I'd Bet Ted Cruz Will Start Supporting Section 230 Once He Realizes He's On The Hook For Parler's Legal Expenses

from the put-your-money-where-your-mouth-is,-ted dept

Senator Ted Cruz now loves Parler, the Twitter alternative that a bunch of Trump fans mistakenly believe won't moderate content. We've already shown that's false. However, there's another issue with Parler that some are calling out -- which is that you run a risk if you agree to that site's user agreement, because of the following that is buried as #14 on the user agreement:

You agree to defend and indemnify Parler, as well as any of its officers, directors, employees, and agents, from and against any and all claims, actions, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to all attorneys fees) arising from or relating to your access to and use of the Services. Parler will have the right to conduct its own defense, at your expense, in any action or proceeding covered by this indemnity.

Now, as we've discussed in the past, many social media sites have indemnity clauses, though they're often much more limited (also, in looking now, I'm pleasantly surprised that it looks like a few have removed indemnity clauses altogether -- I can't find one in Twitter or Tumbler's current terms for example). We've also discussed why people should be wary of many indemnity claims.

Parler's indemnity clause was first called out by @TheWolfLawayer on Twitter, and then later by The Verge's Editor in Chief, Nilay Patel, who called it a "reverse 230 clause."

I wouldn't quite call it a "reverse 230 clause" and I think that some of the screaming about this clause is a bit overblown (again, many other platforms have similar indemnity clauses, though many are at least a bit more limited to situations where the users actually violated some law).

However, this clause should make Ted Cruz and every other Parler user huge supporters of Section 230. Now, we already know that Cruz hates Section 230, has misinterpreted it frequently, and has supported calls to get rid of it, falsely believing that this will somehow stop content moderation from being used against Nazis or something.

But here's the thing: since Ted Cruz is now on the hook if anyone sues Parler over Ted Cruz's speech on that platform... well, then Ted Cruz might want to become a big supporter of Section 230 right quick. Because it will be Section 230 that gets such a lawsuit tossed out quickly and relatively inexpensively. Without Section 230 -- even if the case is frivolous -- Parler's legal fees (by which, thanks to this legal agreement, we mean Ted Cruz's legal fees) would be much, much higher, because the lack of 230 would create a procedural mess, which would likely extend any court case greatly, and rack up Cruz's legal fees.

This is not to suggest that anyone should or would file such a lawsuit against Parler, but seeing how many misdirected cases we've seen filed against sites like Twitter over users' speech on that platform, it wouldn't be surprising if Parler eventually faces similar such lawsuits. And, if that's the case, any of its users (including Cruz) will then be in deep shit if they don't have 230 helping to reduce their legal liability.

So, Ted, maybe drop the nonsense and the lying about 230, and recognize: Section 230 protects you too, especially given your new favorite social media's excessive terms of service.

Filed Under: indemnification, legal fees, section 230, ted cruz
Companies: parler

Senators Threaten Twitter For Allowing Iranian Official Who Helped De-Escalate Tensions Via Twitter To Tweet

from the politicians-censoring-politicians dept

It's somewhat amazing how quickly officials lean into the idea of censorship as the first response to other officials saying things they don't like. Rep. Nancy Pelosi's office asked both Twitter and Facebook to remove a tweet by Donald Trump (both companies refused). Trump's tweet showed a misleadingly cut video of Nancy Pelosi. Similarly, Rep. Ro Khanna -- who has done some great things, including looking into the harm caused by FOSTA -- demanded that Twitter delete that same tweet, falsely stating that "falsity has never been a part of the 1st Amendment," which is (to repeat myself), false.

Now, if you're a Trump supporter about to get up in arms over a Democratic politician asking Twitter to delete a tweet from the President, slow down a bit, because around the same time, four Republican Senators were in the process of sending an angry letter to Twitter, telling Jack Dorsey that his company was breaking the law by allowing Iranian officials to tweet. The letter, sent by Senators Ted Cruz, Marsha Blackburn, Tom Cotton, and Marco Rubio (all of whom, I assure you, have cynically claimed to support free speech in the past), notes that Trump signed an executive order last year putting sanctions on Iranian officials and preventing US companies from providing goods and services to them:

On June 24 2019, the President invoked his IEEPA powers through Executive Order 13876... blocking the property of "the Supreme Leader of the Islamic Republic [Ali Kamenei] of Iran and the Iranian Supreme Leader's Office" and well as persons who act or purport to act on the Supreme Leader's behalf. On July 31, 2019, OFAC designated Iranian Foreign Minister Javad Zarif pursuant to E.O. 13876. All Americans -- including you and Twitter -- are prohibited from "the making of any contribution or provision of . . . goods[] or services" to them.

Note that in addition to the general prohibition on Americans providing services to SDNs, Section 1(a)(2)(C) of E.O. 13876 makes it a sanctionable offense for "any person" to have "provided... technological support for, or goods or services to" persons designated pursuant to that E.O.

Twitter continues to provide Internet-based communications services to Khamenei and Zarif. Twitter is aware of these accounts and their links to the Iranian regime. The Supreme Leader's English-language account, @khamenei_ir, has had tweets removed for advocating murder. The account follows less than 10 other accounts, including his office's Twitter feeds in Urdu, Arabic, French, Spanish, and Persian, which are straightforward to identify and locate. Zarif's account, @JZarif, is verified.

The letter also claims that the Ayatollah gets no free speech protections at all, while simultaneously saying that Twitter should never "censor" American's "political speech."

While the First Amendment protects the free speech rights of Americans -- and Twitter should not be censoring the political speech of Americans -- the Ayatollah enjoys zero protections from the United States Bill of Rights. And, as the leader of the world's leading state sponsor of terrorism -- directly responsible for the murder of hundreds of U.S. citizens -- the Ayatollah and any American companies providing him assistance are entirely subject to U.S. sanctions laws.

A Twitter account is a service. Neither GL D-1 nor any other authority exempts Twitter from American sanctions. We therefore call on you to comply with those sanctions by ceasing the provision of services to Khamenei, Zarif, and any other designated Iranian entity.

I'm no expert in the laws regarding U.S. sanctions, so I'm not sure of the legal responsibilities here. But it does seem patently ridiculous to think that merely publishing a foreign leader's speech should violate any such sanctions. It would certainly open up a lot of serious questions about what counts as providing "services" to sanctioned individuals.

But, even more to the point, is that this letter comes just a month after it was shown that Zarif -- who the Senators want Twitter to ban -- and Trump himself may have averted escalations with Iran thanks to both of them being on Twitter. That story highlighted how Zarif indicated via Twitter that Iran did not wish to escalate matters with the US, and Trump quickly tweeted a similar response. Diplomacy via tweet. Of course, if these Senators got their way, that would not be allowed.

Given all that, it makes you wonder why Senators Cruz, Blackburn, Cotton, and Rubio are looking to cut off that means of communication.

Filed Under: donald trump, free speech, iran, javad zarif, marco rubio, marsha blackburn, sanctions, services, ted cruz, tom cotton
Companies: twitter

Senator Mark Warner Repeats Senator Ted Cruz's Mythical, Made Up, Incorrect Claims About Section 230

from the not-how-it-works,-senator dept

Senator Mark Warner was supposed to be the "tech savvy" Senator. He's not really showing that. He's been leading the charge to regulate various parts of the internet, which might be fine if he knew what the fuck he was talking about. But, as is made clear in his latest interview with Newsweek, he's extremely confused about the legal underpinnings of the internet. Specifically, he is repeating Senator Ted Cruz's myth that Section 230 was designed to only apply to "neutral" platforms that don't moderate.

Can you explain Section 230?

Section 230 was called the Communications Decency Act in the late '90s, and at that moment in time, there was a decision made that social media companies, and their connections, were going to be viewed as kind of just dumb pipes, not unlike a telco. The platform companies would have no obligation for the content that went over their networks. In the late '90s, that might have made sense. But in 2019, when 65 percent of Americans get some—or all—of their news from Facebook and Google, there is clearly some curation going on.

This is literally the opposite of truth. It is the opposite of what happened and is the opposite of why Section 230 was put in place. As we've discussed over and over again, Section 230 was a direct response to the ruling in Stratton Oakmont v. Prodigy, in which Prodigy (an ISP, not a "social network") was deemed liable for content it had not moderated, because it did heavy moderation on its forums in an effort to be "family friendly." The point of Section 230 was to encourage moderation, and to not have internet services be "dumb pipes."

Senator Warner might know this if he just read the law. There's a whole section on how the law is designed to encourage more moderation by the platforms, and then it says directly:

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

That's the law encouraging sites to moderate.

Senator Warner's description is just repeating the myth that Senator Cruz has been stating for over a year. We weren't surprised that other members of Cruz's party were repeating that nonsense, but Warner's party had mostly been making different stupid comments about Section 230, so it's disappointing to see him revisit this myth.

Other parts of the interview are actually good -- and he even brings up that interoperability and the ability to move to a competing service with your data might be a better approach than breaking up the big internet companies. And, on that, he's correct. But if he's premising his decisions regarding 230 on a history that gets the law literally exactly backwards, it's difficult to put much faith in him getting any changes correct.

Filed Under: intermediary liability, mark warner, neutrality, section 230, ted cruz

NY Times Calls Out Politicians For Lying About Section 230

from the good-job dept

We've spent months now highlighting how politicians (of both parties) continually misrepresent what Section 230 of the CDA says. There are open questions as to whether or not this is because they don't know the law, or they don't care, and they think lying about it helps them politically. Considering that two of the most vocal individuals are Senators Ted Cruz and Josh Hawley -- both of whom have a long history of being Constitutional lawyers -- it is difficult to believe that both aren't fully aware that they are lying.

Now the NY Times is calling them out, with an opinion piece by editorial board member Sarah Jeong, highlighting how badly they get the law wrong. She notes that the law is short and easy to read, and therefore no one has an excuse for blatantly misrepresenting it.

Section 230 of the C.D.A. is neither long nor particularly inscrutable. It clocks in at under 1,000 words, and it makes clear that the law does not premise protection on political neutrality. Neither does it force tech companies to assume either the role of “publisher” or “platform.” And it states that C.D.A. 230 has no bearing on federal criminal law — or on intellectual property law, for that matter.

She also highlights that there are some reasonable arguments to be made that the existence of Section 230 has stopped lawsuits from people who have legitimately been harmed -- something we've discussed quite a bit as well. There are real and legitimate questions over how to handle those situations (and, relatedly, if the internet platforms themselves are the proper party on which to place liability or responsibility). However, you aren't going to have reasonable and nuanced conversations about any of that if you're lying about the law.

But there can be no honest debate over a version of C.D.A. 230 that doesn’t exist. Political neutrality has never been part of C.D.A. 230, and to make it so would require a complete overhaul of the law. Senator Hawley’s bill calls for government regulation of the internet on an unprecedented scale. The Federal Communications Commission used to enforce the Fairness Doctrine on the airwaves, a policy under which broadcasters were required to air balanced opinions on controversial issues — balanced from the F.C.C.’s perspective, that is. It’s already perilous to have a government regulator decide what is fair and balanced. It makes even less sense when applied to the internet. In 1969, the Supreme Court upheld the F.C.C.’s power to enforce the Fairness Doctrine on the grounds that the airwaves are an inherently limited resource. But the sea of internet postings is boundless.

The Republican Party’s new obsession with “political neutrality” has left former allies reeling. Berin Szôka, the president of the libertarian-leaning think tank TechFreedom, said in an interview that Republicans were once his natural allies on a wide range of issues, but have now “betrayed their most fundamental principles, principles they spent decades fighting about — to keep the government out of meddling in broadcast media, fighting against the Fairness Doctrine. And now they want exactly that but on steroids for the internet.”

As Jeong notes in her piece, it might make sense to have an actual debate on Section 230, but almost no one -- least of all the legislators who are responsible for doing so -- seem willing to have an honest discussion about the law.

But the debate is not focused on the real issues with C.D.A. 230 — indeed, it is not focused on the actual text of C.D.A. 230.

Perhaps the discourse will be improved if we all take a moment to actually read the text of C.D.A. 230, but Mr. Szôka is not optimistic. Senators Cruz and Hawley, he said, are totally aware of what the statute says and what the case law around it actually is. “They’re smart lawyers. And they absolutely know what they’re talking about is a warping of Section 230.”

Of course, what the opinion piece does not discuss is why Hawley and Cruz are so eager to misrepresent the law and to grandstand about it. It doesn't discuss how this misrepresentation plays to a certain base, and gets them riled up and angry. Indeed, I'll expect many people in the comments of this very post to continue to make false claims about CDA 230 and "neutrality" that are simply untrue. It has created a narrative that is not accurate and is so far from truth that any debate on it gets mired in the complexities of having to call out statements so dishonest that they cannot have been made in good faith.

There may be legitimate debates to be had over the impact of 230 and how it works -- but when politicians are so focused on scoring political points rather than dealing with real issues, that's never going to happen.

Filed Under: cda 230, josh hawley, neutrality, sarah jeong, section 230, ted cruz

Senator Graham Spreads A Bunch Of Nonsense About 'Protecting Digital Innocence' Online

from the moral-panics dept

We warned last week that Senator Lindsey Graham was holding a "but think of the children online" moral panic hearing. Indeed, it happened. You can watch the whole 2 hours, but... I wouldn't recommend it (I did it for you, though). Most of it is the usual moral panic, technologically illiterate nonsense we've all come to expect from Congress. Indeed, in a bit of good timing, the Pessimist's Archive just tweeted out a clip of a 1993 Senate hearing in which then Senator Joe Lieberman flipped out about evil video games. Think about this, but two hours, and a wider array of nonsense:

It starts out with a prosecutor from South Carolina, Duffie Stone, moral panicking about basically everything. Encryption is evil. Children are being sex trafficked online. And, um, gangs are recruiting members with (gasp) music videos. Later he complains that some of those kids (gasp!) mock law enforcement in their videos. Something must be done! The second speaker, a law professor, Angela Campell, claims that we need more laws "for the children!" She also goes further and says that the FTC should go after Google and others for not magically stopping scammy companies from existing. Then there was this guy, Christopher McKenna, from an organization ("Protect Young Eyes!") dedicated to moral panics, telling all sorts of unbelievable anecdotes about evil predators stalking young people on Instagram and "grooming" them. Remember, that actual data on this kind of activity shows that it's actually quite rare (not zero, and that's not excusing it when it does happen, but the speaker makes it sound like every young girl on Instagram is likely to be at risk of sex trafficking). He also asks the government to require an MPAA/ESRB-style "rating" system for apps -- apparently unaware that laws attempting to require such ratings have been struck down as unconstitutional, and the MPAA/ESRB ratings only exist through voluntary agreements.

There's also... um... this:

It's the app where every kid, regardless of age, has access to the Discover News section, where they are taught how to engage in risky sexual behavior, such as hookup, group, anal, or torture sex, how to sell drugs, and how to hide internet activity from parents using "incognito mode."

He's describing Snapchat. I've used Snapchat for years and, uh, I've never come across any of that. Also, the complaint about incognito mode is... pretty messed up, considering how that's a tool for protecting privacy. This is all straight from the standard moral panic playbook. Also, he claims that Twitter has "hardcore porn and prostitution was everywhere" -- which is also news to me (and I use Twitter a lot). He also whines that VPNs are too easy to get -- and then later whines that it's "too hard" to protect our privacy. Um, hiding VPNs will harm our privacy. It's like a hodge podge of true nonsense.

There was also John Clark from NCMEC -- the National Center for Missing and Exploited Children. NCMEC actually does good work in helping platforms screen out and spot child porn. However, Clark contributes to the scare-mongering about just how awful the internet is. He also flat out lies. At one point during the panel, Senator Ted Cruz asks Clark about FOSTA and what it's done so far. Clark flat out lies and says that FOSTA took down Backpage. This is false. Backpage was taken down and its founders arrested before FOSTA was even signed into law.

The only semi-reasonable panelist was the last one, Stephen Balkam, from the Family Online Safety Institute. While McKenna mocks the idea that "parents have a role" by pointing out that parents can't watch over their kids every hour of every day (duh), Balkam points out that what we should be doing is not watching over our kids all the time, but rather training them and educating them to know how to be good digital citizens online and to avoid trouble. But that kind of message was basically ignored by the Senators, because what fun is actually respecting our kids and teaching them how to be smart internet users. Instead, most of panel focuses on crazy anecdotes and salacious claims about internet services that make them sounds a hell of lot more insane than any of those platforms actually are.

Later, Senator John Kennedy asks the guy from "Protect Young Eyes" if Apple can build a filter that will magically help parents block kids from ever seeing sexually explicit material. McKenna stumbles and admits he has no idea, leading Balkam to finally have to jump into the conversation (he's the only panelist that no Senator had called on throughout the entire ordeal) to point out that all platforms have some forms of parental controls. But Kennedy cuts him off and says "but can it be done?" Balkam stutters a "yes," which is not accurate -- since Kennedy is asking for something impossible. But then Kennedy suggests that Congress write a law that requires companies like Apple and Google to install filters (something that's already been ruled unconstitutional).

Kennedy's idea is... nutty. He includes the obligatory "I don't know how any of this is done" comment before suggesting a bunch of impossible ideas.

Could Apple, for example, design a program that a parent could opt into, and the instructions to Apple would be "design a program that will filter all information that my daughter or son may see that would be sexually exploitative"? Maybe "filter all pictures or written references to human genitalia." Can that be done? ... Isn't that the short way home here?

[....]

So could we write legislation, or promulgate a rule, that says "here's the thing that a reasonable parent would do to protect his or her child from seeing this stuff." And we do that in conjunction with somebody that has the obvious expertise. And you filter everything. I don't know how to do it. I can't write software. Maybe it's to prevent any pictures of human genitalia. Or prohibit any reference to sexual activity. I don't know. The kids aren't gonna like it, but that's not who we're trying to please here. Why couldn't that be done?

Well, the Constitution is why it can't be done Senator. Also, basic understanding of technology. Or the limits on filter technology. Block all mention of sexual activity? Sure, then kids will use slang. Good luck keeping up with that. Block all pictures of genitalia -- then say good buy to biology texts online. Or pages about breast cancer. This is all stuff that lots of people have studied for decades and Kennedy is displaying his ignorance about the Constitution, the law, the internet, the technology, and just about everything else as well. Including kids.

Balkam points out that there are lots of private companies already making such filters, but Kennedy keeps saying "can we write a law" and "can we require every device have these filters" and Balkam looks panic'd noting he has no idea about whether or not they can write such a law (answer: they cannot, at least not if they want it to pass Constitutional muster).

Senator Blackburn... brings up Jeffrey Epstein. Who, as far as we know... didn't use the internet to prey on girls. But according to Blackburn, Epstein proves the problems of the internet. Because. Senator Hawley then completely makes up a claim that YouTube is deliberately pushing kids to pedophiles and refuses to do anything about it. He claims -- incorrectly -- that Google admitted that it knows it sends videos of kids to pedophiles (and, he claims, allows the pedophiles to contact the kids) and that it deliberately has decided not to stop this. This misrepresents... basically everything once again.

Senator Thom Tillis then grandstands that it's all the parents' fault -- and if a kid gets a mobile phone and lies about his age, we should be... blaming the parents for "giving the kids a lethal device." No hyperbole and grandstanding there, huh? He's also really focused on "lethality." He later claims that the internet content itself is "lethal."

Towards the end, the Senators all gang up on Section 230. Senator Cruz asks his FOSTA question (leading NCMEC's Clark to falsely state that it was necessary to take down Backpage), and then Blumenthal calls 230 "the elephant in the room" and suggests that there needs to be a "duty of care" to get companies to do anything. It seems like Hawley is already gone by this time, but no one seems to point out that any such duty of care would likely lead to much greater censorship on these platforms, in direct contrast with his demand that the companies censor less.

Nevertheless, Senator Graham closes the hearing by saying that he thinks the companies need to "earn" their CDA 230 protections (which is part of Hawley's nonsense bill). Graham suggests that Congress needs to come up with "best business practices" and platforms should only get 230 protections if they "meet those best business practices."

Who knew the Republican Party was all about dictating business standards. What happened to the party of getting government out of business?

Who knows what will actually come out of this hearing, but it was mostly a bunch of ill-informed or mis-informed, technologically illiterate grandstanding, moral panic nonsense. In other words, standard operating procedure for most of Congress.

Filed Under: angela campbell, christopher mckenna, duffie stone, john clark, john kennedy, josh hawley, lindsey graham, moral panic, stephen balkam, ted cruz, think of the children
Companies: facebook, google, ncmec, snapchat

'Oversight' Hearing Fails Utterly To Hold FCC Accountable For Lying To Congress About Fake DDOS Attack

from the ill-communication dept

FCC "oversight" hearings continue to be comically lacking in the actual oversight department. As we noted previously, today was Congress' opportunity to hold the FCC and agency head Ajit Pai accountable for making up a DDOS attack and then lying (repeatedly) about it to the press, FBI investigators, and Congress. As we've previously stated, both e-mails obtained via FOIA and an FCC Inspector General report (pdf) found that the FCC bizarrely made up a DDOS attack to try and explain away the fact that John Oliver viewers pissed about the net neutrality repeal crashed the FCC comment system.

The IG's report and internal e-mails clearly illustrate that not only did FCC CIO make up a DDOS, but several FCC staffers then misled Congress repeatedly about the total lack of evidence supporting that claim. The false statements were bad enough to warrant them being forwarded to the DOJ, which refused to prosecute anyone. But the e-mails also highlight how the FCC's press office repeatedly misled numerous press outlets, and even went so far as to issue statements denigrating reporters like Gizmodo's Dell Cameron for being "irresponsible" as they slowly uncovered the fake claims.

In a functional democracy, this is the sort of thing that would be covered extensively at a hearing purportedly designed specifically to hold the FCC accountable to Congress and the public. In said fictional healthy democracy, Congress might even, you know, actually do something about it.

But today's hearing was little more than a joke, rife with lots of giggling, football references, and numerous softball questions -- but few if any hard inquiries about the DDOS attack that wasn't. The closest thing Pai experienced to actually being pressured came from Senator Brian Schatz. But when pressed as to what he knew and when, Pai again threw his employees under the bus, denying that he had any knowledge of or role in the FCC's efforts to mislead Congress and public. The exchange is here for those interested:

In the exchange, Pai said he suspected there was no foul play from the beginning and that the "DDOS" was just the John Oliver effect. When pressed as to why Pai didn't do more to correct the false claims earlier, Pai said he "wanted you to get this information sooner" but remained quiet at the behest of the FCC IG (which has yet to respond to press inquiry). "I made the judgment that we had to adhere to the [IG's] request," claimed Pai, "even though I knew we would be falsely attacked for having done something inappropriate,” Pai said. “The story in this report vindicated my position."

Except the IG's report doesn't vindicate Pai's position, and somebody at the hearing should have pointed that out. In fact, the IG's report shows that it wasn't just the FCC CIO that had been making false DDOS claims for the better part of the last year. There's ample evidence, had anybody on the oversight committee actually wanted to press the issue, that numerous FCC employees repeatedly and intentionally doubled down on claims Pai now claims he knew weren't true.

For example, the IG report found that at least three staffers provided false statements to not only Congress, but also to FBI investigators trying to determine the scope of the alleged attack. And throughout the inquiry Pai's press shop issued statements attacking press outlets for being "irresponsible" simply for reporting the fact there was no evidence or "analysis" to support the FCC's allegation:

"The FCC has never stated that it lacks any documentation of this DDoS attack itself," the agency states. "And news reports claiming that the Commission has said this are without any basis and completely irresponsible. In fact, we have voluminous documentation of this attack in the form of logs collected by our commercial cloud partners."

But none of that was true. There was no DDOS attack and there was no evidence, "voluminous" or otherwise. Again, there's every indication that the FCC doubled down on the fake DDOS claim because it wanted to downplay media reports showing that millions of Americans were pissed about the death of net neutrality (it wasn't public outrage, we were attacked!). It's the same reason why the FCC refused to do anything about the bogus comments that plagued the repeal's net neutrality comment period: it wanted to push the Trumpian narrative that the massive public anger over the attack net neutrality wasn't real.

The fact that Pai's press shop was actively spreading false statements and maligning reporters makes it pretty obvious that Pai actively participated in or was at least aware of the FCC's head fake. But at no point during the "oversight" hearing was this avenue of inquiry pursued. Instead, users who tuned in for a reckoning got to enjoy Ted Cruz once again misrepresenting what net neutrality was, and gushing missives from telecom-sector allies like Senator John Thune on Pai's (artificial) love and adoration of neglected rural broadband markets.

Aside from the fake DDOS attack, the hearing was yet another missed opportunity to seriously hold the FCC to account on a number of issues, including making up data and ignoring the public in the rush to repeal net neutrality, gutting funding for rural broadband, eroding consumer privacy protections, killing efforts to improve cable box competition, propping up predatory prison telco monopolies and every other little anti-consumer, pet project Ajit Pai has embraced as leader of the agency. But instead of "oversight," users that tuned in this morning got something that looked much more like a bipartisan game of patty cake.

Filed Under: ajit pai, brian shatz, david bray, ddos, fcc, john oliver, lies, oversight, senate, ted cruz

It's Spreading: Lindsey Graham Now Insisting 'Fairness Doctrine' Applies To The Internet

from the aren't-you-supposed-to-understand-law? dept

Remember when Republicans were against the "Fairness Doctrine"? Apparently, that's now out the window, so long as they can attack Facebook. As we noted recently, Senator Ted Cruz appears to be pushing for the strangest interpretation of Section 230 around (in direct conflict with (a) what the law says and (b) how the courts have interpreted it) saying that in order to make use of CDA 230's immunity "good samaritan" clause, internet service providers need to be "neutral." Again, that's not what the law says. It's also an impossible standard, and one that would lead to results that would piss off lots of people. The similarities to the FCC's concept of the "Fairness Doctrine" are pretty clear, though such a rule on the internet would be an even bigger deal, since the Fairness Doctrine only applied to broadcast TV.

And, it appears that Cruz's incorrect interpretation is spreading like a virus. Senator Lindsey Graham is now spewing the same nonsense.

Sen. Lindsey Graham (R-S.C.), a subcommittee chairman on the Senate Judiciary Committee, told MT that he remains concerned about potential bias when it comes to content moderation on social media platforms. “They enjoy liability protections because they’re neutral platforms. At the end of the day, we’ve got to prove to the American people that these platforms are neutral,” he said. “You’ve got to have a validating system where the government can come in and validate that this whole system is neutral.”

So much about this is wrong. First, Section 230 of the CDA has never required platforms to be neutral. Indeed, it would be silly to do so because what the hell does "neutral" even mean in this context? Second, claiming that someone needs to "prove" that the platforms are neutral. What does that even mean? How would you prove that anything is "neutral" anyway? Finally, saying that the government has to validate that your internet service is neutral raises a very large number of very serious First Amendment questions. What kind of Senator is not only so wrong about the law, but thinks that the appropriate role of government is to "validate" internet platforms over what kind of speech they allow?

Separately, this is the same Lindsey Graham who just recently was demanding that social media sites do more to takedown content he didn't like. Now, apparently, he's up in arms over the fact that the sites took down content he did like. If Graham truly wants websites to "do everything possible to combat" terrorist groups using the internet, then attacking CDA 230 is the worst possible way to do that. CDA 230 gives websites the power to moderate and filter out such content without fear of facing legal liability. In other words, it's an excellent tool for getting websites to takedown extremist content. To then turn around and insist that sites should lose CDA 230 protections because they also took down some content you like... raises all sorts of First Amendment issues. You're basically saying websites should only remove the content I dislike, and if they remove content I like I'm going to put their existence at risk. Guess what happens then? Sites will stop moderating entirely, leaving up more of the "bad" content you dislike.

Oh, and back to that whole "fairness doctrine" thing. Guess who is vehemently against it? You guessed right: Lindsey Graham. Opposing the Fairness Doctrine is one of the few issues on his tech campaign platform and a few years back he put out a press release touting his conservative credentials including "barring the use of federal funds to re-instate the Fairness Doctrine" (which was silly anyway, because there was no appetite to re-instate the Fairness Doctrine).

Except, now, as soon as he can pretend to be up in arms over Facebook, Graham seems to jump on the idea of a Fairness Doctrine for the internet. Not only that, but he seems to think it's already in place (it isn't) and requires the government to go in and validate platforms over what speech they allow.

Filed Under: cda 230, fairness doctrine, first amendment, intermediary liability, lindsey graham, neutral platform, ted cruz, validation
Companies: facebook, google