Biden Administration Intervenes In Donald Trump's Silly Lawsuit Against Twitter To Defend Section 230

from the good-for-them dept

As you'll recall, a few months ago, former President Donald Trump sued Facebook, Twitter, and YouTube claiming that his own government violated the 1st Amendment... because those three private companies kicked him off their services for violating their policies. Yes, the premise of the lawsuit is that while he was president, the actions of three private companies somehow proved that the government (which he ran) was violating his rights. The lawsuits are nonsense and they have not gone well for Trump at all. Part of the (very) ridiculous argument is that Section 230 is unconstitutional.

The lawsuit against Twitter was recently transferred from Florida (where Trump filed it) to the Northern District of California (where Twitter wanted it), and now the Justice Department has said it will be entering the case specifically to defend the constitutionality of Section 230.

The United States is entitled to intervene in this action under the Federal Rules of Civil Procedure and by statute. Rule 5.1(c) permits the Attorney General to intervene in an action where, as here, the constitutionality of a federal statute is challenged. See Fed. R. Civ. P. 5.1(c). Rule 24 further permits a non-party to intervene when the non-party “is given an unconditional right to intervene by a federal statute.” Fed. R. Civ. P. 24(a)(1). The United States has an unconditional statutory right to intervene “[i]n any action . . . wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question[.]” 28 U.S.C. § 2403(a). In such an action, “the court . . . shall permit the United States to intervene . . . for argument on the question of constitutionality.” Id. Here, Plaintiffs have “drawn in question” the constitutionality of 47 U.S.C. § 230(c), and the United States has an unconditional right to intervene to defend the statute.

This is, of course, slightly interesting, because President Biden himself has called for "revoking" Section 230 and the DOJ has an unfortunate recent history of terrible ideas around Section 230. So, there was at least some fear that perhaps they wouldn't bother to defend the law.

Still, the DOJ likely realizes what a horrible precedent such a case could present, even if it doesn't fully agree with the law, so it's good to see them step in and defend the law. That said, it's hard to believe that any judge would actually take the ridiculous claims in the lawsuit seriously.

Filed Under: content moderation, doj, donald trump, section 230
Companies: twitter

Instagram Founder's Instagram Locked When One Person Convinced Instagram He Had Died

from the i-feel-happyyyyy dept

We have talked a long, long time about how the concept of content moderation at the kind of scale of the largest internet and social media platforms is essentially impossible. But it's not just content moderation that is proving difficult for those platforms. Policing those platforms for anything that relies on user-based input is difficult as well. For instance, Instagram recently found out that its process for locking up the accounts of the deceased may need some work, as one person was able to get Instagram founder Adam Mosseri's Instagram account locked.

Mosseri’s Instagram account was locked because of Instagram’s memorialization feature, where users can report to the company that an Instagram account holder has died. In response, Instagram will block anyone from logging into the account, and stop the ability to make any changes to already uploaded content.

“I find it ridiculous how Instagram lets such things even happen on their platform in the first place,” the scammer who claimed responsibility for the lock on Mosseri’s account, and who used the handle Syenrai, told Motherboard in an online chat. “The entire banning community needs to be discovered and reported to Instagram so they can put an end to this—it’s basically the dark side of Instagram.”

So, what is that memorialization feature? Well, an email goes into Instagram's team to trigger the account change. Instagram then requests proof that the person in question is now deceased. That admittedly morbid request takes the form of a request for either a death certificate or obituary. While that seems reasonable, it should be obvious where the flaw in this system is.

“I have a method which is as simple as finding an online obituary of a person who recently passed away,” they explained. “I then submit a memorialize request for the victim’s account using the random obituary I found, and it takes 1-2 days for support to process.”

“As long as the obituary is recent (within same week) the target will be memorialized,” Syenrai said. “It works 98% of the time.”

While, sure, it's fairly funny to see Instagram lock up and memorialize the account for its own boss, who is very much alive, this all becomes less funny when you understand how this goes for the average, every day user of Instagram. It's also worth noting that this is one of many vulnerabilities that nefarious actors use to harass targets on Instagram.

As for the memorialization process specifically, Instagram's comments have all been canned-style responses indicating that big platforms occasionally have tools like this abused and that Instagram has hires "investigators and cybersecurity specialists" to keep nefarious actors at bay. But it's obviously not working. That Mosseri's account was locked down pretty much proves that.

If the head of Instagram can fall victim to this, what hope is there for the rest of Instagram's usership?

Filed Under: adam mosseri, content moderation, memorial
Companies: instagram

The Scale Of Content Moderation Is Unfathomable

from the it's-way-more-than-you-think dept

Sometimes it's difficult to get across to people "the scale" part when we talk about the impossibility of content moderation at scale. It's massive. And this is why whenever there's a content moderation decision that you dislike or that you disagree with, you have to realize that it's not personal. It wasn't done because someone doesn't like your politics. It wasn't done because of some crazy agenda. It was done because a combination of thousands of people around the globe and still sketchy artificial intelligence are making an insane number of decisions every day. And they just keep piling up and piling up and piling up.

Evelyn Douek recently gave a (virtual) talk at Stanford on The Administrative State of Content Moderation, which is worth watching in its entirety. However, right at the beginning of her talk, she presented some stats that highlight the scale of the decision making here. Based on publicly revealed transparency reports from these companies, in just the 30 minutes allotted for her talk, Facebook would take down 615,417 pieces of content, YouTube would take down 271,440 videos, channels, and comments, and TikTok would take down 18,870 videos. And, also, the Oversight Board would receive 48 petitions to review a Facebook takedown decision.

And, as she notes, that's only the take down decisions. It does not count the "leave up" decisions, which are also made quite frequently. Facebook is not targeting you personally. It is not Mark Zuckerberg sitting there saying "take this down." The company is taking down over a million pieces of content every freaking hour. It's going to make mistakes. And some of the decisions are ones that you're going to disagree with.

And, to put that in perspective, she notes that in its entire history, the US Supreme Court has decided a grand total of approximately 246 1st Amendment cases, or somewhere around one per year. And, of course, in those cases, it often involves years of debates, and arguments, and briefings, and multiple levels of appeals. And sometimes the Supreme Court still gets it totally wrong. Yet we expect Facebook -- making over a million decisions to take content down every hour -- to somehow magically get it all right?

Anyway, there's a lot more good stuff in the talk and I suggest you watch the whole thing to get a better understanding of the way content moderation actually works. It would be helpful for anyone who wants to opine on content moderation to not just understand what Douek is saying, but to really internalize it.

Filed Under: content moderation, due process, evelyn douek, scale, takedowns
Companies: facebook, tiktok, youtube

As Prudes Drive Social Media Takedowns, Museums Embrace... OnlyFans?

from the didn't-see-that-one-coming dept

Over the last few years, we've seen more and more focus on using content moderation efforts to stamp out anything even remotely upsetting to certain loud interest groups. In particular, we've seen NCOSE, formerly "Morality in Media," spending the past few years whipping up a frenzy about "pornography" online. They were one of the key campaigners for FOSTA, which they flat out admitted was step one in their plan to ban all pornography online. Recently, we've discussed how MasterCard had put in place ridiculous new rules that were making life difficult for tons of websites. Some of the websites noted that Mastercard told them it was taking direction from... NCOSE. Perhaps not surprisingly, just recently, NCOSE gave MasterCard its "Corporate Leadership Award" and praised the company for cracking down on pornography (which NCOSE considers the same as sex trafficking or child sexual abuse).

Of course, all of this has some real world impact. We've talked about how eBay, pressured to remove such content because of FOSTA and its payment processors, has been erasing LGBTQ history (something, it seems, NCOSE is happy about). And, of course, just recently, OnlyFans came close to prohibiting all sexually explicit material following threats from its financial partners -- only to eventually work out a deal to make sure it could continue hosting adult content.

But all of this online prudishness has other consequences. Scott Nover, over at Quartz, has an amazing story about how museums in Vienna are finding that images of classic paintings are being removed from all over the internet. Though, they've come up with a somewhat creative (and surprising) solution: the museums are setting up OnlyFans accounts, since the company is one of the remaining few which is able to post nude images without running afoul of content moderation rules. Incredibly, the effort is being run by Vienna's Tourist Board.

The Vienna Tourist Board said its museums have faced a litany of online challenges. After the Natural History Museum Vienna posted images of the Venus of Willendorf, a 25,000-year-old Paleolithic limestone figurine, Facebook deleted the images and called them pornographic. The Albertina Museum had its TikTok account suspended in July for showing nudes from the Japanese artist and photographer ​​Nobuyoshi Araki, CNN reported. And the Leopold Museum, which houses modern Austrian art, has struggled to advertise on social media because of the bans on nudity.

Even advertising the new OnlyFans account on other social media proved difficult, the board said. Twitter rejected links to the board’s website because it linked out to the OnlyFans account. (Twitter allows nudity on its platform as long as the account and images are labeled as such.) Facebook and Instagram only allowed ads featuring the Venus of Willendorf and a nude painting by Amedeo Modigliani after the tourist board explained the context to the platforms, but other images by artists Egon Schiele and Peter Paul Rubens were rejected.

This is all kind of ridiculous, but certainly falls into the Masnick's Impossibility Theorem collection of the impossibility of content moderation at scale. Of course, it also recalls the case in France where Facebook took down an classic 1866 oil painting by Gustave Courbet, in which the court initially ruled that Facebook could not take down the image. Facebook has (for many years now) had exceptions to its nudity rule for "art," but figuring out how to enforce that kind of thing is notoriously difficult.

And when you have prudish, moralizing busybodies like NCOSE pressuring companies to wipe out any and all nudity, it's no surprise that this kind of thing is the result. But, really, all of this seems likely to backfire in the end. Cordoning off even artistic nudity into sites like OnlyFans... also means that more and more people may be introduced to OnlyFans "for the paintings," only to discover what else is available there.

Filed Under: content moderation, museums, nudity, paintings, pornography, prudes, social media, vienna, vienna tourist bouard
Companies: onlyfans

NY Times Continues Its Inability To Report Accurately On Section 230 And Content Moderation

from the i-mean,-come-on dept

Daisuke Wakabayashi is a NY Times business reporter who seems to have a weird blind spot regarding Section 230 and online content moderation. Actually, perhaps "blind spot" isn't the right term for it. Two years ago, he was responsible for the massive full page, front page of the Business Section article falsely claiming that Section 230 was responsible for hate speech online. That's the one* where, infamously, the NY Times had to write a correction that completely undermined the headline of the article:

An earlier version of this article incorrectly described the law that protects hate speech on the internet. The First Amendment, not Section 230 of the Communications Decency Act, protects it.

* I say "the one" but, the NY Times has had to run that exact correction multiple times. The entire organization seems to have a weird blind spot about 230.

However, at least then, Wakabayashi knew that Section 230 existed. In a new article, it appears he's forgotten all about it. Which is weird. He's writing about a lawsuit against YouTube, filed by a non-profit, claiming that the company failed to remove animal abuse videos. So, just to get this out of the way: obviously animal abuse videos are horrible and it's awful that they exist. And it's reasonable to hope that YouTube would take down such videos (or, better yet, let authorities know when those videos present evidence that might be useful in tracking down those actually abusing animals!) And, of course, YouTube has long had policies against "animal abuse content."

But... content moderation at scale is impossible to do well, and mistakes are going to be made. Videos that violate policies will be left up, because it's impossible to find them all. And videos that should be left up are going to be taken down, because everything is a judgment call, and while some people assume that all of these calls are easy, most of them are much more nuanced.

Either way, this nonprofit, "Lady Freethinker" and its founder, Nina Jackel, are quite upset about how YouTube handles animal abuse videos. Last year, the organization put out a report highlighting animal abuse videos on the site (though it defines "animal abuse" quite broadly, to the point that many might disagree). According to the NY Times article, Lady Freethinker asked YouTube to be added as a "trusted flagger," but YouTube rejected that request (which could be for many, many reasons, including, perhaps, how broadly Lady Freethinker defines animal abuse).

And, thus, Lady Freethinker has sued YouTube. It will lose and lose easily, but we'll get there. Unfortunately, I can't post the complaint, because even though it's clear that Wakabayashi has a copy of it, the NY Times did not post a copy of the complaint, which (to me) is just pure journalistic malpractice. Similarly, Lady Freethinker put out a press release about the lawsuit, but also does not include the complaint. Kinda makes you wonder why not. The complaint is not in federal court (which would make it easy to access), but in California Superior Court in Santa Clara. And searches of the dockets there don't show the case at all (it's possible that the court updates its online case files much more slowly).

But the lack of the complaint is only the beginning of the journalistic malpractice here. The article never, not once, mentions Section 230, which clearly protects YouTube from this lawsuit, and is why the lawsuit will be thrown out quite quickly. That seems like a huge gap in the reporting -- especially from a reporter who wrote a huge (if highly criticized) article on Section 230!

The problems with the article get even worse. It does mention that the case is centered around claiming that YouTube is violating the federal "animal crushing" law, 18 USC 48, but leaves out the rather important history of that law. As Ken White discussed on his podcast a few years ago, the law was originally created out of a nonsense moral panic, and then was struck down by the Supreme Court (by an 8 - 1 opinion) for violating the 1st Amendment. Specifically, the majority opinion noted that the law outlawed a wide range of videos (including some at issue in the case, which are exactly like some of the videos Lady Freethinker complains about in its report) that are, in fact, protected by the 1st Amendment.

A few months later, Congress passed a revised version of the law, seeking to respond to the Supreme Court ruling by narrowing the focus of the law. Two years ago, Congress passed another update to the law, expanding the law a bit, but still not as far as the original law. So far, the new and updated laws have not been tested in court as the original one was -- however, it's not clear that the all of the current law would survive 1st Amendment scrutiny either.

But, even if the law did, the fact that YouTube is merely hosting the videos and not always finding them as quickly as Lady Freethinker thinks they should or not pulling down all the videos that such a non-profit has decided are bad, does not suddenly make YouTube liable. Both Section 230 and the 1st Amendment itself protect YouTube's content moderation decision making here, and this case is almost certainly going nowhere fast.

And you would think that the NY Times and its star reporters would, maybe, just maybe, mention some of that, rather than running an article that reads kinda like the press release from Lady Freethinker? I guess that's too much to ask.

Filed Under: 1st amendment, animal crush, content moderation, liability, nina jackel, section 230
Companies: lady freethinker, ny times, youtube

Court: Congressional Reps Making Noise About Social Media Moderation Doesn't Make Platforms Extensions Of The Government

from the better-to-be-silent-and-thought-foolish-than-sue-to-remove-all-doubt dept

Another set of plaintiffs insisting social media platforms have it in for "conservative" users have lost in court. The hook for this lawsuit is the (specious) claim that government officials' statements saying social media services should do more to curb the spread of misinformation (COVID, elections, etc.) somehow transformed these private companies into state actors. So, when they did decide to moderate the conspiracy theorists' accounts, it was ACTUAL CENSORSHIP.

Here's Eric Goldman's summary of the case, the plaintiff, and the lawsuit's outcome.

The plaintiffs are “conservative content creators” (i.e., QAnon enthusiasts) who posted videos to YouTube. YouTube suspended their accounts. The plaintiffs sued for First Amendment violations (presumably a 1983 claim). The court previously denied a TRO. YouTube now gets the case dismissed with prejudice. It’s not a close call.

In capable hands, I supposed this would have been handled more like an actual civil rights lawsuit, rather than the collection of novel First Amendment legal arguments it actually is. But, as Goldman points out, the litigants were represented by Cris Armenta, who is best known for representing a couple of actors who appeared in an incredibly bigoted video entitled "The Innocence of Muslims." In an attempt to make their embarrassing involvement in this embarrassing production disappear, the plaintiffs engaged in some ridiculous copyright infringement claims against YouTube. It did not go well for them or their legal rep, even if it took longer for the Ninth Circuit to deliver a solid rejection than it should have.

Things don't go well here either [PDF], which says something about Armenta's legal skills. Or choice of plaintiffs. Or both. The argument is that government people said stuff about moderating certain content. And, because certain content was moderated, YouTube was acting as an extension of the federal government. Hence the ridiculous First Amendment arguments, which the court handily rejects, citing yet another lawsuit represented by Cris Armenta, Daniels v. Alphabet.

The Court finds that the statements by federal lawmakers Plaintiffs point to are insufficient to plead that the government “commanded a particular result in, or otherwise participated in, [Plaintiffs’] specific case.” Heineke, 965 F.3d at 1014; see also Daniels v. Alphabet, No. 20-cv04687-VKD, 2021 WL 1222166, at *6 (N.D. Cal. Mar. 31, 2021). Plaintiffs point to generalized statements from lawmakers pertaining to “coronavirus-related misinformation,” “disinformation proliferating online,” “QAnon-related speech,” and “conspiracy theories.” None of the statements mention Plaintiffs’ names, their YouTube or Google accounts, their channels, or their videos. Plaintiffs argue that state actors “commanded a particular result” in their case because “Plaintiffs have alleged that Congress demanded that the unpopular speech dubbed ‘misinformation,’ and QAnon-related speech be limited and erased, which is precisely what Plaintiffs allege Defendants did.” The Court disagrees that broad lawmaker proclamations regarding “misinformation” or “QAnon-related speech,” for example, are sufficient to show that the government “commanded” the suspension of Plaintiffs’ accounts. Even if Defendants had complied with these lawmaker statements to the letter, they would still have had the ultimate discretion on what videos or accounts fit into buckets like “misinformation” or “QAnon-related speech.”

The lack of specificity in the government statements cannot be the basis for specific actions targeting the users' accounts. And, as the court goes on to point out, the content being sued about isn't clearly linked to any government official's categorical urgings.

The Court also disagrees with Plaintiffs that they have alleged sufficient facts about the content of their videos to link their removal to the broad categories of online content mentioned in the lawmakers’ statements. For example, Plaintiffs plead no facts to indicate that their videos pertained to COVID-19, so none of the statements from members of Congress relating to COVID-19 misinformation have any relevance to Defendants’ alleged conduct. Further, Plaintiffs plead only vague facts about other subjects that leave open the question as to whether all Plaintiffs posted about these subjects, or only some of them. And none of the lawmaker statements Plaintiffs cite contain clear action items relevant to Plaintiffs’ allegations. (encouraging YouTube to “display messages to any users who have engaged with harmful coronavirus-related misinformation”); (generally discussing “misconduct” related to “the division and the disinformation proliferating online”); (encouraging action on the part of the FBI, intelligence community, and “all Americans”).

Neither does a perhaps poorly worded exchange between YouTube and a member of Congress create a legitimate cause of action.

Plaintiffs assert that there is state action under a joint action theory, pointing to a Twitter exchange between Rep. Schiff and YouTube CEO Susan Wojnicki in which Ms. Wojnicki states, “We appreciate your partnership and will continue to consult with Members of Congress as we address the evolving issues around #COVID19.” Plaintiffs argue that this Twitter exchange shows Defendants and the federal government were in an “admitted partnership.”

First off, says the court, the thing about COVID and your lack of content related to COVID doesn't support your argument. Second, your hot take on a friendly social media exchange isn't actionable.

As a threshold matter, the Schiff-Wojnicki Twitter exchange Plaintiffs point to in support of their joint action claim clearly pertains to misinformation regarding COVID-19. As the Court discussed above, Plaintiffs have failed to allege any facts indicating that their posts pertained to COVID-19. Accordingly, it is unclear how this Twitter exchange supports a joint action theory pertaining to the suspension of Plaintiffs’ channels. Since the Twitter exchange appears to be the fact Plaintiffs primarily rely on to allege joint action, Plaintiffs’ failure to plead the relevance of this fact renders their joint action claim essentially unsupported. Further, it is simply implausible to read a casual Twitter exchange between one member of Congress and YouTube’s CEO as joint action. Plaintiffs’ theory would effectively cause companies to cease communicating with their elected representatives for fear of liability, as Defendants compellingly argue.

In other words, a little social media related grandstanding by politicians is not even remotely close to the government directly interceding in social media moderation or delivering mandates that strip platforms of their own discretion and replace that with the government's.

Of course, this will be appealed. And, on appeal, it will be rejected for exactly these reasons. And another attempt to bypass Section 230 immunity fails for reasons unrelated to this statute "conservatives" continue to believe violates their First Amendment rights.

Filed Under: 1st amendment, congress, conspiracy theories, content moderation, section 230, state action
Companies: youtube