Utah Legislature Wraps Up Session By Passing Two Unconstitutional Internet Bills

from the nice-work,-everyone dept

Last week we wrote about the many, many, many constitutional problems with a bill proposed in Utah to try to tell internet companies how they can moderate content. As we noted, the bill clearly violates the 1st Amendment, the Commerce Clause, and is also pre-empted by Section 230.

So, of course, it passed.

The Salt Lake Tribune report has a stunning set of paragraphs that demonstrate that supporters of the bill not only ignored many, many experts telling them the constitutional problems with the bill, but they then pretended no one notified them of those concerns (this is blatantly false):

“What we are talking about here are large, private forums that are free to moderate themselves and to put up what they want to put up and censor and kick off those people they choose to,” added House Minority Leader Brian King, D-Salt Lake City. “If we pass this bill, the Utah taxpayers are going to pay large amounts of money to defend the constitutionality of this bill against a lot of large entities that have many resources.”

Brammer shot back that he was not made aware of any constitutional issues with the legislation. However, a legal analysis from the Office of Legislative Research and General Counsel shared with The Salt Lake Tribune raises several potential constitutional and legal problems.

Legislative attorneys advised that HB228 may violate the First Amendment by compelling speech through requiring these companies to provide information about their moderation practices, although that may not be an impermissible burden given their vast resources.

The memo also warns the bill could violate the Constitution by placing an “undue burden on interstate commerce.”

Finally, the legislation might be unenforceable because of provisions in the federal Communications Decency Act.

It's one thing to ignore me -- I'm just a loud mouth blogger. But to flat out ignore the points raised by legislative attorneys, making it clear that you're going to waste a ton of taxpayer money? That's just obnoxious. Rep. Brady Brammer should be ashamed.

And that wasn't the only unconstitutional tech-related bill the Utah legislature passed as it wrapped up its session. It also passed a porn filter bill that would mandate a porn filter on any phone, computer, tablet or other electronic device.

Just like the many, many, many other attempts at such bills, this one is also blatantly unconstitutional. In the key case that made all of the Communications Decency Act (minus Section 230) unconstitutional, Reno v. ACLU, the Supreme Court (with a 9-0 vote) made it quite clear that governments cannot mandate the blocking of pornographic material online. In that case, the Supreme Court went through many reasons why governments don't get to mandate filters for indecent content.

Utah's legislators haven't even attempted to address any of those concerns. Incredibly, the Salt Lake Tribune quotes even those who voted for the bill as saying that the bill has serious problems and will require follow up legislation to fix.

“As much as the intentions of this bill are good, logistically it just won’t work,” Anderegg, R-Lehi, said. “And I think if we pass this bill, it sends a good message. ... But we absolutely will be back here at some point in the future, maybe even in a special session to fix this.”

Anderegg ultimately voted in support of the bill, saying that while he has “a lot of trepidation” about the bill, he doesn’t “want to be the guy” who opposes an attempt to shield children from graphic content.

Incredible. Admitting you voted for a bill that you know won't work.. and saying you have to to protect the children, is quite an admission. The bill not only won't work, it's unconstitutional. And that's not the kind of thing you fix in a "special session." You just don't pass unconstitutional bills.

And if the goal is not to have children looking at porn, why not... let parents do their jobs and if they want to install a filter, let them do so. Remember "personal responsibility"?

Filed Under: content moderation, filters, free speech, internet, porn, porn filters, social media, utah

Why The Problems With Police And Social Media Both Are Symptoms Of The Same Disease: A Failure Of Society To Actually Help Those In Need

from the a-link dept

I've written in the past, many times, about how so many people keep wanting to blame social media companies, or intermediary liability laws, for what are only a manifestation of larger societal issues. Social media is only serving to make evident what was previously hidden. A few weeks ago, we quoted UK tech policy expert Heather Burns noting that intermediary liability laws were being expected to pick up the slack for a wide variety of other failures regarding mental health care, social safety nets, criminal and civil justice issues and more. Basically, a whole bunch of government failures were leading to problems in society, which were then being seen online. And rather than trying to fix the underlying causes of those, people were... blaming the internet. Burns later came on our podcast and we had a great detailed discussion about this issue.

A few days later, I heard a fascinating interview on NPR's Fresh Air. The interview was with Rosa Brooks, a law professor and human rights activist, who joined the Washington DC police force as a reserve officer for a period of four years (for most of the Trump administration). The interview is really quite fascinating on a variety of levels, but one thing stood out to me -- that actually connects back to the point that Burns raised about how we're expecting the internet and intermediary liability laws to fill in for all the massive failures of society. To some extent, Brooks made the same point about the police: we've undermined so many other social safety nets, that we now expect the police to fill in for just about everything else.

This isn't a new idea, of course. Tim Cushing has covered this point over and over again right here on Techdirt, including just recently, in writing about Denver's test to switch to sending out mental health professionals rather than police on distress calls that did not appear to involve criminal behavior, and how it had been a huge success. For many years, Tim has posted other similar stories, where it's just so dumb to send police to deal with a societal failing -- often in the mental health arena, but elsewhere as well.

In the Brooks interview, she notes how silly it is to have armed cops handling traffic stops. So many needless police shootings involve traffic stops where the cops overreact and shoot someone they stopped for some minor infraction. We could easily separate out the roles, and make traffic enforcement done entirely differently, by traffic enforcers who are not police with guns, but have a more administrative role.

And when you combine all of this, you realize that both of these threads really are about the same thing, from different angles. Society has failed to deal with mental health. It has failed to deal with extreme poverty. It has failed to deal with criminal justice and civil justice reform. And those are all creating messes. But rather than expect the government and public policy to actually clean up the messes -- we're dumping them on social media companies... and the police. And both are leading to disastrous outcomes.

Filed Under: mental health, police, safety nets, social media, society

India's New Cyber Law Goes Live: Subtracts Safe Harbor Protections, Adds Compelled Assistance Demands For Intermediaries

from the out-with-the-good,-in-with-the-bad dept

New rules for social media companies and other hosts of third-party content have just gone into effect in India. The proposed changes to India's 2018 Intermediary Guidelines are now live, allowing the government to insert itself into content moderation efforts and make demands of tech companies some simply won't be able to comply with.

Now, under the threat of fines and jail time, platforms like Twitter (itself a recent combatant of the Indian government over its attempts to silence people protesting yet another bad law) can be held directly responsible for any "illegal" content it hosts, even as the government attempts to pay lip service to honoring long-standing intermediary protections that immunized them from the actions of their users.

Here's a really bland and misleading summary of the new requirements from the Economic Times, India's most popular business newspaper:

The guidelines propose additional responsibilities on social media companies. These include verifying users through mobile numbers, tracing origin of messages required by a court order and building automated tools to identify child pornography and terror-related content. All these requirements come under the ambit of under due diligence.

This sounds like pretty reasonable stuff. But it isn't because it goes much farther than what's summarized here and turns a whole lot of online discourse into potentially illegal content.

(a) belongs to another person and to which the user does not have any right to;
(b) is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or other proprietary rights;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
(g) impersonates another person;
(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
(i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.
(j) threatens public health or safety; promotion of cigarettes or any other tobacco products or consumption of intoxicant including alcohol and Electronic Nicotine Delivery System (ENDS) & like products that enable nicotine delivery except for the purpose & in the manner and to the extent, as may be approved under the Drugs and Cosmetics Act, 1940 and Rules made thereunder;
(k) threatens critical information infrastructure.

The new mandates demand platforms operating in India proactively scan all uploaded content to ensure it complies with India's laws.

The Intermediary shall deploy technology based automated tools or appropriate mechanisms, with appropriate controls, for proactively identifying and removing or disabling public access to unlawful information or content.

This obligation is not only impossible to comply with (and is prohibitively expensive for smaller platforms and sites/online forums that don't have access to AI tools), it opens up platforms to prosecution simply for being unable to do the impossible. And complying with this directive to implement this demand undercuts the Safe Harbour protections granted to intermediaries by the Indian government.

If you're moderating all content prior to it going "live," it's no longer possible to claim you're not acting as an editor or curator. The Indian government grants Safe Harbour to "passive" conduits of information. The new law pretty much abolishes those because complying with the law turns intermediaries from "passive" to "active."

Broader and broader it gets, with the Indian government rewriting its "national security only" demands to cover "investigation or detection or prosecution or prevention of offence(s)." In other words, the Indian government can force platforms and services to provide information and assistance within 72 hours of notification to almost any government agency for almost any reason.

This assistance includes "tracing the origin" of illegal content -- something that may be impossible to comply with since some platforms don't collect enough personal information to make identification possible. Any information dug up by intermediaries in support of government action must be retained for 180 days whether or not the government makes use of it.

More burdens: any intermediary with more than 5 million users must establish permanent residence in India and provide on-call service 24/7. Takedown compliance has been accelerated from 36 hours of notification to 24 hours.

Very few companies will be able to comply with most of these directives. No company will be able to comply with them completely. And with the government insisting on adding more "eye of the beholder" content to the illegal list, the law encourages pre-censorship of any questionable content and invites regulators and other government agencies to get into the moderation business.

Filed Under: censorship, content moderation, filters, free speech, general monitoring, india, intermediary liability, social media

Parler's Found A New Host (And A New CEO)... For Now

from the ah-look-at-that dept

On Monday Parler announced to the world that it was back with a new host (and a new interim CEO after the board fired founder and CEO John Matze a few weeks ago). The "board" is controlled by the (until recently, secret) other founder: Rebekah Mercer, who famously also funded Cambridge Analytica, a company built upon sucking up social media data and using it to influence elections. When Matze was fired, he told Reuters that the company was being run by two people since he'd been removed: Matthew Richardson and Mark Meckler.

Richardson has many ties to the Mercers, and was associated with Cambridge Analytica and the Brexit effort. Meckler was, for a few years, considered one of the founding players and leading spokespeople for the "Tea Party" movement in the US, before splitting with that group and pushing for a new Constitutional Convention (at times in a "strange bedfellows" way with Larry Lessig). With the news on Monday that Parler was back up (sort of), it was also announced that Meckler had taken over as interim CEO.

Given the role of Meckler, Richardson, and Mercer, you can bet that the site is still pushing to be the Trumpiest of social media sites. As for who is actually the new hosting firm, there's been some confusion in the press. The twitter account @donk_enby, who famously scraped and archived most of the older Parler before it was shut down by Amazon last month, originally said Parler's new hosting firm was CloudRoute, who it appears may just be a Microsoft Azure reseller of some kind. In a later tweet, @donk_enby mentions that another firm, SkySilik, seems to share an IP space with CloudRoute, perhaps renting IP addresses from CloudRoute.

A few hours later, SkySilk admitted to being the new hosting company and put out a weird statement that suggests a somewhat naive team who had no idea what they were getting into:

SkySilk, a Web infrastructure company based outside of Los Angeles, is now hosting Parler, SkySilk's chief executive, Kevin Matossian, confirmed to NPR.

"SkySilk is well aware that Parler has received an aggressive response from those who believe their platform has been used as a safe haven for some bad actors," Matossian said in a statement. "Let me be clear, Skysilk does not advocate nor condone hate, rather, it advocates the right to private judgment and rejects the role of being the judge, jury, and executioner."

He said while the company many disagree with some of Parler's content, he believes the company is taking "necessary steps" to monitor its platform.

"Once again, this is not a matter of SkySilk endorsing the message, but rather, the right of the messenger to deliver it. SkySilk will support Parler in their efforts to be a nonpartisan Public Square as we are convinced this is the only appropriate course of action," he said in a statement.

Nonpartisan, eh? Remember, Parler has a long history of taking down "leftist" accounts and bragging about it. Bizarrely, SkySilk's CEO is... also a Hollywood film producer.

Separately, it appears that the new Parler is not using the Russian service "DDoSGuard" for DDoS protection. It had been using it for some time while it had a placeholder page up, but that appears to no longer be the case.

Reports, including the NPR report linked here, note that the new Parler says that it will moderate content, using "an algorithm and human moderators" to take down content "that threatens or incites violence." It also promises that there will be an appeals process for moderated content. The moderation will also include a "trolling filter" that will apparently hide, but not remove, "content that attacks someone based on race, sex, sexual orientation or religion." People who wish to view such content can do so by clicking through.

All of the old content appears to have been wiped out, though the old accounts remain. There are also lots of reports claiming that the site is struggling to stay up (indeed, as I type this it appears to be down again).

This certainly seems somewhat shaky, at best, and it will be fun to watch and see if a random "cloud hosting" firm, run by a small time Hollywood producer, that almost no one has heard of, can actually handle this kind of traffic and attention.

Filed Under: content moderation, hosting, john matze, kevin matossian, mark meckler, matthew richardson, social media
Companies: parler, skysilk

Without Twitter, Trump Is Left To Write Tweets He Would Have Said On Paper

from the that's-so-pathetic dept

With both Twitter and Facebook banning Donald Trump's account last month, after he inspired a mob of goons to ransack the Capitol, there has been something of an eerie quiet in the world. Having spent years making sure that every one of his often disconnected-from-reality tweets makes headlines or ruins many peoples' days, the sudden quiet has been kind of odd.

Many people have wondered why he hasn't gone elsewhere. While Parler is still down (but expected to return soon), many were surprised that Trump never used it, since his base basically adopted it as their own. However, late last week it was revealed that the Trump Organization had been negotiating (while Trump was President) with Parler for him to first take a huge equity ownership stake in Parler before joining the platform. For whatever reasons the agreement did not materialize.

However, a Daily Beast article, mostly about Trump's views on Liz Cheney, drops a little hint about how Trump has been dealing with his inability to tweet: he's writing out what he would have tweeted on paper and hoping someone else will tweet it for him:

But due to Twitter’s banning of the @realDonaldTrump account following the Capitol riot that Trump instigated, he has not been able to personally trash Cheney via his once widely read tweets. He has written out insults and observations, several of them about Cheney, but with no ability to tweet them himself, he has resorted to suggesting put-downs for others to use or post to their own Twitter, according to a person with direct knowledge of this new habit.

This is... just incredibly pathetic.

But it's also a combination of weird and a little fascinating. The simple fact is that Trump could easily post these little thoughts online. It would not be difficult for his team to set up a personal webpage that would host these tweets -- which would easily get plenty of attention (perhaps not as much and not as immediately as tweets, but still way more than most people). There's even code out there he could make use of to effectively set up his own mini-Twitter, where it was just him posting his thoughts.

But he doesn't do that. He just writes them out where no one but the people around him can see them. I'm not entirely sure what it means, but one possibility is that the thing he liked most about Twitter was not so much the ability to speak, but the audience it guaranteed. At the very least, that's interesting to think about, considering that we tend to view the use of these platforms more about our ability to speak, and less about our ability to have reach for that speech.

Either way, take some solace in the fact that while most of us can continue to tweet, the former President is sitting around with a sharpie and a piece of paper, analog tweeting into nothingness.

Filed Under: bans, content moderation, donald trump, social media
Companies: parler, twitter

No, Getting Rid Of Anonymity Will Not Fix Social Media; It Will Cause More Problems

from the not-this dept

There's an idea that pops up every so often among people who are upset about misinformation online but don't actually understand the realities of online communities and the dynamics of how it all works: it's the idea that "anonymity" is the root cause of many of the internet's problems. We've spent years debunking this, though it's been nearly a decade since there was a previous focus on this issue -- and it's now coming back.

Unfortunately, part of the reason it's coming back is because a friend of Techdirt, Andy Kessler (who we've even published on Techdirt), wrote a piece for the Wall Street Journal calling for the end of anonymity online. I will note, that a large part of the article is correct: the part that accurately notes that Section 230 is not the problem and reforming or repealing it will do a lot more harm than good. That is exactly right.

But then Andy goes off the rails and decides that getting rid of anonymity is the real solution.

He's wrong, and we'll get into why in a moment. But, tragically, his piece has picked up some supporters in high places. Senator Ron Johnson, one of the key enablers of spreading disinformation in Congress (under his own name, of course), tweeted a link to the article, saying that perhaps we should end anonymity online:

That says:

I'm concerned that Congress’s involvement in Section 230 reform may lead to more harm than good.

One solution may be to end user anonymity on social media platforms. Social media companies need to know who their customers are so bad actors can be held accountable.

The next day, Senator John Kennedy, another famed Senatorial spreader of disinformation under his own name, announced that he was going to introduce legislation to ban anonymity online. Specifically, he said social media companies would have to verify the legal identities of every user, and said that this would "cause a lot of people" to "think about their words."

There are three big problems with this idea:

1. It's unconstitutional.
2. It doesn't work.
3. It creates real harms & puts marginalized and vulnerable people at risk.

Beyond those three things, it's a lovely idea. Did I say lovely? I meant short-sighted and half-baked.

Let's go through it bit by bit.

It's unconstitutional.

Basically, throughout the 20th century, there were a series of cases that reached the Supreme Court on the question of anonymity and whether or not the government could force the revealing of names. The most notable was McIntyre v. Ohio Elections Commission in 1995, where the Supreme Court was pretty explicit:

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.... It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation--and their ideas from suppression--at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.

Some people might argue that "this is different" thanks to social media, but the details of the McIntyre case suggest that is very much in line with what is happening today. Some may argue that since we're often talking about speech trying to influence an election, it is different. Or what about to stop fraud? Or defamation? Literally all of that is covered in the McIntyre ruling:

The state interest in preventing fraud and libel stands on a different footing. We agree with Ohio's submission that this interest carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large. Ohio does not, however, rely solely on §3599.09(A) to protect that interest. Its Election Code includes detailed and specific prohibitions against making or disseminating false statements during political campaigns. Ohio Rev. Code Ann. §§3599.09.1(B), 3599.09.2(B) (1988). These regulations apply both to candidate elections and to issue driven ballot measures.... Thus, Ohio's prohibition of anonymous leaflets plainly is not its principal weapon against fraud.... Rather, it serves as an aid to enforcement of the specific prohibitions and as a deterrent to the making of false statements by unscrupulous prevaricators. Although these ancillary benefits are assuredly legitimate, we are not persuaded that they justify §3599.09(A)'s extremely broad prohibition.

As this case demonstrates, the prohibition encompasses documents that are not even arguably false or misleading. It applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using only their own modest resources. It applies not only to elections of public officers, but also to ballot issues that present neither a substantial risk of libel nor any potential appearance of corrupt advantage. It applies not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance. It applies no matter what the character or strength of the author's interest in anonymity. Moreover, as this case also demonstrates, the absence of the author's name on a document does not necessarily protect either that person or a distributor of a forbidden document from being held responsible for compliance with the election code. Nor has the State explained why it can more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection. We recognize that a State's enforcement interest might justify a more limited identification requirement, but Ohio has shown scant cause for inhibiting the leafletting at issue here.

Basically all of that would apply to social media as well.

Kessler's WSJ piece suggests that this would be no different than Know Your Customer (KYC) requirements in the financial industry, but that is quite different. That is an explicit rule developed for determining fraud. It is easily distinguishable from what is being demanded here on two key points. First, social media involves tons of 1st Amendment protected speech, so any law attacking anonymity there would require strict scrutiny to make sure that it was narrowly targeted and the only effective way to meet a specific goal (which it is not). Separately, the goal of having a KYC setup for social media is not to stop fraud. As Kennedy himself said (revealing its unconstitutional purpose), it would be to make people "think about their words."

It doesn't work.

Proof? Facebook already requires real names.

I really shouldn't need much more than that, but just to humor you: back in 2016 we wrote about a huge study involving half a million comments online and found that trolls tended to be even worse when using their real names.

Results show that in the context of online firestorms, non-anonymous individuals are more aggressive compared to anonymous individuals. This effect is reinforced if selective incentives are present and if aggressors are intrinsically motivated.

This is not to say all people using their real names are overly aggressive. Or that all anonymous users are lovely. But the idea that anonymity is the problem is just... not supported by the facts.

And, just to point out something important: the storming of the Capitol was pushed for by a ton of people using their real names. They didn't do it thinking they were anonymous.

It creates real harms & puts marginalized and vulnerable people at risk.

Back in 2011 we had a post talking about the damage that can be done by requiring people to identify themselves on social media. It included a list from another site of reasons people gave for wanting to use pseudonyms, and you'll realize there are some really good ones. The original link is now gone, but I'll repeat them here:

• I am a high school teacher, privacy is of the utmost importance.
• I publish under my nom de plume, it's printed on my business cards, and all of the thousands of people I know through my social networks know me by my online name.
• I have used this name/account in a work context, my entire family know this name and my friends know this name. It enables me to participate online without being subject to harassment that at one point in time lead to my employer having to change their number so that calls could get through.
• I do not feel safe using my real name online as I have had people track me down from my online presence and had coworkers invade my private life.
• I've been stalked. I'm a rape survivor.
• I work for a private club. I have to carry a card around which states I will not share any element of the club with any sort of media. So, If I want to talk about work (and I do) on the net, I have to use an alias.
• I've been using this name for over 10 years in the "hacking" community. There are a nontrivial amount of people who know me *only* by that name.
• As a former victim of stalking that impacted my family I've used [my nickname] online for about 7 years.
• Under [this name] I am active in a number of areas of sexual difference for which it would not be wise for me to use my flesh legal name.
• My actual real name is utterly non-identifying, as 1) it is the name of a character in a movie, and that overwhelms google search results 2) it's not unique at ALL.
• [this name] is a pseudonym I use to protect myself. My web site can be rather controversial and it has been used against me once.
• I started using [this name] to have at least a little layer of anonymity between me and people who act inappropriately/criminally. I think the "real names" policy hurts women in particular.
• I use the pseudonym to maintain my online anonymity because I am polyamorous and have no desire for professional acquaintances to discover this.
• I enjoy being part of a global and open conversation, but I don't wish for my opinions to offend conservative and religious people I know or am related to. Also I don't want my husband's Govt career impacted by his opinionated wife, or for his staff to feel in any way uncomfortable because of my views.
• I have privacy concerns for being stalked in the past. I'm not going to change my name for [social media]. The price I might pay isn't worth it.
• We get death threats at the blog, so while I'm not all that concerned with, you know, sane people finding me. I just don't overly share information and use a pen name.
• This identity was used to protect my real identity as I am gay and my family live in a small village where if it were openly known that their son was gay they would have problems.
• I go by pseudonym for safety reasons. Being female, I am wary of internet harassment.

Such a list can go on and on. As Danah Boyd has written, requiring people give their real names is itself an abuse of power. And, just to back that up, note that the people now calling for it are the powerful.

The people who most heavily rely on pseudonyms in online spaces are those who are most marginalized by systems of power. “Real names” policies aren’t empowering; they’re an authoritarian assertion of power over vulnerable people.

Boyd notes that in collecting data on teen use of social media, she found that people of color were significantly more likely to use pseudonyms, while white teens were more likely to use their real names.

And, of course, none of this discusses what a total pain this would be for most sites. We've always allowed people to comment anonymously on Techdirt. If we were required to verify every commenter, we'd most likely shut down the comments -- which remain such a key part of the site here. It's also where we learn so much, often from anonymous or pseudonymous commenters. I have no idea the identity of nearly all of our best commenters, and I don't want or need to know.

So, please, can we dump this silly idea? Anonymity doesn't solve the problems you think it would, and it would put people at risk.

Filed Under: anonymity, john kennedy, ron johnson, social media, trolling

Inauguration Has Happened, Google And Facebook Should End The Ban On Political Advertisements

from the it's-not-all-presidential-campaigns-and-nonsense dept

In light of the events at the Capitol, social media and other online companies have been reevaluating who they let speak on their platforms. The ban of President Trump from Twitter, Facebook, and various other platforms has sparked fierce debate over moderation and free speech. But Google’s recently reinstituted ban on political advertisements until at least inauguration day and the continued ban from Facebook are silencing voices that need to be heard the most – those speaking about state and local political issues.

Before last November’s election, both Google and Facebook restricted the ability of political advertisers to submit and run new ads. This policy was implemented to prevent situations like those in 2016, when Russian agents were able to purchase $100,000 in Facebook ads related to that year’s presidential election. Although these ads did nothing to affect the outcome of the election, they gave rise to the spurious narrative that Russia “hacked” the election.

But Facebook’s ban has continued far past election day under the stated purpose of preventing ads claiming the election results were rigged or that the election had been stolen. Google eventually returned to allowing ads and Facebook made an exception for the Georgia runoff. However, the companies’ most recent bans leave many smaller speakers without two of their most important platforms, despite the policies’ failure to prevent the spread of doubt over the 2020 election results.

Politicians like Alexandria Ocasio-Cortez and Ted Cruz, while certainly benefiting from social media, can reach an audience without these platforms. But many other speakers who want to speak to local audiences about important political issues have come to rely on them.

Before the advent of targeted online advertisements, communicating and organizing locally required going door-to-door or hanging flyers in your neighborhood. If you could find enough support, perhaps you could even set up a meeting in a public space. The old system was not only inefficient, but often costly in terms of time and money.

This is what makes advertising on Facebook and Google so valuable to those wanting to engage on important issues. Want to inform your neighbors about a city board meeting over a key issue for your community? Want to build a coalition of people to support or oppose an issue at your state capitol? Facebook and Google can do so more successfully, and at a fraction of the cost.

This is often the most important kind of political engagement - forming relationships with your fellow citizens to make your voices heard on issues that carry major personal impacts and are far too often under-reported and less understood.

And make no mistake, the last year has featured no shortage of critical state and local issues.

State legislatures are already in session dealing with important and contentious topics like education, budget cuts, and of course, the rollout of the COVID-19 vaccine. Local governments are still dealing with shutdowns and business closures as the pandemic continues into 2021. And as organizing in person gets increasingly difficult, if not impossible, digital tools are becoming even more important.

Key state and local issues are also too often drowned out by politics at the national level. Given the turbulent times we are living through, who can blame people for being glued to the events unfolding in Washington? That’s why Facebook and Google ads are important tools to draw attention to state and local issues.

Inauguration is over and the stated purpose of banning these ads has passed. But more importantly our federalist system of government means that politics don’t only happen at the national level. Rather, the political issues that most greatly affect our lives are those closest to home. Facebook and Google should recognize this fact and end its political ad ban which puts national politics ahead of state and local issues.

The internet is at its best when it informs and connects local communities on the issues that impact them. Blanket political ad bans lessen the opportunity for this kind of much-needed engagement while also failing to improve the national discourse.

Eric Peterson lives in New Orleans where he is the Director of the Pelican Center for Technology and Innovation

Filed Under: messaging, political ads, politics, social media
Companies: facebook, google, twitter

Parler's Laughably Bad Antitrust Lawsuit Against Amazon

from the i-mean,-what? dept

As you may have heard, over the weekend Amazon removed Parler from its AWS cloud hosting services, causing the website to shut down. I've been working on a longer piece about all of this, but in the meantime, I did want to write about the laughably bad antitrust lawsuit that Parler filed against Amazon in response. Notably, this came just days after Parler's CEO claims that his own lawyers quit (would these be the same "lawyers" who stupidly advised that the company doesn't need Section 230?). Instead, they found a small time independent practitioner who doesn't even have a website* to file what may be the silliest antitrust lawsuit I've seen in a long time. It's so bad that by the end of it, Parler may very well be paying Amazon a lot of money.

There are so many other things I'd rather be writing about, so I'll just highlight a few of the problems with Parler's very bad, no good, horrible, stupidly ridiculous lawsuit. If you want more, I recommend reading Twitter threads by Akiva Cohen or Neil Chilson or Berin Szoka or basically any lawyer with any amount of basic knowledge of antitrust law. The lawsuit is dumb and bad and it's going to do more harm to Parler than good.

The key part of the lawsuit is that Parler, without evidence, claims that Amazon had "political animus" against it, and that it conspired with Twitter to shut down a competitor. It provides no proof of either thing, and... even if it did show proof of political animus, that's... not against the law. And that's kind of a big deal. They're basically saying it's an antitrust violation to dislike Parler. Which it's not. But even if it were, they are simply making up false reasons for why AWS booted Parler.

AWS’s decision to effectively terminate Parler’s account is apparently motivated by political animus. It is also apparently designed to reduce competition in the microblogging services market to the benefit of Twitter.

I mean, even just this paragraph makes no sense. You may have noticed that Amazon and Twitter are different companies. The complaint is against Amazon. Amazon doesn't compete with Parler. None of this makes any sense. The next paragraph demonstrates how rushed and stupid and bad this lawsuit is:

Thus, AWS is violating Section 1 of the Sherman Antitrust Act in combination with Defendant Twitter. AWS is also breaching it contract with Parler, which requires AWS to provide Parler with a thirty-day notice before terminating service, rather than the less than thirty-hour notice AWS actually provided. Finally, AWS is committing intentional interference with prospective economic advantage given the millions of users expected to sign up in the near future

With Defendant Twitter? Let's scroll back up and look at the caption again:

There's only one defendant. And it's not Twitter.

The complaint goes on and on about how there's also bad stuff on Twitter, as if somehow that makes it wrong for AWS to be upset about Parler. But... Parler's whole entire claim to fame is that it moderates differently than Twitter, so claiming that there's the same stuff on Twitter is meaningless. Even worse, the example that Parler uses of how Twitter and Parler have similar content is around people suggesting that political officials including Congressional Representatives, Senators, and VP Mike Pence should be hanged. But the evidence that Parler itself provides undermines its own case, and in some cases directly contrasts its own claims. That's not just bad lawyering, that's legal malpractice.

Here is what Parler says:

What is more, by pulling the plug on Parler but leaving Twitter alone despite identical conduct by users on both sites, AWS reveals that its expressed reasons for suspending Parler’s account are but pretext. In its note announcing the pending termination of Parler’s service, AWS alleged that “[o]ver the past several weeks, we’ve reported 98 examples to Parler of posts that clearly encourage and incite violence.” Exhibit A. AWS provide a few examples, including one that stated, “How bout make them hang?”, followed by a series of hashtags, including “#fu-- mikepence.”...

AWS further stated to Parler that the “violent content on your website . . . violates our terms.” Id. Because, AWS declared, “we cannot provide services to a customer that is unable to effectively identify and remove content that encourages or incites violence against others,” AWS announced the pending termination of Parler’s account.

However, the day before, on Friday, one of the top trends on Twitter was “Hang Mike Pence,” with over 14,000 tweets. See Peter Aitken, ‘Hang Mike Pence’ Trends on Twitter After Platform Suspends Trump for Risk of ‘Incitement of Violence’, Fox News (Jan. 9, 2021), https://www.foxnews.com/politics/twittertrending-hang-mike-pence. And earlier last week, a Los Angeles Times columnist observed that Twitter and other social media platforms are partly culpable for the Capital Hill riot, by allowing rioters to communicate and rile each other up. See Erika D. Smith, How Twitter, Facebook are Partly Culpable for Trump DC Riot, LA Times (Jan. 6, 2021), https://www.latimes.com/california/story/2021-01-06/howtwitter-facebook-partly-culpable-trump-dc-riot-capitol. Yet these equivalent, if not greater, violations of AWS’s terms of service by Twitter have apparently been ignored by AWS

This leaves out some fairly important context. For one, the "Hang Mike Pence" trend was driven mainly by people calling out the insurrectionists who were saying that -- and which Twitter very quickly removed under their content moderation practices. Parler, on the other hand, made it clear that it was still trying to figure out how to moderate, and hoped to rely on volunteers. That's in Parler's evidence. That it didn't have a real plan in place yet. And that is why Amazon kicked it off.

On top of that, Parler's lawsuit claims that AWS needed to give it 30 days notice, but really only gave it a couple of days. Yet, in the evidence that Parler itself provides, Amazon mentions to Parler's policy chief that it has been sending dozens of examples of content that violate its policy for several weeks.

Amazon, for its part, appears to have not even waited to be served by Parler, but hit back hard with a very damning response to Parler that just dismantles Parler's argument bit by bit in fairly explicit terms.

This case is not about suppressing speech or stifling viewpoints. It is not about a conspiracy to restrain trade. Instead, this case is about Parler’s demonstrated unwillingness and inability to remove from the servers of Amazon Web Services (“AWS”) content that threatens the public safety, such as by inciting and planning the rape, torture, and assassination of named public officials and private citizens. There is no legal basis in AWS’s customer agreements or otherwise to compel AWS to host content of this nature. AWS notified Parler repeatedly that its content violated the parties’ agreement, requested removal, and reviewed Parler’s plan to address the problem, only to determine that Parler was both unwilling and unable to do so. AWS suspended Parler’s account as a last resort to prevent further access to such content, including plans for violence to disrupt the impending Presidential transition.

As Amazon says, the antitrust claims are obviously silly, but even the breach of contract claims are ridiculous because if anyone breached the contract, it was Parler:

Despite Parler’s rhetoric, its lawsuit is no more than a meritless claim for breach of contract. But the facts are unequivocal: If there is any breach, it is Parler’s demonstrated failure and inability to identify and remove such content. AWS was well within its rights to suspend Parler immediately for those failures. Parler also cannot hold AWS liable in tort for enforcing the agreement’s express terms. And there is no antitrust claim where, as here, Parler cannot plausibly plead an agreement to cause it harm and the complained-of conduct is undeniably compatible with a legitimate purpose.

Compelling AWS to host content that plans, encourages, and incites violence would be unprecedented. Parler has no likelihood of prevailing on the merits, and the balance of equities and public interest strongly tip against an injunction. The motion for a temporary restraining order should be denied.

In the Amazon filing, the company notes that it began sending breach reports to Parler in November of last year and detailed the nature of the content that it was concerned about, often directly calling for violence. They include a ton of screenshots of the kind of violent speech that was on Parler, that goes way beyond what you'd see on other platforms, and which other platforms would remove.

Amazon also notes that the exhibit is only a small sampling:

The content AWS provided to Parler is merely representative of volumes of content that poses a security risk and harms others, in direct violation of the AUP. See id. Exs. E-F (examples). That content includes, but is not limited to, calls for violence against a wide range of individuals, including elected officials, law enforcement officers, and teachers. People have acted on these calls: Parler was used to incite, organize, and coordinate the January 6 attack on the U.S. Capitol. See Doran Decl. Exs. F-G. AWS reported to Parler, over many weeks, dozens of examples of content that encouraged violence, including calls to hang public officials, kill Black and Jewish people, and shoot police officers in the head. Executive 2 Decl. Exs. D-F. Parler systematically failed to “suspend access” to this content, much less to do so immediately, and demonstrated that it has no effective process in place to ensure future compliance.3 Executive 2 Decl. 7. Parler itself has admitted it has a backlog of 26,000 reports of content that violates its (minimal) community standards that it had not yet reviewed. Id. Parler’s own failures left AWS little choice but to suspend Parler’s account.

As for Amazon treating Twitter differently? Turns out (beyond everything I mentioned above) there's a bigger problem: Twitter doesn't use AWS:

Parler’s Complaint is replete with insinuations that AWS had equal grounds to suspend Twitter’s account and thus discriminated against Parler. For example, Parler cites the hashtag “#hangmikepence,” which briefly trended on Twitter. ... But AWS does not host Twitter’s feed, so of course it could not have suspended access to Twitter’s content.

Finally, Amazon notes that Section 230 also protects its practices here:

In addition to their facial deficiencies, Parler’s interference and antitrust claims also fail under Section 230(c)(2) of the Communications Decency Act. Under that statute, the provider of an “interactive computer service” is immune for acting in good faith to restrict access to material that is excessively violent, harassing, or otherwise objectionable.

This is actually interesting, in that rather than using 230(c)(1) like nearly every case, Amazon recognizes this is one of those rare (c)(2) cases, giving it the right to restrict access to violent, harassing, or otherwise objectionable content. This part of the law is rarely tested, as (c)(1) handles most moderation claims, but probably doesn't fit here, given the fact that Amazon was denying overall service to Parler, not just moderating specific speech.

Parler's going to lose this lawsuit. And it's going to lose badly.

* In a very, very strange set of circumstances, there is another lawyer with the identical name, David J. Groesbeck, (including middle initial) who is a patent lawyer, also based in Washington state and registered to practice in NY, but they are different, and the patent lawyer (who does have a website) had to put a notice on his website saying he's not the same David J. Groesbeck who has Parler for a client, and giving that lawyer's phone number, since he's being inundated with calls, yelling at him for representing Parler.

Filed Under: antitrust, aws, breach of contract, social media
Companies: amazon, parler, twitter

Not Easy, Not Unreasonable, Not Censorship: The Decision To Ban Trump From Twitter

from the there's-a-point... dept

When I started writing this post, it was about Facebook's decision to suspend Trump's account indefinitely, and at least until Joe Biden is inaugurated in a couple weeks. I had lots to say on that... and then Friday afternoon, Twitter decided to ban Trump's Twitter account permanently. This is a bigger deal, not just because it's permanent, rather than indefinite, but because so much of Trump's identity over the last four years (and before that) is tied up in his Twitter account and followers.

Certainly, all of this has kicked off a whole new storm from across the political spectrum. You have Trump supporters who are furious and (falsely) claiming that this is "censorship" or unprecedented and heavy handed (it is none of those things). Then you have Trump haters who are screaming about how this is all way too late and is trying to close the barn door after the horses have long since bolted. I think neither argument is accurate. Will Oremus has a long (and very interesting!) look over on OneZero about how Facebook supposedly chucked out its own rulebook to come up with an excuse to suspend Trump's account:

Yet Facebook’s “indefinite” ban on Trump marks an overnight reversal of the policy on Trump and other political leaders that the social network has spent the past four years honing, justifying, and defending. The unprecedented move, which lacks a clear basis in any of Facebook’s previously stated policies, highlights for the millionth time that the dominant platforms are quite literally making up the rules of online speech as they go along. As I wrote in 2019, there’s just one golden rule of content moderation that every platform follows: If a policy becomes too controversial, change it.

Zuckerberg’s claim that Facebook has allowed Trump to use its platform in a manner “consistent with our own rules” is laughable. The only thing that has been consistent, until now, is Facebook’s determination to contort, hair-split, and reimagine its rules to make sure nothing Trump posted would fall too far outside them. The Washington Post wrote a rather definitive account of the social network’s yearslong Trump-appeasement campaign earlier this year. Among other Trump-friendly measures, the Post noted, “Facebook has constrained its efforts against false and misleading news, adopted a policy explicitly allowing politicians to lie, and even altered its news feed algorithm to neutralize claims that it was biased against conservative publishers.”

And Twitter is also justifying its decision by saying that the reason was a rules violation:

We assessed the two Tweets referenced above under our Glorification of Violence policy, which aims to prevent the glorification of violence that could inspire others to replicate violent acts and determined that they were highly likely to encourage and inspire people to replicate the criminal acts that took place at the U.S. Capitol on January 6, 2021.

This determination is based on a number of factors, including:

I don't need to post the factors. You can take a look yourself if you want. So, Oremus is mostly correct that they're making the rules up as they go along, but the problem with this framing is that it assumes that there are some magical rules you can put in place and then objectively apply them always. That's never ever been the case. The problem with so much of the content moderation debate is that all sides assume these things. They assume that it's easy to set up rules and easy to enforce them. Neither is true. Radiolab did a great episode a few years ago, detailing the process by which Facebook made and changed its rules. And it highlights some really important things including that almost every case is different, that it's tough to apply rules to every case, and that context is always changing. And that also means the rules must always keep changing.

A few years back, we took a room full of content moderation experts and asked them to make content moderation decisions on eight cases -- none of which I'd argue are anywhere near as difficult as deciding what to do with the President of the United States. And we couldn't get these experts to agree on anything. On every case, we had at least one person choose each of the four options we gave them, and to defend that position. The platforms have rules because it gives them a framework to think about things, and those rules are useful in identifying both principles for moderation and some bright lines.

But every case is different.

And no matter what you think of Trump, his case was different.

The regular rules could never apply to Trump because Trump is not a regular person. And, no, not even comparisons to foreign leaders are apt, because as silly as American exceptionalism is, the United States is still different than nearly every other country in the world. And, it's not just the position he's in (for the next few days anyway), but also Trump's willingness to use his account to make pronouncements unlike pretty much any other world leader (or at least, world leader of consequence).

Trump is, perhaps, the perfect example of why demanding clear rules on social media and how they moderate is stupid.

As for the question of why now? Well, clearly, the context has changed. The context is that Trump inspired a mob of goons to invade the Capitol building this week, and there remain legitimate threats that his cultish followers will continue to do significant damage. Certainly some people have insisted that this kind of violence was always a risk -- and it was. But it had not actually erupted to this level in this fashion. Again, we're talking about context. There's always more context.

And given that the situations are always edge cases, that the context always matters, and that things are always shifting, you can totally see why it's a reasonable decision to ban Trump from their platforms right now, based on everything else going on, and the likelihood that he might inspire more violence. I think it's worth reading Ben Thompson's analysis as well. He's long explained the risks associated with banning Trump from these platforms, and suggested why they should not have in the past. But the thing that changed for him, beyond even just the threat to democracy, is the threat to the rights of both individuals and companies to make their own decisions on these things:

Remember my highest priority, even beyond respect for democracy, is the inviolability of liberalism, because it is the foundation of said democracy. That includes the right for private individuals and companies to think and act for themselves, particularly when they believe they have a moral responsibility to do so, and the belief that no one else will. Yes, respecting democracy is a reason to not act over policy disagreements, no matter how horrible those policies may be, but preserving democracy is, by definition, even higher on the priority stack.

Turn off Trump’s account.

But here's the more important point -- especially directed at the people who will falsely claim that this is somehow censorship: President Trump is not being censored. He is not being limited. At any moment of any day (certainly for the next two weeks, and likely beyond) he can walk out of his office and have every major TV news channel (and every internet streaming platform) broadcast whatever he wants to say, and people will see it.

And to those who think that Twitter should have done this earlier, or that it would have made a difference, recognize that your concern is not so much with Twitter, but with Trump himself. Remember that while Trump might not be able to send a tweet right now, he still (literally) has the power to launch nuclear missiles at Twitter's headquarters. And, really, that's the problem. Trump is obviously too toxic for Twitter. But he's also too toxic for the White House. And the real complaint shouldn't be about Twitter or Facebook acting too late, but about Congress failing to do their job and remove the mad man from power.

Filed Under: adaptability, censorship, consequences, content moderation, donald trump, free speech, platforms, rules, section 230, social media
Companies: facebook, twitter