Justice Department Releases Its Own Preposterous Recommendations On Updating Section 230

from the guys,-what? dept

Because today wasn't insane enough, just hours after Senator Josh Hawley released his ridiculous bill to flip Section 230 on its head and turn it from a law that protects against frivolous lawsuits into one that would encourage them, the Justice Department has released recommendations for Section 230 reform that appear to have been written by people who haven't the first clue about how content moderation works online.

Professor Mark Lemley sums it up best:

One of the things many have pointed out about the "bipartisan" hatred for Section 230 is that each party hates it for opposite reasons. That is, Republicans are mad that sites are taking down too much content, while Democrats are mad that not enough content is being taken down. And they both (incorrectly) blame Section 230 for "enabling" that situation.

The DOJ's attempt to thread the needle on this is saying that sites should both take down more and less content at the same time. No, seriously. First, the DOJ says that platforms should be liable for lots of content on their platform if they don't magically stop it:

Incentivizing Online Platforms to Address Illicit Content

The first category of recommendations is aimed at incentivizing platforms to address the growing amount of illicit content online, while preserving the core of Section 230’s immunity for defamation claims. These reforms include a carve-out for bad actors who purposefully facilitate or solicit content that violates federal criminal law or are willfully blind to criminal content on their own services. Additionally, the department recommends a case-specific carve out where a platform has actual knowledge that content violated federal criminal law and does not act on it within a reasonable time, or where a platform was provided with a court judgment that the content is unlawful, and does not take appropriate action.

Then, on the flip side, the DOJ wants to make sure that platforms don't take down too much (read: "silence nazis who support President Trump") because [reasons].

Promoting Open Discourse and Greater Transparency

A second category of proposed reforms is intended to clarify the text and revive the original purpose of the statute in order to promote free and open discourse online and encourage greater transparency between platforms and users. One of these recommended reforms is to provide a statutory definition of “good faith” to clarify its original purpose. The new statutory definition would limit immunity for content moderation decisions to those done in accordance with plain and particular terms of service and consistent with public representations. These measures would encourage platforms to be more transparent and accountable to their users.

The specifics of how they want these two things done are utter nonsense. In order to force more taking down of "bad" content, the DOJ literally says that "bad actors" no longer get 230.

Bad Samaritan Carve-Out. First, the Department proposes denying Section 230 immunity to truly bad actors. The title of Section 230’s immunity provision—“Protection for ‘Good Samaritan’ Blocking and Screening of Offensive Material”—makes clear that Section 230 immunity is meant to incentivize and protect responsible online platforms. It therefore makes little sense to immunize from civil liability an online platform that purposefully facilitates or solicits third-party content or activity that would violate federal criminal law.

But what does that even mean? The "facilitates" bit in there is what's problematic -- and that's the same language we've already seen in FOSTA, which has created massive collateral damage and frivolous lawsuits against CRM and mailing list software providers. Does offering up some mailing list software that might be used for criminal activity make you a "bad" actor?

Then there's a further FOSTA-like expansion, carving out exceptions beyond sex trafficking to include "child abuse, terrorism, and cyber-stalking."

Second, the Department proposes exempting from immunity specific categories of claims that address particularly egregious content, including (1) child exploitation and sexual abuse, (2) terrorism, and (3) cyber-stalking. These targeted carve-outs would halt the over-expansion of Section 230 immunity and enable victims to seek civil redress in causes of action far afield from the original purpose of the statute.

Again, as we've seen with FOSTA, this expansion is only being use so far for frivolous cases -- and that would definitely be the case here as well. We've already seen a ton of totally frivolous "let's blame Twitter and Facebook for terrorists" lawsuits, all of which are getting thrown out on 230 grounds. The DOJ's proposed legislation would bring those right back -- allowing people who were killed by terrorists... to sue Twitter. Because, why, now?

Then the DOJ says that the entire setup of 230 should be changed:

Third, the Department supports reforms to make clear that Section 230 immunity does not apply in a specific case where a platform had actual knowledge or notice that the third party content at issue violated federal criminal law or where the platform was provided with a court judgment that content is unlawful in any respect.

That's like the whole point of 230. All this would do is turn 230 into a "notice-and-takedown" statute, because as soon as you received notice of any alleged issue, you'd risk liability if you kept it up. We've already seen how that works in the DMCA context, in which tons and tons of perfectly lawful speech is taken down just to avoid liability. This is a proposal for widespread censorship (which is ironic, given that the DOJ claims part of its goal is to try to encourage less silencing of voices).

On that front, the proposals are equally uninformed.

First, the Department supports replacing the vague catch-all “otherwise objectionable” language in Section 230(c)(2) with “unlawful” and “promotes terrorism.” This reform would focus the broad blanket immunity for content moderation decisions on the core objective of Section 230—to reduce online content harmful to children—while limiting a platform's ability to remove content arbitrarily or in ways inconsistent with its terms or service simply by deeming it “objectionable.”

It's important to note that nearly all of the litigation on Section 230 has focused on (c)(1) and not (c)(2), but whiny conservatives who insist that sites are "censoring" them really hate the "otherwise objectionable" language, because it makes it clear that sites have the right to moderate how they see fit. Wiping that out is bizarre, because it would suddenly exempt things like spam filtering from Section 230.

Second, the Department proposes adding a statutory definition of “good faith,” which would limit immunity for content moderation decisions to those done in accordance with plain and particular terms of service and accompanied by a reasonable explanation, unless such notice would impede law enforcement or risk imminent harm to others. Clarifying the meaning of "good faith" should encourage platforms to be more transparent and accountable to their users, rather than hide behind blanket Section 230 protections.

This is similar to Hawley's proposal, and raises serious 1st Amendment questions. The government cannot and should not be determining whether editorial decisions are made in "good faith."

Then there's the funniest part of the DOJ proposal. Because everyone who understands anything about how content moderation works has pointed out that all of these kinds of changes would create a true "moderator's dilemma" (no liability if you don't look, so you don't want to look, or if you look you feel the need to heavily moderate everything to avoid liability), the DOJ just says "oh yeah, add in something saying there's no moderator's dilemma." Really.

Explicitly Overrule Stratton Oakmont to Avoid Moderator’s Dilemma. Third, the Department proposes clarifying that a platform’s removal of content pursuant to Section 230(c)(2) or consistent with its terms of service does not, on its own, render the platform a publisher or speaker for all other content on its service.

But none of that fixes all of the other parts of the moderator's dilemma created by this very proposal.

Separate from those two major prongs, the proposed reform hits on two other points, both of which are kind of odd. First, it says it would open up civil enforcement actions from the federal government, making them exempt from Section 230 as well. Already, federal criminal law is exempt, but by exempting civil enforcement, it could allow for things like the FTC to go after websites for... something based on user content? It's not entirely clear how that would play out. And then it says that federal antitrust law is not covered by 230, which... seems like an odd thing to call out. I guess the focus here is on whether or not the government could make an antitrust claim on moderation choices (so, for example, if Apple or Google blocked a competitor from being in their app stores). The specifics of such a proposal would matter, so it's not clear how big a deal that might be at a first glance.

All in all, the DOJ proposal is, at the very least, craftier than Hawley's silly proposal. But when looked at together, its attempt to thread the needle of the "too much moderation/not enough moderation" debate is one that will only make things much worse, and not solve any of the actual problems online. But it may be a field day for lawsuits, and maybe that's the point: let's punish Silicon Valley with a ton of lawsuits, just because we can.

Filed Under: bias, content moderation, doj, good faith, intermediary liability, otherwise objectionable, section 230, terrorism

No, Google Didn't Demonetize The Federalist & It's Not An Example Of Anti-Conservative Bias

from the another-day-another-story dept

So, earlier today, NBC reported that Google had "banned" two well known websites from its ad platform, namely The Federalist and Zero Hedge. The story was a bit confusing. To be clear, both of those sites are awful and frequently post unmitigated garbage, conspiracy theories, and propaganda. But, it turns out the story was highly misleading, though it will almost certainly be used to push the false narrative that the big internet companies are engaged in "anti-conservative bias" in moderation practices. But that's wrong. Indeed, it appears what happened is exactly what Google has done to us in the past, in saying that because of certain comments people put on our stories, they were pulling any Google ads from appearing on that page. Now we've explained why this is a dumb policy, that only encourages bad comments on sites to try to demonetize them, but it's not got anything to do with "anti-conservative bias." Also, it's just pulling ads from a single page, not across the board.

But that's not how NBC presented it. Indeed, NBC's coverage is weird in its own way. It took a report from a UK-based operation that put together a blacklist of websites it says should be "defunded" for "racist fake news." Of course, "racist" is in the eye of the beholder, and "fake news" is not a very useful term here, but whatever. NBC reporters took this report and reached out to Google to ask about these particular pages, and that set off Google's usual review processes, and the recognition that some of the comments on the page violated Google's ad policies on "dangerous and derogatory" content (the same thing we got dinged for above). Google, as it does, alerted the Federalist to this content and warned that if it wasn't corrected, ads would be removed on that page (Google claims that Zero Hedge's page had already gone through this process prior to the communication from NBC). While the fact that Google did a review after NBC's request for comment may upset some, this is the nature of content moderation: much of it happens after an inbound report is made in some form or another.

Of course, as the story got bigger and bigger and spun out of control, even Google had to come out and clarify that The Federalist was never demonetized, but rather that they called out specific comments that would lead to ads being pulled on that page:

Again, this sounds exactly like what happened to us last year. But, still, tons of people are calling the NBC story an example of anti-conservative bias. I'll bet none of those people called this "anti-tech reporter bias" when it happened to us last year.

Filed Under: advertisements, bias, comments, content moderation, content moderation at scale, dangerous and derogatory
Companies: google, the federalist, zero hedge

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

from the oh-come-on dept

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

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

Dear Chairman Pai:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[...]

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

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

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

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

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

Back to the nonsense letter from the Senators.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New Study Finds No Evidence Of Anti-Conservative Bias In Facebook Moderation (If Anything, It's The Opposite)

from the there-we-go dept

Over the last few months, it's been weird to watch how any time we point out that there's no actual evidence of anti-conservative bias in the content moderation practices of social media, some in our comments absolutely lose their shit. One commenter, has been on a rampage in just the last week to declare me an evil liar for refusing to admit the "obvious" fact that there's anti-conservative bias in moderation. However when I and others ask these people for that evidence, it never seems to show up.

I imagine they are not going to like this story either. A new study from CrowdTangle, a data analytics firm that is owned by Facebook, and has access to Facebook data, seems to suggest that if there's any bias, it goes the other way:

In fact, according to CrowdTangle, a data-analytics firm owned by Facebook, content from conservative news organizations dominates Facebook and often outperforms content from straightforward news organizations.

Additionally, over the last month on Facebook, Trump has captured 91% of the total interactions on content posted by the US presidential candidates, according to CrowdTangle. Biden has captured only 9%.

And if the moderation efforts are designed to harm conservative media, it doesn't seem to be working:

Over the last month, the top performing news organization in the US was Fox News, a conservative network which largely echoes the Trump White House's messaging.

Fox News captured 13% of all interactions among US news organizations with more than 29 million likes, comments, and shares, according to CrowdTangle.

The second top performing page belonged to Breitbart, a right-wing website that is largely supportive of the President and has close ties to the White House. Its Facebook page accounted for 9% of the total US media interactions over the last month with more than 20 million likes, comments, and shares.

And in just looking at "political pages" the data again shows a lean towards more conservative pages:

Ben Shapiro, the prominent conservative news personality, generated more than 25 million interactions over the past month on his page, accounting for 29% of the total share from US political media on Facebook, according to CrowdTangle.

The second top US political media page belonged to Breitbart, with 23% of total interactions.

Other conservative outlets in the top 10 for US political media over the last month: The Western Journal in fifth with 4% of the total interactions; TheBlaze in seventh with 3% of the total interactions; IJR in eight with 2% of total interactions; and the Washington Examiner in ninth with 2% of interactions.

Now, does this mean that Facebook has an "anti-liberal bias"? No. It's just how these things shake out in the end and how Facebook's algorithms work. Though, this data suggests, at the very least, one of the key reasons why the Trumpist crowd keeps resorting to the false narrative of bias: it's working the refs to make sure that they get these kinds of results.

Filed Under: anti-conservative bias, bias, content moderation
Companies: facebook

DC Appeals Court Dumps Lawsuit Claiming Multiple Tech Companies Are Engaged In An Anti-Conservative Conspiracy

from the come-back-with-something-actionable dept

Early last year, a federal court dumped a lawsuit filed by alt-right figureheads Laura Loomer and Freedom Watch (Larry Klayman's organization) alleging multiple online platforms were engaging in a government-enabled conspiracy to silence them. Mixing and matching liberally from precedent that didn't say what the plaintiffs thought it said, the lawsuit tried to skirt around things like Section 230 immunity by pretending this was about being unconstitutionally blocked from entering public spaces.

The lawsuit has now been rejected twice. The DC Circuit Appeals Court decision [PDF] sums up the action at the lower level, noting that it's affirming the call made by the district court.

FreedomWatch and LauraLoomer (collectively, “FreedomWatch”) brought this suit against Google, Facebook, Twitter, and Apple (the “Platforms”) alleging that they conspired to suppress conservative political views and violated the First Amendment, the Sherman Antitrust Act, and the District of Columbia Human Rights Act. The district court dismissed the complaint, holding that Freedom Watch had standing to sue but failed to allege colorable legal claims.

The platforms being sued aren't happy standing was even granted to Freedom Watch. But that hardly matters because standing or not, there are no actionable claims in the lawsuit. The Appeals Court points out the obvious to the plaintiffs.

Freedom Watch’s First Amendment claim fails because it does not adequately allege that the Platforms can violate the First Amendment. In general, the First Amendment “prohibits only governmental abridgment of speech.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). Freedom Watch contends that, because the Platforms provide an important forum for speech, they are engaged in state action. But, under Halleck, “a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.” Freedom Watch fails to point to additional facts indicating that these Platforms are engaged in state action and thus fails to state a viable First Amendment claim.

The court also says there's no evidence of a conspiracy between the platforms that might engage antitrust law. Freedom Watch speculated some platforms are willing to lose money to shed themselves of "conservative" users to align their user base with the developers' and owners' political views. The court points out similar conduct by multiple platforms is not enough to substantiate a conspiracy claim.

Freedom Watch does not explain why either factor tends to show an unlawful conspiracy, rather than lawful independent action by the different Platforms.

The same goes for the plaintiffs' anticompetitive practices claim.

The only anticompetitive conduct that Freedom Watch alleges (without supporting factual allegations) is that the Platforms conspired against it to suppress conservative content, but not that the Platforms conspired to acquire or maintain monopoly power. A § 2 claim requires the latter allegation.

And, like the lower court, the Appeals Court isn't willing to stretch the District of Columbia's Human Rights Act to read more like the Americans With Disabilities Act, which has seen successful claims brought against websites. But being banned from a platform isn't the same as being discriminated against by a lack of equal access. More to the point for this case, precedent in the district has not equated social media platforms to physical public spaces.

Freedom Watch argues that we should interpret this local statute more broadly to make it consistent with the Americans with Disabilities Act. That Act also contains a provision concerning places of “public accommodation,” and several federal courts have concluded that clause sweeps wider than just physical places. See, e.g., Carparts Distribution Ctr. v. Auto. Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994). But as the district court noted, other federal courts have reached the opposite conclusion and held that only physical places qualify as places of public accommodation under the ADA. See Freedom Watch, 368 F.Supp.3d at 39. Moreover, the D.C. Court of Appeals is the arbiter of D.C. law and the definitions of “public accommodation” in the two laws are different from one another.

It's not over yet, though. The plaintiffs can still attempt to waste the time of the DC Appeals Court by asking for a rehearing. Or they can take it to the top level by petitioning the Supreme Court to examine a bunch of baseless claims that couldn't survive a motion to dismiss at the lowest level of the federal court system. Freedom Watch and Laura Loomer are free to spend their litigation money however they want. But we're the ones on the hook for paying federal judges to peruse garbage takes masquerading as causes of action. And that's kind of irritating.

Filed Under: 1st amendment, anti-conservative bias, antitrust, bias, content moderation, dc circuit, free speech, freedom watch, laura loomer, section 230
Companies: apple, facebook, google, twitter

Arrest Numbers Show The NYPD Is Handling Pandemic Enforcement With The Same Biased Enthusiasm It Put Into Stop And Frisk

from the at-least-the-selective-enforcement-is-consistent dept

You can take the stop-and-frisk out of the NYPD, but you can't remove the biased policing, as the old saying goes. The NYPD may have been forced to stop pushing every minority up against the nearest wall/fence/cop car after a federal court determined this to be a violation of their rights, but they're apparently continuing to enforce laws very selectively.

On Thursday night, the Brooklyn district attorney’s office became the first prosecutor in the city to release statistics on social-distancing enforcement. In the borough, the police arrested 40 people for social-distancing violations from March 17 through May 4, the district attorney’s office said.

Of those arrested, 35 people were black, four were Hispanic and one was white.

More than a third of the arrests were made in the predominantly black neighborhood of Brownsville. No arrests were made in the more white Brooklyn neighborhood of Park Slope.

So, this is more than just anecdotal evidence. It's, you know, evidence evidence. Plenty of anecdotal evidence exists of inconsistent social distancing enforcement is available, if you're interested in seeing that as well.

This bothers Mayor Bill De Blasio -- the man who won the election by promising to be someone other than Mike Bloomberg, who loudly and proudly supported the NYPD's "right" to harass and detain minorities. But he's not upset enough. And he's upset incorrectly. Critics are calling this selective enforcement of pandemic efforts a new stop-and-frisk. De Blasio is only upset about the terminology.

“What happened with stop and frisk was a systematic, oppressive, unconstitutional strategy that created a new problem much bigger than anything it purported to solve,” he said. “This is the farthest thing from that. This is addressing a pandemic. This is addressing the fact that lives are in danger all the time. By definition, our police department needs to be a part of that because safety is what they do.”

That's just talking around the problem. Yes, the pandemic response isn't "systematic," but the ingrained habits that have resulted in minorities being disproportionately targeted by NYPD officers certainly are. And his siding with the NYPD aligns him more with the man he replaced than the public that elected him. Both De Blasio and Police Commissioner Dermot F. Shea claim this enforcement has been deployed "sparingly and fairly." It's hard to square "fairly" with the numbers released by the Brooklyn DA.

It also doesn't square with the total arrest numbers provided by the NYPD.

Citywide, black people make up 68 percent of those arrested on charges of violating social-distancing rules, while Hispanic people make up 24 percent, a deputy police commissioner, Richard Esposito, said late on Thursday night.

Only seven percent of the social distancing arrests citywide involved Caucasians.

The police union spoke up, because of course it did. The head of the PBA made one halfway decent point about bad laws and the problems inherent in enforcing them…

Patrick J. Lynch, the president of the Police Benevolent Association, declined to comment on Officer Garcia’s actions, but noted he and his colleagues “did not create the poorly conceived social-distancing policy they were sent out to enforce.”

… but followed that up by defending an officer who has been sued seven times and cost the city more than $200,000 in settlements. Officer Francisco X. Garcia was involved in a controversial social distancing arrest in which he punched a man onto the ground and then sat on him as he was handcuffed. Garcia has been removed from duty while this arrest is being investigated, which is apparently the equivalent of hanging this sinless man on the cross.

[Lynch] said City Hall was blaming Officer Garcia for carrying out the policy it had created. “Once again, our leaders are poised to trample a police officer’s rights in order to protect themselves,” he said.

Ah yes. Let's not "trample" those rights. But the rights of everyone else can be trampled while the NYPD fumbles its way through the pandemic, making minorities pay the price for the social distancing sins of an entire city.

Filed Under: bias, biased policing, civil liberties, nypd, pandemic, policing, social distancing

Harrisburg University Researchers Claim Their 'Unbiased' Facial Recognition Software Can Identify Potential Criminals

from the fresh-hells-delivered-daily dept

Given all we know about facial recognition tech, it is literally jaw-dropping that anyone could make this claim… especially without being vetted independently.

A group of Harrisburg University professors and a PhD student have developed an automated computer facial recognition software capable of predicting whether someone is likely to be a criminal.

The software is able to predict if someone is a criminal with 80% accuracy and with no racial bias. The prediction is calculated solely based on a picture of their face.

There's a whole lot of "what even the fuck" in CBS 21's reprint of a press release, but let's start with the claim about "no racial bias." That's a lot to swallow when the underlying research hasn't been released yet. Let's see what the National Institute of Standards and Technology has to say on the subject. This is the result of the NIST's examination of 189 facial recognition AI programs -- all far more established than whatever it is Harrisburg researchers have cooked up.

Asian and African American people were up to 100 times more likely to be misidentified than white men, depending on the particular algorithm and type of search. Native Americans had the highest false-positive rate of all ethnicities, according to the study, which found that systems varied widely in their accuracy.

The faces of African American women were falsely identified more often in the kinds of searches used by police investigators where an image is compared to thousands or millions of others in hopes of identifying a suspect.

Why is this acceptable? The report inadvertently supplies the answer:

Middle-aged white men generally benefited from the highest accuracy rates.

Yep. And guess who's making laws or running police departments or marketing AI to cops or telling people on Twitter not to break the law or etc. etc. etc.

To craft a terrible pun, the researchers' claim of "no racial bias" is absurd on its face. Per se stupid af to use legal terminology.

Moving on from that, there's the 80% accuracy, which is apparently good enough since it will only threaten the life and liberty of 20% of the people it's inflicted on. I guess if it's the FBI's gold standard, it's good enough for everyone.

Maybe this is just bad reporting. Maybe something got copy-pasted wrong from the spammed press release. Let's go to the source… one that somehow still doesn't include a link to any underlying research documents.

What does any of this mean? Are we ready to embrace a bit of pre-crime eugenics? Or is this just the most hamfisted phrasing Harrisburg researchers could come up with?

A group of Harrisburg University professors and a Ph.D. student have developed automated computer facial recognition software capable of predicting whether someone is likely going to be a criminal.

The most charitable interpretation of this statement is that the wrong-20%-of-the-time AI is going to be applied to the super-sketchy "predictive policing" field. Predictive policing -- a theory that says it's ok to treat people like criminals if they live and work in an area where criminals live -- is its own biased mess, relying on garbage data generated by biased policing to turn racist policing into an AI-blessed "work smarter not harder" LEO equivalent.

The question about "likely" is answered in the next paragraph, somewhat assuring readers the AI won't be applied to ultrasound images.

With 80 percent accuracy and with no racial bias, the software can predict if someone is a criminal based solely on a picture of their face. The software is intended to help law enforcement prevent crime.

There's a big difference between "going to be" and "is," and researchers using actual science should know better than to use both phrases to describe their AI efforts. One means scanning someone's face to determine whether they might eventually engage in criminal acts. The other means matching faces to images of known criminals. They are far from interchangeable terms.

If you think the above quotes are, at best, disjointed, brace yourself for this jargon-fest which clarifies nothing and suggests the AI itself wrote the pullquote:

“We already know machine learning techniques can outperform humans on a variety of tasks related to facial recognition and emotion detection,” Sadeghian said. “This research indicates just how powerful these tools are by showing they can extract minute features in an image that are highly predictive of criminality.”

"Minute features in an image that are highly predictive of criminality." And what, pray tell, are those "minute features?" Skin tone? "I AM A CRIMINAL IN THE MAKING" forehead tattoos? Bullshit on top of bullshit? Come on. This is word salad, but a salad pretending to be a law enforcement tool with actual utility. Nothing about this suggests Harrisburg has come up with anything better than the shitty "tools" already being inflicted on us by law enforcement's early adopters.

I wish we could dig deeper into this but we'll all have to wait until this excitable group of clueless researchers decide to publish their findings. According to this site, the research is being sealed inside a "research book," which means it will take a lot of money to actually prove this isn't any better than anything that's been offered before. This could be the next Clearview, but we won't know if it is until the research is published. If we're lucky, it will be before Harrisburg patents this awful product and starts selling it to all and sundry. Don't hold your breath.

Filed Under: ai, artificial intelligence, bias, facial recognition, precrime
Companies: harrisburg university