Why Content Moderation Codes Are More Guidelines Than Rules

from the and-that-will-change-without-cda-230 dept

Also, following on my last post: since the First Amendment protects site moderation and curation decisions, why all the calls to get rid of CDA 230’s content moderation immunity?

Having listened carefully and at length to the GOP Senators and law professors pitching this, the position seems to be a mix of bad faith soapboxing (“look at us take on these tech libs!”) and the idea that sites could be better held to account -- contractually, via their moderation codes -- if the immunity wasn’t there.

This is because the First Amendment doesn’t necessarily bar claims that various forms of “deplatforming” -- like taking down a piece of content, or suspending a user account -- violate a site’s Terms of Use, Acceptable Use Policy, or the like. That’s the power of CDA 230(c)(2): it lets sites be flexible, experiment, and treat their moderation policies more as guidelines than rules.

Putting aside the modesty of this argument (rallying cry: “let’s juice breach-of-contract lawsuits against tech companies”) and the irony of “conservatives” arguing for fuller employment of trial attorneys, I’ll make two observations:

First of all, giving people a slightly-easier way to sue over a given content moderation decision isn’t going to lead to sites implementing a “First Amendment standard.” Doing so -- which would entail allowing posts containing all manner of lies, propaganda, hate speech, and terrorist content — would make any such site choosing this route an utter cesspool.

Secondly, what sites WOULD do in response to losing immunity for content moderation decisions is adopt much more rigid content moderation policies. These policies would have less play in them, less room for exceptions, for change, for context.

Don’t like our content moderation decision? Too bad; it complies with our policy.

You want an exception? Sorry; we don’t make exceptions to the policy.

Why not? Because some asshole will sue us for doing that, that’s why not.

Have a nice day.

CDA 230’s content moderation immunity was intended to give online forums the freedom to curate content without worrying about this kind of claim. In this way, it operates somewhat like an anti-SLAPP law, by providing the means for quickly disposing of meritless claims.

Though unlike a strong anti-SLAPP law, CDA 230(c)(2) doesn’t require that those bringing such claims pay the defendant’s attorney fees.

Hey, now THERE’s an idea for an amendment to CDA 230 I could get behind!

Reposted from the Socially Awkward blog.

Filed Under: 1st amendment, anti-slapp, cda 230, content moderation, curation, free speech, guidelines, section 230, slapp, terms of service

Newsweek Publishes Facts Optional, Wronger Than Wrong, Piece About Section 230

from the that's-not-how-it-works dept

It's getting absurd to have to do this every few weeks, but the media keeps publishing blatantly wrong things about Section 230 of the Communications Decency Act. You would think that after the NY Times had to roll back its own ridiculous headline blaming "hate speech" on the internet on Section 230, only to have to say "oops, actually, it's the 1st Amendment," that other publications would take the time to get things straight and recognize that nearly everything they're complaining about is actually the 1st Amendment, not Section 230. Section 230 merely protects the 1st Amendment, by making it easier to get out of SLAPPish lawsuits earlier in the process.

Yet, Newsweek apparently did not take note, and agreed to publish an op-ed by a group that was set up with former Republican Congressional staffers to deliberately push FUD and nonsense about successful internet companies called the "Internet Accountability Project" (which is not accountable for its own funding). IAP has been targeting Section 230 pretty much from day one, and this Newsweek op-ed is par for the course in that nearly everything it claims is wrong, misleading, or just ridiculous. First it describes a few examples of both Facebook and Google moderating potentially dangerous misinformation campaigns about COVID-19 and claims that this is some sort of evil censorship:

For speech, in particular, the consequences of tech's growing power have become increasingly plain. In April, Facebook began removing content promoting anti-lockdown events. From ABC News to Politico, it was reported that this was being done at the behest of state governments. By the evening, Facebook clarified that it would only be removing from its platform content pertaining to groups whose activities violated governments' social distancing guidance.

In other words, Facebook is not removing protest content that is unlawful—but rather, content that goes against state government "advisories." That is, guidance without the force of law.

On YouTube, owned by Google, a video of two emergency room doctors publicly questioning the official narrative about COVID-19 reportedly had over five million views before YouTube snatched it down, stating the video "violat[ed] our Community Guidelines, including content that explicitly disputes the efficacy of local healthy [

sic] authority recommended guidance on social distancing that may lead others to act against that guidance."

Note how this is framed -- as if removing disinformation or recommendations that will likely lead to people dying due to ignoring health advice regarding COVID-19 is somehow a bad thing. Meanwhile, of course, you have people at the other end of the political spectrum insisting (also incorrectly) that these platforms leave this kind of content up because of 230. So, which is it? Does 230 lead to platforms feeling comfortable leaving up dangerous nonsense or is it responsible for platforms taking down content?

This type of private company censorship is allowed because of Sec. 230—the part of the Communications Decency Act, passed by Congress in 1996, which provides Big Tech special legal treatment.

1. A private platform moderating nonsense is not censorship. 2. It's allowed because of the 1st Amendment. 3. It provides no special legal treatment to "big tech." Literally every single thing in this is outright false. Newsweek's fact checkers apparently are on vacation.

Sec. 230 was designed to allow platforms to remove "obscene, lewd, lascivious...or otherwise objectionable" content without being sued for doing so. But with the help of the courts, that targeted immunity privilege has been stretched to include, among other things, the enforcement of government-determined narratives against speech that would otherwise be constitutionally protected if it occurred outside these platforms and away from Sec. 230.

This is a neat little attempt to rewrite the law, the legislative history, and the judicial rulings on the law all in one shot. Section 230 was designed to enable the platforms to make their own decisions with regards to moderation, without facing legal liability for those choices. And, honestly, is IAP's position that encouraging people to ignore important health information should not be seen as "otherwise objectionable"? Because that sure would be fascinating. And whether or not the speech is "constitutionally protected" is meaningless. The limitations on regulating speech apply to the government, not a private company. Indeed, a regulatory regime that required the hosting of speech would raise its own constitutional questions -- which IAP refuses to acknowledge.

"For a private company to simply delete the promotion of protests it deems unacceptable is a remarkable expansion of its power over what was once a sacrosanct and constitutionally protected freedom," wrote one commentator recently. "Through these private companies...government officials can in effect restrict speech they are obligated to protect."

Notice that they say "one commenter" but don't note that it's a college student who apparently should go back and study the Constitution some more. A platform has every right to block the promotion of protests on its own platform. There are many other places that anyone who wants to protest can publish their protests, whether those are smart and useful protests, or dangerous lunacy (as the protests in question were).

The companies and their advocates say this type of moderation is necessary to ensure free speech. But what does it mean for free speech when the major communications platforms like Facebook, YouTube and Google align themselves with the government to deem certain speech, which would otherwise be constitutionally protected, too dangerous?

It means that every platform gets to choose. Some align themselves with government reports highlighting that the promotion of not social distancing might kill thousands of people. Some align themselves with ridiculous people who think that killing people and spreading a diseases is their god-given right. That's the nature of free-enterprise. I thought Republicans used to support that kinda thing? What happened?

Rhetorically, it's an odd turn, as the antidote to bad or misleading speech is actually more speech—the robust debate and engagement that shapes ideas, rebuts other ideas and reforms narratives. This is especially true in the sciences, whose entire history is an arc composed of overturning ideas once considered "settled."

It's true that the antidote to bad or misleading speech is more speech, but it doesn't mean that every platform must host that speech. They have other places they can speak, and they can (and have) build their own spaces as well.

The most sinister thing about these decisions, however, is that when it comes to deciding what COVID-19 information we get to see, Big Tech companies have now become a de facto arm of the state.

No. They haven't. Of course, if you get rid of CDA 230, then actually they might. Because then they may face liability for not pulling down enough content -- and if someone does something preternaturally stupid, like encouraging people to gather in large numbers without face masks and without social distancing in the midst of a deadly pandemic, then, you know, a platform without CDA 230 protections might face some amount of liability for the chaos that produces.

That's part of what's so ridiculously frustrating here. If they got what they "want" it would make what they claim is the problem significantly worse. Of course, the reality is they don't actually want to get rid of Section 230. They just want to cause trouble for Google because their funders hate that they've been out innovated by internet companies.

Far from private companies merely initiating their own content moderation, these platforms are now acting as enforcement wings for government-approved information campaigns. In Facebook's case, this means removing the ability of citizens to organize in a constitutionally protected activity—an activity that is not illegal, but is merely advised against.

Again, they're not. You want to know how I know? Because all of these platforms leave up tons of content that involves these kinds of protests and gatherings. Just because they pulled down some of the most ridiculous and most dangerous -- because they don't want people to fucking die -- does not mean that they are "enforcement wings for government-approved information campaigns." And again, without 230, if someone died because they went to one of these protests, how quickly do you think Facebook would get sued because it hosted the details of the protest?

Sec. 230—the sweetheart deal that allows tech to censor content without the same consequences as, say, the newspaper industry—is, at its root, a congressionally authorized tech industry subsidy. It has allowed the industry to grow from dorm rooms and garage basements to billion-dollar omnipresent mega corporations.

Section 230 was not a sweetheart deal, and it does not apply to just tech. Newspapers rely on Section 230 too. It is not a "subsidy" it's about the correct application of liability to avoid nonsense lawsuits (also, weren't Republicans historically against frivolous lawsuits and ambulance chasing? Without 230 you'd open up a huge rush of tort cases).

And in that regard, Sec. 230 is not unlike the host of other subsidies the government provides to various industries: expensing provisions given to manufacturers, the federal assistance we provide farmers to purchase crop insurance and so forth. These industries will tell you that these provisions are vital to their survival—and they might be right. But that hasn't prevented them from being routinely debated, updated or otherwise modified.

But it's not even remotely a subsidy. It's just making it clear who has the liability. That's it. That's all it is. And, again, the 1st amendment protects the activities that this article mistakenly thinks 230 protects. All 230 does is a procedural move to help identify who should be liable for what. That's it.

If COVID-19 has proven anything about Big Tech, it is that these companies have accumulated orders of magnitude more power than politicians could have imagined just a decade ago. That power has benefited us, but it has also threatened us. An intellectually honest assessment of its ramifications is now desperately needed.

And one thing you will never get from the Internet Accountability Project is even a sliver of "an intellectually honest assessment." It is a bad faith player, funded by bad faith companies, to do bad faith things -- like publishing this utter nonsense piece of pure fiction in a mainstream publication. Newsweek should not have taken the bait.

Oh, but let me save the final nonsense for last. Right beneath this post, Newsweek is advertising medical nonsense and miracle treatments.

Of course, Newsweek isn't liable for pushing people to that medical snake oil... because of Section 230's protections. Which it has now apparently decided it's okay to get rid of. Good one, Newsweek. Good one.

Filed Under: 1st amendment, cda 230, liability, section 230
Companies: facebook, google, internet accountability project

As Expected, Those Who Pushed For FOSTA Are Now Looking To Kill Off Porn

from the the-morality-police dept

A few years back, when the campaign to use FOSTA (then called SESTA) as a way to chip away at Section 230 of the Communications Decency Act by creating a misleading moral panic around "sex trafficking" was in full swing, we pointed out that it was really a precursor to trying to outlaw all pornography. I highlighted how a key group pushing for FOSTA, the National Center on Sexual Exploitation (NCOSE), didn't even bother to hide that its real target was outlawing all pornography. NCOSE, as we pointed out, started life as "Morality in Media" and only changed its name later when it realized that everyone was ignoring them acting like fussy prudish pearl-clutchers, and decided that if they pretended they were about "exploitation" it would give them more credibility.

A key part of NCOSE's campaign is to lump porn, prostitution, and "sexual objectification in media" into the exact same bucket as child abuse and sex trafficking, even though there's a massive difference there. But it shouldn't come as any surprise that as NCOSE has now expanded to create an "International" (ICOSE) branch, it has done so by kicking off a silly program demanding that credit card companies stop working with porn sites like Pornhub. Of course, in true NCOSE fashion, it insists that porn sites are really engaged in sex trafficking and child abuse:

The letter alleges it is impossible to "judge or verify consent in any videos on their site, let alone live webcam videos" which "inherently makes pornography websites a target for sex traffickers, child abusers, and others sharing predatory nonconsensual videos".

"We've been seeing an increasingly global outcry about the harms of pornography sharing websites in a number of ways in recent months," said Haley McNamara, the director of the UK-based International Centre on Sexual Exploitation, the international arm of the NCOSE and a signatory of the letter.

"We in the international child advocacy and anti-sexual exploitation community are demanding financial institutions to critically analyse their supportive role in the pornography industry, and to cut ties with them," she told the BBC.

As Elizabeth Nolan Brown at Reason points out, this is all a repeat of the same old playbook: lumping in non-nefarious practices with much more nefarious (but also much rarer) practices, and then demanding that credit card companies disengage. These campaigns can sometimes be effective, because credit card companies tend to have little spine and freak out that people might make them look bad for processing payments.

This isn't the first time activists have gone after the ability of websites to process payments related to sex work. When Craigslist and later Backpage were the moral panic's big targets, advocates including Illinois sheriff Tom Dart lobbied companies to stop doing business with these websites—even though government officials and advocacy groups had earlier asked Craigslist and Backpage to accept credit card payments because they thought it would make tracking customers easier.

"But think of the children..." has long been a successful lobbying and public pressure strategy, but at some point people are going to realize that when what you really fear is consensual nudity, maybe you've gone a bit too far.

Filed Under: 1st amendment, cda 230, censorship, fosta, porn, section 230

Court Tosses Lawsuit From Man Claiming Twitter Discriminated Against Him For Being A Heterosexual Christian

from the you-can't-fix-stupid-but-you-can-immunize-against-it dept

Suing private companies over their alleged trampling of First Amendment rights is rarely going to go anywhere. That's not stopping people from trying. Again and again and again. Some of these plaintiffs aren't even represented by Larry Klayman.

Like this guy, Robert Eugene Wilson, who sued Twitter for deleting his accounts. Wilson represented himself, arguing… well, it's perhaps best to quote directly from the dismissal [PDF]. (via Eric Goldman)

Plaintiff, Robert Eugene Wilson (“Wilson”), filed a complaint in this Court on January 23, 2020. (ECF No. 2). In the complaint, Wilson assets that Defendant, Twitter, Inc., (“Twitter”), “has on more than 2 times = 3 times [sic] closed my account based on my freedom of speech and or heterosexual expressions, and or whatever excuses.”

Ah, the 28th Amendment: Congress shall make no law abridging expressive heterosexuality. Of course, Twitter isn't Congress and "heterosexual expression" -- while protected by the First Amendment -- isn't going to turn Twitter into a government body, no matter how incensed the plaintiff is about their revoked Twitter privileges.

Having been deleted once, Wilson tried to create more accounts, three of which were deleted by Twitter before he could create any tweets. The status of the fourth account Wilson created is not listed in the record, but it was apparently deployed to send an "all Caps" tweet to Twitter telling the company "You will not get this account back!"

The deletion of three accounts and the subsequent damage to Wilson's expressions of "heterosexuality and Christian affiliation" allegedly violated the First Amendment, the 1866 Civil Rights Act, and the 1964 Civil Rights Act to the tune of $50 million. Twitter's actions also apparently harmed Wilson's relationship with his neighbors, who were apparently "disturbed" by his "angry outbursts."

In addition to $50 million for rights violations, Wilson asked for $250 million in damages related to Twitter's deletion of his multiple accounts, the first of which graced the platform with this stellar content:

Wilson describes the nature of this content which included “insults” against public figures such as “Oprah Winfrey/Gayle King/President Obama/Sunny Hostin/Michelle Obama and many more insulted.” Wilson also objects to the suspension of his account based on “insults” he levied against “homosexuality” in general. These insults included the terms “‘gayness/Homos/Fagots [sic]/Dykes/Low Down Bi-Bisexuals [sic]/Queer Dogs/Trans Mutants.’”

Wilson also demanded at least half of his requested damages be immediately paid because Twitter's legal reps had the temerity to call him and ask if he was represented by counsel to determine where case materials should be sent.

Wilson asserts that this amounts to “total deception and ‘legal abuse.’” Wilson believes that counsel for Twitter only asked if Wilson was represented by counsel so that they could present a motion to dismiss with “frivolous case references.” Wilson objects to counsel for Twitter’s “‘snake in tall weeds’ tactic” and asks that this Court deny Twitter’s “elementary ‘Motion to Dismiss.’”

All of Wilson's arguments fail. The First Amendment does not govern the moderation efforts of private companies.

Beyond generalized assertions that Twitter’s motion to dismiss contains “frivolous case references” and amounts to “legal abuse,” Wilson does not address Twitter’s assertion that, as a private entity, it is not constrained by the First Amendment. Even if Wilson were to argue that Twitter is subject to the First Amendment under the state-action doctrine, such an argument would fail. While Twitter no doubt provides a valuable public forum, one in which millions of users, including the President of the United States, participate in wide-ranging public discourse, this alone is insufficient to establish that Twitter is a state actor.

So does Wilson's allegation that Twitter discriminated against him because of his race... which he might possibly believe is "heterosexual."

Wilson is clearly unable to state a plausible claim for relief under this section as he does not allege that Twitter discriminated against him due to his race. Wilson states his belief that Twitter was biased against him because of his statements in favor of “heterosexuality,” as well as his adherence to Christian beliefs, however, nowhere in his complaint does Wilson provide any facts that could conceivably suggest Twitter discriminated against him due to his race. In fact, it is not apparent from Wilson’s complaint whether Twitter was even aware of Wilson’s race, much less that the decision to suspend his account was based on such knowledge.

Wilson's theory about being discriminated against for his chosen religion fares no better:

The facts contained in Wilson’s complaint simply do not lay out a plausible factual claim that Twitter’s actions in suspending his accounts were motivated by religious animus, rather than representing Twitter’s neutral enforcement of its rules prohibiting harassment on its platform. In other words, assuming that Wilson’s assertion he was compelled to create tweets denigrating homosexuality and its practitioners because of a sincerely held religious belief is true, and assuming that his account was suspended due to the content of those tweets is also true, he has not successfully established that Twitter targeted him because of his religious beliefs, rather than because of the content of the tweets themselves.

And Section 230 finishes Wilson's lawsuit off:

Wilson is clearly attempting to hold Twitter liable as a publisher or speaker. The Fourth Circuit has recognized that §230 intended to immunize interactive computer service providers where they exercised “a publisher's traditional editorial functions” while hosting the content of others. Zeran, 129 F.3d at 330. This includes “deciding whether to publish, withdraw, postpone or alter content.” Wilson seeks to hold Twitter liable for its decision to delete his posts and terminate (or withdraw) his account. As Twitter’s decision to suspend Wilson’s accounts, based on tweets that reportedly used derogatory slurs for homosexuality, was reached in the course of a traditional editorial function—namely deciding what type of content to publish—Wilson’s claim is precluded by application of §230(c)(1) of the CDA.

Wilson's complaint is dismissed with prejudice. Wilson advanced some seriously dubious legal theories -- something that's perhaps expected from non-lawyer plaintiffs that represent themselves. But it might be one others find useful, especially if they're more concerned with scoring political points than actually winning lawsuits. Here's Eric Goldman's take on Wilson's attempt to claim Twitter engaged in religious discrimination.

Yes, Wilson appears to be arguing that Twitter discriminated against him because he’s a Christian heterosexual–a potentially mockable position in light of the many ways online systems implicitly privilege people with such characteristics. This case might be part of a longer-term trend where “conservatives” counter-intuitively attempt to weaponize civil rights laws to perpetuate majority privilege.

This isn't too far removed from the constant claims from the political party in power that social media companies discriminate against "conservatives" and Republicans -- a demographic largely composed of white Christians. It's a historically-protected group that insists on playing the victim. Fortunately, Section 230 is still alive and (mostly) well, making most legal action along these lines untenable.

Filed Under: 1st amendment, content moderation, discrimination, robert eugene wilson, section 230
Companies: twitter

Senator Wyden And Others Introduce Bill Calling The DOJ's Bluff Regarding Its Attempt To Destroy Section 230 & Encryption

from the should-be-called-the-do-your-job-bill dept

One of the key points we've been making concerning Attorney General William Barr and his DOJ's eager support for the terrible EARN-IT Act, is that much of it really seems to be to cover up the DOJ's own failings in fighting child porn and child exploitation. The premise behind the EARN IT Act is that there's a lot of child exploitation/child abuse material found on social media... and that social media companies should do more to block that content. Of course, if you step back and think about it, you'd quickly realize that this is a form of sweeping the problem under the rug. Rather than actually tracking down and arresting those exploiting and abusing children, it's demanding private companies just hide the evidence of those horrific acts.

And why might the DOJ and others be so supportive of sweeping evidence under the rug and hiding it? Perhaps because the DOJ and Congress have literally failed to live up to their mandates under existing laws to actually fight child exploitation. Barr's DOJ has been required under law to produce reports showing data about internet crimes against children, and come up with goals to fight those crimes. It has produced only two out of the six reports that were mandated over a decade ago. At the same time, Congress has only allocated a very small budget to state and local law enforcement for fighting internet child abuse. While the laws Congress passed say that Congress should give $60 million to local law enforcement, it has actually allocated only about half of that. Oh, and Homeland Security took nearly half of its "cybercrimes" budget and diverted it to immigration enforcement, rather than fighting internet crimes such as child exploitation.

So... maybe we should recognize that the problem isn't social media platforms, but the fact that Congress and law enforcement -- from local and state up to the DOJ -- have literally failed to do their job.

At least some elected officials have decided to call the DOJ's bluff on why we need the EARN IT Act. Led by Senator Ron Wyden (of course), Senators Kirsten Gillbrand, Bob Casey, Sherrod Brown and Rep. Anna Eshoo have introduced a new bill to actually fight child sex abuse online. Called the Invest in Child Safety Act, it would basically make law enforcement do its job regarding this stuff.

The Invest in Child Safety Act would direct $5 billion in mandatory funding to investigate and target the pedophiles and abusers who create and share child sexual abuse material online. And it would create a new White House office to coordinate efforts across federal agencies, after DOJ refused to comply with a 2008 law requiring coordination and reporting of those efforts. It also directs substantial new funding for community-based efforts to prevent children from becoming victims in the first place.

Basically, the bill would do a bunch of things to make sure that law enforcement is actually dealing with the very real problem of child exploitation, rather than demanding that internet companies (1) sweep evidence under the rug, and (2) break encryption:

• Quadruple the number of prosecutors and agents in DOJ’s Child Exploitation and Obscenity Section from 30 FTEs to 120 FTEs;
• Add 100 new agents and investigators for the Federal Bureau of Investigation’s Innocent Images National Initiative, Crimes Against Children Unit, Child Abduction Rapid Deployment Teams, and Child Exploitation and Human Trafficking Task Forces;
• Fund 65 new NCMEC analysts, engineers, and mental health counselors, as well as a major upgrade to NCMEC’s technology platform to enable the organization to more effectively evaluate and process CSAM reports from tech companies;
• Double funding for the state Internet Crimes Against Children (ICAC) Task Forces;
• Double funding for the National Criminal Justice Training Center, to administer crucial Internet Crimes Against Children and Missing and Exploited Children training programs;
• Increase funding for evidence-based programs, local governments and non-federal entities to detect, prevent and support victims of child sexual abuse, including school-based mental health services and prevention programs like the Children’s Advocacy Centers and the HHS’ Street Outreach Program;
• Require tech companies to increase the time that they hold evidence of CSAM, in a secure database, to enable law enforcement agencies to prosecute older cases;
• Establish an Office to Enforce and Protect Against Child Sexual Exploitation, within the Executive Office of the President, to direct and streamline the federal government’s efforts to prevent, investigate and prosecute the scourge of child exploitation;
• Require the Office to develop an enforcement and protection strategy, in coordination with HHS and GAO; and
• Require the Office to submit annual monitoring reports, subject to mandatory Congressional testimony to ensure timely execution.

While I always have concerns about law enforcement mission creep and misguided targeting of law enforcement efforts, hopefully everyone can agree that child exploitation does remain a very real problem, and one that law enforcement should be investigating and going after those who are actually exploiting and abusing children. This bill would make that possible, rather than the alternative approach of just blaming the internet companies for law enforcement's failure to take any of this seriously.

Filed Under: csam, doj, earn it, exploitation, funding, intermediary liability, law enforcement, section 230

Texas Appeals Court Brushes Off Section 230 In Allowing Lawsuit Over Sex Trafficking Against Facebook To Continue

from the it-continues-because-it-continues dept

Earlier this year, we mentioned, in passing, personal injury lawyer Annie McAdams' weird crusade against internet companies and Section 230. The lawyer -- who bragged to the NY Times about how she found out her favorite restaurant's secret margarita mix by suing them and using the discovery process to get the recipe -- has been suing a bunch of internet companies trying to argue that we can ignore Section 230 if you argue that the sites were "negligent" in how they were designed. In a case filed in Texas against Facebook (and others) arguing that three teenagers were recruited by sex traffickers via Facebook and that Facebook is to blame for that, the lower court judge ruled last year that he wouldn't dismiss on Section 230 grounds. I wish I could explain to you his reasoning, but the ruling is basically "well, one side says 230 bars this suit, and the other says it doesn't, and I've concluded it doesn't bar the lawsuit." That's literally about the entire analysis:

In reviewing the statute and the cases cited by the parties, the Court concludes that the Plaintiffs have plead causes of action that would not be barred by the immunity granted under the Act.

Why? I could not tell you. Judge Steven Kirkland provides no real basis.

Either way, Facebook appealed, and the appeals court has upheld the lower court ruling with even less analysis. The only mention of Section 230 is to say that that was Facebook's reason for asking for dismissal. The court takes three paragraphs to describe the history of the case, and this is the entire analysis:

Facebook has not established that it is entitled to mandamus relief. Accordingly, we deny Facebook’s petitions for writ of mandamus.

Why? Who the hell knows. Texas courts are weird, man.

At least one judge on the panel, Justice Tracy Christopher, issued a dissent from the majority opinion. The dissent is also pretty short and sweet, and basically says "um, seems like 230 applies here, so, yeah."

I respectfully dissent from these denials of mandamus and I urge the Texas Supreme Court to review these cases. Federal law grants Facebook immunity from suits such as these. See 47 U.S.C. § 230. Because Facebook has immunity, these suits have no basis in law, and dismissal under Texas Rule of Procedure 91a is proper.

The Real Parties in Interest urge our court to adopt a construction of Section 230 that has been adopted by only a few courts. The vast majority of the courts reviewing this law have adopted the arguments made by Facebook. The artful pleading by the Real Parties in Interest should not prevail over the statute.

Also, just to be clear, since some may ask, and since this is a case about sex trafficking: FOSTA does not apply here because (1) the actions at issue happened prior to FOSTA becoming law, and (2) (as only the dissent notes), FOSTA does not apply to civil actions in state court. Still, what a weird set of rulings, that seem to go against nearly all Section 230 case law... and with basically no analysis as to why at all.

Filed Under: annie mcadams, cda 230, intermediary liability, negligence, product liability, section 230, sex trafficking, texas, vexatious lawsuits
Companies: facebook

News Orgs Attack Big Tech For Being Bad For Privacy... While Their Lobbying Against Big Tech Will Harm Privacy

from the guys,-come-on dept

It's kind of difficult to take "privacy advocates" seriously if they're supportive of the EARN IT Act and its structure that would effectively enable the Attorney General to ban real encryption. That's why it was so ridiculous that vocal privacy advocate non-profit EPIC (in the midst of a truly horrifying scandal in which its President exposed employees to COVID-19 without telling them) came out in favor of the EARN IT Act. As with so much that EPIC does, the issue was more that they saw EARN IT as "anti-big tech companies" and to hell with how it actually impacts privacy and encryption.

This is an ongoing problem. Many people who (whether for good reasons or not) dislike big internet companies seem way too willing to embrace bills that appear aimed against them as a sort of "stick it to them" attack, rather than recognizing the long term impact of those bills. We've seen that in the past with bills from the EU's Copyright Directive, the GDPR, and the California Consumer Privacy Act (CCPA), all of which some groups supported solely because it would "be bad" for Google, Facebook and other internet giants, without recognizing the wider impact.

Apparently we can add big news publishers to this list as well. While papers like the NY Times and the Washington Post have run a bunch of stories about how "big tech" is bad about privacy, it's difficult to take them seriously when their lobbyists are out there lobbying in favor of a bill that would ban encryption. And yet, there is the News Media Alliance, formerly the Newspaper Association of America, cheerfully attacking Section 230 of the CDA (which, someone should remind them, all of their websites rely on...) at the DOJ's hearing back in February. Because the EARN IT Act is structured in a way to try to play Section 230 and encryption off of one another, the News Media Alliance's support of attacking 230 gives cover to the EARN IT Act's effective chipping away at encryption.

And that should greatly concern all of the journalists who work for these newspapers, like the NY Times and the Washington Post among others. Reporters at those newspapers rely heavily on encryption as they cultivate sources. And the newspapers themselves rely strongly on Section 230 to protect them against bogus SLAPP suits, even as they pretend that Section 230 is a "special favor" for large tech companies.

The end result, as with EPIC, is that it seems that the focus on "big internet companies are the problem" means that they're compromising on their own principles in order to "punish" the big internet companies. Suggesting Section 230 should be amended gives cover to the plan to trade Section 230 protections for undermining encryption -- thereby undermining both. And that's really dangerous, given that news reporters and news sites rely on both strong encryption and on Section 230.

The News Media Alliance is playing a dangerous game, while being blinded by its dislike of big internet companies.

Filed Under: cda 230, earn it, earn it act, encryption, section 230