Inauguration Has Happened, Google And Facebook Should End The Ban On Political Advertisements

from the it's-not-all-presidential-campaigns-and-nonsense dept

In light of the events at the Capitol, social media and other online companies have been reevaluating who they let speak on their platforms. The ban of President Trump from Twitter, Facebook, and various other platforms has sparked fierce debate over moderation and free speech. But Google’s recently reinstituted ban on political advertisements until at least inauguration day and the continued ban from Facebook are silencing voices that need to be heard the most – those speaking about state and local political issues.

Before last November’s election, both Google and Facebook restricted the ability of political advertisers to submit and run new ads. This policy was implemented to prevent situations like those in 2016, when Russian agents were able to purchase $100,000 in Facebook ads related to that year’s presidential election. Although these ads did nothing to affect the outcome of the election, they gave rise to the spurious narrative that Russia “hacked” the election.

But Facebook’s ban has continued far past election day under the stated purpose of preventing ads claiming the election results were rigged or that the election had been stolen. Google eventually returned to allowing ads and Facebook made an exception for the Georgia runoff. However, the companies’ most recent bans leave many smaller speakers without two of their most important platforms, despite the policies’ failure to prevent the spread of doubt over the 2020 election results.

Politicians like Alexandria Ocasio-Cortez and Ted Cruz, while certainly benefiting from social media, can reach an audience without these platforms. But many other speakers who want to speak to local audiences about important political issues have come to rely on them.

Before the advent of targeted online advertisements, communicating and organizing locally required going door-to-door or hanging flyers in your neighborhood. If you could find enough support, perhaps you could even set up a meeting in a public space. The old system was not only inefficient, but often costly in terms of time and money.

This is what makes advertising on Facebook and Google so valuable to those wanting to engage on important issues. Want to inform your neighbors about a city board meeting over a key issue for your community? Want to build a coalition of people to support or oppose an issue at your state capitol? Facebook and Google can do so more successfully, and at a fraction of the cost.

This is often the most important kind of political engagement - forming relationships with your fellow citizens to make your voices heard on issues that carry major personal impacts and are far too often under-reported and less understood.

And make no mistake, the last year has featured no shortage of critical state and local issues.

State legislatures are already in session dealing with important and contentious topics like education, budget cuts, and of course, the rollout of the COVID-19 vaccine. Local governments are still dealing with shutdowns and business closures as the pandemic continues into 2021. And as organizing in person gets increasingly difficult, if not impossible, digital tools are becoming even more important.

Key state and local issues are also too often drowned out by politics at the national level. Given the turbulent times we are living through, who can blame people for being glued to the events unfolding in Washington? That’s why Facebook and Google ads are important tools to draw attention to state and local issues.

Inauguration is over and the stated purpose of banning these ads has passed. But more importantly our federalist system of government means that politics don’t only happen at the national level. Rather, the political issues that most greatly affect our lives are those closest to home. Facebook and Google should recognize this fact and end its political ad ban which puts national politics ahead of state and local issues.

The internet is at its best when it informs and connects local communities on the issues that impact them. Blanket political ad bans lessen the opportunity for this kind of much-needed engagement while also failing to improve the national discourse.

Eric Peterson lives in New Orleans where he is the Director of the Pelican Center for Technology and Innovation

Filed Under: messaging, political ads, politics, social media
Companies: facebook, google, twitter

Jack Dorsey Explains The Difficult Decision To Ban Donald Trump; Reiterates Support For Turning Twitter Into A Decentralized Protocol

from the good-to-see dept

Last Friday, Twitter made the decision to permanently ban Donald Trump from its platform, which I wrote about at the time, explaining that it's not an easy decision, but neither is it an unreasonable one. On Wednesday, Jack Dorsey put out an interesting Twitter thread in which he discusses some of the difficulty in making such a decision. This is good to see. So much of the content moderation debate often is told in black and white terms, in which many people act as if one answer is "obvious" and any other thing is crazy. And part of the reason for that is many of these decisions are made behind close doors, and no one outside gets to see the debates, or how much the people within the company explore the trade-offs and nuances inherent in one of these decisions.

Jack doesn't go into that much detail, but enough to explain that the company felt that, given the wider context of everything that happened last week, it absolutely made sense to put in place the ban now, even as the company's general stance and philosophy has always pushed back on such an approach. In short, context matters:

Here's his thread in plaintext:

I do not celebrate or feel pride in our having to ban @realDonaldTrump from Twitter, or how we got here. After a clear warning we’d take this action, we made a decision with the best information we had based on threats to physical safety both on and off Twitter. Was this correct?

I believe this was the right decision for Twitter. We faced an extraordinary and untenable circumstance, forcing us to focus all of our actions on public safety. Offline harm as a result of online speech is demonstrably real, and what drives our policy and enforcement above all.

That said, having to ban an account has real and significant ramifications. While there are clear and obvious exceptions, I feel a ban is a failure of ours ultimately to promote healthy conversation. And a time for us to reflect on our operations and the environment around us. Having to take these actions fragment the public conversation. They divide us. They limit the potential for clarification, redemption, and learning. And sets a precedent I feel is dangerous: the power an individual or corporation has over a part of the global public conversation.

The check and accountability on this power has always been the fact that a service like Twitter is one small part of the larger public conversation happening across the internet. If folks do not agree with our rules and enforcement, they can simply go to another internet service. This concept was challenged last week when a number of foundational internet tool providers also decided not to host what they found dangerous. I do not believe this was coordinated. More likely: companies came to their own conclusions or were emboldened by the actions of others. This moment in time might call for this dynamic, but over the long term it will be destructive to the noble purpose and ideals of the open internet. A company making a business decision to moderate itself is different from a government removing access, yet can feel much the same.

Yes, we all need to look critically at inconsistencies of our policy and enforcement. Yes, we need to look at how our service might incentivize distraction and harm. Yes, we need more transparency in our moderation operations. All this can’t erode a free and open global internet.

I fear that many will miss the important nuances that Jack is explaining here, but there are a few overlapping important points. The context and the situation dictated that this was the right move for Twitter -- and I think there's clear support for that argument. However, it does raise some questions about how the open internet itself functions. If anything, this tweet-thread reminds me of when Cloudlflare removed the Daily Stormer from its service, and the company's CEO, Matthew Prince highlighted that, while the move was justified for a wide variety of reasons, he felt uncomfortable that he had that kind of power.

At the time, Prince called for a wider discussion on these kinds of issues -- and unfortunately those discussions didn't really happen. And so, we're back in a spot where we need to have them again.

The second part of Jack's thread highlights how Twitter is actually working to remove that power from its own hands. As he announced at the end of 2019, he is exploring a protocol-based approach that would make the Twitter system an open protocol standard, with Twitter itself just one implementation. This was based, in part, on my paper on this topic. Here's what Jack is saying now:

The reason I have so much passion for #Bitcoin is largely because of the model it demonstrates: a foundational internet technology that is not controlled or influenced by any single individual or entity. This is what the internet wants to be, and over time, more of it will be. We are trying to do our part by funding an initiative around an open decentralized standard for social media. Our goal is to be a client of that standard for the public conversation layer of the internet. We call it @bluesky.

This will take time to build. We are in the process of interviewing and hiring folks, looking at both starting a standard from scratch or contributing to something that already exists. No matter the ultimate direction, we will do this work completely through public transparency. I believe the internet and global public conversation is our best and most relevant method of achieving this. I also recognize it does not feel that way today. Everything we learn in this moment will better our effort, and push us to be what we are: one humanity working together.

There had been some concern recently that, since nothing was said about the Bluesky project in 2020, Twitter had abandoned it. That is not at all true. There have been discussions (disclaimer: I've been involved in some of those discussions) about how best to approach it and who would work on it. In the fall, a variety of different proposals were submitted for Twitter to review and choose a direction to head in. I've seen the proposals -- and a few have been mentioned publicly. I've been waiting for Twitter to release all of the proposals publicly to talk about them, which I hope will happen soon.

Still, it's interesting to see how the latest debates may lead to finally having this larger discussion about how the internet works, and how it should be managed. While I'm sure Jack will be getting some criticism (because that's the nature of the internet), I appreciate that his approach to this, like Matthew's at Cloudflare, is to recognize his own discomfort with his own power, and to explore better ways of going about things. I wish I could say the same for all internet CEOs.

Filed Under: content moderation, decentralization, donald trump, jack dorsey, platforms, power, protocols
Companies: twitter

Parler's Laughably Bad Antitrust Lawsuit Against Amazon

from the i-mean,-what? dept

As you may have heard, over the weekend Amazon removed Parler from its AWS cloud hosting services, causing the website to shut down. I've been working on a longer piece about all of this, but in the meantime, I did want to write about the laughably bad antitrust lawsuit that Parler filed against Amazon in response. Notably, this came just days after Parler's CEO claims that his own lawyers quit (would these be the same "lawyers" who stupidly advised that the company doesn't need Section 230?). Instead, they found a small time independent practitioner who doesn't even have a website* to file what may be the silliest antitrust lawsuit I've seen in a long time. It's so bad that by the end of it, Parler may very well be paying Amazon a lot of money.

There are so many other things I'd rather be writing about, so I'll just highlight a few of the problems with Parler's very bad, no good, horrible, stupidly ridiculous lawsuit. If you want more, I recommend reading Twitter threads by Akiva Cohen or Neil Chilson or Berin Szoka or basically any lawyer with any amount of basic knowledge of antitrust law. The lawsuit is dumb and bad and it's going to do more harm to Parler than good.

The key part of the lawsuit is that Parler, without evidence, claims that Amazon had "political animus" against it, and that it conspired with Twitter to shut down a competitor. It provides no proof of either thing, and... even if it did show proof of political animus, that's... not against the law. And that's kind of a big deal. They're basically saying it's an antitrust violation to dislike Parler. Which it's not. But even if it were, they are simply making up false reasons for why AWS booted Parler.

AWS’s decision to effectively terminate Parler’s account is apparently motivated by political animus. It is also apparently designed to reduce competition in the microblogging services market to the benefit of Twitter.

I mean, even just this paragraph makes no sense. You may have noticed that Amazon and Twitter are different companies. The complaint is against Amazon. Amazon doesn't compete with Parler. None of this makes any sense. The next paragraph demonstrates how rushed and stupid and bad this lawsuit is:

Thus, AWS is violating Section 1 of the Sherman Antitrust Act in combination with Defendant Twitter. AWS is also breaching it contract with Parler, which requires AWS to provide Parler with a thirty-day notice before terminating service, rather than the less than thirty-hour notice AWS actually provided. Finally, AWS is committing intentional interference with prospective economic advantage given the millions of users expected to sign up in the near future

With Defendant Twitter? Let's scroll back up and look at the caption again:

There's only one defendant. And it's not Twitter.

The complaint goes on and on about how there's also bad stuff on Twitter, as if somehow that makes it wrong for AWS to be upset about Parler. But... Parler's whole entire claim to fame is that it moderates differently than Twitter, so claiming that there's the same stuff on Twitter is meaningless. Even worse, the example that Parler uses of how Twitter and Parler have similar content is around people suggesting that political officials including Congressional Representatives, Senators, and VP Mike Pence should be hanged. But the evidence that Parler itself provides undermines its own case, and in some cases directly contrasts its own claims. That's not just bad lawyering, that's legal malpractice.

Here is what Parler says:

What is more, by pulling the plug on Parler but leaving Twitter alone despite identical conduct by users on both sites, AWS reveals that its expressed reasons for suspending Parler’s account are but pretext. In its note announcing the pending termination of Parler’s service, AWS alleged that “[o]ver the past several weeks, we’ve reported 98 examples to Parler of posts that clearly encourage and incite violence.” Exhibit A. AWS provide a few examples, including one that stated, “How bout make them hang?”, followed by a series of hashtags, including “#fu-- mikepence.”...

AWS further stated to Parler that the “violent content on your website . . . violates our terms.” Id. Because, AWS declared, “we cannot provide services to a customer that is unable to effectively identify and remove content that encourages or incites violence against others,” AWS announced the pending termination of Parler’s account.

However, the day before, on Friday, one of the top trends on Twitter was “Hang Mike Pence,” with over 14,000 tweets. See Peter Aitken, ‘Hang Mike Pence’ Trends on Twitter After Platform Suspends Trump for Risk of ‘Incitement of Violence’, Fox News (Jan. 9, 2021), https://www.foxnews.com/politics/twittertrending-hang-mike-pence. And earlier last week, a Los Angeles Times columnist observed that Twitter and other social media platforms are partly culpable for the Capital Hill riot, by allowing rioters to communicate and rile each other up. See Erika D. Smith, How Twitter, Facebook are Partly Culpable for Trump DC Riot, LA Times (Jan. 6, 2021), https://www.latimes.com/california/story/2021-01-06/howtwitter-facebook-partly-culpable-trump-dc-riot-capitol. Yet these equivalent, if not greater, violations of AWS’s terms of service by Twitter have apparently been ignored by AWS

This leaves out some fairly important context. For one, the "Hang Mike Pence" trend was driven mainly by people calling out the insurrectionists who were saying that -- and which Twitter very quickly removed under their content moderation practices. Parler, on the other hand, made it clear that it was still trying to figure out how to moderate, and hoped to rely on volunteers. That's in Parler's evidence. That it didn't have a real plan in place yet. And that is why Amazon kicked it off.

On top of that, Parler's lawsuit claims that AWS needed to give it 30 days notice, but really only gave it a couple of days. Yet, in the evidence that Parler itself provides, Amazon mentions to Parler's policy chief that it has been sending dozens of examples of content that violate its policy for several weeks.

Amazon, for its part, appears to have not even waited to be served by Parler, but hit back hard with a very damning response to Parler that just dismantles Parler's argument bit by bit in fairly explicit terms.

This case is not about suppressing speech or stifling viewpoints. It is not about a conspiracy to restrain trade. Instead, this case is about Parler’s demonstrated unwillingness and inability to remove from the servers of Amazon Web Services (“AWS”) content that threatens the public safety, such as by inciting and planning the rape, torture, and assassination of named public officials and private citizens. There is no legal basis in AWS’s customer agreements or otherwise to compel AWS to host content of this nature. AWS notified Parler repeatedly that its content violated the parties’ agreement, requested removal, and reviewed Parler’s plan to address the problem, only to determine that Parler was both unwilling and unable to do so. AWS suspended Parler’s account as a last resort to prevent further access to such content, including plans for violence to disrupt the impending Presidential transition.

As Amazon says, the antitrust claims are obviously silly, but even the breach of contract claims are ridiculous because if anyone breached the contract, it was Parler:

Despite Parler’s rhetoric, its lawsuit is no more than a meritless claim for breach of contract. But the facts are unequivocal: If there is any breach, it is Parler’s demonstrated failure and inability to identify and remove such content. AWS was well within its rights to suspend Parler immediately for those failures. Parler also cannot hold AWS liable in tort for enforcing the agreement’s express terms. And there is no antitrust claim where, as here, Parler cannot plausibly plead an agreement to cause it harm and the complained-of conduct is undeniably compatible with a legitimate purpose.

Compelling AWS to host content that plans, encourages, and incites violence would be unprecedented. Parler has no likelihood of prevailing on the merits, and the balance of equities and public interest strongly tip against an injunction. The motion for a temporary restraining order should be denied.

In the Amazon filing, the company notes that it began sending breach reports to Parler in November of last year and detailed the nature of the content that it was concerned about, often directly calling for violence. They include a ton of screenshots of the kind of violent speech that was on Parler, that goes way beyond what you'd see on other platforms, and which other platforms would remove.

Amazon also notes that the exhibit is only a small sampling:

The content AWS provided to Parler is merely representative of volumes of content that poses a security risk and harms others, in direct violation of the AUP. See id. Exs. E-F (examples). That content includes, but is not limited to, calls for violence against a wide range of individuals, including elected officials, law enforcement officers, and teachers. People have acted on these calls: Parler was used to incite, organize, and coordinate the January 6 attack on the U.S. Capitol. See Doran Decl. Exs. F-G. AWS reported to Parler, over many weeks, dozens of examples of content that encouraged violence, including calls to hang public officials, kill Black and Jewish people, and shoot police officers in the head. Executive 2 Decl. Exs. D-F. Parler systematically failed to “suspend access” to this content, much less to do so immediately, and demonstrated that it has no effective process in place to ensure future compliance.3 Executive 2 Decl. 7. Parler itself has admitted it has a backlog of 26,000 reports of content that violates its (minimal) community standards that it had not yet reviewed. Id. Parler’s own failures left AWS little choice but to suspend Parler’s account.

As for Amazon treating Twitter differently? Turns out (beyond everything I mentioned above) there's a bigger problem: Twitter doesn't use AWS:

Parler’s Complaint is replete with insinuations that AWS had equal grounds to suspend Twitter’s account and thus discriminated against Parler. For example, Parler cites the hashtag “#hangmikepence,” which briefly trended on Twitter. ... But AWS does not host Twitter’s feed, so of course it could not have suspended access to Twitter’s content.

Finally, Amazon notes that Section 230 also protects its practices here:

In addition to their facial deficiencies, Parler’s interference and antitrust claims also fail under Section 230(c)(2) of the Communications Decency Act. Under that statute, the provider of an “interactive computer service” is immune for acting in good faith to restrict access to material that is excessively violent, harassing, or otherwise objectionable.

This is actually interesting, in that rather than using 230(c)(1) like nearly every case, Amazon recognizes this is one of those rare (c)(2) cases, giving it the right to restrict access to violent, harassing, or otherwise objectionable content. This part of the law is rarely tested, as (c)(1) handles most moderation claims, but probably doesn't fit here, given the fact that Amazon was denying overall service to Parler, not just moderating specific speech.

Parler's going to lose this lawsuit. And it's going to lose badly.

* In a very, very strange set of circumstances, there is another lawyer with the identical name, David J. Groesbeck, (including middle initial) who is a patent lawyer, also based in Washington state and registered to practice in NY, but they are different, and the patent lawyer (who does have a website) had to put a notice on his website saying he's not the same David J. Groesbeck who has Parler for a client, and giving that lawyer's phone number, since he's being inundated with calls, yelling at him for representing Parler.

Filed Under: antitrust, aws, breach of contract, social media
Companies: amazon, parler, twitter

Irony: German Chancellor Merkel Upset At Twitter For Banning Trump; Meanwhile Germany Demands Social Media Blocks Dangerous Content

from the square-the-circle dept

Lots of folks are reporting on the news that German Chancellor Angela Merkel has now said that she finds Twitter's decision to ban Donald Trump "problematic."

German Chancellor Angela Merkel blasted Twitter’s decision to ban U.S. President Donald Trump.

“The right to freedom of opinion is of fundamental importance,” Steffen Seibert, Merkel’s chief spokesman, told reporters in Berlin on Monday, according to Reuters.

“Given that, the chancellor considers it problematic that the president’s accounts have been permanently suspended.”

Of course, this totally leaves out the fact that Germany is among the countries leading the charge in forcing internet companies to remove "dangerous" or "terrorist" content. I mean, it was only three years ago when the infamous NetzDG law went into effect, giving social media companies 24 hours to remove "obviously illegal" content, with threats of fines up to €5 million for employees of these companies if they magically fail to delete such content.

As we've pointed out, this is an impossible standard to meet, and it's likely to get worse. The law has been a total dumpster fire with websites rushing to remove all sorts of content (including criticism of Angela Merkel...), to avoid facing penalties under the law.

On top of this, Germany has been among those pushing for new rules, such as the Terrorist Content Regulation that would give companies only an hour to remove "terrorist content."

So it seems a bit rich for Merkel to now whine when Twitter shuts down Trump's account. Of course, I've heard two semi-defenses of Merkel's statement here. The first is that she's distinguishing between removing specific tweets and shutting down the full account. And the second is that in the EU, they distrust corporate power, but are more trusting of government power. So they're okay if the government decides to block certain content, but not comfortable with companies doing the same.

Indeed, the next part of Merkels' statement seems to highlight that both of those claims explain this weird cognitive dissonance:

Seibert said that, while Twitter was right to flag Trump’s inaccurate tweets about the 2020 U.S. election, banning his account altogether was a step too far. He added that governments, not private companies, should decide on any limitations to freedom of speech.

But... that doesn't hold up to any amount of serious scrutiny at all. After all, even if it is the government that passed the NetzDG law, and is working on other laws like the Digital Services Act and the Terrorist Content Regulation, every one of those laws then basically hands off the decision making to those companies. They never pick and choose which content is bad, they just tell the companies that if they mess up, they may face huge fines and/or criminal prosecution. That leads to massive over-censorship.

Indeed, it creates such a liability for companies that they will frequently overblock to avoid that liability. It's just not worth it.

So, the whole thing is ridiculous. It's yet another version of the "nerd harder" response from politicians, claiming that this kind of blocking is a bridge too far, but that other kind of blocking is fine, and if you mess it up in either direction (blocking too much or too little) you'll get in trouble.

This is what's so frustrating in all of this. People who have no idea how all of this works seem to expect that there's some magic way to do the perfectly correct amount of moderation. They're wrong. There's always, always, always, going to be disagreements about the proper amount of moderation, and Merkel's been part of the problem in pressuring companies to take down too much. It's quite ridiculous for her now to complain that companies are doing what she and her government have been demanding all along.

Filed Under: angela merkel, content moderation, donald trump, eu, germany, netzdg
Companies: twitter

Some Thoughts On Twitter Pulling The Plug On Trump's Account

from the questions-to-think-through dept

Background

First of all, corporations enjoy First Amendment protections, among other constitutional protections. Although some of my friends decry that proposition, given the Supreme Court's current composition, that is not going to change during my lifetime. And the First Amendment protects the right to refuse to associate with speech one does not like. There is only so much that legislation could do to prevent companies like Twitter from controlling the speech that they allow.

Second, withdrawing or adapting the section 230 liability shield is one way to impose limits on platform's adoption or implementation of their content control policies, perhaps, but there is no reason to think that any withdrawal that is likely to pass, and that would be constitutional (because it does not involve viewpoint discrimination), would be better than the current state of affairs. Moreover, that would be a very blunt instrument that could not easily be calibrated. I strongly support the principles of section 230, which allow online platforms to decide what speech they will allow on their platforms by protecting them against liability for speech that they carry (with very limited exceptions). They are not common carriers, like USPS or the PSTN’s. (Thus, Apple and Google could cabin Parler by threatening to deny it access to the App and Play Stores, and Amazon could deny Parler web hosting services, all on the ground that Parler failed to successfully enforce rules against advocacy of political violence. I find it mind-boggling that people who call themselves “conservative” are railing about the plug being pulled on a platform for the stated reason that it allegedly fails to block calls for political violence). And they are not government bodies, which are (largely) forbidden to engage in content discrimination, and especially viewpoint discrimination, in allowing or suppressing speech. Section 230, both as a legal principle but also as a social principle, not only allows platforms to tolerate speech that I find abhorrent, but also allows them to exclude speech that I detest, or speech that I adore.

Third, the drafters of section 230 recognized that platforms would have content policies, and considered it desirable for them to have content policies. Indeed, you can’t run a platform without content policies. Anybody who has ever tried to moderate a discussion group will fully appreciate these considerations. And content moderation is HARD. The periodic “COMO” sessions addressing “Content Moderation at Scale” explored the difficulties through a series of hypotheticals. What became clear is that people of good will, even those with relatively common policy perspectives, trying to apply even the best of content policies, will get it wrong sometimes – and that is even if they have lots of time to evaluate a single statement.

It is inevitable that different platforms will take different stances about what speech they will tolerate and what speech they will exclude—in part because of the audiences at which they aim.

The Reasons for Banning Trump

Turning to Twitter, and to Trump in particular: Twitter has for many years had a variety of rules about speech that may and may not be posted to Twitter, which they call their trust and safety guidelines. This includes a ban on speech glorifying or promoting violence; it also includes a ban on false statements about the election. (Many years ago I was asked if I would be willing to be on their outside trust and safety council; I decided it would not be appropriate for me to do that for a number of reasons).

I have never been a fan of social media companies trying to assess the truth or falsity of factual statements, or the hurtfulness of opinions and rhetoric deployed there. The assumption of such a role is likely to lead to the suppression of voices that criticize the rich and powerful (that is, those who can afford to hire lawyers to file baseless lawsuits, or who can deploy government power to attack their critics), or on abusive law enforcement officials themselves. But Trump’s misuse of Twitter and other platforms to foment a violent attack on democratic elections has taken matters to another level.

In the weeks leading up to the attack by a mob of Trump supporters on the Congress, Trump used both tweets and other public communications to try to steal the election from his victorious opponents. At the same time, he tried to use his connections with officials in several states where he had lost to induce them to overturn his losses in those states. Then, with his campaign of frivolous litigation and threats to state election officials having come to naught, he and his mouthpieces escalated heir attack on democratic elections, encouraging his supporters to engage in a physical confrontation with members of Congress in an apparent effort to delay the certification of his electoral college loss. There is every reason to believe that many of the supporters who tried to storm the Capitol believed that they were acting at Trump’s behest, and some analyses suggest that Trump’s language was carefully calculated to encourage the supporters to use violence. My reading of the language leads me to conclude that the calls for violence were insufficiently expressed to make them indictable under the standards set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969), just as my view is that his threats to Georgia state election officials, on a recording, fell short of criminal threats or incitement.

Assuming, as I do, Trump cannot be held legally responsible for inciting the riot, he was still morally responsible for it. And even assuming, as I do, that he cannot be convicted for these communications, that doesn’t mean that a private company, unbound by First Amendment standards, would be unjustified in deeming them a gross violation of its policies against advocating or glorifying violence, and hence treating them as a proper basis for denying him a platform. Platforms are expected to withdraw the accounts of members of the public who repeatedly abuse their access to infringe copyright—indeed, the DMCA gives them a powerful legal incentive to do so. (In my legal practice, I have had to deal with web hosting services that were considering removal of consumer-friendly platforms that were receiving bogus claims othat my clients were hosting defamation or other tortious speech. Despite their section 230 protection, they often simply did not want to deal with the trouble).

In that context, it is no surprise that a platform cancelled the account of a politician who repeatedly abused his access to foment a riot. And Trump, after all, is wealthy enough, and remains powerful enough, to use other means to amplify his speech. Indeed, he has one mainstream news channel and several smaller ones that are dying to carry his speech.

But, at the same time, Twitter has allowed exceptions to those rules, and one very prominent exception is that senior government officials, particularly heads of state, are given more leeway on the theory that there is public interest in letting the public know what such people are saying. As a practical matter, Trump has had almost complete immunity from the sorts of restrictions that constrained other Twitter users. Much of what he has posted was a gross violation of Twitter’s rules, but he was allowed to get away with it. Note that Trump’s hold on the special exception is due to expire on January 20.

What I think has really happened is that, for a variety of reasons, Twitter decided to take away Trump’s special exception, and his ban — based on a range of past conduct — was the inevitable result of that change of position. Twitter has both taken away the special exception a few days early, and made its decision retroactive. Considering the way in which Trump managed to use his bully pulpit to incite a violent attack on Congress that was aimed at overturning a democratic election in which he was defeated, that seems to me to be within the range of understandable reaction.

Twitter’s Obfuscation

But the reasons that Twitter gave for its decision strike me as laughable – recall he was suspended for 24 hours, then allowed back on the condition that he delete certain tweets and stop violating the rules. He did delete the tweets in question, and to my mind nothing he did after being reinstated violated their rules. He gave appearance of trying to satisfy them.

Twitter’s blog post explaining the Trump ban, asserted that two Trump tweets violated their rules against glorifying violence. But the two posts they quoted did nothing to “glorify" violence” What this comes down to is that Twitter says Trump has been banned because some of his supporters (in unspecified instances) are allegedly reading his post-suspension tweets in various dangerous ways. And misreading what he said, I might add.

One of the tweets praised his supporters — the 75,000,000 voters who supported him. He called them patriots. He said they should be respected and should continue to have a loud voice. That does not encourage violence.

The other tweet said he won't be at the inauguration. Yes, a break with tradition, but maybe the best response is, good riddance!

Twitter says (and some other reports have echoed these concerns) that there are plans for armed protests and another attack on the Capitol. That is of great concern. But Twitter does not say that Trump is involved in that planning or that he tweeted anything about them. I did notice in passing a report that, after his initial 12-hour suspension was lifted, Trump had retweeted some of those statements. But the report also said that Twitter had cited those retweets in its decision and plainly it has not, so the fact-checking of the report is suspect. I have not been able to locate the report. And, because the Twitter account has been deleted in its entirety, I can’t verify the report (and I have not been able to find any screenshots).

Now, when Twitter justifies its decisions by relying on tweets that do not, in actuality, violate its rules, it just tends to suggest that what it has done is arbitrary. And that is not useful.

What May Really Be the Reasons

It appears to me that Twitter’s official views on Trump’s status evolved very quickly in the past week. Although top executives felt that so long as he was president he should continue to enjoy his special exception, Twitter staff apparently were very much of a different opinion, and forcefully so. There was apparently a staff petition, and then a large intra-staff meeting, in which Twitter’s top executives were raked over the coals by their staff for their inaction against the Trump account. That may well have mattered.

Additionally, Twitter was facing intense pressure on Capitol Hill and in the public arena to be more forceful about Trump’s incitement of the attach on the Capitol, and I believe they were genuinely concerned that, left with his Twitter account, he might well have used it to incite further violence on January 17 (Q being the 17th letter of the alphabet) and January 20. Not because the two tweets did that, but because the guy is out of control. The explanatory blog post refers to the covert planning for January 17 and January 20 repeat attacks, and I think it is quite possible that Twitter was worried that Trump might abuse his privileges. I wish the company had just said that (comparable to Facebook’s explanation) and said that, in retrospect, they had decided that its initial sanction for Trump’s previous violations of its rules was not sufficiently severe.

Perhaps More Cynical Explanations

First: Both Twitter and Facebook have cut back on Trump knowing that he is not going to have the powers of the presidency much longer, and that, indeed, both the White House and, soon, both Houses of Congress are going to be in Democratic hands. Just as they went out of their way to propitiate conservatives who claim (falsely) that social media companies discriminate disproportionately against conservatives, while those conservatives ran the Senate and the White House, these companies don’t want to be adverse to the new power in DC.

Second, and this is a related point: Trump liked to talk about how much benefit he derived from his Twitter account, but the converse is also true: Twitter has profited enormously from Trump’s account, which creates enormous controversy and hence draws many eyes to Twitter where they will see ads. A number of people in the tech sector have been saying that the situation has simply evolved to the point where the benefits that Twitter was getting from hosting @realDonaldTrump were getting to be greatly exceeded by the costs.

Third: One exception to section 230 immunity is for speech that violates the federal criminal laws. Some people have suggested that federal law enforcement officials may have reached out to Twitter to warn that if its facilities are used to incite more riots in Washington DC, such as on January 17 and January 20, it might face grand jury scrutiny. Now, to my mind the First Amendment’s Brandenburg standard would likely bar prosecution for mere passive hosting of prosecutable incitement; the Brandenburg standard requires not just incitement of imminent lawless conduct, but intent to incite imminent lawless conduct, and passive hosting of speech of which the host is not aware does not involve intent. But the possible exposure without section 230 immunity, and needing to rely only on the First Amendment, might well have been a chastening factor.

Paul Alan Levy is a free speech litigator in Washington DC

Filed Under: content moderation, donald trump
Companies: twitter

Twitter Bans Sci-Hub's Account Because Of 'Counterfeit Goods' Policy, As Indian Copyright Case Heats Up

from the plainly-wrong dept

A couple of weeks ago, Techdirt wrote about an important copyright case in India, where a group of academic publishers is seeking a dynamic injunction to block access to the "shadow libraries" Sci-Hub and Libgen. The person behind Sci-Hub, Alexandra Elbakyan, has written to Techdirt with an update on the situation:

Sci-Hub account with 180K subscribers with almost everyone supporting it got BANNED on Twitter due to "counterfeit goods" policy. It existed for 9 years and it was frozen once, but I resolved it by uploading my passport scan. But now it is banned without the possibility to restore it, as Twitter support replied! And it happened right after Indian scientists revolted against Elsevier and other academic publishers, after Sci-Hub posted on Twitter about danger of being blocked - thousands of people spoke up against this on Twitter.

Now Twitter said to all of them, SHUT UP!

Although it's impossible at this stage to say whether Sci-Hub's Twitter account was closed as a direct result of action by Elsevier and other publishers, it is certainly true that the Indian copyright case has blown up into a major battle. The widely respected Indian SpicyIP site has several posts on the important legal and constitutional issues raised by the legal action. One of these concludes:

It can only be hoped that the court factors in the different considerations of a developing nation like India as against the developed nations where the defendant websites have presently been blocked, for it will have a massive impact on the research potential of the country.

While another goes further, and insists: "The ongoing litigation, therefore, must, on constitutional grounds if not copyright-related grounds, be decided in the favour of the defendants." Further support for Sci-Hub and Libgen has come from 19 senior Indian scientists and three organizations, and the Delhi High Court has agreed to allow them to intervene, as pointed out by TorrentFreak. In their application, the scientists wrote:

copyright is not merely a matter of private interests but an issue that deeply concerns public interest especially when it comes to access to learning materials... If the two websites are blocked it will effectively be killing the lifeline of research and learning in higher education in the country.

An organization called the Breakthrough Science Society has created a petition in favor of the defendants. The petition's statement says:

International publishers like Elsevier have created a business model where they treat knowledge created by academic research funded by taxpayers' money as their private property. Those who produce this knowledge -- the authors and reviewers of research papers -- are not paid and yet these publishers make windfall profit of billions of dollars by selling subscriptions to libraries worldwide at exorbitantly inflated rates which most institutional libraries in India, and even developed countries, cannot afford. Without a subscription, a researcher has to pay between $30 and $50 to download each paper, which most individual Indian researchers cannot afford. Instead of facilitating the flow of research information, these companies are throttling it.

Alexandra Elbakyan of Kazakhstan has taken an effective and widely welcomed step by making research papers, book chapters and similar research-related information freely available through her website Sci-Hub. Libgen (Library Genesis) renders a similar service. We support their initiative which, we contend, does not violate any norm of ethics or intellectual property rights as the research papers are actually intellectual products of the authors and the institutions.

As these comments from academics make clear, the stakes are high in the current legal action against Sci-Hub and Libgen. Against that background, shutting down Sci-Hub's Twitter account is ridiculous, since it is purely informational, and served as a valuable forum for discussing important copyright issues, including the Indian court case. Whatever you might think of the company's decision to suspend certain other accounts, this one is plainly wrong.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: academic research, content moderation, india
Companies: sci-hub, twitter

Not Easy, Not Unreasonable, Not Censorship: The Decision To Ban Trump From Twitter

from the there's-a-point... dept

When I started writing this post, it was about Facebook's decision to suspend Trump's account indefinitely, and at least until Joe Biden is inaugurated in a couple weeks. I had lots to say on that... and then Friday afternoon, Twitter decided to ban Trump's Twitter account permanently. This is a bigger deal, not just because it's permanent, rather than indefinite, but because so much of Trump's identity over the last four years (and before that) is tied up in his Twitter account and followers.

Certainly, all of this has kicked off a whole new storm from across the political spectrum. You have Trump supporters who are furious and (falsely) claiming that this is "censorship" or unprecedented and heavy handed (it is none of those things). Then you have Trump haters who are screaming about how this is all way too late and is trying to close the barn door after the horses have long since bolted. I think neither argument is accurate. Will Oremus has a long (and very interesting!) look over on OneZero about how Facebook supposedly chucked out its own rulebook to come up with an excuse to suspend Trump's account:

Yet Facebook’s “indefinite” ban on Trump marks an overnight reversal of the policy on Trump and other political leaders that the social network has spent the past four years honing, justifying, and defending. The unprecedented move, which lacks a clear basis in any of Facebook’s previously stated policies, highlights for the millionth time that the dominant platforms are quite literally making up the rules of online speech as they go along. As I wrote in 2019, there’s just one golden rule of content moderation that every platform follows: If a policy becomes too controversial, change it.

Zuckerberg’s claim that Facebook has allowed Trump to use its platform in a manner “consistent with our own rules” is laughable. The only thing that has been consistent, until now, is Facebook’s determination to contort, hair-split, and reimagine its rules to make sure nothing Trump posted would fall too far outside them. The Washington Post wrote a rather definitive account of the social network’s yearslong Trump-appeasement campaign earlier this year. Among other Trump-friendly measures, the Post noted, “Facebook has constrained its efforts against false and misleading news, adopted a policy explicitly allowing politicians to lie, and even altered its news feed algorithm to neutralize claims that it was biased against conservative publishers.”

And Twitter is also justifying its decision by saying that the reason was a rules violation:

We assessed the two Tweets referenced above under our Glorification of Violence policy, which aims to prevent the glorification of violence that could inspire others to replicate violent acts and determined that they were highly likely to encourage and inspire people to replicate the criminal acts that took place at the U.S. Capitol on January 6, 2021.

This determination is based on a number of factors, including:

I don't need to post the factors. You can take a look yourself if you want. So, Oremus is mostly correct that they're making the rules up as they go along, but the problem with this framing is that it assumes that there are some magical rules you can put in place and then objectively apply them always. That's never ever been the case. The problem with so much of the content moderation debate is that all sides assume these things. They assume that it's easy to set up rules and easy to enforce them. Neither is true. Radiolab did a great episode a few years ago, detailing the process by which Facebook made and changed its rules. And it highlights some really important things including that almost every case is different, that it's tough to apply rules to every case, and that context is always changing. And that also means the rules must always keep changing.

A few years back, we took a room full of content moderation experts and asked them to make content moderation decisions on eight cases -- none of which I'd argue are anywhere near as difficult as deciding what to do with the President of the United States. And we couldn't get these experts to agree on anything. On every case, we had at least one person choose each of the four options we gave them, and to defend that position. The platforms have rules because it gives them a framework to think about things, and those rules are useful in identifying both principles for moderation and some bright lines.

But every case is different.

And no matter what you think of Trump, his case was different.

The regular rules could never apply to Trump because Trump is not a regular person. And, no, not even comparisons to foreign leaders are apt, because as silly as American exceptionalism is, the United States is still different than nearly every other country in the world. And, it's not just the position he's in (for the next few days anyway), but also Trump's willingness to use his account to make pronouncements unlike pretty much any other world leader (or at least, world leader of consequence).

Trump is, perhaps, the perfect example of why demanding clear rules on social media and how they moderate is stupid.

As for the question of why now? Well, clearly, the context has changed. The context is that Trump inspired a mob of goons to invade the Capitol building this week, and there remain legitimate threats that his cultish followers will continue to do significant damage. Certainly some people have insisted that this kind of violence was always a risk -- and it was. But it had not actually erupted to this level in this fashion. Again, we're talking about context. There's always more context.

And given that the situations are always edge cases, that the context always matters, and that things are always shifting, you can totally see why it's a reasonable decision to ban Trump from their platforms right now, based on everything else going on, and the likelihood that he might inspire more violence. I think it's worth reading Ben Thompson's analysis as well. He's long explained the risks associated with banning Trump from these platforms, and suggested why they should not have in the past. But the thing that changed for him, beyond even just the threat to democracy, is the threat to the rights of both individuals and companies to make their own decisions on these things:

Remember my highest priority, even beyond respect for democracy, is the inviolability of liberalism, because it is the foundation of said democracy. That includes the right for private individuals and companies to think and act for themselves, particularly when they believe they have a moral responsibility to do so, and the belief that no one else will. Yes, respecting democracy is a reason to not act over policy disagreements, no matter how horrible those policies may be, but preserving democracy is, by definition, even higher on the priority stack.

Turn off Trump’s account.

But here's the more important point -- especially directed at the people who will falsely claim that this is somehow censorship: President Trump is not being censored. He is not being limited. At any moment of any day (certainly for the next two weeks, and likely beyond) he can walk out of his office and have every major TV news channel (and every internet streaming platform) broadcast whatever he wants to say, and people will see it.

And to those who think that Twitter should have done this earlier, or that it would have made a difference, recognize that your concern is not so much with Twitter, but with Trump himself. Remember that while Trump might not be able to send a tweet right now, he still (literally) has the power to launch nuclear missiles at Twitter's headquarters. And, really, that's the problem. Trump is obviously too toxic for Twitter. But he's also too toxic for the White House. And the real complaint shouldn't be about Twitter or Facebook acting too late, but about Congress failing to do their job and remove the mad man from power.

Filed Under: adaptability, censorship, consequences, content moderation, donald trump, free speech, platforms, rules, section 230, social media
Companies: facebook, twitter