he shouldn't have done, that lost $3 dollars from the music industry and they have just spent $2.5million suing him! that is the mentality and it aint gonna change til they get what they want!
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It's not the RIAA nor the MPA…
I don't think it's them; the RIAA and MPA are actually increasing their share of wealth due to the internet. They may be irrational and thuggish but they can see dollar signs like everyone else.
Rather, I think it's Oracle. That is, they're cutting off the internet to spite their competitor. In some ways, Oracle is arguably worse than the RIAA and the MPA, because at least the latter two have shown some signs of adaptation. Not so with Oracle, who remain a thuggish bully.
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"Conservatives" just want Free Speech, NOT CONTROLLED,
As Classic Liberals USED to advocate, but neo-cons and neo-liberal want POWER.
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"Conservatives" just want Free Speech, NOT CONTROLLED,
... as Classic Liberals USED to advocate, but neo-cons and neo-liberals want POWER.
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Re: "Conservatives" just want Free Speech, NOT CONTROL
NO, as usual, you mention only the part that helps your case, omitting that YOU just ran piece in which some corporatist tells us 'We're Not Neutral' -- pretending that ever were -- and laying out a Marxist plan for total social control.
It comes down to whether a few fantastically rich Corporatists will control the speech of billions. If phrased that way, of course you lose.
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Re: "Conservatives" just want Free Speech, NOT CONTROL
YOU, Maz, have in the past advocated that Facebook host live videos of murders. And you several times railed that downloaders of child porn should be let off on mere Court Rule, not law. -- Your brain is manifestly defective, you don't stop even at horror that no society has ever allowed.
And it's full-spectrum lunacy. For 20 years you've claimed to "support copyright" while every piece attacks it. And you claim that "Free Speech" means links to infringed content. One should only laugh at you -- and this one DOES!
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Re: "Conservatives" just want Free Speech, NOT CONTROL
I urge you and fellow corporatists to indeed "take a new approach: leveling with" us, 'cause been LYING, and the more you're honest, less support you'll get. Even your fanboys don't actually write support of your corporatism, just attack dissent 'cause that's their level of fun.
And as ever, YOU NEED A POSITIVE CASE, not just claim people are ignorant, stupid, and crazy too.
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Supporting the idea that a corporation should have the right to decide what speech is allowed on private property owned by said corporation is not “corporatism” — it’s supporting the freedom of association. You have no right to use Twitter, Techdirt, or a 10-person Mastodon instance. Neither does anyone else.
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Re: Re: "Conservatives" just want Free Speech, NOT CON
https://youtu.be/OLpeX4RRo28
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Corporations and Freedom
A corporation is simply legal recognition that people are exercising their inalienable right to work together. Professional associations, museums, schools, hospitals, farmers' cooperatives, churches, and all kinds of other associations--including businesses--have (in a free society) the right to exist and to pursue any legal or constitutionally-protected activity--without the interference of malicious outsiders.
And it is truly a lonely, self-centered, short-sighted person who can't find anything worth working together with other people....
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Re: Corporations and Freedom
And it is truly a lonely, self-centered, short-sighted person who can't find anything worth working together with other people....
When it comes to 230 I'd say it's more angry, petulant and self-entitled people who are angry that other people don't want them around and so are trying to force their way in.
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'You're not supposed to fact-check me, how dare you?!'
Well that must have been unpleasant for him, he goes on there expecting the usual softballs lobbed at politicians and instead is faced with a politician's worst nightmare: someone who knows what they're talking about and isn't willing to let a bullshit non-answer slide.
Either way, the interview makes clear that Warner does not understand how content moderation works, or what his bill actually does
I'd say it's must worse than that, and he most certainly does not deserve the benefit of the doubt. Rather than not understanding it sounds like at best he doesn't want to because actual understanding would gut his point, though given his petulant and spiteful behavior I suspect that he understands he just doesn't care, because lashing out and trying to smear people who point out how you're wrong and attacking strawmen rather than the actual question posed to you does not strike me as the sort of behavior from someone who is merely ignorant of the subject.
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I wish Congresspeople had to come to hearings to explain why they keep lying to us, rejecting reality to impose their own, and how we can have any faith in them when they are unable to get anything correct.
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Re: 'You're not supposed to fact-check me, how dare you?!'
They try to avoid the "had knowledge" standard in all if its forms.
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Warmer if your staffers ever read this because I know you never will being the creature of politics you are: you already know your bills unconstitutional lol
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Warner internet bill
How likely is this bill to pass?
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Re:
I wish congresspeople would READ what they are Debating, at the outside of Any comments they make.
Then I would Know if they are on the right page.
Insted all I see is a power grab, and a way to Force the major players into Paying into the Congressional Coffers.
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Hanlon revised
"never attribute to stupidity that which is adequately explained by malice"
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What about the USMCA
Section 230 laws are part of the USMCA trade deal. The way Wyden and Cox wrote the 1996 section 230 is part of the USMCA. Can we not file an investor dispute on section 230 to be sure the law says the way it is once we take it to the courts???
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Re: Corporations and Freedom
It’s more than that though. We provide liability protection for individuals who control the corporation because mens rea is still important. It’s not just people working together.
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Re:
Trump lost. He failed the election, failed to nuke 230, failed to have his gang win on Jan 6th, failed to save them from prosecution. Get over it.
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Warner is not a nerd, but he disagrees.
(I'm never going to let them live down this attitude.)
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Re: "Conservatives" just want Free Speech, NOT CONTROLLED,
[Asserts facts disproven by Josh Hawley et al.]
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Re: What about the USMCA
Exactly.
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Re: Re: "Conservatives" just want Free Speech, NOT CON
“You need a positive case”
Sometimes you aren’t here. That’s positive lol
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Re: Hanlon revised
Regular Hanlon's razor applies to politicans - they didn't get into office by being stupid however even if the voters perversely like them acting stupid.
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Re: "Conservatives" just want Free Speech, NOT CONTROLLED,
""Conservatives" just want Free Speech, NOT CONTROLLED,"
Very strange then that most right-wing safe spaces like Gab, Parler, Free Republic and Stormfront will delete your posts and ban your account permanently for posting a dissenting opinion. Almost as if you're lying about that or something.
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Re: Re: "Conservatives" just want Free Speech, NOT CON
"And as ever, YOU NEED A POSITIVE CASE"
Weirdly, you stumbled across a correct assertion. We need a positive confirmed case of a right-winger being banned purely for his political views before we take your claims of bias seriously. Yet, all you guys ever provide are examples of racist, Nazi, homophobic morons acting in such a way that they'd get banned no matter what they were saying.
Are there any examples of actual bias (which wouldn't matter in terms of allowing people to have control of their own private property, but it would at least show you're not lying about the reason you claim to wish to remove their rights over)?
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Re: Re: Hanlon revised
And even if they did get elected despite being idiots thanks to idiots it's still entirely reasonable to hold them to a higher standard thanks to the power and authority they have been granted.
Giving someone a pass for being stupid might be fine when the only person they're hurting is themselves, but when that same person is in a position to hurt a lot of people by their actions and/or words then expecting them to act intelligently and think before they speak/act should be seen as the bare minimum required of someone in their position.
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Re: Corporations and Freedom
"And it is truly a lonely, self-centered, short-sighted person who can't find anything worth working together with other people...."
Also known as the modern republican. Oh, if only someone had kicked Nixon and Goldwater in the nuts when they tried bringing up the "southern Strategy" the US would be in a better place.
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Re: Re:
Failed to walk down a ramp.
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Just take his law to court from the get go and have his lawyer explain his vague definition of “illegal”
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Re: Re: Hanlon revised
People can also be good at one or two things and be complete morons in every other capacity. Politicians are good at saying shit to their potential base and "interested parties" to get themselves elected. And sometimes you have a majority or just loud base of morons to which to pander. They aren't necessarily any good at lawmaking or governing.
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Re:
Businesses should not have freedom of association when it comes to doing business with law-abiding citizens: corporations are artificial legal constructs and should have only the barest minimum of capabilities required to serve their economic function. If you want human rights, act in your own capacity as a human.
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Re: Re:
You aren't big on the first amendment and private property rights it seems. Do go on and explain how you will deprive people of their rights...
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Re: Re: Re:
I am not a fan of property rights, no. They're a necessary evil for some things and can't conveniently be abolished in the short term for others, but I wouldn't call them good as a general principle.
As for free speech, that should be restricted to citizens acting in their own personal capacity, while businesses should be prohibited from engaging in anything that isn't commercial speech. Even then, there should be spending caps to ensure equal ability to speak for all citizens.
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Re: Re: Re: Re:
"I am not a fan of property rights, no."
So, at what point should people lose the ability to own or control their own property, in your opinion, and for what reasons?
"As for free speech, that should be restricted to citizens acting in their own personal capacity"
At what point should these be restricted, so that a business owner loses their free speech rights if their personal interests happen to coincide with the interests of their business?
"Even then, there should be spending caps to ensure equal ability to speak for all citizens."
Many agree, which is why they opposed the Citizens United ruling, and I don't think you'd get much opposition here to a suggestion that it should be reversed.
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