Lindsey Graham Says We Need To Get Rid Of Section 230 To Sue 'Batshit Crazy' QAnon. That's Not How Any Of This Works.

from the no,-just-no dept

As various Republicans in Congress have tried to tap dance around the fact that they're the political party of the batshit crazy QAnon conspiracy theory cult, it's actually nice to see Senator Lindsey Graham -- who had become a consistent Trump kissass over the past few years -- speak up in a Vanity Fair interview and call out QAnon for actually being "batshit crazy." He didn't tiptoe around it like some others:

On the topic of QAnon, This is a group that the FBI has classified as a domestic terror threat. They’ve been involved in kidnappings and killings. Do you think tech platforms in this country should monitor, track, and censor QAnon in the same way they do radical Islamic terrorist groups?

Can you say batshit crazy on your show?

You just did.

Well, QAnon is batshit crazy. Crazy stuff. Inspiring people to violence. I think it is a platform that plays off people’s fears, that compels them to do things they normally wouldn’t do. And it’s very much a threat.

So that's all good. Kudos to you, Senator Graham for saying what needs to be said. But... then he immediately goes off the rails and seems to... blame Section 230 for QAnon. And he seems to think QAnon is... a website? And that we need to get rid of Section 230... to sue QAnon?

But there are a lot of websites out there. How do you live in this world? So under Section 230 of our law [the Communications Decency Act], a social media company can’t be sued for the content that they carry. I get slandered all the time on Twitter and other outlets. If the New York Times printed an article, I could sue them. If CNN said something about me that wasn’t true, I could sue them. But Twitter and all these other sites can pass on the most scandalous information, you have no recourse. So how to fix this? I would like to remove Section 230 liability. That if you’re going to have a social media site like QAnon or anything else, you spread this stuff at your own peril. So when this guy went into the pizza restaurant in Washington, because they alleged that Hillary Clinton was running a pedophile ring out of a pizza place in Washington. This guy took it seriously, went in with an AR-15 and started shooting up place. Thank God nobody got killed. But the pizza owner under my theory, could sue QAnon for passing along garbage. That’s a pretty dramatic step. But the only way I know to make people more responsible who run these websites is allow lawsuits when they go too far.

So... what? How is this a person in charge of writing laws when he seems so totally confused about 230 and intermediary liability? The whole point of intermediary liability protections like Section 230 is that it protects the conduits from being sued for the statements of users. So, yes, he can sue the NY Times or CNN for something that they said because they said it. And he can already sue whoever was saying defamatory stuff (if it's actually defamatory) even if it was posted on Twitter. He just can't sue Twitter -- because that's not who said it. But in this rambling answer, Graham seems to shift back and forth between QAnon and Twitter as if they're the same thing... and they're not.

QAnon is not "a social media site" and it's also not a company or a person. I mean, there's some asshole (or multiple assholes behind it -- with the latest rumors being that it's actually the dude behind 8chan/8kun), but if any Q believer says something that violates a law, there is nothing in Section 230 that stops that person from being sued. Nothing at all. So I have no idea what the fuck Lindsey Graham thinks is going on, and why getting rid of Section 230 would change anything regarding QAnon. Getting rid of 230 might mean that... people could sue Twitter about the bullshit QAnon believers say, but even that would likely fail because of the 1st Amendment that Lindsey Graham swore an oath to protect and uphold.

So, kudos to Graham for calling out QAnon, but it's only a very minor kudos because he seems so confused about QAnon (it's not a social media site) and how Section 230 works.

Filed Under: cda 230, intermediary liability, lindsey graham, qanon, section 230

Confused Critic Of Section 230 Now In Charge Of NTIA

from the well-that's-unfortunate dept

Multiple experts on Section 230 have pointed out that the NTIA's bizarre petition to the FCC to reinterpret Section 230 of the Communications Decency Act is complete nonsense. Professor Eric Goldman's analysis is quite thorough in ripping the petition to shreds.

Normally we expect a government agency like NTIA to provide an intellectually honest assessment of the pros/cons of its actions and not engage in brazen partisan advocacy. Not any more. This petition reads like an appellate brief that would get a C- in a 1L legal writing course. It demonstrated a poor understanding of the facts, the law, and the policy considerations; and it ignored obvious counterarguments. The petition is not designed to advance the interests of America; it is designed to burn it all down.

As we mentioned, it seemed likely that the petition was written by Adam Candeub, a lawyer who was only hired a few months ago by the NTIA. Readers may recognize Candeub's name because he represented the white nationalist Jared Taylor in a failed lawsuit against Twitter for kicking him off the platform. At the time of the lawsuit, I engaged in an email discussion with Candeub in which he tried to justify his lawsuit, and it included the same sort of nonsense and debunked legal theories we now see in the NTIA petition. In that email exchange, he told me that "Section 230 doesn't help Twitter" because "if an internet firm starts to edit or curate others' comments -- creating its own content, it loses this immunity." That, of course, is incorrect.

Indeed, the California courts agreed with me (and basically every other court) in ruling that Section 230 protected Twitter's decision to remove Candeub's client.

Of course, in the past couple of years since all of that went down, Candeub has continued his quixotic quest to reimagine Section 230 to say what he wants it to say, rather than what the plain language of the law, and basically every court on record (and the authors of the law) have said that it actually says.

And now he'll get to do that as the guy in charge of NTIA. Axios is reporting that Candeub has been promoted to become the acting head of NTIA. Given Candeub's activism on this issue it's an odd role for him, and, as has happened so often in this particular administration, a destruction of historical norms. NTIA has historically been extremely balanced and avoids direct political advocacy type positions. It certainly appears that it will be taking a different approach under Candeub, and that approach includes a blatant misrepresentation of key laws about the internet. Historically, NTIA has been an important agency in protecting the open internet -- but now it should be seen as hostile to such an open internet. And that's disappointing for its legacy.

Filed Under: adam candeub, cda 230, executive order, fcc, free speech, intermediary liability, ntia, section 230

Former Rep. Chris Cox Used His Testimony At Tuesday's Senate Hearing On The Internet's Foundational Law To Do Some Myth-Busting

from the present-at-the-creation dept

Whenever internet-law experts see a new Congressional hearing scheduled whose purpose is to explore whether Section 230—a federal statute that’s widely regarded as a foundational law of the internet—needs to be amended or repealed, we shudder. That’s because we know from experience that even some of the most thoughtful and conscientious lawmakers have internalized some broken notions about Section 230 and have the idea that this statute is responsible for everything that bothers us about today’s internet.

That’s why Tuesday’s Senate hearing about Section 230 was, in its own way, much more calming than earlier hearings on the law have been. Each of the four witnesses had substantive knowledge to share, and even if some witnesses were wrong (at least in my view) on this or that fine point, none of them was grandstanding or (as has often been the case in the past) unwittingly or intentionally deceptive about what might be wrong with 230. Each more or less acknowledged that the law which cyberlaw professor Jeff Kosseff has aptly characterized, in his book of the same name, really does contain “The Twenty-Six Words That Created the Internet.” Even Professor Olivier Sylvain of Fordham Law School, who believes Section 230’s protections to be “ripe for narrowing,” focuses on the courts’ role in interpreting the statute rather than Congress’s role in possibly amending it. Unlike some other hearings, this hearing’s witnesses had no one calling for repeal.

Kosseff, a faculty member at the U.S. naval academy at Annapolis, was himself one of the witnesses on Tuesday’s panel, which was convened by the Senate commerce committee’s Subcommittee on Communications, Technology, Innovation, and the Internet. But even though the hearing’s title as inspired by Kosseff’s book, it was former Representative Chris Cox, now a partner at the Morgan, Lewis & Bockius law firm and a board member at the tech lobbying group NetChoice, who was the star. In the 1990s, Representative Cox was an author and co-sponsor (with then-Representative, now Senator, Ron Wyden) of the bill that became Section 230. Having him as a witness on Tuesday’s panel was a bit like having James Madison show up to testify about what he was thinking when he wrote the Bill of Rights.

Cox’s testimony spotlighted the ways in which the legal immunities built into Section 230 in 1995—immunities that generally shield internet companies for liability for content created by users and subscribers—had given rise to the transformational effect those companies have had in the world of 2020. Just as important, Cox pointed out in his written testimony that the law does not shield service providers who created illegal or tortious content--”in whole or in part”--from legal liability:

Section 230 was written, therefore, with a clear fact-based test:

• Did the person create the content? If so, that person is liable for any illegality.
• Did someone else create the content? Then that someone else is liable.
• Did the person do anything to develop the content created by another, even if only in part? If so, the person is liable along with the content creator.

Cox explained that this approach was aimed to accommodate the realities of being an online service provider but not to allow service providers that are clearly responsible for a crime or civil wrong to be immunized by the statute:

“Rep. Wyden and I knew that, in light of the volume of content that even in 1995 was crossing most internet platforms, it would be unreasonable for the law to presume that the platform will screen all material. We also well understood the corollary of this principle: if in a specific case a platform actually did review material and edit it, then there would be no basis for assuming otherwise. As a result, the plain language of Section 230 deprives such a platform of immunity.”

Cox used this portion of his written testimony to debunk which he called certain “myths” about Section 230—of which the first and most obvious myth is that Section 230 immunizes “websites that knowingly engage in, solicit, or support illegal activity.” Wrote Cox: “It bears repeating that Section 230 provides no protection for any website, user, or other person or business involved even in part in the creation or development of content that is tortious or criminal.”

Another of these myths had to do with the idea that 230’s purpose was to set up a separate legal rules for internet services that don’t apply in the outside world. Cox insists, however, that Section 230 simply extended to the online world the protections brick-and-mortar enterprises already had, in terms of not being liable for content they didn’t fully or partially create. (For example, if I slander someone in a restaurant, the restaurant’s proprietor shouldn’t be held liable for my using his premises to defame someone. I look forward to testing this principle when we’re all going out to restaurants again.)

Other creation myths included the idea that Section 230 was designed just to protect “an infant industry” (so is no longer necessary now that the industry is old enough to vote), or the idea that it was a favor to the tech industry (Cox says the tech companies in the 1990s mostly didn’t know enough to lobby for the provision—or else didn’t even exist then), or the idea that it was part of a “grand bargain” to help then-Senator James Exon pass his anti-porn legislation, then mostly known as the Communications Decency Act. With regard to that last theory, Cox explains that his and Wyden’s draft was “deliberately crafted as a rebuke” to Senator Exon’s approach to online porn. If service providers were going to make the world’s information available to users, Cox and Wyden reasoned, there was no way that any of the services could effectively be responsible for the “indecent” content in libraries and elsewhere that might show up on users’ screens.

The real reason Section 230 was included with Senator Exon’s Communications Decency Act language had to do with the politics of the conference committee that had to work out differences between the House and Senate versions of the Telecommunications Act of 1996. The Cox-Wyden provision was in the House version, but an overwhelming majority of senators had voted for the CDA in the Senate version. Harmonizing the two opposing provisions had some interesting consequences, as Cox’s testimony points out:

When the House and Senate met in conference on the Telecommunications Act, the House conferees sought to include Cox-Wyden and strike Exon. But political realities as well as policy details had to be dealt with. There was the sticky problem of 84 senators having already voted in favor of the Exon amendment. Once on record with a vote one way—particularly a highly visible vote on the politically charged issue of pornography—it would be very difficult for a politician to explain walking it back. The Senate negotiators, anxious to protect their colleagues from being accused of taking both sides of the question, stood firm. They were willing to accept Cox-Wyden, but Exon would have to be included, too. The House negotiators, all politicians themselves, understood. This was a Senate-only issue, which could be easily resolved by including both amendments in the final product. It was logrolling at its best.

“Perhaps part of the enduring confusion about the relationship of Section 230 to Senator Exon’s legislation has arisen from the fact that when legislative staff prepared the House-Senate conference report on the final Telecommunications Act, they grouped both Exon’s Communications Decency Act and the Internet Freedom and Family Empowerment Act into the same legislative title. So the Cox-Wyden amendment became Section 230 of the Communications Decency Act—the very piece of legislation it was designed to counter. Ironically, now that the original CDA has been invalidated, it is Ron’s and my legislative handiwork that forever bears Senator Exon’s label.”

Cox’s explanation should put to rest forever the myth that the Supreme Court’s decision in Reno v. ACLU (1997), when it struck down all other provisions of the Communications Decency Act as unconstitutional, left Section 230 alone as an incomplete fragment rendered meaningless and/or dysfunctional if standing alone. As Cox’s written testimony makes clear, Section 230 was originally crafted as a standalone statute whose purpose was to negate the effect of Stratton Oakmont v. Prodigy (1995)—a case whose judge drastically misread both prior caselaw and the facts of the case he decided—and restore something like state of the online-services law as it was understood after a federal court’s influential decision in 1991 in Cubby v. CompuServe.

One of the unfortunate aspects of Tuesday’s hearing is that Cox’s lengthy first-person account and massive debunking of common myths about Section 230 weren’t heard by most of the Senators or by the viewers who only watched the hearing online. In “person” (Cox, like the other witnesses, was beamed in via a teleconferencing system that I presume was Zoom), the former congressman departed from his written remarks to remind his audience that, among other things, Section 230 gave us Wikipedia, a free resource hosted by the Wikimedia Foundation, that serves most of us in the Western developed countries as a resource every day. This is something I wish more legislators would remember—that Wikipedia depends on Section 230 to exist in its current form and usefulness. Full disclosure: I spent a few years as general counsel and later outside counsel doing work for the Wikimedia Foundation. And, just like any other lawyer who who has worked to protect a highly valued online service, I can testify that we depended on Section 230 a lot.

Still another unfortunate aspect that is that Kosseff’s and Sylvain’s contributions, as well as those of the Internet Association’s deputy general counsel, Elizabeth Banker, were somewhat eclipsed both by Cox’s written testimony and by his live testimony as one of the two fathers of “the twenty-six words that created the internet.” But these tradeoffs were a small price to pay in order to spend so much of Tuesday morning getting myths busted and truths told. Even as someone who’s been dealing with Section 230 for almost as long as Cox has, I can say truthfully that I learned a lot.

Filed Under: cda 230, chris cox, section 230

Judge Sides With Twitter Over Devin Nunes In Case Over Satirical Internet Cow: Section 230 Removes Twitter From Frivolous Case

from the one-for-the-cow dept

Well, some small bit of good news in the Section 230 front: after a judge was clearly skeptical over Devin Nunes' arguments for why Twitter should be involved in Nunes' frivolous SLAPP suit over a satirical internet cow that mocks him, the judge has now announced that Section 230 of the CDA rightly protects Twitter.

In a letter that quickly dismisses each of Nunes's lawyer Steven Biss's silly arguments why 230 doesn't apply, the judge basically says "nope" to all of those arguments and tells Twitter's lawyer to draft an order dismissing Twitter from the case. Here's just one part of the letter:

The court must look to 47 USC Section 230 and the caselaw interpreting the act and analyze plaintiff's allegations to determin if Twitter has immunity under the act. Plaintiff would have Twitter be held liable for defamation for the content placed on its internet platform by others and would have Twitter found to be negligent for not removing the content place on its internet platform by others. Section 230 reads in subsection (c)(1) "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider". Plaintiff seeks to have the court treat Twitter as the publisher or speaker of the content provided by others based on its allowing or not allowing certain content to be on its platform. The court refuses to do so and relies on the rulings in Zeran v. Am. Online... The court in Zeran stated "Section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically section 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions -- such as deciding whether to publish, withdraw, postpone or alter content -- are barred".

The judge is also not at all impressed by Biss's argument of "but Twitter is so biased!" That doesn't matter:

The plaintiff also alleges that Twitter has a bias towards a point of view and that bias is so extreme that it governs its decisions regarding content that is allowed on its internet platform and that course of conduct makes it a content provider. The allegations in the Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.... were similar to those by the plaintiff in this case concerning content decisions being one sided and the court in the Nemet case ruled that the service provider was immune from suit pursuant to 47 USC Section 230.

The court finds the issues in this case substantially similar to the issues presented in the Zeran and Nemet cases and applying the rulings in the Zeran and Nemet cases the court finds that Twitter is not a content provider based on the allegations by Plaintiff in this lawsuit. The Court finds that Twitter is immune from the defamation claims of plaintiff based on 47 USC Section 230.

As an interesting side note, the court also cites Section (c)(2) of Section 230, the rarely used part of the law that says you also can't be liable for moderation decisions. A lot of cases around 230 don't even consider the (c)(2) issues, because (c)(1) is usually enough to dismiss. But here, the court basically says both of them are good enough to get Twitter out of the lawsuit.

The court further finds that 47 USC Section 230 (c)(2) provides immunity for all civil liability and therefore Twitter is immune from Plaintiff's negligence claim based on the allegations in the complaint and the courts application of the rulings in the Zeran and Nemet cases to the allegations in this case.

Next up: hopefully the court will dismiss the underlying defamation claims against the two satirical Twitter accounts (Devin Nunes' Cow and Devin Nunes' Mom) along with political consultant Liz Mair.

Filed Under: cda 230, devin nunes, devin nunes' cow, intermediary liability, nunescow, pat carome, section 230, steven biss
Companies: twitter

Hello! You've Been Referred Here Because You're Wrong About Section 230 Of The Communications Decency Act

from the duty-calls dept

Hello! Someone has referred you to this post because you've said something quite wrong about Section 230 of the Communications Decency Act.

I apologize if it feels a bit cold and rude to respond in such an impersonal way, but I've been wasting a ton of time lately responding individually to different people saying the same wrong things over and over again, and I was starting to feel like this guy:

And... I could probably use more sleep, and my blood pressure could probably use a little less time spent responding to random wrong people. And, so, for my own good you get this. Also for your own good. Because you don't want to be wrong on the internet, do you?

Also I've totally copied the idea for this from Ken "Popehat" White, who wrote Hello! You've Been Referred Here Because You're Wrong About The First Amendment a few years ago, and it's great. You should read it too. Yes, you. Because if you're wrong about 230, there's a damn good chance you're wrong about the 1st Amendment too.

While this may all feel kind of mean, it's not meant to be. Unless you're one of the people who is purposefully saying wrong things about Section 230, like Senator Ted Cruz or Rep. Nancy Pelosi (being wrong about 230 is bipartisan). For them, it's meant to be mean. For you, let's just assume you made an honest mistake -- perhaps because deliberately wrong people like Ted Cruz and Nancy Pelosi steered you wrong. So let's correct that.

Before we get into the specifics, I will suggest that you just read the law, because it seems that many people who are making these mistakes seem to have never read it. It's short, I promise you. If you're in a rush, just jump to part (c), entitled Protection for “Good Samaritan” blocking and screening of offensive material, because that's the only part of the law that actually matters. And if you're in a real rush, just read Section (c)(1), which is only 26 words, and is the part that basically every single court decision (and there have been many) has relied on.

With that done, we can discuss the various ways you might have been wrong about Section 230.

If you said "Once a company like that starts moderating content, it's no longer a platform, but a publisher"

I regret to inform you that you are wrong. I know that you've likely heard this from someone else -- perhaps even someone respected -- but it's just not true. The law says no such thing. Again, I encourage you to read it. The law does distinguish between "interactive computer services" and "information content providers," but that is not, as some imply, a fancy legalistic ways of saying "platform" or "publisher." There is no "certification" or "decision" that a website needs to make to get 230 protections. It protects all websites and all users of websites when there is content posted on the sites by someone else.

To be a bit more explicit: at no point in any court case regarding Section 230 is there a need to determine whether or not a particular website is a "platform" or a "publisher." What matters is solely the content in question. If that content is created by someone else, the website hosting it cannot be sued over it.

Really, this is the simplest, most basic understanding of Section 230: it is about placing the liability for content online on whoever created that content, and not on whoever is hosting it. If you understand that one thing, you'll understand most of the most important things about Section 230.

To reinforce this point: there is nothing any website can do to "lose" Section 230 protections. That's not how it works. There may be situations in which a court decides that those protections do not apply to a given piece of content, but it is very much fact-specific to the content in question. For example, in the lawsuit against Roommates.com for violating the Fair Housing Act, the court ruled against Roommates, but not that the site "lost" its Section 230 protections, or that it was now a "publisher." Rather, the court explicitly found that some content on Roommates.com was created by 3rd party users and thus protected by Section 230, and some content (namely pulldown menus designating racial preferences) was created by the site itself, and thus not eligible for Section 230 protections.

If you said "Because of Section 230, websites have no incentive to moderate!"

You are wrong. If you reformulated that statement to say that "Section 230 itself provides no incentives to moderate" then you'd be less wrong, but still wrong. First, though, let's dispense with the idea that thanks to Section 230, sites have no incentive to moderate. Find me a website that doesn't moderate. Go on. I'll wait. Lots of people say things like one of the "chans" or Gab or some other site like that, but all of those actually do moderate. There's a reason that all such websites do moderate, even those that strike a "free speech" pose: (1) because other laws require at least some level of moderation (e.g., copyright laws and laws against child porn), and (2) more importantly, with no moderation, a platform fills up with spam, abuse, harassment, and just all sorts of garbage that make it a very unenjoyable place to spend your internet time.

So there are many, many incentives for nearly all websites to moderate: namely to keep users happy, and (in many cases) to keep advertisers or other supporters happy. When sites are garbage, it's tough to attract a large user base, and even more difficult to attract significant advertising. So, to say that 230 means there's no incentive to moderate is wrong -- as proven by the fact that every site does some level of moderation (even the ones that claim they don't).

Now, to tackle the related argument -- that 230 by itself provides no incentive to moderate -- that is also wrong. Because courts have ruled Section (c)(1) to have immunized moderation choices, and Section (c)(2) explicitly says that sites are not liable for their moderation choices, sites actually have a very strong incentive provided by 230 to moderate. Indeed, this is one key reason why Section 230 was written in the first place. It was done in response to a ruling in the Stratton Oakmont v. Prodigy lawsuit, in which Prodigy, in an effort to provide a "family friendly" environment, did some moderation of its message boards. The judge in that case rules that since Prodigy did moderate the boards, that meant it would be liable for anything it left up.

If that ruling had stood and been adopted by others, it would, by itself, be a massive disincentive to moderation. Because the court was saying that moderation itself creates liability. And smart lawyers will say that the best way to avoid that kind of liability is not to moderate at all. So Section 230 explicitly overruled that judicial decision, and eliminated liability for moderation choices.

If you said "Section 230 is a massive gift to big tech!"

Once again, I must inform you that you are very, very wrong. There is nothing in Section 230 that applies solely to big tech. Indeed, it applies to every website on the internet and every user of those websites. That means it applies to you, as well, and helps to protect your speech. It's what allows you to repeat something someone else said on Facebook and not be liable for it. It's what protects every website that has comments, or any other third-party content. It applies across the entire internet to every website and every user, and not just to big tech.

The "user" protections get less attention, but they're right there in the important 26 words. "No provider or user of an interactive computer service shall be treated as the publisher or speaker...." That's why there are cases like Barrett v. Rosenthal where someone who forwarded an email to a mailing list was held to be protected by Section 230, as a user of an interactive computer service who did not write the underlying material that was forwarded.

And it's not just big tech companies that rely on Section 230 every day. Every news organization (even those that write negative articles about Section 230) that has comments on its website is protected thanks to Section 230. This very site was sued, in part, over comments, and Section 230 helped protect us as well. Section 230 fundamentally protects free speech across the internet, and thus it is more properly called out as a gift to internet users and free speech, not to big tech.

If you said "A site that has political bias is not neutral, and thus loses its Section 230 protections"

I'm sorry, but you are very, very, very wrong. Perhaps more wrong than anyone saying any of the other things above. First off, there is no "neutrality" requirement at all in Section 230. Seriously. Read it. If anything, it says the opposite. It says that sites can moderate as they see fit and face no liability. This myth is out there and persists because some politicians keep repeating it, but it's wrong and the opposite of truth. Indeed, any requirement of neutrality would likely raise significant 1st Amendment questions, as it would be involving the law in editorial decision making.

Second, as described earlier, you can't "lose" your Section 230 protections, especially not over your moderation choices (again, the law explicitly says that you cannot face liability for moderation choices, so stop trying to make it happen). If content is produced by someone else, the site is protected from lawsuit, thanks to Section 230. If the content is produced by the site, it is not. Moderating the content is not producing content, and so the mere act of moderation, whether neutral or not, does not make you lose 230 protections. That's just not how it works.

If you said "Section 230 requires all moderation to be in "good faith" and this moderation is "biased" so you don't get 230 protections"

You are, yet again, wrong. At least this time you're using a phrase that actually is in the law. The problem is that it's in the wrong section. Section (c)(2)(a) does say that:

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected

However, that's just one part of the law, and as explained earlier, nearly every Section 230 case about moderation hasn't even used that part of the law, instead relying on Section (c)(1)'s separation of an interactive computer service from the content created by users. Second, the good faith clause is only in half of Section (c)(2). There's also a separate section, which has no good faith limitation, that says:

No provider or user of an interactive computer service shall be held liable on account of... any action taken to enable or make available to information content providers or others the technical means to restrict access to material....

So, again, even if (c)(2) applied, most content moderation could avoid the "good faith" question by relying on that part, (c)(2)(B), which has no good faith requirement.

However, even if you could somehow come up with a case where the specific moderation choices were somehow crafted such that (c)(1) and (c)(2)(B) did not apply, and only (c)(2)(A) were at stake, even then, the "good faith" modifier is unlikely to matter, because a court trying to determine what constitutes "good faith" in a moderation decision is making a very subjective decision regarding expression choices, which would create massive 1st Amendment issues. So, no, the "good faith" provision is of no use to you in whatever argument you're making.

If you said "Section 230 is why there's hate speech online..."

Ooof. You're either the The NY Times or very confused. Maybe both. The 1st Amendment protects hate speech in the US. Elsewhere not so much. Either way, it has little to do with Section 230.

If you said "Section 230 means these companies can never be sued!"

I regret to inform you that you are wrong. Internet companies are sued all the time. Section 230 merely protects them from a narrow set of frivolous lawsuits, in which the websites are sued either for the content created by others (in which case the actual content creators remain liable) or in cases where they're being sued for the moderation choices they make, which are mostly protected by the 1st Amendment anyway (but Section 230 helps get those frivolous lawsuits kicked out faster). The websites can and do still face lawsuits for many, many other reasons.

If you said "Section 230 is a get out of jail card for websites!"

You're wrong. Again, websites are still 100% liable for any content that they themselves create. Separately, Section 230 explicitly exempts federal criminal law -- meaning that stories that blame things like sex trafficking and opioid sales on 230 are very much missing the point as well. The Justice Department is not barred by Section 230. It says so quite clearly:

Nothing in this section shall be construed to impair the enforcement of... any other Federal criminal statute

So many of the complaints about criminal activity are not about Section 230, but about a lack of enforcement.

If you said "Section 230 is why there's piracy online"

You again may be the NY Times or someone who has not read Section 230. Section 230 explicitly exempts intellectual property law:

Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

If you said "Section 230 gives websites blanket immunity!"

The courts have made it clear this is not the case at all. In fact, many courts have highlighted situations in which Section 230 does not apply, from the Roommates case, to the Accusearch case, to the Doe v. Internet Brands case, to the Oberdorf v. Amazon case, we see plenty of cases where judges have made it clear that there are limits to Section 230 protections, and the immunity conveyed by Section 230 is not as broad as people claim. At the very least, the courts seem to have little difficulty targeting what they consider to be "bad actors" with regards to the law.

If you said "Section 230 is why big internet companies are so big!"

You are, again, incorrect. As stated earlier, Section 230 is not unique to big internet companies, and indeed, it applies to the entire internet. Research shows that Section 230 actually helps incentivize competition, in part because without Section 230, the costs of running a website would be massive. Without Section 230, large websites like Google and Facebook could handle the liability, but smaller firms would likely be forced out of business, and many new competitors might never get started.

If you said "Section 230 was designed to encourage websites to be neutral common carriers"

You are exactly 100% wrong. We've already covered why it does not require neutrality above, but it was also intended as the opposite of requiring websites to be "common carriers." Specifically, as mentioned above, part of the impetus for Section 230 was to enable services to create "family friendly" spaces, in which plenty of legal speech would be blocked. A common carrier is a very specific thing that has nothing to do with websites and less than nothing to do with Section 230.

If you said "If all this stuff is actually protected by the 1st Amendment, then we can just get rid of Section 230"

You're still wrong, though perhaps not as wrong as everyone else making these bad takes. Without Section 230, and relying solely on the 1st Amendment, you still open up basically the entire internet to nuisance suits. Section 230 helps get cases dismissed early, whereas using the 1st Amendment would require lengthy and costly litigation. 230 does rely strongly on the 1st Amendment, but it provides a procedural advantage in getting vexatious, frivolous nuisance lawsuits shut down much faster than they would be otherwise.

There seems to be more and more wrong stuff being said about Section 230 nearly every day, but hopefully this covers most of the big ones. If you see someone saying something wrong about Section 230, and you don't feel like going over all of their mistakes, just point them here, and they can be educated.

Filed Under: cda 230, free speech, intermediary liability, neutrality, platform, publisher, section 230, speech, wrong, you're wrong

Senator Hawley's Latest Dumb Anti-230 Plan Would Wipe Out The President's Advantage On Facebook

from the how-are-the-dumbest-people-in-charge? dept

After having his little whine fest in the form of a toothless Executive Order about Section 230 of the Communications Decency Act, it was reported that the President has directly tasked Senator Josh Hawley to introduce a law that attacks 230. This was a fairly obvious choice. Hawley is a big Trump supporter, and Trumpian in his tactics. And, also, Hawley has been confusingly attacking 230 with questionable legislative ideas for quite some time now.

So, with this being put back on his plate, Hawley is apparently working on a new plan that is even dumber than his last plan. Specifically, according to Politico, Hawley's new plan will condition 230 protections on not doing targeted advertising.

Republican Sen. Josh Hawley is preparing legislation that could require major online platforms like Google and Facebook to stop selling certain targeted ads to keep key legal protections, according to an individual familiar with the plan that would strike the heart of industry giants' business.

This would, at a first pass, almost certainly be unconstitutional. Rewarding certain business models and punishing others based on what speech they allow is all sorts of problematic from a 1st Amendment standpoint. But we can cross that court case when we come to it.

What strikes me as even more notable about this is that... the biggest user of those targeted ads is... the President who asked Hawley to write this bill. Remember, it was just a few months ago that a Facebook exec was explaining that Trump's electoral success was due to his campaign running "the single best digital ad campaign I’ve ever seen from any advertiser. Period." And that was almost all via heavily targeted ads. From that same internal Facebook memo, a key part of the success was the use of Facebook's "custom audiences" tag, which is a key piece to its targeted advertising strategy (with custom audiences an organization uploads an email list and can automatically target "similar" users).

So, if Hawley's plan says that you can only get 230 protections if you don't do that kind of advertising, many companies would stop offering such targeted advertising in order to keep the 230 protections (and, for what it's worth, I think many companies would be better off dropping those ads and focusing on other types of ads -- but I don't think the law should compel them to do so, especially not in this manner). And thus, if that came to pass, it would actually take a weapon away from Trump... because Trump got mad at the platforms for fact checking him. Incredible.

Filed Under: 1st amendment, 230 reform, business models, cda 230, donald trump, free speech, josh hawley, section 230, targeted ads
Companies: facebook

Devin Nunes' Lawyer Tells Judge To Ignore Section 230, Because Twitter Is Anti-Devin Nunes

from the this-is-not-a-winning-strategy dept

Twitter and Steven Biss (Devin Nunes' rather busy, but still terrible, lawyer) were in court on Friday to continue Nunes' frivolous SLAPP suit against a satirical internet cow who makes fun of Nunes. The current issue remains Twitter's unwillingness to reveal who is behind the @DevinCow account. Twitter, correctly, continues to point out that it doesn't need to give up the account info, that it's protected from doing so under Section 230, that the Cow has engaged in 1st Amendment protected speech, and more. And Biss's response appears to be... "but Twitter's mean to us, so it's not fair, it's not, it's not, it's not."

Needless to say, this is not a very good argument.

Nunes’ attorney Steven Biss said that Twitter should not qualify for immunity under the law, known as Section 230, contending it treats Nunes unfairly.

“They’re doing more than allowing Liz Mair, the cow and the mom to post a tweet,” Biss said. “They’re censoring, they’re promoting an anti-Nunes agenda, they’re banning conservative accounts and they’re knowingly encouraging it.”

Again, there's no evidence that Twitter is "banning conservative accounts" or "knowingly encouraging" anything involving an "anti-Nunes agenda," but even if they were, that's explicitly allowed (even encouraged) under Section 230, which flat out says that sites cannot be held liable for the moderation of constitutionally protected speech. At least the judge seems to recognize how faulty Biss' argument is:

“I don’t know of any requirement in the law that says these sites have to be neutral,” Marshall said. “Just because you don’t like it and asked to have them take it down, doesn’t mean they’re liable if they don’t take it down.”

Patrick Carome, an attorney for Twitter, argued that Biss wanted Marshall to carve out an exception for Twitter in the law, which is up to Congress, not the courts.

“Mr. Biss is asking the court to enact a new law,” Carome said. “And if he wants a new law, well, Mr. Nunes is a congressman.”

As an aside, Twitter's lawyer, Patrick Carome is not just "an attorney for Twitter," he was the lawyer who won the first big case about Section 230 that made it clear that it protected websites from liability for their moderation decisions. He understands the law inside and out. Biss... not so much.

According to Courthouse News, the judge even pointed out that Trump's silly executive order shows pretty clearly that Twitter's interpretation of 230 is correct:

“Doesn’t the existence of the executive order, which isn’t law, suggest the law can do what Twitter says it can?” the judge opined.

Biss also claimed that he was at a "dead end" in trying to determine the identity of who is behind the Cow account, which is kind of funny given the revelations that Biss tried to use subpoenas in wholly unrelated cases to try to unmask the account on the sly. Also, as Twitter pointed out, Nunes/Biss had not actually explored all legal avenues:

Carome listed the steps the congressman could take to get the identities revealed. They include filing subpoenas in Virginia and California and going through numerous steps to overcome each state’s unmasking laws.

“I don’t know why Nunes has been sitting on his hands,” Twitter’s lawyer said, pointing to the congressman’s original requests for the identities when the complaint was first filed over a year ago. “He’s wasted a lot of time.”

Of course, the reason that Biss hasn't done that is because he probably recognizes that he'll never overcome the bar to unmasking who is behind the Cow, because everything the Cow has said is protected speech, and the right to speak anonymously remains protected by the 1st Amendment as well.

That said, the judge (who had refused to dismiss the case earlier when he had the chance) pushed back on Twitter somewhat as well. Again, from the Courthouse News report:

But much like the first hearing in the case, Judge Marshall expressed some doubts about Twitter’s arguments as well. He pointed to a procedural issue involving the company’s failure to respond to numerous offenses Nunes alleges the company committed, ranging from shadow banning conservatives to acts of illegal defamation.

But Carome argued that procedurally, Twitter didn’t have to answer questions at this point in the case, while Marshall said state law might suggest otherwise.

The judge also expressed discontent at Twitter’s efforts to dismiss the case so early.

“The Supreme Court of Virginia doesn’t want us to short-circuit cases. I’m reminded by lawyers of it frequently,” he said to some chuckles in the court.

But that's all procedural nonsense. The key point is this: Devin Nunes is filing a vexatious, frivolous suit (one of many) against some online critics who were making fun of him (some of them anonymously). He has no legitimate claim, and as such no legitimate reason to unmask the people behind the satirical accounts.

Filed Under: 1st amendment, anonymity, cda 230, devin nunes, devin nunes' cow, devincow, pat carome, section 230, steven biss, unmasking
Companies: twitter

Ron Wyden Explains Why President Trump (And Many Others) Are Totally Wrong About Section 230

from the not-how-it-works-guys dept

A few years back, at a Santa Clara University event about Section 230 of the Communications Decency Act, I remember (then) 9th Circuit chief judge Alex Kozinski noting with some amount of pleasure that he was relieved to hear from one of the two authors of Section 230 of the Communications Decency Act (former Rep. Chris Cox, who was in attendance at the event) that his opinions on 230 were exactly what Cox intended. Paraphrasing (just slightly) Kozinski's comments, he noted that having the author of the bill that he needed to interpret comment on that interpretation was the equivalent of having God come down from Heaven to tell biblical scholars whether or not they had gotten things right.

And, as so many people seem to want to debate Section 230, often with blatantly incorrect explanations of what the law is intended to do, it's important to remember that the two co-authors of 230 are both still around and happy to talk about it. A few years ago, Cox filed an amicus brief explaining the intent behind 230 (tragically, in that case, the court decided to mostly ignore Cox's point).

And, of course, Ron Wyden is now a Senator (at the time of 230 he was in the House) and he's now written quite the op-ed for CNN about how wrong the President and many of the President's fans are about the point of Section 230. A key point is that contrary to what many claim, 230 itself creates incentives for free speech in removing much of the liability sites might otherwise have for hosting contested speech.

Without Section 230, sites would have strong incentives to go one of two ways: either sharply limit what users can post, so as to avoid being sued, or to stop moderating entirely, something like 8chan — now operating under the name 8kun — where anonymous users can post just about anything and speech supporting racism and sexism is common.

I think we would be vastly worse off in either scenario. Just look at Black Lives Matter and the protests against police violence over the past week as an example. The cellphone video that captured the officer kneeling on George Floyd's neck spread across social media platforms — and it's the reason Americans learned about his unjust killing in the first place. So many of these cases of unconscionable use of force against black Americans have come to light as a result of videos posted to social media.

In a world without 230, I cannot imagine that Facebook or Twitter would allow posts about police violence that could possibly be defamatory. These horrible injustices would never get the public attention they deserve. And accountability would be even less likely.

And then, of course, there's the flipside. This weird belief by many, including the President, that sites shouldn't be able to moderate content in a way that they dislike. But that would do damage to internet speech as well, though in a different way:

Now what it seems Trump would like is the other scenario — for platforms to be "neutral." Let's not kid ourselves. Trump's attempt to abolish Section 230 is essentially a way of bullying social media companies so that he may post what he wants without any challenge.

And so without 230, I think that a lot of sites would choose not to moderate at all, and thus avoid responsibility for anything their users post. It goes without saying that there would be a lot more false, dangerous content out there, from revenge porn to posts supporting white supremacy. The internet would become the cesspool that anti-230 activists claim it is today.

But the key point that Wyden makes is at the end of the post: President Trump doesn't need Section 230. If websites block him, he has no shortage of ways to get his message out there. Indeed, the press seems to fall over itself to over cover his every nonsensical statement. The real problem is how it would silence so many other people.

If Twitter banned Trump tomorrow, he wouldn't have any trouble spreading his message to every corner of the world.

But without 230, the people without power — people leading movements like #MeToo and Black Lives Matter — would find it far harder to challenge the big corporations and powerful institutions. Without 230, I believe that not a single #MeToo post would have been allowed on moderated sites.

As Wyden notes, a world without 230 is one in which the speech police rule, and controversial statements, especially from those outside the halls of power, get suppressed and stymied.

For the President and his supporters to insist that we need to get rid of Section 230 to encourage more speech is exactly wrong. And thankfully we have people who truly know the point of the law to explain it to him. The question is whether or not anyone will listen.

Filed Under: cda 230, ron wyden, section 230

Senators Rubio, Hawley, Loeffler And Cramer Ask The FCC To Reinterpret Section 230 In A Totally Ridiculous Manner

from the oh-come-on dept

It appears that Senators Marco Rubio, Josh Hawley, Kelly Loeffler, and Kevin Cramer don't mind looking like total fools who don't understand some fairly basic concepts about the law, so long as they can perform for their ignorant base. The latest is that they have sent a letter to the FCC, picking up on President Trump's silly executive order and asking FCC chair Ajit Pai to reinterpret Section 230 at direct odds with the plain language of the law and the way that every single court to this day has interpreted it.

The thing is, these Senators know what a silly project this is, but because the Emperor demands fealty, and they know that their own base now depends on bowing down to insanity, they're playing it up. Everything about this letter is silly. But because some people might take it seriously, let's go through why it's silly.

Dear Chairman Pai:

We write regarding the role of the Federal Communication Commission (FCC) in the recently signed Executive Order on Preventing Online Censorship. The unequal treatment of different points of view across social media presents a mounting threat to free speech. This Executive Order is an important step in addressing this form of censorship.

Once again, there is literally no evidence that there is any "unequal treatment" of different points of view, but even if there was the 1st Amendment would protect it. There is no law, anywhere, that says that you have to treat all speech equally, and that if you don't it somehow leads to you facing liability. And, honestly, Republicans like these Senators should recognize that if that situation were to change, the first ones in trouble would be partisan organizations like Fox News.

But, thankfully, the 1st Amendment says that sites can moderate how they want.

Furthermore, Section 230 is not a "mounting threat to free speech." Taking it away, however, would very much be a threat to free speech. Again, without Section 230, websites will have strong incentives not to host third party content, because the risks of liability will be huge, meaning that many places that now enable people to speak out will likely scale that back significantly, and in some cases entirely. The threat to free speech is coming from these Senators, not Section 230.

Section 230 of the Communications Decency Act shields social media platforms from the liability imposed on publishers when they act in “good faith” to restrict access to or remove certain objectionable materials.

This is a blatant misreading of the law. The "good faith" part of the law covers just one part of 230 (Section (c)(2)(A)) and not to the other parts of the law, including (c)(1), which is the part that almost every court decision has depended on, regarding the rights of websites to moderate their content. (c)(1) is the part that says that no website can be held liable for third party content. And courts have (correctly) read that to mean that this also covers any moderation activity. And there is no "good faith" requirement for that.

Also, there is no "good faith" requirement in (c)(2)(B), which says there is no liability for any website for "any action taken to enable... the technical means to restrict access to material." In other words, the "good faith" requirement does not cover the parts of the law these Senators are pretending it does, and changing the interpretation of "good faith" wouldn't change the rights of any platform to moderate as they see fit.

Even if they were right in harping on the "good faith" requirement, they'd still be wrong, because forcing a court to determine whether or not a website's editorial policies were done in "good faith" would be a direct 1st Amendment violation itself. After all, if you could determine whether or not Twitter's moderation policies are "good faith" or not, you could do the same for the editorial decision making of a news organization like Fox News.

Once again, the only threat to free speech here is coming from Senators Rubio, Hawley, Loeffler, and Cramer.

However, the protections afforded by Section 230 are not absolute or unconditional

It is correct that 230's protections are not absolute. Which is why one of the most annoying things is that these Senators (Hawley in particular) keep pretending that 230 protections are absolute and that's why he wants to change them. I'd be happy that he's finally admitting they're not absolute if he were doing it in an intellectually honest manner, rather than using it here in a bullshit way to suggest this means it's okay to ignore the law and reinterpret it in Hawley's pro-censorship direction.

But the final word of the sentence is incorrect. Section 230 is an immunity that is based on who creates the content. It is not "conditional" like a safe harbor (like the DMCA's 512, which requires you to meet certain rules to qualify). Section 230 has no such conditions included in it and no court has read it to, because they do not exist. What's happening here is, again, the Senators want to shove this "good faith" thing into the conversation where it simply does not belong.

While social media companies enjoy their special status under Section 230, it is questionable that they are living up to their obligations when they blur the lines between distributor and publisher by favoring one political point of view over another.

This part is just utter nonsense. Section 230 does not have any "obligations." And there is no line for them to "blur" between distributor and publisher (and, again, there remains zero evidence of them favoring one political point over another -- that's just a made up concept by Republicans to work the refs and try to get more favorable moderation). Pretending that there are obligations built into Section 230 is dangerous. It's how you actually stifle free speech, by assuming every company needs to step into line to "get" the liability questions answered properly. It's literally the opposite of the "small government" line these four politicians have all spewed in the past. They are hypocrites.

The reinterpretation of the law they are pushing for here is literally about them being the speech police.

While the President has the means to push back on unfair treatment, we worry about everyday Americans who are sidelined, silenced, or otherwise censored by these corporations.

No you don't. This is gaslighting. There are still plenty of platforms out there that will host anyone's content. Indeed, plenty of platforms have sprung up, in part, because they disliked the way these companies have handled their content moderation. And of course, note that these four Senators don't explain just who it is they're talking about. Which "everyday Americans" have been "sidelined, silenced, or otherwise censored" by these platforms? I'd bet good money that there were perfectly normal reasons, not "anti-conservative bias".

Social media companies, whose protections come from their acting as distributors, not publishers, have increasingly engaged in partisan editorializing, censorship of Chinese dissidents, and a host of politically motivated speech policing.

This is simply laughable. If you took away 230 you'd get even less speech and more policing because of the risk of liability. This has been explained to Josh Hawley numerous times, yet he continues to trot out this nonsense.

While these actions speak for themselves, companies continue to enjoy Section 230 protections due to a lack of clear rules and judicial expansion of the statute.

No, the "rules" are quite clear. And all internet websites enjoy that protection because that's what the law says and what was intended by Congress when it passed. And it's simply wrong to say that courts have "expanded" the statute. They read what's in there, and recognized that it's silly to hold platforms responsible for the speech of others. These four Senators just don't like what the law says. And, as such, they have the right to try to pass legislation (including some nonsensical bills that Hawley has proposed). The idea that this is a job for the FCC makes no sense at all. Indeed, in Reno v. ACLU, the case that invalidated the rest of the Communications Decency Act, the Supreme Court made it clear that the FCC has no mandate to regulate speech on websites, because the internet is protected by the 1st Amendment. In that case, in trying to reject the argument that a former case involving the FCC regulating "indecent" speech on radio would make the regulation of such speech on the internet okay, the Supreme Court said "no, the internet is not radio" and thus the FCC has no regulatory power to police speech on it:

Finally, the Commission's order applied to a medium which as a matter of history had "received the most limited First Amendment protection," [i.e., radio] in large part because warnings could not adequately protect the listener from unexpected program content. The Internet, however, has no comparable history.

[...]

In Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557 (1975), we observed that "[e]ach medium of expression ... may present its own problems." Thus, some of our cases have recognized special justifications for regulation of the broadcast media that are not applicable to other speakers, see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). In these cases, the Court relied on the history of extensive Government regulation of the broadcast medium, see, e. g., Red Lion, 395 U. S., at 399-400; the scarcity of available frequencies at its inception, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638 (1994); and its "invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128 (1989).

Those factors are not present in cyberspace. Neither before nor after the enactment of the CDA have the vast democratic forums of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry. Moreover, the Internet is not as "invasive" as radio or television.

Indeed, as the case made clear, the FCC could regulate broadcast airwaves, because it was scarce spectrum that the government was handing out to broadcasters. That is not true of the internet:

Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a "scarce" expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds. The Government estimates that "[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999." This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, "the content on the Internet is as diverse as human thought." 929 F. Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

In other words, the FCC has no authority to regulate the internet at all.

Back to the nonsense letter from the Senators.

Social media companies have become involved in a range of editorial and promotional activity; like publishers, they monetize, edit, and otherwise editorialize user content.

They make it sound like this is a new thing. Instead, this is exactly why Section 230 was written in the first place. A ruling in NY said that because the internet service Prodigy tried to create a "family friendly" service (i.e., it editorialized its forums, and monetized it), it suddenly faced liability for those moderation choices. Congress realized how dangerous that was to free speech online and passed 230. These Senators are simply ignoring the real history and trying to gaslight people into believing an entirely false one.

It is time to take a fresh look at Section 230 and to interpret the vague standard of “good faith” with specific guidelines and direction.

If it is time to take a fresh look at Section 230, then that is Congress' job, and not the FCC's. And, again, the good faith part only applies to a very limited segment of 230 (and one that is almost never used in court).

In addition, it appears that courts have granted companies immunity for editing and altering content even though the text of Section 230 prohibits immunity for any content that the company “in part … develop[s].” These interpretations also deserve a fresh look.

This is also misleading. The part that says "in part... develop[s]" is the definition of an internet content provider. They're trying to misinterpret this section to mislead people into believing that content moderation makes a service a "content provider" rather than an "interactive computer service." In other words, they're leaning very heavily on the "in part... develop[s]" to try to bring about the mythical "publisher" / "platform" split.

But the only way that can happen is if you take this obvious misread of the definitions of 230, and ignore the direct stated intention and words of the rest of the law. That's what these Senators are doing. No court has ever bought into this definition. The authors of 230 have said over and over again that this was never the intent or purpose of 230.

And here's the thing: courts have made it clear that sites that do develop their own content are liable for that content. The Roommates.com case made it clear that sites can be liable for the content they create "in part." But the content they create is different than the content that is moderated. So, for example, the actual text of Twitter's now-infamous "fact check" of President Trump's tweets is not protected by Section 230, because the fact check text itself is content created by Twitter. So it's not like 230 has any bearing there.

But that content is protected by the 1st Amendment. Because there's literally nothing at all illegal about saying "hey, check out more information that suggests the President is lying to you." It's quintessential 1st Amendment protected speech, responding to a public figure who was spewing propaganda.

If anything, taking away 230 would make Twitter potentially liable for whatever awful, defamatory things the President himself tweets.

We therefore request that the FCC clearly define the framework under which technology firms, including social media companies, receive protections under Section 230.

There is no framework. The law requires no framework. The FCC has no authority to interpret the law here, and any interpretation they make is meaningless and would likely be ignored by courts who, at best, would wonder why the FCC is butting in here in the first place.

And here's the little secret Marco Rubio, Josh Hawley and the other Senators don't want you to realize: they know this. They're performing this kind of thing because the President wants this crew of no-spine Senators to back up his nonsense. And now we know which kind of spineless, hypocritical dolts hop to it when the Emperor orders them to make fools of themselves.

Filed Under: 1st amendment, ajit pai, bias, cda 230, fcc, free speech, josh hawley, kelly loeffler, kevin cramer, marco rubio, section 230

Think Of The Kitten: A Crash Course On Section 230

from the presidential-education dept

We are so hip here at Techdirt that we've been writing about Section 230 long before it was cool. But even though everyone and their President seems to be talking about it these days, and keen to change it, it does not seem like everyone necessarily knows what it actually says or does. Don't let this happen to you!

The embedded video below is of a presentation I gave earlier this year at ShmooCon where I explained the magic of Section 230 through the lens of online cat pictures. As we head into more months of lockdown, our need for a steady supply of cat pictures has never been more important. Which means Section 230 has never been more important.

In this presentation I explain why we have Section 230, what it does, why it works, and how badly we jeopardize our supply of online cat pictures (as well as a lot of other good, important stuff) if we mess with it.

Tune in!

Filed Under: cat pictures, cda 230, free speech, intermediary liability, kittens, section 230, shmoocon