Senator Hawley's Section 230 Reform Even Dumber Than We Expected; Would Launch A Ton Of Vexatious Lawsuits

from the dude,-seriously? dept

So there were rumors about Senator Hawley's bill to reform Section 230 earlier this week, saying that it would remove 230 protections if you used targeted ads. Today, Hawley released the actual plan, which is very different, but even dumber. It would certainly turn the GOP from the party that wanted to push for tort reform and limit frivolous and vexatious lawsuits into the party that encouraged an avalanche of wasteful litigation.

The shortest version of the bill's likely impact is that it would create an army of "content moderation troll" lawyers, because you could sue any platform that you felt removed your content unfairly and get $5,000 plus attorney's fees. With a bit more detail, the bill requires that a platform have clear terms of service and any moderation would have to be tied back to those terms -- which pretty much shows that whoever wrote this pile of shit has no idea how content moderation works, and the fact that you need to keep adjusting the actual content moderation practices, because dishonest people who are trying to abuse your system are always trying to game things to stay "technically" within the "terms" while still wreaking havoc on your platform.

The bill then says that if a platform makes any design or operation decision that is not in "good faith", anyone can sue them for $5k and attorneys' fees. Note that this seems to go beyond just moderation decisions. It includes a platform making design decisions that you dislike. That's... crazy. There's also the question of what is actually meant by "good faith" and all the 1st Amendment issues that raises, because determining what is and is not "good faith" is a straight up editorial decision, and the whole point of the 1st Amendment is that the courts can't jump in to second guess editorial decisions.

To be clear, this law's attempt to expand "good faith" seems to be purposely made in bad faith to simply overwhelm internet platforms with tons of lawsuits.

This bill flips the entire purpose of Section 230. As Jess Miers said, this bill seems to take the immunity from civil suits in the law and turns it into a private right of action for tons of frivolous and vexatious lawsuits.

It is not a serious attempt at reform. It's an unconstitutional pile of crap that seems to serve no other purpose than to allow whiny aggrieved grifters to shake down every platform for their moderation and design choices.

Filed Under: frivolous lawsuits, good faith, intermediary liability, josh hawley, moderation, section 230, trial lawyers

Cars, Guns, Cider, And Snapchat Don't Cause Crime

from the how-fast-am-i-typing? dept

A carefully posed photo of dangerous driving attracted some attention online in early May. The photo shows a picture from the driver’s seat of a Nissan. The photographer is driving, doing 90 mph as he brandishes a handgun with his finger resting on the trigger. To make matters worse, there’s an alcoholic cider propped against the dash. This extensive set of unsafe behaviors was intended to outrage, offend, and attract attention — all goals it undoubtedly met. And such foolishness is an invitation to a lengthy imprisonment. But it would be a mistake to treat Nissan, Heckler & Koch, Angry Orchard Hard Cider, the driver’s cell phone manufacturer, and whatever platform he used to share the photo as responsible for his misbehavior.

Unfortunately, two ongoing lawsuits against Snapchat apply this logic to the app’s speed filter feature. Alongside other sensor-based filters, like altimeters and location-based geofilters, Snapchat provides a speedometer filter that superimposes the user’s current speed over a photograph. Passengers can use the filter safely in all manner of vehicles, from boats to airplanes. However, it can also be used dangerously by reckless drivers speeding on public roads in pursuit of a high speedometer reading.

In September of 2015, teen driver Crystal McGee was allegedly traveling at over 100 miles-per-hour while using Snapchat when she struck Wentworth Maynard’s vehicle. McGee was later charged with causing serious injury by vehicle, but Maynard sued both McGee and Snapchat, attempting to hold the company responsible for McGee’s reckless driving.

In most cases, Section 230 of the Communications Decency Act indemnifies the creators of an “interactive computer service” against liability for consumer misuse of their publishing tools. The law prevents social media platforms from being treated as the “publisher or speaker” of user-generated content.

Indeed, the case was initially dismissed on Section 230 grounds, but this decision was reversed by the Georgia Court of Appeals. The court reasoned that because McGee did not actually post the photo, Snapchat was not being treated as the publisher of her speech, but the creator of a dangerous product that had somehow, per Maynard’s complaint, “facilitated McGee’s excessive speeding.” The court allowed the case to go forward because the suit “seek[s] to hold Snapchat liable for its own conduct, principally for the creation of the Speed Filter and its failure to warn users that the Speed Filter could encourage speeding and unsafe driving practices.”

It’s hard to see how the existence of Snapchat’s speedometer encouraged Crystal McGee to drive at 113 miles-per-hour on a busy road. Snapchat doesn’t reward users for achieving high speedometer ratings, and opening the filter triggers a popup warning reading: “Please, DO NOT Snap and drive.” Snapchat may have made it easier for her to record and share her behavior, but reckless drivers have long taken photos of their speed as displayed on the dash. One might just as easily claim that the existence of dashboard speedometers similarly encourages speeding. Arguably, driving fast might be less alluring without a way to determine how fast you’re actually going. The collection of items in the photo above all contribute to its outrageousness, yet none of the companies represented are responsible for the reckless tableau.

In Lemmon v. Snap, a similar case dismissed with leave to amend in February, the District Court for the Central District of California found that Section 230 protected Snapchat from liability because the filter “is a neutral tool, which can be utilized for both proper and improper purposes. The Speed Filter is essentially a speedometer tool, which allows Defendant’s users to capture and share their speeds with others.” While a user might behave recklessly in pursuit of a high recorded speed, the decision is theirs and theirs alone. The court describes the recorded speed as content submitted by the user. “While a user might use the Speed Filter to Snap a high number, the selection of this content (or number) appears to be entirely left to the user,” the Court reasoned. Snapchat doesn’t play a role in selecting the user’s speed, making it a “neutral tool” protected by Section 230.

While Maynard and Lemmon may seem like instances of overly litigious ambulance-chasing, and Snapchat will likely win its case even in the absence of Section 230, the suit’s sweeping theory of intermediary liability has supporters in Congress.

In a recent Federalist Society teleforum, Josh Divine, Deputy Counsel to Sen. Josh Hawley, argued that Snapchat should be held responsible for users’ misuse of the filter. Divine asserts that “most people recognize that this kind of tool is primarily attractive to reckless drivers and indeed encourages reckless driving,” ignoring both the varied, user-defined applications of the filter, and its inbuilt warning. He contends that plaintiffs in the speed filter lawsuits are “complaining about a reckless platform design decision” rather than anything “specific to speech.” However, Maynard and similar suits hinge on platform design’s facilitation of user speech. Snapchat is being sued upon the belief that it contributed to the plaintiffs’ injuries by providing a tool that allows speakers to easily tell others how fast they’re moving. Any remedy would involve limiting the sorts of speech that Snapchat can host.

Section 230 was intended to protect the creation and operation of communicative tools like Snapchat. In Maynard, litigants attempt to circumvent Section 230 by, in essence, suing over Snapchat’s non-use, alleging that Section 230 should not apply because McGee did not actually publish any photos taken before the crash. If merely creating a tool that can be used illegally or dangerously opens platforms to liability, Section 230 offers little real protection, and such a determination would imperil more than camera-speedometer amalgamations. Responsibility for one’s behavior — be it the dangerous acts pictured above, or the reckless driving at issue in Lemmon and Maynard — should rest with the individual.

Will Duffield is a Policy Analyst at the Cato Institute

Filed Under: blame, filters, intermediary liability, lawsuits, snapchat filters, tort law
Companies: snapchat

Think Of The Kitten: A Crash Course On Section 230

from the presidential-education dept

We are so hip here at Techdirt that we've been writing about Section 230 long before it was cool. But even though everyone and their President seems to be talking about it these days, and keen to change it, it does not seem like everyone necessarily knows what it actually says or does. Don't let this happen to you!

The embedded video below is of a presentation I gave earlier this year at ShmooCon where I explained the magic of Section 230 through the lens of online cat pictures. As we head into more months of lockdown, our need for a steady supply of cat pictures has never been more important. Which means Section 230 has never been more important.

In this presentation I explain why we have Section 230, what it does, why it works, and how badly we jeopardize our supply of online cat pictures (as well as a lot of other good, important stuff) if we mess with it.

Tune in!

Filed Under: cat pictures, cda 230, free speech, intermediary liability, kittens, section 230, shmoocon

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

Signal Speaks Out About The Evils Of The EARN IT Act

from the speak-out,-in-encrypted-fashion dept

Signal, the end-to-end encrypted app maker, doesn't really need Section 230 of the Communications Decency Act. It can't see what everyone's saying via its offering anyway, so there's little in the way of moderation to do. But, still, it's good to see it come out with a strong condemnation of the EARN IT Act, which as been put forth by Senators Lindsey Graham, Richard Blumenthal, Dianne Feinstein, and Josh Hawley as a way to undermine both Section 230 of the CDA and end-to-end encryption in the same bill. The idea is to effectively use one as a wedge against the other. Under the bill, companies will have to "earn" their 230 protections, by putting in place a bunch of recommended "best practices" which can be effectively put in place by the US Attorney General -- the current holder of which, Bill Barr, has made clear that he hates end-to-end encryption and thinks its a shame the DOJ can't spy on everyone. And this isn't just this administration. Law enforcement officials, such as James Comey under Obama, were pushing this ridiculous line of thinking as well.

To be clear, the EARN IT Act might not have a huge direct impact on a company like Signal -- since it doesn't really much rely on 230 protections (though it might at the margins). But it's good to see that it recognizes what a terrible threat the EARN IT Act would be:

It is as though the Big Bad Wolf, after years of unsuccessfully trying to blow the brick house down, has instead introduced a legal framework that allows him to hold the three little pigs criminally responsible for being delicious and destroy the house anyway. When he is asked about this behavior, the Big Bad Wolf can credibly claim that nothing in the bill mentions “huffing” or “puffing” or “the application of forceful breath to a brick-based domicile” at all, but the end goal is still pretty clear to any outside observer.

However as Signal makes clear, getting rid of end-to-end encryption is much more likely to harm everyone, without providing much help to law enforcement in the first place:

Bad people will always be motivated to go the extra mile to do bad things. If easy-to-use software like Signal somehow became inaccessible, the security of millions of Americans (including elected officials and members of the armed forces) would be negatively affected. Meanwhile, criminals would just continue to use widely available (but less convenient) software to jump through hoops and keep having encrypted conversations.

There is still time to make your voice heard. We encourage US citizens to reach out to their elected officials and express their opposition to the EARN IT bill. You can find contact information for your representatives using The Electronic Frontier Foundation’s Action Center.

Stay safe. Stay inside. Stay encrypted.

Filed Under: communications, earn it, encryption, intermediary liability, secrecy, section 230
Companies: signal

Burning The Ladder: Match.com Supports Burning Section 230 To The Ground, Despite Relying On It To Exist

from the what-the-fuck? dept

Here's one I didn't quite expect to see. Match.com -- the dating website owned by IAC, which owns basically every other major dating site, including OkCupid, PlentyOfFish, Tinder, Hinge, and a bunch of others as well -- has announced that it will support the idiotic EARN IT Act, that would utterly destroy Section 230 and the ability of websites to host user generated content. Match's publicly stated reasons for this are... bizarre. It doesn't actually explain why it supports it. It just says it does, that protecting children is important, and then some mumbo jumbo about the kids online these days -- none of which touches on what the bill would actually do.

At Match Group, the safety of our users is at the heart of all we do and something we are constantly investing in. However, the EARN It Act rightfully acknowledges that online safety is a societal issue that demands action from leaders in the social media and tech space and on Capitol Hill. The EARN IT Act would help accomplish this by establishing a joint commission of lawmakers, experts and industry participants to set standards and best practices for internet companies to follow in addressing online exploitation of children.

The only way I can read this in a manner that makes sense, is Match has realized -- as the absolute most dominant player in the field -- that it can handle whatever recommendations come out of this panel in order to retain its 230 protections. But it also knows that all those smaller competitors, the ones that Match keeps buying up left and right, probably, cannot. So, from a competitive standpoint, this strengthens Match's position vis-a-vis upstart competitors, and probably depresses their value, making them easier to buy up. Win-win... if you're Match.com.

The rest of the blog post is just pure propaganda.

As the mom of a teenager, I am constantly thinking about my own daughter’s safety. And as the chief executive of a company that includes some of the world’s leading dating brands—Match, Tinder, OkCupid, and Hinge—I find myself often awake at night thinking about my daughter’s future, her digital footprint and the safety and privacy issues that come with this territory.

And that's why you're supporting a bill that literally removes your ability to decide how best to run your platform and hands it to a bunch of bureaucrats who don't know your business? Say what?

I remember a time when tech didn’t encompass every area of life. That’s no longer true for today’s kids. They have been immersed in a device-driven, always-on world since birth, and it’s incumbent on us to give them the tools to thrive in this increasingly digital world.

And that's why... you no longer want to be able to decide which tools to give them... but instead give that right to the government? Why?

Given our kids spend so much time with technology, we need to take bolder steps to protect them. We know that sex traffickers, pedophiles and other predators target children in places where they believe them to be most vulnerable. The internet will continue to fail our children without the entire internet ecosystem investing in and adopting new rules, technologies and practices to better govern online interactions and crack down on predatory behavior.

Beyond the whole "targeting children" issue being overblown, one place where they are targeted is on dating sites -- and you're now signing up to be held liable for that on your own website.

That is why Match Group has voluntarily chosen to make all of our platforms 18+. Beyond the age requirement, we vigilantly deploy a network of industry-leading automated and manual moderation and review tools, systems and processes designed to find and remove people from our app who should not be there. This includes both underage users and the bad actors that could prey on them. We work with partners like the National Center for Missing and Exploited Children, Polaris, RAINN, Thorn and others to solicit recommendations from these experts. We welcome the opportunity to work with regulators to ensure that we are all coming together to protect our next generation of citizens. And, like most tech companies, we will continue to invest in new technologies and adopt new practices to try to stay ahead of predators.

That already happens. Most platforms already do that. So why are you good with adding liability on top of that, other than knowing you can handle it while your competitors cannot?

What's even more bizarre is why would IAC allow Match.com to support legislation like this that will harm other IAC properties, like Vimeo, HomeAdvisor, Angie's List, Dotdash (the former About.com), and more? The whole thing seems self defeating, unless the entire point is just to fuck over smaller competitors. Section 230 helped Match.com become the giant success it is today, and now it's burning the ladder it used to reach those heights, so no one else can get there. Despicable.

Filed Under: competition, dating sites, earn it, earn it act, intermediary liability, section 230
Companies: iac, match.com

Senators Pretend That EARN IT Act Wouldn't Be Used To Undermine Encryption; They're Wrong

from the plausible-deniability dept

On Wednesday, the Senate held a hearing about the EARN IT Act, the bill that is designed to undermine the internet and encryption in one single move -- all in the name of "protecting the children" (something that it simply will not do). Pretty much the entire thing was infuriating, but I wanted to focus on one key aspect. Senators supporting the bill, including sponsor Richard Blumenthal -- who has been attacking the internet since well before he was in the Senate and was just the Attorney General of Connecticut -- kept trying to insist the bill had nothing to do with encryption and wouldn't be used to undermine encryption. In response to a letter from Facebook, Blumenthal kept insisting that the bill is not about encryption, and also insisting (incorrectly) that if the internet companies just nerded harder, they could keep encryption while still giving law enforcement access.

“This bill says nothing about encryption,” Sen. Richard Blumenthal..., said at a hearing Wednesday to discuss the legislation...

[....]

“Strong law enforcement is compatible with strong encryption,” Blumenthal said. “I believe it, Big Tech knows it and either is Facebook is lying — and I think they’re telling us the truth when they say that law enforcement is consistent with strong encryption — or Big Tech is using encryption as a subterfuge to oppose this bill.”

No, the only one engaged in lying or subterfuge here is Blumenthal (alternatively, he's so fucking ignorant that he should resign). "Strong" encryption is end-to-end encryption. Once you create a backdoor that lets law enforcement in, you've broken the encryption and it's no longer stronger. Even worse, it's very, very weak, and it puts everyone (even Senator Blumenthal and all his constituents) at risk. If you want to understand how this bill is very much about killing encryption, maybe listen to cryptographer Matthew Green explain it to you (he's not working for "Big Tech," Senator):

EARN IT works by revoking a type of liability called Section 230 that makes it possible for providers to operate on the Internet, by preventing the provider for being held responsible for what their customers do on a platform like Facebook. The new bill would make it financially impossible for providers like WhatsApp and Apple to operate services unless they conduct “best practices” for scanning their systems for CSAM.

Since there are no “best practices” in existence, and the techniques for doing this while preserving privacy are completely unknown, the bill creates a government-appointed committee that will tell technology providers what technology they have to use. The specific nature of the committee is byzantine and described within the bill itself. Needless to say, the makeup of the committee, which can include as few as zero data security experts, ensures that end-to-end encryption will almost certainly not be considered a best practice.

So in short: this bill is a backdoor way to allow the government to ban encryption on commercial services. And even more beautifully: it doesn’t come out and actually ban the use of encryption, it just makes encryption commercially infeasible for major providers to deploy, ensuring that they’ll go bankrupt if they try to disobey this committee’s recommendations.

It’s the kind of bill you’d come up with if you knew the thing you wanted to do was unconstitutional and highly unpopular, and you basically didn’t care.

Or listen to Stanford's Riana Pfefferkorn explain how the bill's real target is encryption. As she explains, the authors of the bill (including Blumenthal) had ample opportunity to put in language that would make it clear that it does not target encryption. They chose not to.

As for the "subterfuge" Blumenthal calls out, the only real "subterfuge" here is by Blumenthal and Graham in crafting this bill with the help of the DOJ. Remember, just the day before the DOJ flat out said that 230 should be conditioned on letting law enforcement into any encrypted communications. So if Blumenthal really means that this bill won't impact encryption he should write it into the fucking bill. Because as it's structured right now, in order to keep 230 protections, internet companies will have to follow a set of "best practices" put together by a panel headed by the Attorney General who has said multiple times that he doesn't believe real encryption should be allowed on these services.

So if Blumenthal wants us to believe that his bill won't undermine encryption, he should address it explicitly, rather than lying about it in a Senate hearing, while simultaneously claiming that Facebook (and every other company) can do the impossible in giving law enforcement backdoor access while keeping encrypted data secure.

Filed Under: earn it, earn it act, encryption, intermediary liability, richard blumenthal, section 230

DOJ's Latest Ideas For Section 230 Reform Dumber Than Even I Expected

from the what-the-actual-fuck,-guys? dept

Ever since the DOJ started attacking Section 230 of the Communications Decency Act, it was obvious that it was simply a ploy to attack big tech companies that are (unfairly) seen as being "anti-conservative." Remember, that Section 230 explicitly exempts federal crimes -- the kind of law enforcement the DOJ is engaged in. That is, there is literally nothing in Section 230 stopping the DOJ from doing its job. But as Barr and the DOJ continued to attack 230, it also became clear that this was going to be a wedge issue he could use to undermine encryption -- encryption that keeps us all safe.

Last month, the DOJ hosted a "workshop" regarding Section 230, and again Barr and the DOJ's agenda became quite clear. For all the talk of "dangers" to children online, the DOJ ignored the fact that it has failed to abide by Congressional mandates regarding fighting child sexual exploitation, and Congress itself has failed to fund programs it has put forth to deal with the issue.

At the DOJ's 230 hearing, plenty of speakers highlighted why messing with 230 would create all sorts of problems. Unsurprisingly, the DOJ has ignored all of that, and sent out Deputy Attorney General Jeffrey Rosen to pitch four changes to Section 230, each one dumber and more counterproductive than even I had expected. The speech starts out with a misleading history of antitrust law -- the other big tool in the DOJ's toolbox to whack at internet companies -- and then gets to 230. If I have a chance I may get back to Rosen's antitrust discussion, but to keep this post from getting too long, we'll just focus on the 230 argument (ignoring the fact that evidence shows that 230 increases competition, rather than diminishes it).

Shifting gears just a little, as we focus on market-leading online platforms, there is another major issue that has come to the forefront: Section 230 of the Communications Decency Act of 1996. Section 230 has played a role in both the good and the bad of the online world. It has no doubt contributed to new offerings and growth online. At the same time, as DOJ is the agency tasked with protecting the American public through enforcing the law, we are concerned that Section 230 is also enabling some harm.

"Some harm" carries a lot of weight here. Lots of things "enable some harm." Not all of them require massive structural changes. After giving some background on 230 and why it's been useful, he then turns to "the dark side."

But there is a dark side, too. To say the least, the online world has changed a lot in the 25 years since the original drafting of Section 230. The Internet is no longer made up of the rudimentary bulletin boards and chat rooms of AOL, CompuServe, and Prodigy, but instead, it is now a vital and ever-present aspect of both personal and professional modern lives. Indeed, it is now quaint to think of the likes of CompuServe hosting online comments. Instead, major online platforms now actively match us with news stories and friends and, whether by algorithm or otherwise, effectively choose much of what our children see, and enable a seemingly limitless number of people to connect with us or with our children. And platforms are often themselves speakers and publishers of their own content, and not mere forums for others to communicate.

It's not that quaint. Many sites -- such as this one -- still rely on 230 daily. And when platforms are speakers and publishers of their own content, that content is not covered by 230. So it's not clear why that matters.

Now, a quarter century after its enactment, there also is recognition that Section 230 immunity has not always been a force for good, particularly in light of some of the extraordinarily broad interpretation given to it by some courts. For example, platforms have been used to connect predators with vulnerable children, to facilitate terrorist activity, and as a tool for extreme online harassment.

And, again, the DOJ has failed to prosecute many of those situations in which that violated federal laws. That's not on 230, that's on the DOJ. It also leaves out that 230 is what allows platforms to put in place programs to protect children, remove terrorist activity, and block "extreme online harassment. Rather than point that out, Rosen falsely suggests that 230 is to blame for it, rather than the reason it can be blocked.

The drafters of Section 230 might be surprised by this development. Remember, Section 230 was but one provision in the much larger Communications Decency Act of 1996. As its name suggests, the primary aim of the Communications Decency Act was to promote decency on the Internet and to create a safe environment for children online.

The drafters -- Chris Cox and Ron Wyden -- are both still with us. And both of them have made it clear in recent days that, no, they are not "surprised by this development." As for why 230 was a part of the Communications Decency Act, well, Rosen should read Jeff Kosseff's book. The CDA was a separate act, and 230 was attached to it by Cox and Wyden to enable platforms to have that moderation capability so that they could moderate, since without it, following the ruling in the Stratton Oakmont v. Prodigy case, moderation would have been effectively impossible.

As it turned out, the Supreme Court rejected most of the Communications Decency Act on First Amendment grounds. The most significant piece that survived was Section 230. But rather than furthering the purposes of its underlying bill, some scholars have argued that Section 230 has instead immunized platforms “where they (1) knew about users’ illegal activity, deliberately refused to remove it, and ensured that those responsible could not be identified; (2) solicited users to engage in tortious and illegal activity; and (3) designed their sites to enhance the visibility of illegal activity and to ensure that the perpetrators could not be identified and caught.”

Those scholars are wrong. Nearly every major platforms works hard to remove such content -- and, again, if it violates federal law, nothing has ever stopped the DOJ from enforcing the law.

To address these concerns and the others that have been raised, we see at least four areas that are potentially ripe for engagement. First, as a threshold matter, it would seem relatively uncontroversial that there should be no special statutory immunity for websites that purposefully enable illegality and harm to children. Nor does someone appear to be a “Good Samaritan” if they set up their services in a way that makes it impossible for law enforcement to enforce criminal laws. In these particular situations, why should not the website or platform have to defend and justify the reasonableness of their conduct on the merits just like businesses operating outside the virtual world?

This is the most disingenuous bit in the whole discussion. Rosen and the DOJ are obnoxiously linking two separate issues into a misleading "but think of the children" argument. Separately, the word "purposefully" is carrying a lot of water in this paragraph as well -- especially since the EARN IT act does not say "purposefully" but rather has a "reckless" standard (which is already probably unconstitutional). The second half of the paragraph, about the "Good Samaritan" part is a direct attack on encryption -- basically saying that if you offer end-to-end encrypted services, you should lose 230 protections. This is bizarre and stupid at the same time.

First, messaging communication services rarely need 230 protections anyway, since those communications are private, between users. There's no moderation issues in the first place. Second, framing encryption that keeps everyone safe as setting up a service to make "it impossible for law enforcement to enforce criminal laws" is super misleading. Encryption protects us all, and law enforcement has a ton of other tools to do their jobs. The problem is that the DOJ hasn't used those tools and now just wants to whack tech companies.

Finally, the last line is utter bullshit. It's framed in a manner to suggest that companies offering end-to-end encryption are no different than those (never actually identified) platforms who "purposefully enable illegality and harm to children" and then saying they should have to "justify the reasonableness of their conduct." You shouldn't have to justify protecting your users from getting hacked. It's self-evident to everyone but this DOJ.

Next, Rosen tries to get around the fact that the DOJ has failed to actually do its job by still blaming 230... because it's blocking civil cases.

Second, the Department of Justice is also concerned about Section 230’s impacts on our law enforcement function, and the law enforcement efforts of our partners throughout the executive branch. In our discussions with scholars and members of the public on this topic, many are surprised to learn that Section 230 is increasingly being claimed as a defense against the federal government in civil actions. To be clear, Section 230 has a carve-out for certain federal criminal enforcement. But not all problems can be solved by federal criminal law. Federal civil actions play a very important role in their own right. The increasing invocation of Section 230 in federal civil enforcement actions often goes beyond the purpose of the Communications Decency Act, and can undermine the goals of 230 itself.

Can he point to an actual example of useful, reasonable, non-crazy civil actions blocked by 230? Because the very fact that he doesn't give any examples should give you that answer. 230 protects against frivolous ambulance chasing civil suits -- the kind we're already seeing from the last time we amended 230 -- and not legitimate lawsuits.

Third, we are concerned about expansions of Section 230 into areas that have little connection to the statute’s original purpose. As I mentioned earlier, the core of Section 230 concerns defamation and other speech-related torts. And for good reason: The restaurant review platform, for example, has no idea whether the user is right when he says the soup was cold or when she says the service was poor. Nor does the social media site have any idea whether the nosy neighbor’s online comments about the new person down the block are true or not. Civil immunity from tort litigation for online platforms in these instances makes some sense. The alternative would be a quasi-heckler’s veto, where the restaurant or neighbor could complain about the comments, and the platform would be forced to take them down for fear of civil liability.

But some websites have tried to transform Section 230 into an all-purpose immunity for claims that are far removed from speech. For example, some platforms have argued that Section 230 permits them to circumvent or ignore city ordinances on licensing of rental properties. While these types of arguments have not always succeeded, they demonstrate the potentially overbroad scope that some advocates have given the immunity.

This is a misleading summary of a complex issue. What's at issue is whether or not a service like Airbnb can be held liable for user listings on the site. But user listings are speech. Cities have every right to go after those actually posting the listings -- since they're the ones breaking the law. But many cities are trying to go after Airbnb directly, since it's easier to go after just one player.

And here's the big thing that Rosen absolutely leaves out: so far Airbnb has been losing in court. So for all his concerns that 230 is being used "beyond" what it should cover, the courts have already shut that aspect down (in my view, the courts have gone too far, in fact).

Fourth, we are concerned about the extent to which platforms have expanded the use of Section 230 to immunize taking down content beyond the types listed in the statute. Under the Good Samaritan provision, platforms have the ability to remove content that they have a “good faith” belief is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” We are told that some platforms treat this provision as a blank check, ignoring the “good faith” requirement and relying on the broad term “otherwise objectionable” as carte blanche to selectively remove anything from websites for other reasons and still claim immunity.

Perhaps there needs to be a more clear definition of “good faith,” and the vague term “otherwise objectionable” should be reconsidered. Of course, platforms can choose whether or not to remove any content on their websites. But should they automatically be granted full statutory immunity for removing lawful speech and given carte blanche as a censor if the content that is not “obscene, lewd, lascivious, filthy, excessively violent, or harassing” under the statute?

If the attack on encryption is the most ridiculous, this part is the most frivolous. First of all, having the government determine whether or not moderation choices are made in "good faith" or if they fit outside of "obscene, lewd, lascivious, filthy, excessively violent, or harassing" under the statute would almost certainly violate the 1st Amendment. Second, the removal of "otherwise objectionable" would create a massive problem for online moderation, and would, in fact bring back the "extreme online harassment" he was complaining about just a few paragraphs earlier.

Of course, we all know what is being dog-whistled in this prong: he wants to penalize platforms for "anti-conservative bias" and push for some nonsensical, impossible "neutral" standard for platforms who want 230 protections. But just the fact that this would wipe out the ability to block harassment, while at the same time he's complaining about harassment should show you how brain dead and backwards this proposal is.

This is not a serious proposal, but in this time and place, with the DOJ's backing, it has as serious chance of being put into law. It would devastate large parts of the internet, but that seems like collateral damage for a DOJ who is not focused on what's actually best for society and the economy, but rather what's best for itself.

Filed Under: cda 230, doj, encryption, intermediary liability, jeffrey rosen, section 230, william barr