Authors Of CDA 230 Do Some Serious 230 Mythbusting In Response To Comments Submitted To The FCC

from the that's-not-how-any-of-this-works-at-all dept

While there were thousands of comments filed to the FCC in response to the NTIA's insanely bad "petition" to have the FCC reinterpret Section 230 in response to an unconstitutional executive order from a President who was upset that Twitter fact checked some of his nonsense tweets, perhaps the comment that matters most is the one submitted last week by the two authors of Section 230, Senator Ron Wyden and former Rep. Chris Cox. Cox and Wyden wrote what became Section 230 back in the 90s, and have spent decades fighting misinformation about it -- and fighting to keep 230 in place.

In the comment they submitted to the FCC, they respond to all the idiotic nonsense that everyone has been submitting. Again, these are the guys who wrote the actual law. They know what it was intended to do, and agree with how it's been used to date. So they go on a systematic debunking journey through the nonsense. First, they respond to comments that say that the FCC can interpret 230. Nope.

Several commenters have repeated the claim in the Petition that “[n]either section 230’s text, nor any speck of legislative history, suggests any congressional intent to preclude the Commission’s implementation.” In fact, however, as the authors of the legislation and the floor managers of the debate on the bill in the House of Representatives, we can assure you the very opposite is true. We and our colleagues in Congress on both sides of the aisle were emphatic that we were not creating new regulatory authority for the FCC or any other independent agency or executive branch department when we enacted Section 230. Not only is this clear from the legislative history, but it is written on the face of the statute. Unlike other provisions in Title II of the Communications Act, Section 230 does not invite agency rulemaking. Indeed, in a provision that judges interpreting the law have noted is “unusual,” Section 230(b) explicitly provides:

It is the policy of the United States … to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.

When this legislation came to the floor of the House of Representatives for debate on August 4, 1995, the two of us, together with members on both sides of the aisle, explained that our purpose was to ensure that the FCC would not have regulatory authority over content on the internet. We and our colleagues, Democrats and Republicans alike, decried the unwelcome proregulatory alternative of giving the FCC responsibility for regulating content on the internet, which at the time was being advanced in separate legislation by Senator James Exon...

The Cox-Wyden bill under consideration was intended as a rebuke to that entire concept.

Then, to prove they're not engaging in revisionist history, they cite the speeches they themselves gave about how the whole point of their bill was to keep the FCC from regulating the internet. From Wyden's floor speech at the time:

[T]he reason that this approach rather than the Senate approach is important is … the speed at which these technologies are advancing [which will] give parents the tools they need, while the Federal Communications Commission is out there cranking out rules about ·proposed rulemaking programs. Their approach is going to set back the effort to help our families.

Cox's floor speech was even more direct with the question of whether or not their approach was designed to give the FCC power:

Some have suggested, Mr. Chairman, that we take the Federal Communications Commission and turn it into the ‘Federal Computer Commission’ — that we hire even more bureaucrats and more regulators who will attempt, either civilly or criminally, to punish people by catching them in the act of putting something into cyberspace. Frankly, there is just too much going on on the Internet for that to be effective....

[This bill] will establish as the policy of the United States that we do not wish to have content regulation by the Federal Government of what is on the Internet —that we do not wish to have a ‘Federal Computer Commission’ with an army of bureaucrats regulating the Internet....

The message today should be, from this Congress: we embrace this new technology, we welcome the opportunity for education and political discourse that it offers for all of us. We want to help it along this time by saying Government is going to get out of the way and let parents and individuals control it rather than Government doing that job for us....

If we regulate the Internet at the FCC, that will freeze or at least slow down technology. It will threaten the future of the Internet. That is why it is so important that we not have a ‘Federal Computer Commission’ do that.

Next, the comment responds to the claims that 230 is "outdated." Nope, claim its authors:

Several commenters, including AT&T, assert that Section 230 was conceived as a way to protect an infant industry, and that it was written with the antiquated internet of the 1990s in mind – not the robust, ubiquitous internet we know today. As authors of the statute, we particularly wish to put this urban legend to rest.

Section 230, originally named the Internet Freedom and Family Empowerment Act, H.R. 1978, was designed to address the obviously growing problem of individual web portals being overwhelmed with user-created content. This is not a problem the internet will ever grow out of; as internet usage and content creation continue to grow, the problem grows ever bigger. Far from wishing to offer protection to an infant industry, our legislative aim was to recognize the sheer implausibility of requiring each website to monitor all of the user-created content that crossed its portal each day.

Critics of Section 230 point out the significant differences between the internet of 1996 and today. Those differences, however, are not unanticipated. When we wrote the law, we believed the internet of the future was going to be a very vibrant and extraordinary opportunity for people to become educated about innumerable subjects, from health care to technological innovation to their own fields of employment. So we began with these two propositions: let’s make sure that every internet user has the opportunity to exercise their First Amendment rights; and let’s deal with the slime and horrible material on the internet by giving both websites and their users the tools and the legal protection necessary to take it down.

The march of technology and the profusion of e-commerce business models over the last two decades represent precisely the kind of progress that Congress in 1996 hoped would follow from Section 230’s protections for speech on the internet and for the websites that host it. The increase in user-created content in the years since then is both a desired result of the certainty the law provides, and further reason that the law is needed more than ever in today’s environment.

Next up: the all too frequent claim that 230 creates a special rule for the internet that is different than for brick and mortar stores, and therefore there's a "double standard." Again, nope.

Several commenters have asserted that Section 230 sets up a “double standard” by treating online businesses differently from “brick-and-mortar” businesses. This represents a fundamental misunderstanding of both the purpose of the law and how it operates in practice.

Section 230 serves to punish the guilty and protect the innocent. Individuals and firms are made fully responsible for their own conduct. Anyone who creates digital content and uploads it to a website is legally liable for what they have done. A website that hosts the content will likewise be liable, if it contributes to the creation or development of that content, in whole or in part. Otherwise, the website will be protected from liability for third-party content.

Section 230 was written to adapt intermediary liability rules long recognized in the analog world for the digital world, applying the wisdom accumulated over decades in legislatures and the courts to the realities of this new technological realm. As authors of the law, we understood what was evident in 1996 and is even more in evidence today: it would be unreasonable for the law to impose on websites a legal duty to monitor all user-created content.

When Section 230 was written, just as now, each of the commercial applications flourishing online had an analog in the offline world, where each had its own attendant legal responsibilities. Newspapers could be liable for defamation. Banks and brokers could be held responsible for failing to know their customers. Advertisers were responsible under the Federal Trade Commission Act and state consumer laws for ensuring their content was not deceptive and unfair. Merchandisers could be held liable for negligence and breach of warranty, and in some cases even subject to strict liability for defective products. In writing Section 230, we—and ultimately the entire Congress—decided that these legal rules should continue to apply on the internet just as in the offline world. Every business, whether operating through its online facility or through a brick-and-mortar facility, would continue to be responsible for all of its legal obligations.

What Section 230 added to the general body of law was the principle that individuals or an entity operating a website should not, in addition to their own legal responsibilities, be required to monitor all of the content created by third parties and thereby become derivatively liable for the illegal acts of others. Congress recognized that to require otherwise would jeopardize the quintessential function of the internet: permitting millions of people around the world to communicate simultaneously and instantaneously, a unique capability that has made the internet “the shining star of the Information Age.” Congress wished to “embrace” and “welcome” this, not only for its commercial potential but also for “the opportunity for education and political discourse that it offers for all of us.” The result is that websites are protected from liability for user-created content, but only to a point: if they are responsible, even in part, for the creation or development of that content, they lose that protection.

The fact that Section 230 established the legal framework for assessing liability in circumstances unique to the internet does not mean that either this framework or the preexisting legal rules do not apply equally to all online and offline businesses. Every business continues to bear the same legal responsibilities when operating in the offline world, and every business is bound by the same statutorily-defined responsibilities set out in Section 230 when operating in the e-commerce realm.

Then there's the question about whether or not the FCC can mandate disclosure and reporting requirements. As Cox and Wyden note, this argument -- pushed strongly by AT&T and the NTIA "borders on the absurd."

The Petition asks the FCC to interpret Section 230 as if it contained explicit requirements mandating terms of service, content moderation policies, due process notice and hearings in which content creators could dispute moderation decisions, and public disclosures concerning these and other matters. The Petition further asks that the FCC impose these specific requirements by rule. Multiple commenters, including AT&T, have endorsed this aspect of the NTIA proposal.

The Petition clearly states NTIA’s understanding that Congress, with “strong bi-partisan support,” intended Section 230 to be “a non-regulatory approach.” In this they are correct. As outlined in Section II above, the legislative history clearly demonstrates that we and our colleagues in Congress intended to keep the FCC and other regulators out of this area. This is reflected in the language of Section 230 itself. Both of us, as the authors of the legislation, made ourselves abundantly clear on this point when the law was being debated.

This fact—and NTIA’s admission of it—makes it all the more illogical for their Petition to ask the Commission to interpret Section 230 as statutory authorization for the FCC to regulate the very subjects that Section 230 itself covers, and which Congress wanted the Commission to stay out of. It surpasses illogic, and borders on the absurd, for the Petition to ask the FCC to use authority that Section 230 clearly does not grant it, in order to divine from the text of the statute explicit duties and burdens on websites that Section 230 itself clearly does not impose.

As Cox and Wyden note, any such interpretation would clearly require new legislation and could not be created, whole cloth, from the mind of an angry President and clueless NTIA staffers with grudges about Section 230.

All of this would require new federal legislation. None of it appears in Section 230, either in the text of the law that we can all read (and that the two of us wrote), or even in the invisible ink which NTIA must believe only it can read.

I get the feeling that Cox and Wyden do not think highly of the NTIA petition.

As for those who commented suggesting that the FCC could interpret Section 230 to include a "negligence" standard, again, this is not how any of this works:

Several commenters, including Digital Frontiers Advocacy, have urged grafting onto Section 230 a requirement, derived from negligence law, upon which existing protections for content moderation would be conditioned. These requirements would add to Section 230 a “duty of care” or a “reasonableness” standard that cannot be found in the statute. As one example, the Petition (which is generically endorsed in its entirety by many individual commenters) would have the FCC require that content moderation decisions be “objectively reasonable,” as compared to the clear language of Section 230, which provides that the decision is to be that of “the provider or user.”

As the authors of this law, and leading participants in the legislative process that led to its enactment in 1996, we can assure the Commission that the reason you do not see any such requirement on the face of the statute is that we did not intend to put one there.

The proposed introduction of subjective negligence concepts would effectively make every complaint concerning a website’s content moderation into a question of fact. Since such factual disputes can only be resolved after evidentiary discovery (depositions of witnesses, written interrogatories, subpoenas of documents, and so forth), no longer could a website prove itself eligible for dismissal of a case at an early stage.

We intended to spare websites the death from a thousand paper cuts that would be the result if every user, merely by filing a complaint about a content moderation decision, could set in motion a multi-year lawsuit. We therefore wrote Section 230 with an objective standard: was the allegedly illegal material created or developed—in whole or in part—by the website itself? If the complaint adequately alleges this, then a lawsuit seeking to hold the website liable as a publisher of the material can proceed; otherwise it cannot.

And if you think Cox and Wyden are done exploring just how absurdly stupid this process has been, you haven't prepared yourself for the next section, in which they respond to the many ridiculous comments suggesting 230 enables the FCC to enforce "neutrality" on internet websites:

The Claremont Institute and scores of individual commenters have complained that particular websites are not politically neutral, and they demand that Section 230’s protection from liability for content created by others be conditioned on proof that a website is in fact politically neutral in the content that it hosts, and in its moderation decisions.

There are three points that must be made in reply. The first is that Section 230 does not require political neutrality. Claiming to “interpret” Section 230 to require political neutrality, or to condition its Good Samaritan protections on political neutrality, would erase the law we wrote and substitute a completely different one, with opposite effect. The second is that any governmental attempt to enforce political neutrality on websites would be hopelessly subjective, complicated, burdensome, and unworkable. The third is that any such legislation or regulation intended to override a website’s moderation decisions would amount to compelling speech, in violation of the First Amendment....

They respond to every idiot who misinterprets the line in the Findings part of Section 230 about "diversity of political discourse" by saying "we meant lots of different sites, not that every site has to host all your nonsense."

Section 230 itself states the congressional purpose of ensuring that the internet remains “a global forum for a true diversity of political discourse.” In our view as the law’s authors, this requires that government allow a thousand flowers to bloom—not that a single website has to represent every conceivable point of view. The reason that Section 230 does not require political neutrality, and was never intended to do so, is that it would enforce homogeneity: every website would have the same “neutral” point of view. This is the opposite of true diversity.

To use an obvious example, neither the Democratic National Committee nor the Republican National Committee websites would pass a political neutrality test. Government compelled speech is not the way to ensure diverse viewpoints. Permitting websites to choose their own viewpoints is.

And then there's that comment that was popular among individual filers (and lots of idiots on Twitter) that because Section 230 allows websites to take down lawful speech, that's somehow a violation of the 1st Amendment. We've discussed many, many, many times how ridiculous that is, but why don't we hear it from Wyden and Cox:

Many individual commenters complained that their political viewpoints have been “censored” by websites ostensibly implementing their community guidelines, but actually suppressing speech. Several of these commenters have urged the FCC to require that all speech protected by the First Amendment be allowed on any site of sufficient size that it might be deemed an equivalent to the “public square.” In the context of this proceeding, that would mean Section 230 would somehow have to be “interpreted” to require this.

Comments within this genre share a fundamental misunderstanding of Section 230. The matter is readily clarified by reference to the plain language of the statute. The law provides that a website can moderate content “whether or not such material is constitutionally protected.”... Congress would have to repeal this language, and replace it with an explicit speech mandate, in order for the FCC to do what the commenters are urging.

Government-compelled speech, however, would be a source of further problems. Because the First Amendment not only protects expression but non-expression, any attempt to devise an FCC regulation that forces a website to publish content it otherwise would moderate would almost certainly be unconstitutional. The government may not force websites to publish material that they do not approve. As Chief Justice Roberts unequivocally put it in Rumsfeld v. Forum for Academic and Institutional Rights (2006), “freedom of speech prohibits the government from telling people what they must say.”...

And then they point out that many commenters don't seem to understand the 1st Amendment:

The answer to the commenters’ complaints of “censorship” must be twofold. First, many of the comments conflate their frustrations about Section 230 with the First Amendment. As noted, it is the First Amendment, not Section 230, that gives websites the right to choose which viewpoints, if any, to advance. Furthermore, First Amendment speech protections dictate that the government, with a few notable exceptions, may not dictate what speech is acceptable. The First Amendment places no such restrictions on private individuals or companies. Second, the purpose and effect of Section 230 is to make the internet safe for innovation and individual free speech. Without Section 230, complaints about “censorship” by the likes of Google, Facebook, and Twitter would not disappear. Instead, we would be facing a thousandfold more complaints that neither the largest online platforms nor the smallest websites are any longer willing to host material from individual content creators.

And changing Section 230 in the manner these commenters seek wouldn't actually help them:

Eroding the law through regulatory revision would seriously jeopardize free speech for everyone. It would be particularly injurious to marginalized viewpoints that aren’t within “the mainstream.” It would present near-insuperable barriers for new entrants attempting to compete with entrenched tech giants in the social media space. Not least of all, it would set a terrible example for the rest of the world if the United States, which created the internet and so much of the vast cyber ecosystem that has enabled it to flourish globally as an informational, cultural, scientific, educational, and economic resource, were to undermine the ability that hundreds of millions of individuals have each day to contribute their content to that result.

In the absence of Section 230, the First Amendment rights of Americans, and the internet as we know it, would shrivel. Far from authorizing censorship, the law provides the legal certainty and protection from open-ended liability that permits websites large and small to host the free expression of individuals, making it available to a worldwide audience. Section 230 is a bulwark of free speech and civil discourse that is more important now than ever, especially in the current political climate that is increasingly hostile to both.

In short, so many of these commenters are confused about the law, the history, the technology, how free speech works, how the internet works, and more. That much of this is also true of the NTIA petition itself is a shame.

The Cox and Wyden comment concludes by underlining the fact that they wrote 230 with the explicit intent of keeping the FCC away from regulating internet websites.

On one point we can speak ex cathedra, as it were: our intent in writing this law was to keep the FCC out of the business of regulating websites, content moderation policies, and the content of speech on the internet. The Petition asks the Commission to reverse more than two decades of its own policy by becoming, at this late stage in the life of Section 230, its regulatory interpreter. In so doing, the FCC would assume responsibility for regulating websites, content moderation policies, and the content of speech on the internet—precisely the result we intended Section 230 to prevent. To reach this perverse result, the FCC would “clarify” the words of Section 230 in ways that do violence to the plain meaning of the statutory text.

One would hope that such a detailed response from the authors of the law would put this whole nonsense to rest. But it won't.

Filed Under: cda 230, chris cox, fcc, intermediary liability, ntia, ron wyden

Fight For The Future Wants To Help You Tell The FCC Where To Shove The NTIA's Anti-Section 230 Petition

from the good-for-them dept

We recently filed comments in the still ongoing FCC comment period regarding the NTIA's petition to get the FCC to reinterpret Section 230 to match with the President's bizarrely warped view of social media content moderation. I filed personal comments from my perspective running Techdirt, and we also filed more official comments as an organization. Both were filed during the initial comment period, but we're now in the middle of a second comment period -- officially for "responses" to the initial comments -- which are due by September 17th.

It really is not particularly difficult to file a comment with the FCC, though if you do, I recommend that you write out a letter and submit a PDF that clearly states the issue and your argument (rather than just ranting incoherently) as many FCC commenters have been known to do.

However, if you want it to be even easier, the good folks over at Fight for the Future have announced that they've set up a new site, SaveOnlineSpeech.org to make it even easier to file a comment.

The comments will be submitted directly to the FCC’s public docket, which so far has been mostly filled with nonsense, including identical astroturf comments backed by AT&T –– some that still include boilerplate “XYZ group” language –– and hundreds of comments from an anti-LGBTQ hate group backing the executive order. 

The page notes that, while there may be very real problems with how big internet companies are managed and how platforms are run, messing with Section 230 is not the way to fix that.

There’s no question that Big Tech companies have amassed tremendous power to limit expression, spread dangerous misinformation, silence dissent, and manipulate public opinion. These are serious problems that impact our lives, and it’s long past time the government took action to address this dangerous behavior by enacting strong legislation to prevent corporate data harvesting, banning abusive practices like microtargeted advertising, and taking on Silicon Valley’s monopolistic business practices at their root. But this Trump executive order, and similarly misguided proposals from Democrats to rip up Section 230, won’t do any of that. Instead, they’ll make these problems worse.

Punching a hole in Section 230 will allow any president to decide what speech is allowed on the Internet. If the government doesn’t like how social media websites moderate content, the government can simply shut those companies down. That might seem like a good idea when someone you support is in the Oval Office, but political power changes quickly. No matter what your political beliefs are, we should all be able to agree that letting governments and corporations restrict the free flow of information is a bad idea.

Feel free to check it out if you're looking for a way to file a comment, and the FCC page was not user-friendly for you.

Filed Under: comments, fcc, ntia, section 230

Apparently The New Litmus Test For Trump's FCC: Do You Promise To Police Speech Online

from the snowflake-central dept

Last month we wrote about how President Trump withdrew the renomination of FCC Commissioner Mike O'Rielly just days after O'Rielly dared to [checks notes] reiterate his support for the 1st Amendment in a way that hinted at the fact that he knew Trump's executive order was blatantly unconstitutional. Some people argued the renomination was pulled for other reasons, but lots of people in DC said it was 100% about his unwillingness to turn the FCC into a speech police for the internet.

While it seems quite unlikely that Trump can get someone new through the nomination process before the election, apparently they're thinking of nominating someone who appears eager to do the exact opposite: Nathan Simington, who wants the FCC to be the internet speech police so bad that he helped draft the obviously unconstitutional executive order in response to the President's freak-out at being fact checked.

Three sources close to the matter say Nathan Simington, a senior advisor at the NTIA within the commerce department, has emerged as a leading candidate to take over Republican Commissioner Mike O’Rielly’s seat at the FCC.

Simington is said to have helped draft the administration’s social media executive order, and his nomination would be a victory for Republicans who want to see the FCC take a larger role in regulating social networks.

You can see the Trumpian logic here: "O'Rielly gently pushed back the tiniest bit on our plan to ignore the 1st Amendment and compel social media companies to host the propaganda and disinformation we spew, so let's replace him with someone who supports that singularly stupid argument. How about the guy who drafted the executive order!"

The idea that "will you support the FCC being the speech police" is now the Republican litmus test for being an FCC Commissioner is a freakish 180 from the history of Republican FCC Commissioners who have spent decades arguing against that on the things they actually have authority over (with the notable exception of obscenity, which GOP Commissioners have, at times, wanted to police). Either way, this seems like yet another example of the Republican party not having any core principles other than punishing the companies and people that Trump doesn't like.

Filed Under: bias, fcc, michael o'rielly, nathan simington, ntia, section 230, social media

The Copia Institute's Comment To The FCC Regarding The Ridiculous NTIA Petition To Reinterpret Section 230

from the what-utter-crap dept

In his post Mike called the NTIA petition for the FCC to change the enforceable language of Section 230 laughable. Earlier I called it execrable. There is absolutely nothing redeeming about it, or Trump's Executive Order that precipitated it, and it has turned into an enormous waste of time for everyone who cares about preserving speech on the Internet because it meant we all had to file comments to create the public record that might stop this trainwreck from causing even more damage.

Mike's post discusses his comment. He wrote it from the standpoint of a small businessman and owner of a media website that depends on Section 230 to enable its comment section, as well as help spread its posts around the Internet and took on the myth that content moderation is something that should inspire a regulatory reaction.

I also filed one, on behalf of the Copia Institute, consistent with the other advocacy we've done, including on Section 230. It was a challenge to draft; the NTIA petition is 57 pages of ignorance about the purpose and operation of the statute. There was so much to take issue with it was hard to pick what to focus on. But among the many misstatements the most egregious was its declaration on page 14 that:

"[L]iability shields can deter entrance."

There is so much wrong with this statement. It's the flat earth equivalent of Internet policy, so utterly untethered from reality it's hard to know where to begin. So we made several points in response:

The first is that this whole regulatory exercise is likely unconstitutional. (See this recent post for the basic argument on that front.)

Secondly, we know that liability shields not only don't deter new platforms; they are necessary to get new platforms. Without protection platforms face ruinous legal costs practically from the get-go, and will struggle to even get capitalized in the first place, as what investor wants their cash just to go to legal fees? Even if a platform might ultimately not be found liable for their users' content, simply being on the receiving end of a lawsuit, or even just a demand letter, can be extremely costly. With lots of users, the potential risk exposure is staggering.

And we have seen what can happen to platforms when they get sued over user content in a notable area where Section 230 does not apply: copyright. As we pointed out in this comment, Veoh Networks was ultimately found not to be liable for copyright infringement. But by that point the company had already been bankrupted. If the NTIA is serious about wanting to stimulate competition and ensure Internet users have lots of choices of platforms to use, it should be plugging the still-few holes there already are in Section 230's protection, not deliberately trying to add more.

In addition, we discussed how much of the platform behavior NTIA takes issue with is actually First Amendment-protected editorial discretion. As a threshold matter, we pointed out that in trying to take jurisdiction over what Section 230 says and how courts may interpret it, it would mean that the FCC would end up asserting jurisdiction over non-social media platforms too. If Section 230 changes for any platforms, ultimately it will change for them all, including media sites like Techdirt, newspapers, and even individuals' Facebook posts that depend on this statute – even though these are the types of expressive outlets that have never been subject to FCC regulation. The claim for FCC jurisdiction over social media platforms is already extremely flimsy. But giving it power over these other sorts of platforms is constitutionally and statutorily insupportable.

In any case, the NTIA provided no coherent or Constitutional basis why any platforms should lose their First Amendment-protected editorial discretion. We've discussed this before: if individuals should be able to decide which comments to maintain on their Facebook posts (and, as anyone who posts on Facebook can easily understand, they should), there needs to be a principled reason why individuals grouped together in large enough corporate form should lose that right.

Perhaps there is some distinction that can be found in antitrust law, but the NTIA didn't provide it. It just scapegoated certain commercial platforms that are large and popular. But being large and popular is no basis to lose a Constitutional right. Moreover, the "irony" is that taking away the statutory protection platforms depend on will only take it away from the potential competitors we should hope they have.

In short, the NTIA petition to the FCC is terrible and the FCC should reject it, and we did not hesitate to say so.

Filed Under: content moderation, fcc, free speech, ntia, section 230

AT&T Is Astroturfing The FCC In Support Of Trump's Dumb Attack On Social Media

from the fake-support-for-dumb-ideas dept

We've noted for a long time that telecom giants like Comcast and AT&T have been pushing (quite successfully) for massive deregulation of their own monopolies, while pushing for significant new regulation of the Silicon Valley giants whose ad revenues they've coveted for decades. As such, it wasn't surprising to see AT&T come out with a incredibly dumb blog post this week supporting Trump's legally dubious and hugely problematic executive order targeting social media giants. You know, the plan that not only isn't enforceable by the agencies supposedly tasked with enforcing it (the FCC), but that also risks creating a massive new censorship paradigm across the entire internet.

As Mike already noted, AT&T's post was a pile of bad faith nonsense, weirdly conflating net neutrality with the ham-fisted attack on Section 230. AT&T just got done deriding the FCC's relatively modest net neutrality rules as "government interference in the internet run amok." Yet here it is, advocating for a terrible plan that attempts to shovel the FCC into the role of regulating speech on social media, authority it simply doesn't have. For those that tracked the net neutrality fight, the intellectual calisthenics required here by folks like AT&T and its favorite FCC officials have been stunning, even for Trumpland:

By "momentum," Carr clearly means "intellectually-flimsy support by lobbyists employed by a telecom monopoly."

Folks like FCC boss Ajit Pai know damn well Trump's order is laughable and legally dubious, going against nearly every principle they spent the last decade claiming to stand for. But they're going through the motions anyway to avoid upsetting dear leader and derailing any future political prospects. As a result, the FCC is burning resources holding a public comment period on Trump's EO and the (equally laughable) petition from the NTIA.

Numerous folks have submitted their comments on the record (you can read Mike's here). That includes AT&T, which is apparently not only busy making intellectually inconsistent arguments, but is providing form letters to other organizations to try and get them to support Trump's crappy EO. Some folks digging through the comments noticed that a lot of these groups are submitting AT&T's form letters to the FCC... without bothering to proof read them first:

It is surely only a coincidence that several groups with links to AT&T all submitted the same exact letter:

This is a greasy lobbying tactic companies like AT&T have employed for years. In fact, we wrote a piece just about a decade ago busting AT&T for the exact same behavior. AT&T can routinely be found giving money to groups in exchange for support for problematic to downright terrible policies, be it be support for AT&T's latest merger, or the culling of any meaningful oversight of telecom monopolies. Often this includes the "co-opting" of even civil rights or consumer groups. Other times, it involves the creation of entirely bogus "consumer rights" or advocacy groups.

The goal is always the same: to create the illusion of broad support for what's almost always terrible tech policy that aids AT&T in some way.

This sort of "astroturfing" (fake grass roots) has been a problem nobody wants to fix. This being the Trump FCC, you shouldn't expect them to police this kind of gamesmanship with any sort of integrity. You'll recall that the FCC not only turned a blind eye as the telecom sector used dead, fake, or hijacked personalities to spam the FCC during the net neutrality repeal, it actively blocked law enforcement inquiries into who was behind them.

This corporate co-opting of what's often the only chance the public has to express their thought on the record plagues numerous agencies, not just the FCC. And given AT&T's still busy doing this sort of thing nearly a decade after being busted for the exact same thing, you can clearly see how important protecting the integrity of public policy discourse is for U.S. leaders. Granted if your arguments are sound on their merits (which the Trump EO most certainly isn't), you wouldn't need to generate fake support from dead people or co-opted organizations in the first place.

Filed Under: ajit pai, astroturf, brendan carr, comment, fake comments, fcc, ntia, section 230
Companies: at&t

My Comment To The FCC Regarding The Ridiculous NTIA Petition To Reinterpret Section 230

from the what-nonsense dept

Today is the due date for the first round of submissions to the FCC's comment period on the NTIA's laughable petition, which asks the agency to reinterpret Section 230 in response to the President's temper tantrum about Twitter fact checking him. This is clearly outside of its regulatory authority, but it has caved and pandered to the President by calling for comments anyway.

There are a ton of individuals and organizations commenting on why nearly everything around this is unconstitutional and/or outside the FCC's legal authority. The Copia Institute is filing a comment along those lines written by Cathy Gellis, and she'll have a post about that later. However, I wanted to file a separate comment from my own personal perspective about Section 230 and the nature of running a small media website that relies heavily on its protections. Because beyond the various filings from lawyers about this or that specific aspect of the law or Constitutional authority, it appeared that there was little discussion of just how illiterate the NTIA petition is concerning how content moderation works. And, tragically, many of the early filers on the docket were people who were screaming that because some content of theirs had been moderated by a social media company, the FCC must neuter Section 230.

The key part of my comment is to reinforce the idea that content moderation is impossible to do well and you will always have some people who disagree with the results, and there will also be many "mistakes" because that's the nature of content moderation. It is not evidence of bias or censorship. And, indeed, as my comment highlights, changing Section 230 to try to deal with these fake problems is only likely to lead to the suppression of more speech and the shrinking of the open internet.

Also, I talk about the time I wasn't kicked out of a lunch where I sat next to FCC Chairman Ajit Pai.

You can read my entire comment below.

If you would like to file a comment on the proceedings and have not yet done so, while the initial round of comments is due today, there is a second round for "responding" to comments made in the first round, which runs through September 17th.

Filed Under: ajit pai, cda 230, content moderation, fcc, impossibility, ntia, section 230
Companies: techdirt

A Paean To Transparency Reports

from the encouraging-nudges-are-better-than-beatings dept

One of the ideas that comes up a lot in proposals to change Section 230 is that Internet platforms should be required to produce transparency reports. The PACT Act, for instance, includes the requirement that they "[implement] a quarterly reporting requirement for online platforms that includes disaggregated statistics on content that has been removed, demonetized, or deprioritized." And the execrable NTIA FCC petition includes the demand that the FCC "[m]andate disclosure for internet transparency similar to that required of other internet companies, such as broadband service providers."

Any person providing an interactive computer service in a manner through a mass-market retail offering to the public shall publicly disclose accurate information regarding its content-management mechanisms as well as any other content moderation, promotion, and other curation practices of its interactive computer service sufficient to enable (i) consumers to make informed choices regarding the purchase and use of such service and (ii) entrepreneurs and other small businesses to develop, market, and maintain offerings by means of such service. Such disclosure shall be made via a publicly available, easily accessible website or through transmittal to the Commission.

Make no mistake: mandating transparency reports is a terrible, chilling, and likely unconstitutional regulatory demand. Platforms have the First Amendment right to be completely arbitrary in their content moderation practices, and requiring them to explain their thinking both chills their ability to exercise that discretion and presents issues of compelled speech, which is itself of dubious constitutionality. Furthermore, such a requirement itself threatens the moderation process on a practical level. As we are constantly reminding, content moderation at scale is really, really, hard, if not outright impossible, to get right. If we want platforms to nevertheless do the best they can, then we should leave them to be focused on that task and not encumber them with additional, and questionable, regulatory obligations.

All that said, while it is not good to require transparency reports, they are nevertheless a good thing to encourage. With Twitter recently announcing several innovations to their transparency reporting (including now having an entire "Transparency Center" to gather all released data in one place), it's a good time to talk about why.

Transparency reports have been around for a while. The basic idea has remained constant: shed light on the forces affecting how platforms host user expression. What's new is these reports providing more insight on the internal decisions bearing on how platforms do this hosting. For instance, Twitter will now be sharing data about how it has enforced its own rules:

For the first time, we are expanding the scope of this section [on rules enforcement] to better align with the Twitter Rules, and sharing more granular data on violated policies. This is in line with best practices under the Santa Clara Principles on Transparency and Accountability in Content Moderation.

This data joins other data Twitter releases about manipulative bot behavior and also the state-backed information operations it has discovered.

Which bears on one of the most important reasons to have transparency reports: they tell the public how *external* pressures have shaped how platforms can do their job intermediating their users' expression. Historically these reports have been crucial tools in fighting attacks against speech because they highlight where the attacks have come from.

In some instances these censorial pressures have been outright demands for content removal. For instance, the Twitter report calls out DMCA takedown notices, and takedown demands predicated on trademark infringement claims. It also includes other legal requests for content removal. For instance, in its latest report covering 2019, it found that

[i]n this reporting period, Twitter received 27,538 legal demands to remove content specifying 98,595 accounts. This is the largest number of requests and specified accounts that we’ve received since releasing our first Transparency Report in 2012.

But removal demands are not the only way that governments can mess with the business of intermediating user speech. One of the original purposes of these reports was to track the attempts to seek identifying information about platform users. These demands can themselves be silencing, scaring users into pulling down their own speech already made or biting their tongues going forward – even when their speech may be perfectly lawful and the public would benefit from what they have to say.

We've written many times before, quite critically, about how vulnerable speakers are to these sorts of abusive discovery demands. The First Amendment protects the right to speak anonymously, and discovery demands, that platforms find themselves having to yield to, can jeopardize that right.

As we've discussed previously, there are lots of different discovery instruments that can be propounded on a platform (ex: civil subpoenas, grand jury subpoenas, search warrants, NSLs, etc.) to demand user data. They all have different rules governing them, which affects both their propensity for abuse and the ability of the user or platform to fight off unmeritorious ones.

Transparency reports can be helpful in fighting discovery abuse because they can provide data showing how often these different instruments are used to demand user data from platforms. The problem, however, is that all too often the data in the reports is generalized, with multiple types of discovery instruments all lumped together.

I don't mean they are lumped together the way the volume of NSL letters can only be reported in wide bands. (But do note the irony that all of these Section 230 "reform" proposals mandating transparency reports do nothing about aspects of current law that actively *prevent* platforms from being transparent. If any of these proposals actually cared about the ability to speak freely online as much as they profess, their first step should be to remove any legal obstacle currently on the books that compromises speakers' First Amendment rights or platforms' ability to be protective of those rights – and the law regarding NSLs would be a great place to start.)

I mean that, for instance, multiple forms of data requests tend to get combined into one datapoint. In this aggregated form the reports have some informational value, but it obscures certain trends that are shaped by differences in each sort of instruments' rules. If certain instruments are more problematic than others, it would be helpful if we could more easily spot their impact, and then have data to cite in our advocacy against the more troubling ones.

In the case of Twitter, these "information requests" are reported as either government requests or non-government requests. For the government requests they are further broken into "emergency" and "routine," but not obviously broken out any further. On the other hand, Twitter has flagged CLOUD Act requests as something to keep an eye on when it goes into effect, as it will create a new sort of discovery instrument that may not adequately take into account the user and platform speech rights they implicate. But whether these existing government data requests were federal grand jury subpoenas, search warrants from any particular jurisdiction, NSLs, or something else is not readily apparent. Nor are the non-governmental requests broken out either, even though it might be helpful to know when the subpoena stemmed from federal civil litigation, state civil litigation, or was a DMCA 512(h) subpoena (where there may not be any litigation at all). Again, because the rules surrounding when each of these discovery instruments can be issued, and whether/how/by whom they can be resisted, differ, it would be helpful to know how frequently each is being used. Censorial efforts tend to take the path of least resistance, and this data can help identify which instruments may be most prone to abuse and need more procedural friction to be able to stem it.

It may of course not be feasible to report with more granularity, whether for such reasons such as amount of labor required or any rules barring more detailed disclosure (see, again, NSLs). And platforms may have other reasons for wanting to keep that information closer to the chest. Which, again, is a reason why mandating transparency reports, or any particular informational element that might go into a transparency report, is a bad idea. But platforms are not alone; if one is being bombarded with certain kinds of information requests then they all likely are. Transparency on these details can help us see how no platform is alone and help us all advocate for whatever better rules are needed to keep everyone's First Amendment rights from being too easily trampled by any of these sorts of "requests."

Filed Under: fcc, ntia, section 230, transparency, transparency reports

Hypocritical AT&T Makes A Mockery Of Itself; Says 230 Should Be Reformed For Real Net Neutrality

from the oh-shut-the-fuck-up dept

I regret to inform you that AT&T is at it again. For over a decade now, the company has had a weird infatuation with Google. It seems to truly hate Google and has long decided that anything bad for Google must be good for AT&T. Because Google was an early supporter of net neutrality -- a concept that AT&T (stupidly and incorrectly) seems to think is an existential threat to its own business plans of coming up with sneaky ways to spy on you and charge you more -- over a decade ago, AT&T started floating the lame idea that if it's to be held to "net neutrality" Google ought to be held to "search neutrality." Of course, there's a problem with that: there's no such thing as "search neutrality" because the whole point of search is to rank results for you. A "neutral" search would be a useless search that ranks nothing.

However, now that the FCC (who knows better) caved in to the bumptious Trump demands to reinterpret Section 230 of the Communications Decency Act, AT&T stupidly (and self-destructively) has decided that it's going to comment against Section 230. AT&T top lobbyist Joan Marsh put up a truly spectacularly dumb blog post about how this is "the neutrality debate we need to have" (i.e., about Google and Facebook's treatment of content, rather than AT&T's treatment of network connections):

This Wednesday, the FCC will take comments on NTIA’s petition on reforming Section 230 of the Communications Decency Act, a provision enacted in 1996 to address a narrow set of concerns involving nascent internet platforms that then played only a marginal role in American life.  The purpose of the provision made sense at that moment in internet history:  Section 230 sought to insulate the newly emerging technology companies from liability risks they might otherwise face if they were deemed a publisher or speaker in the traditional sense.

First off, this is bullshit. Section 230 was not written to "address a narrow set of concerns involving nascent internet platforms that then played only a marginal role..." It was a key aspect of figuring out how the internet would work and was, in fact, driven by the concerns of various ISPs who realized that it would create massive problems if they were held liable for actions of their users on the network. This includes AT&T, though at the time AT&T in whatever form you might consider it, since the modern AT&T is really the remains of different telco companies that purchased AT&T.

Congress had no way to foresee a quarter century ago that this provision, intended to protect struggling startups at the dawn of the internet, would ultimately be wielded by the largest and most powerful companies in the world as a shield not just from unfair and frivolous lawsuits, but from what many consider to be every day responsibilities.

This is bullshit and wrong. Both authors of Section 230 have said exactly the opposite -- that Section 230 was written with the recognition of how important the internet would be and that it's working as intended. Marsh is rewriting history.

Since that time, America’s tech platforms have grown from their humble beginnings into the most powerful forces in the global economy today.  Five tech giants (Facebook, Amazon, Apple, Microsoft, Google) alone make up about 25% of the S&P 500 with valuations growing, even in a pandemic.

Marsh leaves out that AT&T itself is worth over $200 billion. It's not exactly a slouch. And when you combine it with Verizon, Comcast and others, it also represents quite a powerhouse. One that has spent the last decade especially fighting back against any form of regulatory guidelines that impact how it runs its business. It has pressured the FCC to remove pretty much all of its authority over the company. So it's truly hypocritical for it to suddenly be claiming that the FCC needs to take a stand and regulate Google and Facebook.

Meanwhile, it's always been clear that AT&T has been among the absolute worst companies regarding its treatment of consumers. AT&T is famous for jacking up prices, including hidden fees, spying on its users (or wanting them to pay more for their privacy) and handing data over to the NSA freely. Google offers most of its key services for free, has built a reputation around giving users much more control over privacy, and has fought legally against NSA attempts to collect its data. And if you look at general consumer satisfaction surveys it shows. 90% of the public likes what they get from Google. Meanwhile AT&T remains one of the most hated companies in America.

The decisions these companies make on a daily basis – which search results to rank first, which products to promote, which news stories to feature, and which third parties they will deal with and on what terms – shape virtually every aspect of America’s economic, social and political life.

What? This is... just a myth. Yes, ranking well in search can help companies, but (1) it's not everything and (2) the way you rank well in search is by... actually doing a good job in providing people what they need. Unlike AT&T.

Yet those decisions are shrouded in obscurity, away from public view, in a world where black-box algorithms and non-negotiable terms pick winners and losers in every sphere of public life.

If Google was bad at this, then people would use other search engines. But they don't. Because Google tends to give good results. Why is AT&T mad about that?

In comments this Wednesday, AT&T will join the growing consensus of voices concluding that online platforms should be more accountable for, and more transparent about, the decisions they control that fundamentally shape how we communicate, learn, shop, and are informed and entertained. We argue first that the dominant online platforms owe the public greater transparency about the choices made on their platforms. Such transparency is considered table stakes in every discussion about broadband networks owned by ISPs.

I'm not against more transparency, but AT&T is one of the least transparent companies out there. Google was the first company to publish transparency reports about things like content takedowns and (importantly) government requests for data. AT&T resisted calls to do the same for years and then when it finally agreed to do so provided significantly less data than Google. So, seriously, to argue that Google needs to be more transparent is fucking rich from AT&T.

And, again, Google did this by choice and it did so at the same time that AT&T itself was arguing that the FCC should have no oversight over its business. For AT&T to now argue that the FCC should force Google to be more transparent is the height of hypocrisy.

We also argue that Section 230 immunity should be modified to reduce the gross disparities in legal treatment that have emerged between the dominant online platforms and the traditional purveyors of third-party content, such as book publishers, newspapers, or radio and television businesses. There is no longer any reason that the nation’s most powerful online platforms should enjoy legal immunities unavailable to similarly-situated traditional companies.

This is... simply ridiculous. Section 230 protects every company on the internet the same way. Including AT&T. AT&T knows that it enjoys Section 230's protections as well. It's why no one gets to sue AT&T when an AT&T account holder does something illegal over its network.

And as the net neutrality debate soldiers on, as it surely will, the Section 230 debate and the broader tech scrutiny underway should serve as a reminder of where the power to control access to content, websites and e-services on the internet really resides – and the neutrality debate that really matters. Adopting an ISP-only “neutrality” regime is as backwards looking as it is mistargeted. It would be akin to landing the plane, but on the wrong day, at the wrong gate, and in the wrong airport.

No. Network neutrality matters because internet access is a commodity product with very, very few choices and extremely high costs (and, especially, switching costs). People want to buy access to the entire internet, not the internet of companies who paid AT&T. Meanwhile, people want Google to rank results, because that's what search is. This whole blog post by AT&T is truly ridiculous.

This is all cynical nonsense from AT&T's top lobbyist, trying to stick a knife in Google, the company AT&T has been jealous of for over a decade because Google actually provided people a service people wanted (for free) while AT&T relies on regulatory capture, hidden fees, government handouts, and destroying your privacy.

Filed Under: fcc, hypocrisy, joan marsh, net neutrality, ntia, section 230
Companies: at&t, google

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