Another Section 230 Reform Bill: Dangerous Algorithms Bill Threatens Speech

from the another-problem dept

Representatives Malinowski and Eshoo and have introduced a Section 230 amendment called the “Protecting Americans from Dangerous Algorithms Act” (PADAA). The title is somewhat of a misnomer. The bill does not address any danger inherent to algorithms but instead seeks to prevent them from being used to share extreme speech.

Section 230 of the Communications Act prevents providers of an interactive computer service, such as social media platforms, from being treated as the publisher or speaker of user-submitted content, while leaving them free to govern their services as they see fit.

The PADAA would modify Section 230 to treat platforms as the speakers of algorithmically selected user speech, in relation to suits brought under 42 U.S.C. 1985 and the Anti-Terrorism Act. If platforms use an “algorithm, model, or computational process to rank, order, promote, recommend, [or] amplify” user provided content, the bill would remove 230’s protection in suits seeking to hold platforms responsible for acts of terrorism or failures to prevent violations of civil rights.

These are not minor exceptions. A press release published by Rep. Malinowski’s office presents the bill as intended to reverse the US Court of Appeals for the 2nd Circuit’s ruling in Force v. Facebook, and endorses the recently filed McNeal v. Facebook, which seeks to hold Facebook liable for recent shootings in Kenosha, WI. These suits embrace a sweeping theory of liability that treats platforms’ provision of neutral tools as negligent.

Force v. Facebook concerned Facebook’s algorithmic “Suggested Friends” feature and its prioritization of content based on users’ past likes and interests. Victims of a Hamas terror attack sued Facebook under the Anti-Terrorism Act for allegedly providing material support to Hamas by connecting Hamas sympathizers to one another based on their shared interests and surfacing pro-Hamas content in its Newsfeed.

The 2nd Circuit found that Section 230 protected Facebook’s neutral processing of the likes and interests shared by its users. Plaintiffs appealed the ruling to the US Supreme Court, which declined to hear the case. The 2nd Circuit’s held that, although:

plaintiffs argue, in effect, that Facebook’s use of algorithms is outside the scope of publishing because the algorithms automate Facebook’s editorial decision‐making.

Facebook is nevertheless protected by Section 230 because its content-neutral processing of user information doesn’t render it the developer or author of user submissions.

The algorithms take the information provided by Facebook users and “match” it to other users—again, materially unaltered—based on objective factors applicable to any content, whether it concerns soccer, Picasso, or plumbers.

The court concludes by noting the radical break from precedent that that plaintiffs’ claims demand. The PADAA would establish this sweeping shift as law.

Plaintiffs “matchmaking” argument would also deny immunity for the editorial decisions regarding third‐party content that interactive computer services have made since the early days of the Internet. The services have always decided, for example, where on their sites (or other digital property) particular third‐party content should reside and to whom it should be shown

Explicitly opening platforms to lawsuits for algorithmically curated content would compel them to remove potentially extreme speech from algorithmically curated feeds. Algorithmic feeds are given center stage on most contemporary platforms – Twitter’s Home timeline, the Facebook Newsfeed, and TikTok’s “For You” page are all algorithmically curated. If social media platforms are exposed to liability for harms stemming from activity potentially inspired by speech in these prominent spaces, they will cleanse them of potentially extreme, though First Amendment protected, speech. This amounts to legislative censorship by fiat.

Exposing platforms to a general liability for speech implicated in terrorism and civil rights deprivation claims is more insidiously restrictive than specifically prohibiting certain content. In the face of a nebulous liability, contingent on the future actions of readers and listeners, platforms will tend to restrict speech on the margins.

The aspects of the bill specifically intended to address Force v. Facebook’s “Suggested Friends” claims, the imposition of liability for automated procedures that “recommend” any “group, account, or affiliation,” will be even more difficult to implement without inhibiting speech and political organizing in an opaque, idiosyncratic, and ultimately content-based manner.

After I attended a Second Amendment Rally in Richmond early this year, Facebook suggested follow-up rallies, local town hall meetings, and militia musters. However, in order to avoid liability under the PADAA, Facebook wouldn’t have to simply refrain from serving me militia events. Instead, it would have to determine if the Second Amendment rally itself was likely to foster radicalism. In light of their newfound liability for users’ subsequent actions, would it be wise to connect participants or suggest similar events? Would all political rallies receive the same level of scrutiny? Some conservatives claim Facebook “incites violent war on ICE” by hosting event pages for anti-ICE protests. Should Facebook be held liable for Willem van Spronsen’s firebombing of ICE vehicles? Rep. Malinowski’s bill would require private firms to far reaching determinations about diverse political movements under a legal Sword of Damocles.

Spurring platforms to exclude organizations and interests tangentially linked to political violence or terrorism from their recommendation algorithm would have grave consequences for legitimate speech and organization. Extremists have found community and inspiration in everything from pro-life groups to collegiate Islamic societies. Budding eco-terrorists might be connected by shared interests in hiking, veganism, and conservation. Should Facebook avoid introducing people with such shared interests to one another?

The bill also fails to address real centers of radicalization. As I noted in my recent testimony to the House Commerce Committee, most radicalization occurs in small, private forums, such as private Discord and Telegram channels, or the White Nationalist bulletin board Iron March. The risk of radicalization – like rumor, disinformation, or emotional abuse, is inherent to private conversation. We accept these risks because the alternative – an omnipresent corrective authority – would foreclose the sense of privileged access necessary to the development of a self. However, this bill does not address private spaces. It only imposes liability on algorithmic content provision and matching, and wouldn’t apply to sites with fewer than 50 million monthly users. Imageboards such as 4 or 8chan are too small to be covered, and users join private Discord groups via invite links, not algorithmic suggestion.

The Protecting Americans from Dangerous Algorithms Act attempts to prevent extremism by imposing liability on social media firms for algorithmically curated speech or social connections later implicated in extremist violence. Expecting platforms to predictively police algorithmically selected speech a la Minority Report is fantastic. In practice, this liability will compel platforms to set broad, stringent rules for speech in algorithmically arranged forums. Legislation that would push radical, popularly disfavored, or simply illegible speech out the public eye via private proxies raises unavoidable First Amendment concerns.

Filed Under: algorithms, anna eshoo, bias, cda 230, padaa, rankings, section 230, tom malinowski

Senator Lindsey Graham Must Be Desperate For Donations; Announces Terrible Bill That Mashes Up Bad 230 Reform With Bad Copyright Reform

from the it's-bad,-get-rid-of-it dept

Senator Lindsey Graham is in a tight re-election campaign that he might just lose. And he's doing what politicians desperate for campaign cash tend to do: releasing a lot of absolutely batshit crazy bills that will pressure big donors to donate to him to either support the bill, or to get him not to move forward on it. It's corrupt as hell, but is standard practice. And the best of these kinds of bills are ones that pit two large industries with lots of lobbyists and cash to throw around against one another. For many years the favorite such bill for this was a bill about performance rights royalties for radio play. This would pit radio broadcasters against the music industry, and the cash would flow. Every two years, as the election was coming, such a bill would be released that was unlikely to go anywhere, but the cash would flow in.

More recently, the goal has been to target the big internet companies. And, boy, Linsdey Graham's campaign must be struggling, because he's decided to take two horrible, awful bills that would harm the internet and mash them together into a single bill that is set for markup by the Senate Judiciary Committee next week. This new bill, entitled the "Online Content Policy Modernization Act" simply combines the terrible and unconstitutional CASE Act (to create a quasi-judicial court in the Copyright Office to review copyright claims) with some of the recently released (and also horrible and unconstitutional) "Online Freedom and Viewpoint Diversity Act" which would rewrite Section 230 to remove the ability to moderate "otherwise objectionable" content without liability, and would, instead, insert a limited list of what kinds of content could be moderated without liability.

Both of these are bad ideas, but both of them are specific threats to the open internet -- and the kinds of things that Senator Graham knows he can fundraise on. Both bills are garbage, and Senator Graham likely knows this -- but he's not in the Senate to actually legislate. He's there to stay in power, and there's a real chance he might lose this November. So I guess it's time to break out the really stupid bills.

Filed Under: case act, cda 230, copyright, dmca, lindsey graham, online content policy modernization act, section 230

Authors Of CDA 230 Do Some Serious 230 Mythbusting In Response To Comments Submitted To The FCC

from the that's-not-how-any-of-this-works-at-all dept

While there were thousands of comments filed to the FCC in response to the NTIA's insanely bad "petition" to have the FCC reinterpret Section 230 in response to an unconstitutional executive order from a President who was upset that Twitter fact checked some of his nonsense tweets, perhaps the comment that matters most is the one submitted last week by the two authors of Section 230, Senator Ron Wyden and former Rep. Chris Cox. Cox and Wyden wrote what became Section 230 back in the 90s, and have spent decades fighting misinformation about it -- and fighting to keep 230 in place.

In the comment they submitted to the FCC, they respond to all the idiotic nonsense that everyone has been submitting. Again, these are the guys who wrote the actual law. They know what it was intended to do, and agree with how it's been used to date. So they go on a systematic debunking journey through the nonsense. First, they respond to comments that say that the FCC can interpret 230. Nope.

Several commenters have repeated the claim in the Petition that “[n]either section 230’s text, nor any speck of legislative history, suggests any congressional intent to preclude the Commission’s implementation.” In fact, however, as the authors of the legislation and the floor managers of the debate on the bill in the House of Representatives, we can assure you the very opposite is true. We and our colleagues in Congress on both sides of the aisle were emphatic that we were not creating new regulatory authority for the FCC or any other independent agency or executive branch department when we enacted Section 230. Not only is this clear from the legislative history, but it is written on the face of the statute. Unlike other provisions in Title II of the Communications Act, Section 230 does not invite agency rulemaking. Indeed, in a provision that judges interpreting the law have noted is “unusual,” Section 230(b) explicitly provides:

It is the policy of the United States … to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.

When this legislation came to the floor of the House of Representatives for debate on August 4, 1995, the two of us, together with members on both sides of the aisle, explained that our purpose was to ensure that the FCC would not have regulatory authority over content on the internet. We and our colleagues, Democrats and Republicans alike, decried the unwelcome proregulatory alternative of giving the FCC responsibility for regulating content on the internet, which at the time was being advanced in separate legislation by Senator James Exon...

The Cox-Wyden bill under consideration was intended as a rebuke to that entire concept.

Then, to prove they're not engaging in revisionist history, they cite the speeches they themselves gave about how the whole point of their bill was to keep the FCC from regulating the internet. From Wyden's floor speech at the time:

[T]he reason that this approach rather than the Senate approach is important is … the speed at which these technologies are advancing [which will] give parents the tools they need, while the Federal Communications Commission is out there cranking out rules about ·proposed rulemaking programs. Their approach is going to set back the effort to help our families.

Cox's floor speech was even more direct with the question of whether or not their approach was designed to give the FCC power:

Some have suggested, Mr. Chairman, that we take the Federal Communications Commission and turn it into the ‘Federal Computer Commission’ — that we hire even more bureaucrats and more regulators who will attempt, either civilly or criminally, to punish people by catching them in the act of putting something into cyberspace. Frankly, there is just too much going on on the Internet for that to be effective....

[This bill] will establish as the policy of the United States that we do not wish to have content regulation by the Federal Government of what is on the Internet —that we do not wish to have a ‘Federal Computer Commission’ with an army of bureaucrats regulating the Internet....

The message today should be, from this Congress: we embrace this new technology, we welcome the opportunity for education and political discourse that it offers for all of us. We want to help it along this time by saying Government is going to get out of the way and let parents and individuals control it rather than Government doing that job for us....

If we regulate the Internet at the FCC, that will freeze or at least slow down technology. It will threaten the future of the Internet. That is why it is so important that we not have a ‘Federal Computer Commission’ do that.

Next, the comment responds to the claims that 230 is "outdated." Nope, claim its authors:

Several commenters, including AT&T, assert that Section 230 was conceived as a way to protect an infant industry, and that it was written with the antiquated internet of the 1990s in mind – not the robust, ubiquitous internet we know today. As authors of the statute, we particularly wish to put this urban legend to rest.

Section 230, originally named the Internet Freedom and Family Empowerment Act, H.R. 1978, was designed to address the obviously growing problem of individual web portals being overwhelmed with user-created content. This is not a problem the internet will ever grow out of; as internet usage and content creation continue to grow, the problem grows ever bigger. Far from wishing to offer protection to an infant industry, our legislative aim was to recognize the sheer implausibility of requiring each website to monitor all of the user-created content that crossed its portal each day.

Critics of Section 230 point out the significant differences between the internet of 1996 and today. Those differences, however, are not unanticipated. When we wrote the law, we believed the internet of the future was going to be a very vibrant and extraordinary opportunity for people to become educated about innumerable subjects, from health care to technological innovation to their own fields of employment. So we began with these two propositions: let’s make sure that every internet user has the opportunity to exercise their First Amendment rights; and let’s deal with the slime and horrible material on the internet by giving both websites and their users the tools and the legal protection necessary to take it down.

The march of technology and the profusion of e-commerce business models over the last two decades represent precisely the kind of progress that Congress in 1996 hoped would follow from Section 230’s protections for speech on the internet and for the websites that host it. The increase in user-created content in the years since then is both a desired result of the certainty the law provides, and further reason that the law is needed more than ever in today’s environment.

Next up: the all too frequent claim that 230 creates a special rule for the internet that is different than for brick and mortar stores, and therefore there's a "double standard." Again, nope.

Several commenters have asserted that Section 230 sets up a “double standard” by treating online businesses differently from “brick-and-mortar” businesses. This represents a fundamental misunderstanding of both the purpose of the law and how it operates in practice.

Section 230 serves to punish the guilty and protect the innocent. Individuals and firms are made fully responsible for their own conduct. Anyone who creates digital content and uploads it to a website is legally liable for what they have done. A website that hosts the content will likewise be liable, if it contributes to the creation or development of that content, in whole or in part. Otherwise, the website will be protected from liability for third-party content.

Section 230 was written to adapt intermediary liability rules long recognized in the analog world for the digital world, applying the wisdom accumulated over decades in legislatures and the courts to the realities of this new technological realm. As authors of the law, we understood what was evident in 1996 and is even more in evidence today: it would be unreasonable for the law to impose on websites a legal duty to monitor all user-created content.

When Section 230 was written, just as now, each of the commercial applications flourishing online had an analog in the offline world, where each had its own attendant legal responsibilities. Newspapers could be liable for defamation. Banks and brokers could be held responsible for failing to know their customers. Advertisers were responsible under the Federal Trade Commission Act and state consumer laws for ensuring their content was not deceptive and unfair. Merchandisers could be held liable for negligence and breach of warranty, and in some cases even subject to strict liability for defective products. In writing Section 230, we—and ultimately the entire Congress—decided that these legal rules should continue to apply on the internet just as in the offline world. Every business, whether operating through its online facility or through a brick-and-mortar facility, would continue to be responsible for all of its legal obligations.

What Section 230 added to the general body of law was the principle that individuals or an entity operating a website should not, in addition to their own legal responsibilities, be required to monitor all of the content created by third parties and thereby become derivatively liable for the illegal acts of others. Congress recognized that to require otherwise would jeopardize the quintessential function of the internet: permitting millions of people around the world to communicate simultaneously and instantaneously, a unique capability that has made the internet “the shining star of the Information Age.” Congress wished to “embrace” and “welcome” this, not only for its commercial potential but also for “the opportunity for education and political discourse that it offers for all of us.” The result is that websites are protected from liability for user-created content, but only to a point: if they are responsible, even in part, for the creation or development of that content, they lose that protection.

The fact that Section 230 established the legal framework for assessing liability in circumstances unique to the internet does not mean that either this framework or the preexisting legal rules do not apply equally to all online and offline businesses. Every business continues to bear the same legal responsibilities when operating in the offline world, and every business is bound by the same statutorily-defined responsibilities set out in Section 230 when operating in the e-commerce realm.

Then there's the question about whether or not the FCC can mandate disclosure and reporting requirements. As Cox and Wyden note, this argument -- pushed strongly by AT&T and the NTIA "borders on the absurd."

The Petition asks the FCC to interpret Section 230 as if it contained explicit requirements mandating terms of service, content moderation policies, due process notice and hearings in which content creators could dispute moderation decisions, and public disclosures concerning these and other matters. The Petition further asks that the FCC impose these specific requirements by rule. Multiple commenters, including AT&T, have endorsed this aspect of the NTIA proposal.

The Petition clearly states NTIA’s understanding that Congress, with “strong bi-partisan support,” intended Section 230 to be “a non-regulatory approach.” In this they are correct. As outlined in Section II above, the legislative history clearly demonstrates that we and our colleagues in Congress intended to keep the FCC and other regulators out of this area. This is reflected in the language of Section 230 itself. Both of us, as the authors of the legislation, made ourselves abundantly clear on this point when the law was being debated.

This fact—and NTIA’s admission of it—makes it all the more illogical for their Petition to ask the Commission to interpret Section 230 as statutory authorization for the FCC to regulate the very subjects that Section 230 itself covers, and which Congress wanted the Commission to stay out of. It surpasses illogic, and borders on the absurd, for the Petition to ask the FCC to use authority that Section 230 clearly does not grant it, in order to divine from the text of the statute explicit duties and burdens on websites that Section 230 itself clearly does not impose.

As Cox and Wyden note, any such interpretation would clearly require new legislation and could not be created, whole cloth, from the mind of an angry President and clueless NTIA staffers with grudges about Section 230.

All of this would require new federal legislation. None of it appears in Section 230, either in the text of the law that we can all read (and that the two of us wrote), or even in the invisible ink which NTIA must believe only it can read.

I get the feeling that Cox and Wyden do not think highly of the NTIA petition.

As for those who commented suggesting that the FCC could interpret Section 230 to include a "negligence" standard, again, this is not how any of this works:

Several commenters, including Digital Frontiers Advocacy, have urged grafting onto Section 230 a requirement, derived from negligence law, upon which existing protections for content moderation would be conditioned. These requirements would add to Section 230 a “duty of care” or a “reasonableness” standard that cannot be found in the statute. As one example, the Petition (which is generically endorsed in its entirety by many individual commenters) would have the FCC require that content moderation decisions be “objectively reasonable,” as compared to the clear language of Section 230, which provides that the decision is to be that of “the provider or user.”

As the authors of this law, and leading participants in the legislative process that led to its enactment in 1996, we can assure the Commission that the reason you do not see any such requirement on the face of the statute is that we did not intend to put one there.

The proposed introduction of subjective negligence concepts would effectively make every complaint concerning a website’s content moderation into a question of fact. Since such factual disputes can only be resolved after evidentiary discovery (depositions of witnesses, written interrogatories, subpoenas of documents, and so forth), no longer could a website prove itself eligible for dismissal of a case at an early stage.

We intended to spare websites the death from a thousand paper cuts that would be the result if every user, merely by filing a complaint about a content moderation decision, could set in motion a multi-year lawsuit. We therefore wrote Section 230 with an objective standard: was the allegedly illegal material created or developed—in whole or in part—by the website itself? If the complaint adequately alleges this, then a lawsuit seeking to hold the website liable as a publisher of the material can proceed; otherwise it cannot.

And if you think Cox and Wyden are done exploring just how absurdly stupid this process has been, you haven't prepared yourself for the next section, in which they respond to the many ridiculous comments suggesting 230 enables the FCC to enforce "neutrality" on internet websites:

The Claremont Institute and scores of individual commenters have complained that particular websites are not politically neutral, and they demand that Section 230’s protection from liability for content created by others be conditioned on proof that a website is in fact politically neutral in the content that it hosts, and in its moderation decisions.

There are three points that must be made in reply. The first is that Section 230 does not require political neutrality. Claiming to “interpret” Section 230 to require political neutrality, or to condition its Good Samaritan protections on political neutrality, would erase the law we wrote and substitute a completely different one, with opposite effect. The second is that any governmental attempt to enforce political neutrality on websites would be hopelessly subjective, complicated, burdensome, and unworkable. The third is that any such legislation or regulation intended to override a website’s moderation decisions would amount to compelling speech, in violation of the First Amendment....

They respond to every idiot who misinterprets the line in the Findings part of Section 230 about "diversity of political discourse" by saying "we meant lots of different sites, not that every site has to host all your nonsense."

Section 230 itself states the congressional purpose of ensuring that the internet remains “a global forum for a true diversity of political discourse.” In our view as the law’s authors, this requires that government allow a thousand flowers to bloom—not that a single website has to represent every conceivable point of view. The reason that Section 230 does not require political neutrality, and was never intended to do so, is that it would enforce homogeneity: every website would have the same “neutral” point of view. This is the opposite of true diversity.

To use an obvious example, neither the Democratic National Committee nor the Republican National Committee websites would pass a political neutrality test. Government compelled speech is not the way to ensure diverse viewpoints. Permitting websites to choose their own viewpoints is.

And then there's that comment that was popular among individual filers (and lots of idiots on Twitter) that because Section 230 allows websites to take down lawful speech, that's somehow a violation of the 1st Amendment. We've discussed many, many, many times how ridiculous that is, but why don't we hear it from Wyden and Cox:

Many individual commenters complained that their political viewpoints have been “censored” by websites ostensibly implementing their community guidelines, but actually suppressing speech. Several of these commenters have urged the FCC to require that all speech protected by the First Amendment be allowed on any site of sufficient size that it might be deemed an equivalent to the “public square.” In the context of this proceeding, that would mean Section 230 would somehow have to be “interpreted” to require this.

Comments within this genre share a fundamental misunderstanding of Section 230. The matter is readily clarified by reference to the plain language of the statute. The law provides that a website can moderate content “whether or not such material is constitutionally protected.”... Congress would have to repeal this language, and replace it with an explicit speech mandate, in order for the FCC to do what the commenters are urging.

Government-compelled speech, however, would be a source of further problems. Because the First Amendment not only protects expression but non-expression, any attempt to devise an FCC regulation that forces a website to publish content it otherwise would moderate would almost certainly be unconstitutional. The government may not force websites to publish material that they do not approve. As Chief Justice Roberts unequivocally put it in Rumsfeld v. Forum for Academic and Institutional Rights (2006), “freedom of speech prohibits the government from telling people what they must say.”...

And then they point out that many commenters don't seem to understand the 1st Amendment:

The answer to the commenters’ complaints of “censorship” must be twofold. First, many of the comments conflate their frustrations about Section 230 with the First Amendment. As noted, it is the First Amendment, not Section 230, that gives websites the right to choose which viewpoints, if any, to advance. Furthermore, First Amendment speech protections dictate that the government, with a few notable exceptions, may not dictate what speech is acceptable. The First Amendment places no such restrictions on private individuals or companies. Second, the purpose and effect of Section 230 is to make the internet safe for innovation and individual free speech. Without Section 230, complaints about “censorship” by the likes of Google, Facebook, and Twitter would not disappear. Instead, we would be facing a thousandfold more complaints that neither the largest online platforms nor the smallest websites are any longer willing to host material from individual content creators.

And changing Section 230 in the manner these commenters seek wouldn't actually help them:

Eroding the law through regulatory revision would seriously jeopardize free speech for everyone. It would be particularly injurious to marginalized viewpoints that aren’t within “the mainstream.” It would present near-insuperable barriers for new entrants attempting to compete with entrenched tech giants in the social media space. Not least of all, it would set a terrible example for the rest of the world if the United States, which created the internet and so much of the vast cyber ecosystem that has enabled it to flourish globally as an informational, cultural, scientific, educational, and economic resource, were to undermine the ability that hundreds of millions of individuals have each day to contribute their content to that result.

In the absence of Section 230, the First Amendment rights of Americans, and the internet as we know it, would shrivel. Far from authorizing censorship, the law provides the legal certainty and protection from open-ended liability that permits websites large and small to host the free expression of individuals, making it available to a worldwide audience. Section 230 is a bulwark of free speech and civil discourse that is more important now than ever, especially in the current political climate that is increasingly hostile to both.

In short, so many of these commenters are confused about the law, the history, the technology, how free speech works, how the internet works, and more. That much of this is also true of the NTIA petition itself is a shame.

The Cox and Wyden comment concludes by underlining the fact that they wrote 230 with the explicit intent of keeping the FCC away from regulating internet websites.

On one point we can speak ex cathedra, as it were: our intent in writing this law was to keep the FCC out of the business of regulating websites, content moderation policies, and the content of speech on the internet. The Petition asks the Commission to reverse more than two decades of its own policy by becoming, at this late stage in the life of Section 230, its regulatory interpreter. In so doing, the FCC would assume responsibility for regulating websites, content moderation policies, and the content of speech on the internet—precisely the result we intended Section 230 to prevent. To reach this perverse result, the FCC would “clarify” the words of Section 230 in ways that do violence to the plain meaning of the statutory text.

One would hope that such a detailed response from the authors of the law would put this whole nonsense to rest. But it won't.

Filed Under: cda 230, chris cox, fcc, intermediary liability, ntia, ron wyden

Could A Narrow Reform Of Section 230 Enable Platform Interoperability?

from the one-approach dept

Perhaps the most de rigeur issue in tech policy in 2020 is antitrust. The European Union made market power a significant component of its Digital Services Act consultation, and the United Kingdom released a massive final report detailing competition challenges in digital advertising, search, and social media. In the U.S., the House of Representatives held an historic (virtual) hearing with the CEOs of Amazon, Apple, Facebook, and Google (Alphabet) on the same panel. As soon as the end of this month the Department of Justice is expected to file a “case of the century” scale antitrust lawsuit against Google. One competition policy issue that I’ve written about extensively is interoperability, and, while we’ve already seen significant proposals to promote interoperability, notably the 2019 ACCESS Act, I want to throw another idea into the hopper: I think Congress should consider amending Section 230 of the Communications Act to condition its immunity for large online intermediaries on the provision of an open, raw feed for independent downstream presentation.

I know, I know. I can almost feel your fingers hovering over that big blue “Tweet” button or the “Leave a Comment” link -- but please, hear me out first.

For those not already aware of (if not completely sick of) the active discussions around it, Section 230, originally passed as part of the Communications Decency Act, is an immunity provision within U.S. law intended to encourage internet services to engage in beneficial content moderation without fearing liability as a consequence of such action. It’s famously only 26 words long in its central part, so I’ll paste that key text in full: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

I’ll attempt to summarize the political context. Section 230 has come under intense, bipartisan criticism over the past couple of years as a locus of animosity related to a diverse range of concerns with the practices of a few large tech companies, in particular. Some argue that the choices made by platform operators are biased against conservatives; others argue that the platforms aren’t responsible enough and aren’t held sufficiently accountable. The support for amending Section 230 is substantial, although it is far from universal. The current President has issued an executive order seeking to catalyze change in the law; and the Democratic nominee has in the past bluntly called for it to be revoked. Members of Congress have introduced several bills that touch Section 230 (after the passage of one such bill, FOSTA-SESTA, in 2018), such as the EARN IT Act which would push internet companies to do more to respond to online child exploitation, to the point of undermining secure encryption. A perhaps more on-point proposal is the PACT ACT, which focuses on specific platform content practices; I’ve called it the best starting point for Section 230 reform discussions.

Why is this one, short section of law so frequently used as a political punching bag? The attention goes beyond its hard law significance, revealing a deeper resonance in the modern-day notion of “publishing”. I believe this law in particular is amplified because the centralization and siloing of our internet experience has produced a widespread feeling (or reality) of a lack of meaningful user agency. By definition, social media is a business of taking human input (user generated content) and packaging it to produce output for humans, doubling the poignancy of human agency in some sense. The user agency gap spills over from the realm of competition, making it hard to evaluate content liability and privacy harms as entirely independent issues. In so many ways, the internet ecosystem is built on the idea of consumer mobility and freedom; also in so very many ways, that idea is bankrupt today.

Yet debating whether online intermediaries for user content are “platforms” or “publishers” is a distraction. A more meaningful articulation of the underlying problem, I believe, is to say that we end users are unable to customize sufficiently the way in which the content is presented to us because we are locked into a single experience.

Services like Facebook and YouTube operate powerful recommendation engines that are designed to sift through vast amount of potentially-desirable content and present the user with what they most value. This content is based on individual contextual factors such as what the user has been watching, and the broader signals of desirability such as engagement level from other users. As many critics allege, the underlying business model of these companies benefits by keeping users as engaged as possible, spending as much time on the platform as possible. That means recommending content that gets high engagement, even though human behavior doesn’t equate positive social value with high engagement (that’s the understatement of the day, there!).

One of the interesting technical questions is how to design such systems to make them “better” from a social perspective. It’s the subject of academic research, in addition to ample industry investment. I’ve given YouTube credit in the past for offering some amount of transparency into changes it’s making (and the effects of those changes) to improve the social value of its recommendations, although I believe making that transparency more collaborative and systematic would help immensely. (I plan to expand on that in my next post!).

Recommendation engines remain by and large black boxes to the outside world, including the users who receive their output. No matter how much credit you give individual companies for their efforts to balance properly their business model demands, optimal user experience, and improving social value, there are fundamental limits on users’ inability to customize, or replace, the recommendation algorithm that mediates the lion’s share of their interaction with the social network and the user-generated content that it hosts. We also can’t facilitate innovation or experimentation with presentation algorithms as things stand due to the lack of effective interoperability.

And that’s why Section 230 gets so much attention -- because we don’t have the freedom to experiment at scale with things like Ethan Zuckerman’s Gobo.social project and thus improve the quality of, and better control, our social media experiences. Yes, there are filters and settings that users can change to customize their experience to some degree, likely far more than most people know. Yet, by design, these settings do not provide enough control to affect the core functioning of the recommendation engine itself.

Thus, many users perceive the platforms to be packaging up third party, user generated content and making conscious choices of how to present it to us -- choices that our limited downstream controls are insufficient to manage. That’s why it feels to some like they’re “publishing,” and doing a bad job of it at that. Despite massive investments by the service operators, it’s not hard to find evidence of poor outcomes of recommendations; see, e.g., YouTube recommending videos about upcoming civil war. And there are also occasional news stories of willful actions making things worse to add more fuel to the fire.

So let’s create that space for empowerment by conditioning the Section 230 immunity on the provision of more raw, open access to their content experience so users can better control how to “publish” it to themselves by using an alternative recommendation engine. Here’s how to scale and design such an openness requirement properly:

• Apply an openness requirement only where the problems described above apply, which is for services that primarily host and present social, user generated content.

• Limit an openness requirement to larger platforms, for example borrowing the 100 million MAUs (Monthly Active Users) metric from the Senate’s ACCESS Act.

• Design the requirement to be variable across different services, and to engage platforms in the process. The kinds of APIs that Facebook and YouTube would set up to make this concept successful would be quite different.

• Allow platforms to adopt reasonable security and privacy access controls for their provisioned APIs or other interoperability interfaces.

• Preserve platform takedowns of content and accounts upstream of any provisioned APIs or other interoperability interfaces, to take advantage of scale in responding to Coordinated Inauthentic Behavior (CIB).

• Encourage platform providers to allow small amounts of API/interoperability interface access for free, while permitting them to charge fair, reasonable, and nondiscriminatory rates to third parties operating at larger scale.

Providing this kind of openness downstream would create opportunities for innovation and experimentation with recommendation engines at a scale never before seen. This is not just an evolutionary step forward in what we think of as internet infrastructure; it’s also a roadmap to sustainable alternative business models for the internet ecosystem. Even assuming that many users would stick with the platform’s default experience and the business model underlying it, for those who choose to change, they’d have a true business model choice, and a deep, meaningful user experience choice at the same time.

I recognize that this is a thumbnail sketch of a very complex idea, with much more analysis needed. I publish these thoughts to help illustrate the relationship between agita over Section 230 and the concentrated tech ecosystem. The centralized power of a few companies and their recommendation engines doesn’t provide sufficient empowerment and interoperability, thus limiting the perception of meaningful agency and choice. Turning this open feed concept into a legal and technical requirement is not impossible, but I recognize it would carry risk. In an ideal world, we’d see the desired outcome - meaningful downstream interoperability including user substitutability of recommendation engines - offered voluntarily. That would avoid the costs and complexities of regulation, put platforms in a position to strike the right balance, and release a political pressure relief valve to keep the central protections of Section 230 intact. Unfortunately, the present day market and political realities suggest that may not occur without substantial regulatory pressure.

Filed Under: cda 230, competition, interoperability, section 230

GOP Senators Release Latest Truly Stupid Section 230 Reform Bill; Would Remove 'Otherwise Objectionable'; Enable Spamming

from the this-is-not-the-reform-you're-looking-for dept

Honestly, you'd think that the Senate might have a few more important things to be working on right now than introducing what has to be the... what... 8th bill to try to rewrite Section 230 of the Communications Decency Act this year? Either way, three Senators on the Commerce Committee have released yet another truly ridiculous attempt at reforming Section 230. Senators Roger Wicker, Lindsey Graham, and Marsha Blackburn are the three clueless Senators behind the ridiculously named "Online Freedom and Viewpoint Diversity Act."

Before we dig deeper, I should remind you that Marsha Blackburn hates net neutrality with the passion of a thousand suns. Hell, she even put together this lovely video nearly a decade ago where she sings the praises of the open internet, and companies like "Facebook, YouTube, Twitter." And then she says: "There has never been a time that a consumer needed a federal bureaucrat to step in to intervene."

So, anyway, federal legislator Marsha Blackburn, along with Senators Wicker and Graham have decided to "intervene" in order to attack Facebook, YouTube and Twitter, because those companies are moderating their private property in a way that these Senators don't like. It seems that they want... a bit more... what's the word I'm thinking of? Oh, right, "neutrality" in how content moderation works.

Blackburn's press release quote is particularly hilarious after what she said about net neutrality:

...the contentious nature of current conversations provides perverse incentive for these companies to manipulate the online experience in favor of the loudest voices in the room. There exists no meaningful alternative to these powerful platforms, which means there will be no accountability for the devastating effects of this ingrained ideological bias until Congress steps in and brings liability protections into the modern era.

Oh really? Wicker's quote is just as dumb:

“For too long, social media platforms have hidden behind Section 230 protections to censor content that deviates from their beliefs,” said Wicker. “These practices should not receive special protections in our society where freedom of speech is at the core of our nation’s values. Our legislation would restore power to consumers by promoting full and fair discourse online.”

No, Senator, they've relied on the 1st Amendment to do that. You know, the thing you swore an oath to protect and defend? Even without Section 230, internet platforms would have every right to take down content. Indeed, they'd likely do so more often to avoid having to fight over it in court.

Meanwhile, Senator Graham's quote just emphasizes that this legislation is designed to violate the 1st Amendment:

“Social media companies are routinely censoring content that to many, should be considered valid political speech. This reform proposal addresses the concerns of those who feel like their political views are being unfairly suppressed.”

See, here's the thing about the 1st Amendment, Senator, it means that you don't get to decide what is and what is not "valid political speech." It also means you can't compel speech, meaning you cannot compel private companies to host speech they don't want.

So what does this silly and unconstitutional bill do? Not what it's backers think. The key part is that they want to limit the liability protections for moderation to a very specific list of things that the government deems okay to moderate. We'll get into why that's unconstitutional shortly, but it is. The first part is that it tries to reinvigorate Section (c)(2) (and then cut it down). If you don't recall, (c)(1) is the part that says a website can't be held liable for third party content. (c)(2) then says that a website can't be held liable for moderation choices. In practice (c)(2) is never used, because courts have determined that holding a website liable for moderation practices would also be making them liable for third party content. So (c)(2) rarely even gets brought up in court.

So this bill first rewrites (c)(1) to say that it "shall not apply to any decision or agreement made or action taken by a provider or user of an interactive computer service to restrict access to or availability of material by another information content provider." And then further says that any immunity for moderation can only be protected under (c)(2). Then, it totally neuters (c)(2). First, it changes the part that says a website or user can moderate if it "considers" the content "to be" a long list of things "or otherwise objectionable" and now says it has to have the "objectively reasonable belief" of those things -- but without the otherwise objectionable part. It would strike the term "otherwise objectionable" from (c)(2)(A) and replace it with: "promoting self-harm, promoting terrorism, or unlawful." That would then make it say that (new parts in bold):

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user has an objectively reasonable belief is obscene, lewd, lascivious, filthy, excessively violent, harassing, promoting self-harm, promoting terrorism, or unlawful."

So... the end result is that moderation decisions would no longer be protected under (c)(1), and without the "otherwise objectionable" only a limited number of categories of content would get this protection under (c)(2). Note that "posting disinformation," for example, would no longer be covered. So, under this, Section 230 would no longer protect a website if it pulled down disinformation about, say, an election. Or COVID safety. Also it would seem to remove spam from 230 protections.

Of course, sites would almost certainly still be protected under the 1st Amendment, but it would be a hell of a lot more expensive for companies to defend against a slew of vexatious lawsuits regarding their moderation practices. This would be a full employment bill for tort lawyers (remember when Republicans used to whine about tort lawyers and their vexatious lawsuits?).

Finally, the bill would also change the definition regarding what constitutes an "information content provider." The law has always said that an ICP is anyone "that is responsible, in whole or in part, for the creation or development" of the content in question. Thus, in the Roommates.com case, Roommates was found to be the ICP for the content that potentially violated the Fair Housing Act, and therefore did not get 230 protections over that content (but did get 230 protections over actual 3rd party content).

In the new bill, it tries to redefine the "being responsible" bit to say that it "includes any instance in which a person or entity editorializes or substantively modifies the content of another person or entity."

You can think of this is the "make Twitter liable for fact checking Trump" clause. Of course, as I've argued in the past, the content of Twitter's fact check was never protected by 230 in the first place. Because it created that content. However, that content is 100% protected by the 1st Amendment. As would almost all content moderation decisions even under this bill.

So this bill would create a bunch of wasteful litigation and probably end up in the same basic place: platforms still able to moderate content, though they could face more expensive lawsuits about it all.

But it's also worth highlighting that the bill itself is obviously unconstitutional. By limiting the types of content that gets immunity protections, these three Senators have created a bill that is literally the opposite of content neutral. The Supreme Court has made it clear that you can't pass laws that are not content neutral. And this bill explicitly is not -- saying that only certain types of pre-approved content get legal protections (even if the content itself is legal), and others don't. That's a huge 1st Amendment no-no. In Ward v. Rock Against Racism, the Supreme Court said it pretty clearly:

Government regulation of expressive activity is content neutral so long as it is "justified without reference to the content of the regulated speech."

Yet here, the content is directly referenced, with a list of acceptable moderation reasons.

Either way the end result here is that (1) the bill is obviously unconstitutional, (2) it won't create more speech online, (3) won't stop Trump and his fans from getting fact checked, but (4) might lead to a bunch of wasteful litigation that will lose in the end, and (5) might destroy niche communities, and (6) encourage spam.

Those last two are kind of important. Because it would mean that niche communities might face vexatious lawsuits for moderating merely off-topic content. And it would mean that nearly all spam filtering is no longer protected by 230. Again, in the long run, they'd likely be protected under the 1st Amendment, but boy would there be wasteful litigation in the middle.

Anyway, I'm only moderately amused that this ridiculously unconstitutional piece of garbage, which focuses on the removal of the phrase "otherwise objectionable" happens to be released the day after we released "otherwise objectionable" merchandise. I guess get it while it still matters?

Filed Under: cda 230, content moderation, intermediary liability, lindsey graham, marsha blackburn, moderation, otherwise objectionable, roger wicker, section 230

My Comment To The FCC Regarding The Ridiculous NTIA Petition To Reinterpret Section 230

from the what-nonsense dept

Today is the due date for the first round of submissions to the FCC's comment period on the NTIA's laughable petition, which asks the agency to reinterpret Section 230 in response to the President's temper tantrum about Twitter fact checking him. This is clearly outside of its regulatory authority, but it has caved and pandered to the President by calling for comments anyway.

There are a ton of individuals and organizations commenting on why nearly everything around this is unconstitutional and/or outside the FCC's legal authority. The Copia Institute is filing a comment along those lines written by Cathy Gellis, and she'll have a post about that later. However, I wanted to file a separate comment from my own personal perspective about Section 230 and the nature of running a small media website that relies heavily on its protections. Because beyond the various filings from lawyers about this or that specific aspect of the law or Constitutional authority, it appeared that there was little discussion of just how illiterate the NTIA petition is concerning how content moderation works. And, tragically, many of the early filers on the docket were people who were screaming that because some content of theirs had been moderated by a social media company, the FCC must neuter Section 230.

The key part of my comment is to reinforce the idea that content moderation is impossible to do well and you will always have some people who disagree with the results, and there will also be many "mistakes" because that's the nature of content moderation. It is not evidence of bias or censorship. And, indeed, as my comment highlights, changing Section 230 to try to deal with these fake problems is only likely to lead to the suppression of more speech and the shrinking of the open internet.

Also, I talk about the time I wasn't kicked out of a lunch where I sat next to FCC Chairman Ajit Pai.

You can read my entire comment below.

If you would like to file a comment on the proceedings and have not yet done so, while the initial round of comments is due today, there is a second round for "responding" to comments made in the first round, which runs through September 17th.

Filed Under: ajit pai, cda 230, content moderation, fcc, impossibility, ntia, section 230
Companies: techdirt

Robert F. Kennedy Jr.'s Insanely Stupid Lawsuit Against Facebook

from the i-didn't-want-to-do-this dept

As you may have heard, last week Robert F. Kennedy Jr. and his anti-vax organization "Children's Health Defense" filed a supremely stupid lawsuit against Facebook, Mark Zuckerberg, and fact checking organizations Poynter and Politifact among others. It was filed early last week and I've wanted to write it up since someone sent it to me a few hours after it was filed, but, honestly, this lawsuit is so incredibly stupid that every time I tried to read through it or write about it, my brain just shut down. I've been incredibly unproductive the last week almost entirely because of this silly, silly lawsuit and my brain's unwillingness to believe that a lawsuit this stupid has been filed. And, as regular readers know, I write about a lot of stupid lawsuits. But this one is special.

The basis (if you can call it that) for this lawsuit is that Kennedy is mad that Facebook is blocking the medical disinformation he and his organization publish. Because it's wrong. And dangerous. And stupid. They have every right to do this, of course, so the lawsuit has to come up with the dumbest possible reason to argue as a basis for a lawsuit. We've covered lots of other bad lawsuits about content moderation, but the knots Kennedy and his team tie themselves in to make this argument is truly special (and I don't mean that in a positive way):

This is a case about how an officer and an agency within the U.S. Government “privatized” the First Amendment by teaming up with Facebook to censor speech which, under the Bill of Rights, the Government cannot censor. In February 2019, Democratic Congressman Adam Schiff (D-CA) threatened to introduce legislation to remove Facebook’s immunity under Section 230 of the Communications Decency Act unless Facebook implemented algorithms to “distinguish” and suppress “vaccine misinformation” and advertising. The Centers for Disease Control and Prevention (“CDC”) and, under its aegis, the World Health Organization (“WHO”) then collaborated at length with Facebook to suppress vaccine safety speech with a “warning label” and other notices that appear to flag disinformation, but in reality censor valid and truthful speech, including speech critical of those agencies and their policies. A judicial remedy is urgently required to redress that system of prior restraint which will otherwise go unredressed.

Try to read that without having your brain drip out of your ears. It's really difficult. To reiterate, Kennedy is arguing that the 1st Amendment has been "privatized" (?!?) because one Congressman threatened to remove Facebook's 230 protections if it didn't deal with vaccine misinfo. Now, to be clear, I've complained for well over a decade that it's totally inappropriate for elected officials to tell internet platforms how to moderate specific content. But, even if there were an issue here, the complaint would be with Adam Schiff, not Facebook.

I'm just as annoyed by Schiff threatening 230 over this as anyone, and I believe that pulling 230 would not help the situation at all. But it's simply laughable to argue that Schiff's demands turned Facebook into a government actor. Yet that's what the lawsuit argues.

Facebook making the decision that it does not want to be the central source for spreading anti-vax nonsense is something that it is free to do on its own. There is no legitimate argument for suing Facebook over this decision.

Here, government actors actively partnered with one of today’s leading “printing presses” (Facebook) to censor Plaintiff’s speech critical of government policy. The framers were familiar with the English struggle and enacted the First Amendment to establish and preserve the right of the People to full information about the doings or misdoings of their government. Grosjean, 297 U.S. at 247-49. This case mirrors the framers’ concerns. The government cannot accomplish indirectly what the Constitution forbids it to do directly.

THEN SUE THE GOVERNMENT. But, he did not. He sued Facebook and Zuckerberg. Why? For [reasons].

This is also a case of corporate fraud against Facebook and its Chairman Mark Zuckerberg, inter alia, for their smear campaign against Plaintiff consisting of false content that Facebook itself created, as well as knowingly false suggestions, and other acts of fraud and deception on or concerning Plaintiff’s Facebook page. At a time when the social media platform and its creator claim to be exponents of free expression and the scientific method for discovering truth, this case reveals the opposite: that they are indeed censors, and opponents of real science and open debate.

Sir, this is a Wendy's. A case of corporate fraud against Facebook? And that's why you're suing Facebook? What are you even talking about?

Children’s Health Defense (“CHD”) and its founder Robert F. Kennedy, Jr. (“RFK, Jr.”) have built CHD’s good name and reputation as a public health advocate for complete candor as to both the risks of environmental toxins, vaccines, 5G and wireless networks, and the conflicts of interest in government oversight of those products and services. Plaintiff’s online reputation is important to its standing as a preeminent leader in the health reform movement. CHD seeks $5 million or more in treble and punitive damages against the Facebook defendants for their deliberate use of the “known lie” to damage Plaintiff’s reputation and organization.

Oh shut the fuck up. You spew misinformation, Facebook is getting hammered from every direction for being a key venue through which such bullshit is spewed. Facebook, for good reasons, decides it doesn't want to host your nonsense. Don't like it? Go somewhere else.

Also, a lawsuit is no place to spew more nonsense conspiracy theories, but that's what we've got here:

This case arises in a pandemic when the need for public debate on health issues has never been greater. CHD’s vision is a world free of childhood chronic health conditions caused by environmental exposures. Plaintiff highlights harms associated with the current vaccine program, pesticides, and deployment of 5G and other wireless technologies. Zuckerberg’s professed “moon shot mission” is “to cure all disease on the planet within the Facebook chairman’s children’s lifetimes.” Yet, defendants’ first giant leap for humankind is to censor CHD’s viewpoint which competes with Facebook’s business plan for pharmaceutical ad revenue, vaccine development, and 5G and wireless networks. One may question on that basis the sincerity of their vision in this and all things.

First of all, fuck off with the 5G conspiracy nonsense. Don't spread bullshit. Second, this paragraph stupidly conflates the efforts Mark Zuckerberg is working on privately from his own foundation with the mission of Facebook itself. And they're not moderating your content because it "competes with Facebook's business plan." Because what the fuck, dude? It's not all about you.

And, even if for some reason Facebook was worried that you would somehow cut into its ad revenue (and it does not), so what? Under what bizarre legal standard do you actually think that Facebook is somehow required to host your nonsense? Oh, of course. A misreading of Packingham. [smacks forehead]

In Packingham v. North Carolina, 137 S. Ct. 1730, 1735-36 (2017), Justice Kennedy wrote of the potential harm that users of social media sites like Facebook can do, but his words ring true of the “mastermind” of that platform:

In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.” [. . .] While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. [. . .] the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium. [. . .] For centuries now, inventions heralded as advances in human progress have been exploited by the criminal mind. New technologies, all too soon, can become instruments used to commit serious crimes. [. . .] So it will be with the Internet and social media.

Id. at 1735-36 (emphases added). Now comes this case to fulfill Justice Kennedy’s prediction, but with an unexpected twist. One of the titans of the internet age has exploited that new technology as an instrument to commit fraud and censorship.

Packingham was about why the government cannot pass a law that bars people from social media. It has zero effect on whether or not a private platform can call out bullshit and moderate the content on its platform as it sees fit. And, of course, in relying on Packingham, this case ignores the much more on point (and recent) ruling in Halleck that made it clear that private companies get to moderate as they see fit, and aren't state actors just because you want them to be.

The complaint goes on and on about how awful it is that Facebook's actions against vaccine nonsense got support from the dreaded CDC and the WHO. Now, the CDC and the WHO have, at times, said dumb things. And they are not the be all, end all of health information. But this filing makes it out like whatever the CDC and the WHO say is the exact opposite of what people should pay attention to all the time. And seems to suggest that in Facebook setting up rules to follow CDC and WHO guidelines, that it is somehow evidence of nefarious intent.

Honestly, so much of this 115 page lawsuit is like a legalistic version of the utter nonsense that shows up in our comments any time we call out anti-vax nonsense. Idiots with way too much free time on their hands and way too little understanding of evidence, statistics, data, and science, who spew utter nonsense with links they don't understand, studies they haven't read, and medical mumbo jumbo they do not grasp. It's bullshit.

At some point about halfway through the filing, the lawyers finally recognize that Section 230, which allows Facebook to moderate however they want, may be a problem, and they try to address that in the most laughable way possible: by citing the famous Roommates.com case. We've talked about that case for many, many years. It was the first ruling that punched a bit of a hole in CDA 230, but it also (mostly) upheld content moderation. All it said was that if the site was involved in creating content that itself violated the law, then it might be liable for that content alone. In the Roommates case, that was content regarding the preferred race of a roommate, which violated fair housing law. There is nothing in Roommates that helps Kennedy here, even if he claims otherwise:

Facebook has an undoubted right “to control its own product, and to establish the terms with which its users, application developers, and advertisers must comply in order to utilize this product.” Sambreel Holdings LLC v. Facebook, Inc., 906 F. Supp. 2d 1070, 1076 (S.D. Cal. 2016). But, here, even Facebook cannot avoid liability for provable injury to Plaintiff’s property rights and intangible assets based on fraud and misrepresentation. See, e.g., Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1166 (9th Cir. 2008) (en banc) (service provider may be liable where it makes answering discriminatory questions a condition for doing business on its site).

Thus, Facebook’s ownership of its platform does not give it free rein to develop, create, and publish false and misleading content on CHD’s page, or to create tags which mislead third-party users about the truthfulness of content on CHD’s pages, or to drive traffic from CHD’s page to the CDC, to advance Facebook’s adverse business interests. Facebook’s control over the manner in which its users view its website does not encompass the right to commit acts of censorship, false disparagement, and fraud.

That is... not what the Roommates case says or means. It's also not what Facebook is doing.

Over the past fifteen months or longer, defendants have carried out a fraudulent scheme to misrepresent, censor, and exclude CHD’s viewpoint on vaccine and 5G network safety.

Lol. No. That's not how any of this works.

Most of Kennedy's anger is over what he considers to be a "falsely disparaging warning label." Of course, out here, in the real world, that's what's known as protected opinion under the 1st Amendment.

As alleged supra, on September 4, 2019, after “several months of discussion” with the WHO (Vaccine Misinformation: Statement by WHO Director-General on Facebook and Instagram, supra, https://www.who.int/news-room/detail/04-09-2019-vaccinemisinformation- statement-by-who-director-general-on-facebook-and-instagram), Facebook published a Warning Label in bold black letters at the top of CHD’s Page, which states:

This Page posts about vaccines

When it comes to health, everyone wants reliable, up-to-date information. The Centers for Disease Control (CDC) has information that can help answer questions you may have about vaccines.

Go to CDC.gov

Remember: that warning is what Kennedy calls "falsely disparaging." What is false in the statement? What is disparaging? All it does is add more information and recommend people visit the CDC website. That's neither false, nor disparaging. We get that kooks like Kennedy think the CDC is a problem, but that doesn't make the label either false or disparaging.

Hell, given that, in this very lawsuit, Kennedy whines that Facebook is against hearing all sides of an issue, it is totally laughable that their main complaint is that... Facebook suggests people research other viewpoints from those presented by Kennedy and his merry band of gullible idiots.

Facebook’s warning label conveys in clear terms to any user that what they see on CHD’s page is not reliable and not up-to-date, and it directs the user instead to “go to CDC.gov” for reliable and up-to-date “information” about vaccines. Any user visiting a webpage scans the immediately-visible content before scrolling down to view the remainder of the content. Consequently, the top banner space of any webpage is valuable “screen realestate” where prime content can be shown. Facebook’s intended effect is to deprive CHD of this screen space and to redirect users away from CHD’s page to the CDC website.

Yeah, well, if you don't like it, don't spread debunked nonsense. Also, it does not convey that at all. That's your own paranoia speaking.

Next, Kennedy gets upset that Facebook blocked a video of him ranting nonsensically about pharma giant Merck after their fact checking partners (co-defendants in the lawsuit) pointed out that the video was not accurate.

Facebook’s warning label on RFK’s January 15, 2019 videotape critical of Merck, Inc. was materially deceptive, in that the videotape is accurate with respect to its assertions of fact and is otherwise an expression of RFK, Jr.’s opinions, and not “False Information” as Facebook claims. Facebook’s warning label also omits material facts by failing to disclose its advertising-client relationship with Merck, Inc. See T. Staton, The top 10 pharma companies in social media, FIERCEPHARMA, https://www.fiercepharma.com/specialreport/ top-10-pharma-companies-social-media-0 (last accessed Aug. 14, 2020). Merck, Inc. is one of the top 10 social media spenders among pharmaceutical companies and heavily leverages Facebook as an advertising platform.

Facebook wasn't removing the video because Merck is an advertiser. It's removing the video because it's kook nonsense, debunked by actual scientists. And even if it wasn't, Facebook has every right to host what content it wants and not whatever RFK wants.

The lawsuit goes on and on and on whining about each time fact checkers called out nonsense and Facebook blocked videos. Again, Facebook has every right to do so. And then it complains about Facebook shutting down Kennedy's group's fundraising page and rejecting its many attempts to appeal that decision.

And then, of course, you get to the conspiracy theories. Because what else would you expect from a group deeply mired in spreading nonsense conspiracy theories, other than a lawsuit that spreads conspiracy theories. And so it is with Facebook supposedly "shadow banning" Kennedy's group. Shadowbanning is the bogeyman of idiots online who insist there must be some grand conspiracy against them online when people don't want to hear their nonsense. Shadowbanning, as a technique, is something that was tested relatively early on by Reddit, but which basically every online site that has experimented with it has found doesn't do much and isn't that useful. Idiots love to scream about how they were "shadowbanned" because it makes them seem like a victim when they can't prove anything real happened. The "proof" here is that Facebook got a patent for moderating content.

On or about May 1, 2019, Facebook began covertly to demote and/or ban content (“shadow-ban”) that CHD posted to its Facebook page, effectively limiting its visibility and reach, and secondarily reducing ad revenue to CHD. Facebook owns a patent on social media shadowbanning. See United States Patent No. 10,356,024, Kanter et al. (Moderating content in an online forum), USPTO Patent Full-Text and Image Database, UNITED STATES PATENT AND TRADEMARK OFFICE (Jul 16, 2019), http://patft.uspto.gov/netacgi/nph- Parser?Sect2=PTO1&Sect2=HITOFF&p=1&u=/netahtml/PTO/searchbool. html&r=1&f=G&l=50&d=PALL&RefSrch=yes&Query=PN/10356024 (last accessed Aug. 15, 2020). The patent describes the mechanism by which shadowbanning is accomplished: In one embodiment, the social networking system blocks banned comments by analyzing the text of the comments. For example, if a comment includes a profane word, as provided in a list of banned words, the social networking system will not display the comment to other users of the social networking system.

Additionally, in one embodiment, Facebook also performs a “sentiment analysis” to identify whether a comment includes sentiment that is banned under Facebook’s community standards, e.g., derogatory racial epithets. Finally, Facebook’s patent permits it to train a machine learning classifier to block comments based on Facebook content moderators’ actions of manually deleting comments or unblocking comments in the online forum. In one embodiment, the blocked comments are not displayed to the wider community of Facebook users. However, the blocked comments are displayed to the commenting user and his or her friends within the social networking system. As such, Facebook’s software creates a simulacrum in which the “offending” user — here CHD — is not aware that their comment or content is not displayed to other users of the forum. Since May 2019, Facebook has utilized this deceptive scheme in order to covertly limit or block CHD’s content while misrepresenting the visibility and reach of that content to CHD itself, and misrepresenting the totality of CHD’s content to all third-party users.

Newsflash: just because a company got a patent, it doesn't mean that it's being used. And certainly not in the way that you think.

Then, hilariously, Kennedy points to a document revealed by a "whistleblower" (and, it should be noted that this "whistleblower" info came from... the less than trustworthy Project Veritas organization, which has a long history of totally misrepresenting things) that proves Facebook is (*gasp*) experimenting with methods to limit the spread of undesirable information. Why is this a surprise? Why do you need a whistleblower. I'll tell you straight up that every such website is experimenting with such methods because that's part of what they do. Yet here, Kennedy reveals two internal slides from a low level Facebook employee suggesting ways to deal with trolls by making things annoying for them. Let's be clear, this is the kind of thing that every single internet website thinks about at one point or another, because dealing with trolls is a fucking nuisance.

There is no evidence that this was ever actually implemented. But discussing and brainstorming around these kinds of techniques happens all the time. But it really says something when Robert Kennedy Jr. looks at these actions explicitly targeting trolls and assumes "yup, that's what's happening to me." It seems he's admitting that he knows he's a troll.

From there, the lawsuit attacks various fact checkers. It claims that because the French organization Science Feedback is paid by Facebook to designate certain pages as having "false" or "partly false" info, that the site has incentive to categorize sites like that... in order to generate content to their own sites. That is... again... not how any of this works. Do fact checkers sometimes make mistakes? Absolutely. But they're not doing it to generate clicks.

Under this arrangement, Facebook pays Science Feedback to classify content, and Facebook flags content for Science Feedback to evaluate and classify as part of their partnership. Science Feedback is paid by Facebook to find false stories, and here willfully marked Plaintiff’s content as “false” or “partly false” in order to generate traffic to its website through the warning and link, and to further its contractual partnership with Facebook. The “fact-checking” system Facebook created encourages this type of mislabeling. The Science Feedback fact-checkers have an obvious incentive to categorize a post as “False” rather than an accurate but less damaging classification of “Opinion,” because that is the only way Facebook will insert the clear warning with a prominent link to Science Feedback’s oppositional article. Facebook deceives its users by materially misrepresenting that its “fact-checkers” are “independent,” contractually or editorially. Significantly, the arrangement also permits Facebook and Science Feedback to create categorical exemptions from “fact-checking” where it suits Zuckerberg’s political or other biases, e.g., the “opinion” exemption for climate science deniers.

After this there's a long section repeating a bunch of debunked nonsense about both vaccines and 5G. And if you're going to be one of those idiots in the comments arguing about this, just go away. You're too stupid and ignorant to be on this site.

Finally, at page 87, we get to the actual claims. The first claim is that there are 1st and 5th Amendment violations... by the private company defendants (Facebook and the fact checkers). Again, that's not how any of this works. They're arguing that these are Bivens violations, which is a reference to the famous Bivens case that established a cause of action against the federal government. You might notice an immediate problem. Facebook and the fact checkers are not the government. Here, Kennedy completely tries to muddy the waters with an insanely confusing claim, arguing that it really is the government because of Schiff's comments. But he's not suing the government. This... is really bad lawyering.

The second claim is... Lanham Act violations. What the fuck...? They're claiming that the anodyne messages on the top of Kennedy's page suggesting people also look to the CDC website is "false promotion." Really. I wish I were joking. Let's just say, this is utter nonsense:

The Lanham Act is not strictly limited to conduct that is unfair to a direct competitor, if defendant is affiliated with a competitor. Here, it suffices that defendants have actively cooperated with the CDC and WHO, with whom Plaintiff competes in the marketplace of ideas concerning genuine scientific inquiry into vaccine safety, and that Plaintiff competes with defendants in that same marketplace with respect to 5G network safety. Facebook is engaged in promoting competitive products through its pharmaceutical manufacturer advertisers, and competitive services through its affiliation with the CDC and WHO.

I feel bad that a judge has to actually read this shit.

The complaint then argues that CDA 230 doesn't protect Facebook... because of reasons that do not match what any court has ever said about 230:

In publishing its false “warning label” and “fact-checks,” Facebook has acted, and continues to act, both as an interactive computer service provider and as “content provider.” Section 230(f)(3) defines an information content provider as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” Under Ninth Circuit law, as to content that a website service provider creates itself, or is responsible in whole or in part for creating or developing, the website is also a content provider. Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 1162-63 (9th Cir. 2008) (en banc); Fraley v. Facebook, 830 F. Supp. 2d at 801-02. Under the CDA, 47 U.S.C. § 230(f)(3), Facebook’s warning label and its other affirmative content-creation far exceed “a publisher’s traditional editorial functions,” Batzel v. Smith, 333 F.3d 1018, 1031 n.18 (9th Cir. 2003), and far exceed that content-creation of question-and-answer-sets which the Ninth Circuit found sufficient in the Roommates.com case. See, e.g., Roommates.com, 521 F.3d at 1163 (Congress did not seek to immunize “the creation of content.”) (emphasis added). Facebook has no immunity from liability for actionable harms arising from its fraudulent course of conduct.

And, there is a subtle point here that I will grant Kennedy. Section 230 does not protect the specific content of the warning label that Facebook applied to Kennedy's page. It protects all of the moderation decisions, including the decision to put such a label on their page. But, what does protect the content is the 1st Amendment. There is nothing that violates any law for Facebook to recommend people visit the CDC's website.

Kennedy then cites the President's nonsense Executive Order on social media -- which does not change the law in any way -- as supporting this case.

Next up, Kennedy argues (you guessed it) RICO violations. And to that we'll just respond with the necessary response from Ken "Popehat" White: IT'S NOT RICO, DAMMIT. It's not. It's not even close. There's no conspiracy. There's no enterprise. There's no racketeering activity. The complaint argues that Facebook and Zuckerberg were trying to engage in a scheme to defraud through false or fraudulent pretense, but the only false or fraudulent pretenses seem to be coming from the plaintiff in this case.

The whole thing is insane. The lawyers (including Robert F. Kenney Jr., Mary Holland, and Roger Teich) should feel bad. This is not good lawyering. This is garbage. And, as filed in California, stupidly, it might even subject Kennedy and his group to California's anti-SLAPP law, since they explicitly claim their complaint is with Facebook's constitutionally protected speech suggesting people visit the CDC's website. This case is likely to be thrown out, and it's even possible that Kennedy will end up paying Facebook's expensive legal bills.

Filed Under: anti-vaxxers, cda 230, content moderation, fact checking, mark zuckerberg, rfk jr., robert f. kennedy jr., section 230, vaccines
Companies: children's health defense, facebook, politifact, poynter, science feedback