The GOP Knows That The Dem's Antitrust Efforts Have A Content Moderation Trojan Horse; Why Don't The Dems?

from the getting-played-like-a-fiddle dept

Last summer, I believe we were among the first to highlight that the various antitrust bills proposed by mainly Democratic elected officials in DC included an incredibly dangerous trojan horse that would aid Republicans in their "playing the victim" desire to force websites to host their disinformation and propaganda. The key issue is that many of the bills included a bar on self-preferencing a large company's own services against competitors. The supporters of these bills claimed it was to prevent, say, an Apple from blocking a competing mapping service while promoting Apple Maps, or Google from blocking a competing shopping service, while pushing Google's local search results.

But the language was so broad, and so poorly thought out, that it would create a massive headache for content moderation more broadly -- because the language could just as easily be used to say that, for example, Amazon couldn't kick Parler off it's service, or Google couldn't refuse to allow Gab's app in its app store. You would have thought that after raising this issue, the Democratic sponsors of these bills would fix the language. They have not. Bizarrely, they've continued to issue more bills in both the House and the Senate with similarly troubling language. Recently, TechFreedom called out this problematic language in two antitrust bills in the Senate that seem to have quite a lot of traction.

Whatever you think of the underlying rationale for these bills, it seems weird that these bills, introduced by Democrats, would satisfy the Republicans' desire to force online propaganda mills onto their platforms.

Every “deplatformed” plaintiff will, of course, frame its claims in broad terms, claiming that the unfair trade practice at issue isn’t the decision to ban them specifically, but rather a more general problem — a lack of clarity in how content is moderated, a systemic bias against conservatives, or some other allegation of inconsistent or arbitrary enforcement — and that these systemic flaws harm competition on the platform overall. This kind of argument would have broad application: it could be used against platforms that sell t-shirts and books, like Amazon, or against app platforms, like the Google, Apple and Amazon app stores, or against website hosts, like Amazon Web Services.

Indeed, as we've covered in the past, Gab did sue Google for being kicked out of the app store, and Parler did sue Amazon for being kicked of that company's cloud platform. These kinds of lawsuits would become standard practice -- and even if the big web services could eventually get such frivolous lawsuits dismissed, it would still be a tremendous waste of time and money, while letting grifters play the victim.

Incredibly, Republicans like Ted Cruz have made it clear this is why they support such bills. In fact, Cruz introduced an amendment to double down on this language and make sure that the bill would prohibit "discriminating on the basis of a political belief." Of course, Cruz knows full well this doesn't actually happen anywhere. The only platform that has ever discriminated based on a political belief is... Parler, whose then CEO once bragged to a reporter how he was banning "leftist trolls" from the platform.

Even more to the point, during the hearings about the bill and his amendment, Cruz flat out said that he was hoping to "unleash the trial lawyers" to sue Google, Facebook, Amazon, Apple and the like for moderating those who violate their policies. While it may sound odd that Cruz -- who as a politician has screamed about how evil trial lawyers are -- would be suddenly in favor of trial lawyers, the truth is that Cruz has no underlying principles on this or any other subject. He's long been called "the ultimate tort reform hypocrite" who supports trial lawyers when convenient, and then rails against them when politically convenient.

So no one should be surprised by Cruz's hypocrisy.

What they should be surprised by is the unwillingness of Democrats to fix their bills. A group of organizations (including our Copia Institute) signed onto another letter by TechFreedom that laid out some simple, common-sense changes that could be made to one of the bills -- the Open App Markets Act -- to fix this potential concern. And, yet, supporters of the bill continue to either ignore this or dismiss it -- even as Ted Cruz and his friends are eagerly rubbing their hands with glee.

This has been an ongoing problem with tech policy for a while now -- where politicians so narrowly focus on one issue that they don't realize how their "solutions" mess up some other policy goal. We get "privacy laws" that kill off competition. And now we have "competition" laws that make fighting disinformation harder.

It's almost as if these politicians don't want to solve actual issues, and just want to claim they did.

Filed Under: antitrust, app markets, competition, content moderation, democrats, discrimination, gop, open app markets, ted cruz

NY Legislators Offer Up Bill That Would Allow Cops To Sue People For Not Doing Enough Bootlicking

from the when-i-think-about-[cops],-i-touch-myself-...-i-touch-myself dept

I'm not sure what's happening in the New York legislature, but a whole lot of NY politicians appear to believe law enforcement officers -- some of the most powerful public servants in the nation -- are some ultra-rare species of easily frightened lagomorphs, incapable of performing their jobs without being protected from the people they serve.

Last week, US Congresswoman Claudia Tenney served up a bill that would codify qualified immunity for law enforcement, claiming this was necessary because people whose rights have been trampled are too litigious and cops are dying at an alarming rate. Ignored were the uncomfortable facts that qualified immunity is an enabler of the bad apples who spoil the cop bunch and cops are dying of communicable viruses, rather than the guns and bullets of bad guys.

Following in the footsteps of Tenney's bad bill and an unseemly amount of so-called "Blue Lives Matter" laws, comes this terrible legislative pitch from a handful of Nassau County (NY) lawmakers. Having utterly failed to read the room, these legislators think the time is right to convert cops (and other first responders) into a protected class. (via Adam Steinbaugh)

Here's the bill's [PDF] pitch in all-caps form:

A LOCAL LAW TO AMEND THE NASSAU COUNTY ADMINISTRATIVE CODE IN RELATION TO AMENDING THE NASSAU COUNTY HUMAN RIGHTS LAW TO PRECLUDE DISCRIMINATION AGAINST FIRST RESPONDERS

How does one "discriminate" against a "first responder," which is an employment choice, rather than an immutable characteristic? Good question. But you're not going to get a straight answer. Instead, you're going to get gaslighted. Up is down, left is right, anti-police brutality protests violate the rights of citizens. Yes, you just read exactly what you think you read.

It is the judgment of this legislature that the recent widespread pattern of physical attacks and intimidation directed at the police has undermined the civil liberties of the community at large. It has been reported that over seven hundred federal, state and local law enforcement officers have sustained injury in civil unrest since the close of May of last year, according to United States Department of Justice data.

Even if it is accurate to say that nationwide protests against police violence resulted in an inordinate number of officers being injured, that should be expected. 2020 saw more than its share of protests -- the sort of spike that could only produce a spike in officer injuries. But that is part of this job, just like qualified immunity, arbitration, lax oversight, the backing of powerful government officials, and a separate and unequal "bill of rights" are. The good comes with the bad. That's the way it goes. But making this assertion ignores the inevitable result of an increased number of protests, as well as the years of nonexistent oversight and biased policing that led to the protests stemming from the casual murder of an unarmed black man by a white police officer in Minneapolis, Minnesota.

The pro-cop fanfic continues for several paragraphs. This would be normal if this were a Facebook group post rather than legislation being introduced by Long Island legislators. Dogs and cats living together indeed.

This Legislature notes with extreme concern that in many jurisdictions, outbreaks of destructive rioting and lawlessness have deliberately targeted and victimized law enforcement officers and other first responders. This Legislature further recognizes that the clear intent of some of these attacks is to hinder or prevent the police from performing their duty to enforce the law and safeguard society rom chaos and mass violence.

Ok. Whatever. Brace yourself. It's gets even stupider.

It is the emphatic judgment of the Legislature that no law enforcement officer should be subjected to actual or threatened physical assault and abuse in the performance his or her duties ~ not only because police officers are human beings deserving of respect, dignity and equal protection of Law, but also because they are the indispensable first line of defense for everyone's fundamental civil and human rights.

LOL. Cops are the protectors of civil and human rights. OK, Karen. Maybe if you think "protecting civil rights" means "oppressing anyone not as rich or as white as me." Police are not about protecting rights. They love to violate those rights, resting peacefully in the fact that qualified immunity will get them off. Failing that, their extremely advantageous contracts with the cities they serve will allow them to be reinstated as law enforcement officers. Again and again and again. If cops really cared about human rights and civil liberties, they wouldn't violate them so often. And they wouldn't be so abjectly terrible about solving crimes perpetrated on the citizens they're supposed to be acting as a "thin blue line" to protect against.

#NotAllCops tweeted the legislators:

Importantly, this Legislature expressly disavows any intent to excuse or minimize the ‘gravity of incidents of police misconduct that have occurred in this country, especially those which may be motivated by racial intolerance. Because these wrongful acts are done in the name of law, they are especially corrosive to the rule of law. We believe that our law enforcement personnel join us in condemning such misconduct. Yet acts of misconduct by individual officers can never under any circumstances justify the vilification of all law enforcement personnel or acts of violence directed at police.

Liars. You're all liars. You won't even "vilify" the "bad apples" you feel don't represent the whole bunch. Until law enforcement is willing to clean up its own act, vilification of all police officers is justified. The presence of "good apples" does not un-rotten the rest of the barrel. Until law enforcement agencies are willing to treat abusive cops as the abusers they are, nothing will change.

You can read the rest of the preamble if you have a kink for vomiting in your own mouth. When you're done, join the rest of us in reading the goddamn proposal, which is as dumb as it is stupid.

It shall be an unlawful discriminatory practice for any person to harass, menace, assault or injure an individual due to such individual's status as a first responder and such unlawful discriminatory practices are hereby prohibited. Where such first responder is in uniform, or is otherwise dearly identified as a first responder, there is an irrebuttable presumption that such harassment, menacing, assault or injury is motivated by such individual's status as a first responder.

"Assault" already means inadvertently bumping into a police officer during an altercation/interaction. "Menace" tends to mean some officer states in court they felt "afraid." Harassment is such a broad term that anything from phoning in bomb threats to "sent a couple of heated DMs" will be considered a violation. "Injure" is the only term that can be defined solidly by its results, but even then, it only means an officer sustained an injury in the line of duty -- something that is bound to happen. But with this law in place, it means the officer can sue the person who injured them.

This isn't just asinine. It's also redundant. The definition of assault in this bill cite Sec. 120 of New York law -- a section that already covers everybody being given even more legislative shielding by this bill. Brace yourself yet again, but this time for a fucking wall of text that already says assaulting "first responders" is its own crime.

With intent to prevent a peace officer, a police officer, prosecutor as defined in subdivision thirty-one of section 1.20 of the criminal procedure law, registered nurse, licensed practical nurse, sanitation enforcement agent, New York city sanitation worker, a firefighter, including a firefighter acting as a paramedic or emergency medical technician administering first aid in the course of performance of duty as such firefighter, an emergency medical service paramedic or emergency medical service technician, or medical or related personnel in a hospital emergency department, a city marshal, a school crossing guard appointed pursuant to section two hundred eight-a of the general municipal law, a traffic enforcement officer or traffic enforcement agent, from performing a lawful duty, by means including releasing or failing to control an animal under circumstances evincing the actor's intent that the animal obstruct the lawful activity of such peace officer, police officer, prosecutor as defined in subdivision thirty-one of section 1.20 of the criminal procedure law, registered nurse, licensed practical nurse, sanitation enforcement agent, New York city sanitation worker, firefighter, paramedic, technician, city marshal, school crossing guard appointed pursuant to section two hundred eight-a of the general municipal law, traffic enforcement officer or traffic enforcement agent, he or she causes physical injury to such peace officer, police officer, prosecutor as defined in subdivision thirty-one of section 1.20 of the criminal procedure law, registered nurse, licensed practical nurse, sanitation enforcement agent, New York city sanitation worker, firefighter, paramedic, technician or medical or related personnel in a hospital emergency department, city marshal, school crossing guard, traffic enforcement officer or traffic enforcement agent.

What this law does is make it way more expensive for citizens to interact with officers who feel more offended than usual that someone bumped into them during the policing of a protest or traffic stop or an unjustified pat down or whatever

In addition to civil liability under subsection three of this section, any ‘person found to have violated the provisions of this section shall be subject to a civil penalty of no more than twenty-five thousand dollars per violation that shall be recoverable for and pavable to the aggrieved first responder. Where such violation is committed in the course of participating in riot. the penalty shall be no more than fifty thousand dollars.

AND THAT'S NOT ALL. Civil penalties also apply:

A first responder claiming to be aggrieved by a discriminatory practice under "subsection one of this section may commence a civil action in a court of competent jurisdiction for declaratory and injunctive relief and to recover ‘compensatory damages, punitive damages and attorney's fees and costs and for ‘such other relief as the court may deem appropriate. Where violations of this section occur during the course of a riot in response to which the first responder is deployed such monetary damages shall be trebled. Notwithstanding anything to the contrary in this title, such civil action mav be commenced without ‘exhaustion of any administrative remedies which may be available to the first responder. A court of competent jurisdiction is hereby authorized to determine and award attorney's fees to a prevailing first responder in such a civil action. A civil action commenced under this section must be within three years after the occurrence of the alleged unlawful discriminatory practice.

It's a garbage law written by garbage legislators that will be embraced by garbage people, many of them also garbage legislators and garbage people currently employed as law enforcement officers. These legislators have gazed upon the current national climate and decided it's the people they serve who are wrong. And, in fact, they have abdicated their responsibility to serve them. Instead, they will serve their own interests: fellow government employees who have seen multiple days of reckoning all over the nation and decided (as always) that it's the governed who have stepped out of line.

Filed Under: blue lives matter, discrimination, first responders, nassau county, police, protected class

Man Sues Multiple Social Media Services, Claims Banning His Accounts Violates The Civil Rights Act

from the new-twist,-but-not-a-smarter-twise dept

Everybody wants to sue social media platforms for (allegedly) violating the First Amendment by removing content that most platforms don't feel compelled to host. Most of what's sued over is a mixture of abusive trolling, misinformation, bigoted rhetoric, and harassment. Plaintiffs ignore the fact that private companies can't violate the First Amendment. The First Amendment does not guarantee anyone the right to an audience or the continued use of someone's services.

Then there's Section 230 immunity, which shields platforms from lawsuits filed over content posted by users as well as their own moderation decisions. This immunity has angered everyone from the lowliest troll to the lowliest President of the United States of America. No number of complete losses appears capable of deterring the next hopeful plaintiff from lobbing a sueball into court with the hope that the presiding judge will be as batshit crazy as the allegations and arguments contained in the lawsuit.

Some litigants (and some of our stupider legislators) continue to insist platforms like Twitter are indistinguishable from phone companies. Ignoring the transitive nature of "carrying" fleeting communications, these hopefuls insist Big Tech is just Ma Bell and must be compelled to "carry" their content… forever. No court has agreed with this argument, the occasional word dump by the usually silent Justice Clarence Thomas notwithstanding.

Maybe the solution is to short-circuit this determination by presumptively declaring social media companies to be common carriers, like the plaintiff in this lawsuit, who's angry a number of online services deleted his Zionist conspiracy theory content. This suit [PDF], filed in Massachusetts, kicks things off by declaring platforms to be common carriers, using boldface type to drive the point home.

The defendants in this case are Twitter (drink!), Facebook (drink!)... um… LinkedIn (drink?), Medium (you have reached your limit of free drinks for this month), The Stanford Daily Publishing Corp. (please create an account to drink), and The Harvard Crimson, Inc. (I graduated drunk, he casually dropped into the unrelated conversation). Plaintiff Joachim Martillo insists at least the first three are common carriers. His legal arguments for this theory are mostly the subheads.

Defendant Twitter Inc (A Common Carrier, Defendant 1)

Twitter Inc (Twitter) operates as a platform for public self-expression and conversation in real time. The company offers various products and services, including the Twitter platform that allows users to consume, create, distribute, and discover content. Twitter provides common carriage for a fee and in exchange for work.

And so it goes for both Facebook and LinkedIn. The remaining defendants are not declared to be common carriers. Martillo also notes he has filed similar lawsuits (one for each defendant in this lawsuit) in [checks filing] Dorchester Municipal Court.

After quoting Justice Clarence Thomas' recent ramblings about how much "power" he feels these private companies have over public discourse, Martillo moves on to claim Section 230 of the CDA allows platforms to avoid their obligations under other federal anti-discrimination laws like the Civil Rights Act of 1964, the Americans with Disabilities Act, and… the Fair Housing Act (go home lawsuit, you're drunk).

Martillo actually makes the argument that a social media platform is a physical entity that should be accessible to everyone, using verbiage apparently cribbed from the Time Cube website.

It is not necessary to consider the public accommodation that Facebook provides to be virtual. Computer scientists use virtualization to describe complex electronic structures including transient gate state structures created by a logic device like a microprocessor. These structures are completely material…

Achievement unlocked: red pill consumed.

How does this all connect?

The plain text of the CDA (Communications Decency Act) provides no indication that the CDA is meant to override civil rights law.

Martillo is correct, but not in the way he thinks. The CDA does not allow platforms to engage in discriminatory hiring practices or discriminate against certain users because of their race or other immutable characteristics. (It also does not protect them from being prosecuted or sued for federal law violations.) This does not mean they cannot moderate content, even if some users might perceive their moderation efforts to be discriminatory. And that's the crux of Martillo's arguments. He feels he's been discriminated against because he is, shall we say, "anti-Zionist."

The Title II violation by Facebook seems to be directed primarily at Palestinians, Arabs, Muslims, and Diaspora Jews that reject Zionism. No other groups protected under the CRA seems to be subject to harassment by organized persecutors attempting to establish or to maintain a cultural hegemony.

[...]

The response [of Facebook] is more akin to the behavior of a restaurateur that bans blacks from his restaurant because the KKK has threatened him or his restaurant.

What follows from this is Martillo attempting to make the case that his pro-Palestinian content was taken down by the Zionist collectives that handle Big Tech social media moderation. That includes non-Big Tech defendants like sites run by Stanford and Harvard, which removed comments of his suggesting (in a circular fashion) that Zionists are evil, resulting in the removal of comments by alleged Zionists staffing those student sites.

Martillo also apparently startled LinkedIn by sharing content on its platform, forcing it to wake up its on-call moderators to do some moderating.

According to Martillo, these moderation efforts violate the Civil Rights Act, although he is unable to explain how he's being discriminated against. Nor does he specify which protected group he's a member of. There's a "denial of common carriage" claim in there (because of course there is) that Martillo feels is worth at least $3.65 million at the time of this filing.

Needless to say, this lawsuit won't go anywhere, even if the plaintiff feels Clarence Thomas's off-hand remarks on the power of social media companies mean something. Social media services aren't common carriers. Section 230 will immunize all of the defendants. And the First Amendment ensures they can't be forced to carry Martillo's content, no matter how fervently believes he's being discriminated against by a Zionist cabal.

Filed Under: 1st amendment, common carriers, content moderation, discrimination, joachim martillo, section 230, zionism
Companies: facebook, harvard, linkedin, medium, stanford, twitter

Yes, Actually, The 1st Amendment Does Mean That Twitter Can Kick You Off Its Platform, Wall Street Journal

from the columbia-law-students-should-get-a-refund dept

Back in February, we did a thorough debunking of Columbia Law Professor Philip Hamburger arguing (bizarrely, and blatantly incorrectly) that Section 230 violates the Constitution in the pages of the Wall Street Journal. It was a nearly fact free opinion piece that got so much wrong I was vicariously embarrassed for anyone who ever got a law degree from Columbia University. In the intervening months, it does not appear that Prof. Hamburger has done anything to educate himself. Instead, he appears to be digging in, with the help of the Wall Street Journal again. Leaving aside the fact that the Wall Street Journal's parent company has been lobbying against Section 230, and its various news properties have been among the most vocal in spreading blatantly false information about the law, I guess this is no surprise. But if the Wall Street Journal really believes this nonsense, then why won't it let me publish my op-ed in their pages about how the WSJ is the worst newspaper ever, and regularly prints lies and nonsense to please its scheming owner in his hatred of the internet?

Anyway, Hamburger's latest is, I guess, in some ways a response to everyone pointing out that he was wrong in his first op-ed. A key argument actual experts made was that what Hamburger was really mad at regarding content moderation was not Section 230 (as he claimed), but the 1st Amendment, which gave websites all the leeway they wanted to moderate content. So Hamburger's new response, written with former Trump DOJ official Clare Morell, tries to argue that the 1st Amendment doesn't actually protect website content moderation choices. It's almost difficult to believe, but it's even more wrong than his February article.

Does the Constitution require Americans to accept Big Tech censorship? The claim is counterintuitive but the logic is clear: If you submit a letter to this newspaper, the editors have no legal obligation to publish it, and a statute requiring them to do so would be struck down as a violation of the Journal’s First Amendment rights. Facebook and Twitter, the argument goes, have the same right not to provide a platform to views they find objectionable.

The claim is not counterintuitive. It's one of those basic "property rights" things that most of us believe in. And the logic is clear, because... uh... that's how the 1st Amendment works. But Hamburger has just discovered the other hammer that a bunch of clueless Twitter-pretend-lawyers discover when someone points this out. He thinks that "antidiscrimination" laws are the answer. Again, this is mildly embarrassing when @JoeBob2354192081 on Twitter comes up with it. It's horribly embarrassing when a law professor at one of the top law schools in America comes up with it.

Another reason to doubt the First Amendment claim: Antidiscrimination laws are familiar limits on speech. The U.S. has a range of local, state and federal antidiscrimination laws with significant speech consequences, and courts haven’t held that they violate the First Amendment. One has a First Amendment right to bigoted speech, but not, according to the courts, in circumstances that, for example, amount to discrimination in employment or public accommodations.

Antidiscrimination laws apply to protected classes, and they are designed in response to long histories of systematic oppression. Your political party is not a protected class. And being an elitist fool is not a systematically oppressed class.

From there, Hamburger pulls out another debunked tool from the Twitter lawyers' playbook: "common carrier."

Yet another reason is that large tech platforms and services function as common carriers. The states and the federal government have the power to regulate common carriers, and this certainly includes the authority to ban discrimination. The common-carrier tradition can be traced to the common law, which viewed persons serving as common carriers as privileged by government. At the same time, it barred them from discriminating.

We've been through this before. Common carrier designations are extremely limited and they serve a particular purpose: specifically for natural monopoly interchangeable commodity services that serve in transporting things (that's the carrier part) whether it's people, goods, or communications. But social media isn't just about transporting information from here to there. It's about hosting it -- forever. And that's why common carriage laws make no sense at all. They're also not interchangeable commodity services.

Also, it appears that Professor Hamburger does not actually understand the relevant caselaw, especially rulings from the Supreme Court on this topic. Again, this is embarrassing. If someone handed in Prof. Hamburger's article to a good law professor, it would easily get a failing grade.

The large tech companies meet both definitions. They serve a public function, providing the public square or conduit for the information age. We meet and communicate on their services or platforms much more than on the grass of the village green.

Just two years ago, in the Halleck case, Justice Brett Kavanaugh made it abundantly clear that this argument is nonsense. Social media websites are not the public square and are not subject to the 1st Amendment. From Kavanaugh's ruling that maybe Prof. Hamburger should look up:

By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine....

The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it “is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.”

Notably, this ruling was not controversial, because it is so obviously supported by tons of earlier precedent. The kinds of precedent one would hope a law professor at Columbia University Law School would know about.

The entire piece is so amateurish, and so devoid of any connection to reality, it makes you wonder if the former DOJ official who co-authored it (who is now a "policy analyst" at a DC think tank), did pretty much all of the writing and somehow got this well known law professor to sign his name to it without realizing how embarrassingly bad it is. I mean, this nonsense is basically unforgivable:

That Big Tech is subject to common-carrier regulation is especially clear because Section 230 already recognizes the tech companies as akin to common carriers. Along these lines, Section 230(c)(1) protects Big Tech from being treated as “the publisher or speaker of any information provided by another information content provider.”

That, um, is not Section 230 "recognizing tech companies as akin to common carriers." Yes, common carriership also restricts liability from the carrier for the speech it carries, but it's not a transitive thing where having that immunity automatically also means you're a common carrier. This is not why 230 was put in place. This wouldn't be difficult to look up. Hell, the two authors of Section 230 still speak about what they intended regularly. Just last year they debunked this nonsense idea that 230 made websites into common carriers. As they pointed out, the intent of the law was to do the exact opposite -- to encourage websites to moderate their own communities as they saw fit:

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....

And then, the article gets even worse. I honestly have no clue what Hamburger is trying to say when he suddenly starts talking about fair use, as if fair use is a "public privilege."

The public privileging of these companies is extraordinary. Consider the fair-use doctrine in copyright law. A teacher can copy a small number of pages to show to a class. Google can copy whole books, and even when it shows only a snippet to the public, it can use the entire volumes to develop its algorithms and offer the public an online index. This appears to have been important for Google’s early enticement of the public into its services.

Wut? Fair use is a public's right. Not a public privilege. And we all get it. What Google did anyone can do. It seems like Hamburger is arguing that Google somehow gets different fair use rights than anyone else? But that's... just not true. Everyone gets the same fair use rights. And I don't understand what any of that has to do with the rest of his argument.

Section 230 privileges tech communication over print and in-person communication by excusing tech companies from liability in the courts. In contrast, paper and in-person communication is still fully subject to liability. The result has been to accelerate and accentuate tech dominance over other modes of speech.

This is just wrong. Again, embarrassingly so. Everyone -- including tech companies -- are still fully liable for speech they create. They are not liable for speech someone else creates. It's that simple. Though it appears that an actual law professor from a top law school doesn't understand this simple fact.

So it isn’t true that the large tech services and platforms reached their dominance merely by private effort. Their dominance is partly the product of public privileging, and this reinforces the conclusion that tech dominance over speech is not only private enterprise. It is also the result of enterprising capture of government.

I honestly don't understand how we get from the pervious sentence to this one. Suddenly he seems to be dropping a "you didn't build that" kind of argument into the middle of this. And, that makes no sense at all. I mean, sure, every business relies on some elements of public infrastructure -- roads, plumbing, etc. -- but that doesn't make them all state actors. And, again, Hamburger seems totally oblivious that Section 230 applies equally to everyone online (including the Wall Street Journal, which hosts user comments).

Section 230 relieves the large tech services and platforms of liability for restricting a congressionally specified list of materials, even when the materials are “constitutionally protected.” As one of us has explained in these pages, this is privatized censorship—a license to censor, free of concerns about ordinary legal duties that would apply to anyone else, including newspapers and individuals.

No, it is not a "congressionally specified list of materials." Section 230 makes it clear that websites can moderate however they see fit. And they can do that because it's their website. Just as Professor Hamburger will not let me come into his classroom at Columbia to spend a lecture explaining to his students (in great detail, with annotated charts and graphics!) why they will come out of any such class dumber than they started, and should ask Columbia University for their tuition back, any website can tell any user that they are violating its policies, and cannot post there any more.

Meanwhile, WHY IS PHILIP HAMBURGER CENSORING ME IN NOT LETTING ME TEACH HIS CLASS? I mean, Philip Hamburger clearly relies on public privileges to get to Columbia University, so it's not like he's a private individual. His censorship must violate the 1st Amendment, according to the logic of (oh look) Philip Hamburger.

The large tech companies are private, and the point isn’t that they violate the First Amendment when they censor users’ speech. But they have participated in the censorship secured by Section 230’s privileges. It therefore is not unreasonable for states to protect Americans from the tech company’s government-sponsored censorship.

I've read this paragraph four times. It makes less sense every time you read it again.

Columbia Law School: this is embarrassing. I understand why the Wall Street Journal would publish this cynically dishonest nonsense because of Rupert Murdoch's crusade against the internet. But, it's still embarrassing.

Filed Under: 1st amendment, clare morell, common carrier, content moderation, discrimination, fair use, philip hamburger, section 230, state action
Companies: facebook, twitter, youtube

If David Cicilline Gets His Way; It Would Destroy Content Moderation

from the consequences dept

Last week we looked at the various antitrust bills written by House Democrats (though with Republicans co-sponsors conjured up at the last minute with an assist from Rupert Murdoch), and noted that none of them seemed likely to really solve the problems of internet consolidation. The crown jewel bill comes from Rep. David Cicilline, who is spearheading this entire antitrust effort. We discussed some of the problems with his bill last week, but a closer reading suggests that it would also create a disaster for content moderation. The bill reads:

It shall be unlawful for a person operating a covered platform, in or affecting commerce, to engage in any conduct in connection with the operation of the covered platform that—

(1) advantages the covered platform operator’s own products, services, or lines of business over those of another business user;
(2) excludes or disadvantages the products, services, or lines of business of another business user relative to the covered platform operator’s own products, services, or lines of business; or
(3) discriminates among similarly situated business users.

This language is clearly designed to target things like Google offering its own local reviews and listings rather than Yelp's or TripAdvisor's. And there are reasonable arguments to be made that a company like Google maybe should just use its own search ranking algorithm to see whether or not users prefer those 3rd party listings to its own.

But... the overly broad language in the Cicilline bill seems likely to have massive unintended consequences regarding content moderation in ways I don't think Cicilline would support. Indeed, for unclear reasons, an early draft of Cicilline's bill had more limiting language on part (3) above, such that it only covered "material" discrimination over services involving "the sale or provision of products or services." But the final language is much more broad and says it's an antitrust violation if there's "discrimination among similarly situated business users."

But here's the thing that people who have no experience with content moderation never seem to realize: everyone who is on the receiving end of a moderation decision they disagree with, insists that they are being treated unfairly compared to some other "similarly situated" user, even if the reality (and context) suggest otherwise. But by saying that it's an antitrust violation to discriminate between "similarly situated" business users, that's going to make those claims become particularly legally fraught.

That's going to open up a massive loophole regarding content moderation. Let's take a few examples, starting with Parler. As you may recall, Parler was kicked off AWS for hosting, and also kicked out of both the Google Play Store and the Apple iOS App Store (though it has since returned to the App Store).

Parler sued Amazon, claiming it was an antitrust violation, which got laughed out of court. But, if Cicilline's bill becomes law, suddenly this becomes an open question again. Parler could easily argue that the removal was discrimination under the definition of the bill. After all, a key point in Parler's lawsuit was that Amazon treated Twitter differently than it treated Parler.

And, under the definition in (3), Parler could say that Amazon discriminated against it as compared to the "similarly situation business user" Twitter.

This might not impact Parler's lawsuit specifically, since enforcement of Cicilline's bill falls on government entities rather than private parties, but it opens it up to "any Attorney General of a state," and I can pretty much guarantee that there are a bunch of state AGs who would happily step in and claim that these moderation efforts against Parler violated the law.

But it goes even further than that. Suddenly Twitter banning Project Veritas or Facebook shutting down events created by Infowars would raise the same questions. And all they'd need to do is find a friendly state AG to take them on.

In short, this antitrust bill would open up a huge loophole for propaganda or garbage fire websites that were banned (or even just diminished) to claim it was an antitrust violation, because they were treated differently than "similarly situated business users."

Just think of how the PragerU lawsuits against YouTube would appear very different under this bill as well.

It seems odd that a Democrat like David Cicilline would want to put in place an antitrust bill that would make it open season for Republican propaganda outfits, and their supportive AGs, to force social media companies to not just host, but to promote, their content (not doing so might be seen as "discrimination" compared to similarly situated websites), but it seems like that's what he's done. Perhaps that's the compromise that it took to get a Republican co-sponsor on board, but it's hard to see how this is a worthwhile trade-off.

Filed Under: antitrust, competition, content moderation, david cicilline, discrimination
Companies: amazon, apple, facebook, google, parler

If We're Going To Talk About Discrimination In Online Ads, We Need To Talk About Roommates.com

from the deja-vu-all-over-again dept

It has been strange to see people speak about Section 230 and illegal discrimination as if it were somehow a new issue to arise. In fact, one of the seminal court cases that articulated the parameters of Section 230, the Roommates.com case, did so in the context of housing discrimination. It's worth taking a look at what happened in that litigation and how it bears on the current debate.

Roommates.com was (and apparently remains) a specialized platform that does what it says on the tin: allow people to advertise for roommates. Back when the lawsuit began, it allowed people who were posting for roommates to include racial preferences in their ads, and it did so in two ways: (1) through a text box, where people could write anything about the roommate situation they were looking for, and (2) through answers to mandatory questions about roommate preferences.

Roommates.com got sued by the Fair Housing Councils of the San Fernando Valley and San Diego for violating federal (FHA) and state (FEHA) fair housing law for allowing advertisers to express these discriminatory preferences. It pled a Section 230 defense, because the allegedly offending ads were user ads. But, in a notable Ninth Circuit decision, it both won and it lost.

In sum, the court found that Section 230 indeed applied to the user expression supplied through the text box. That expression, for better or worse, was entirely created by the user. If something was wrong with it, it was the user who had made it wrongful and the user, as the information content provider, who could be held responsible—but not, per Section 230, the Roommates.com platform, which was the interactive computer service provider for purposes of the statute and therefore immune from liability for it.

But the mandatory questions were another story. The court was concerned that, if these ads were illegally discriminatory, the platform had been a party to the creation of that illegality by prompting the user to express discriminatory preferences. And so the court found that Section 230 did not provide the platform a defense to any claim predicated on the content elicited by these questions.

Even though it was a split and somewhat messy decision, the Roommates.com case has held up over the years and provided subsequent courts with some guidance for how to figure out when Section 230 should apply. There are still fights around the edges, but figuring out whether it should apply has basically boiled down to determining who imbued the content with its allegedly wrongful quality. If the platform, then it's on the hook as much as the user may be. But its contribution to wrongful content's creation still had to be more substantive than merely offering the user the opportunity to express something illegal.

The fact that Roommate encourages subscribers to provide something in response to the prompt is not enough to make it a "develop[er]" of the information under the common-sense interpretation of the term we adopt today. It is entirely consistent with Roommate's business model to have subscribers disclose as much about themselves and their preferences as they are willing to provide. But Roommate does not tell subscribers what kind of information they should or must include as "Additional Comments," and certainly does not encourage or enhance any discriminatory content created by users. Its simple, generic prompt does not make it a developer of the information posted. [p. 1174].

The reason it is so important to hold onto that distinction is because the Roommates.com litigation has a punchline. The case didn't end there, with that first Ninth Circuit decision. After several more years of litigation there was a another Ninth Circuit decision in the case, this time on the merits of the discrimination claim.

And the claim failed. Per the Ninth Circuit, roommate situations are so intimate that the First Amendment rights of free association must be allowed to prevail and people be able to choose whom they live with by any means they like, even if its xenophobic prejudice.

Because of a roommate's unfettered access to the home, choosing a roommate implicates significant privacy and safety considerations. The home is the center of our private lives. Roommates note our comings and goings, observe whom we bring back at night, hear what songs we sing in the shower, see us in various stages of undress and learn intimate details most of us prefer to keep private. Roommates also have access to our physical belongings and to our person. As the Supreme Court recognized, "[w]e are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings." Minnesota v. Olson, 495 U.S. 91, 99, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). Taking on a roommate means giving him full access to the space where we are most vulnerable. [p. 1221]

[…].

Government regulation of an individual's ability to pick a roommate thus intrudes into the home, which "is entitled to special protection as the center of the private lives of our people." Minnesota v. Carter, 525 U.S. 83, 99, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (Kennedy, J., concurring). "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home." Lawrence v. Texas, 539 U.S. 558, 562, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Holding that the FHA applies inside a home or apartment would allow the government to restrict our ability to choose roommates compatible with our lifestyles. This would be a serious invasion of privacy, autonomy and security. [id.].

[…].

Because precluding individuals from selecting roommates based on their sex, sexual orientation and familial status raises substantial constitutional concerns, we interpret the FHA and FEHA as not applying to the sharing of living units. Therefore, we hold that Roommate's prompting, sorting and publishing of information to facilitate roommate selection is not forbidden by the FHA or FEHA. [p. 1223]

This ruling is important on a few fronts. In terms of substance, it means that any law that itself tries to ban discrimination may itself have constitutional problems. It may be just, proper, and even affirmatively Constitutional to ban it in many or even most contexts. But, as this decision explains, it isn't necessarily so in all contexts, and it risks harm to people and the liberty interests that protect them to ignore this nuance.

Meanwhile, from a Section 230 perspective, the decision meant that a platform got dragged through years and years of expensive litigation only to ultimately be exonerated. It's amazing it even managed to survive, as many platforms needlessly put through the litigation grinder don't. And that's a big reason why we have Section 230, because we want to make sure platforms can't get bled dry before being found not liable. It is not ultimate liability that can crush them; it's the litigation itself that can tear them to pieces and force them to shut down or at least severely restrict even lawful content.

Section 230 is designed to avoid these outcomes, and it's important that we not let our distaste, however justified, for some of the content internet users may create prompt us to make the platforms they use vulnerable to such ruin. Not if we want to make sure internet services can still remain available to facilitate the content that we prefer they carry instead.

Filed Under: civil rights, discrimination, online ads, section 230
Companies: roommates

Removing Civil Rights Law From Section 230 Will Create Many New Problems, While Failing To Fix Existing Ones

from the wrong-approach dept

We've covered so many bad faith bills that are attempting to undermine Section 230 for silly and disingenuous reasons. However, I expect we'll be seeing many more bills coming up that actually mean well, and have good intentions underlying the bill... but are still problematic and may make things worse. A new example of this is a not-yet-introduced bill from Rep. Yvette Clarke, along with Rep. Mike Doyle. They've released a "discussion draft" of the bill which they've dubbed the Civil Rights Modernization Act of 2021. This bill does two things that so many Section 230 reform bills do not: (1) it appears to attack an actual, clearly stated problem, and (2) it attempts to take a narrow approach to it.

Unfortunately, as currently written, the bill fails to deal with the actual problems, and is likely to create a wide variety of unintended consequences that do a lot more harm than good.

The idea behind the bill is simple: it's to add yet another exemption to Section 230, such that it would no longer apply to civil rights law in one specific situation: when dealing with targeted advertising. This bill comes almost directly in response to a report from ProPublica years ago showing that because of Facebook's ad targeting tools, landlords were able to exclude users by race. This is horrific and bad, and takes the world back to decades of horrific and regrettable US history where redlining was the norm, and communities were designed (with support of the government) to exclude people of color. Civil rights laws were supposed to help end that practice, and it's completely understandable to be horrified to see that Facebook may have been inadvertently bringing it back.

Of course, after that report came out, Facebook promised to update its policies and tools to deal with this, explicitly banning discriminatory practices within its ads and promising more enforcement against such ads. Of course, as we know, content moderation at scale is impossible, and a follow-up report by ProPublica a year later... found the problem still existed. Facebook blamed a "technical failure" on missing those ads, but... yeah... not a good look by Facebook.

Another year and a half after that, Facebook once again announced changes to its policies for dealing with discrimination in advertising, noting that it came after a bunch of civil rights organizations had sued the company over the discriminatory ads. This was part of a settlement of the lawsuit with those groups. Of course, just a week and a half later, Facebook got hit with another lawsuit, this time from the US government over these same discriminatory ads.

Meanwhile, last summer, the Markup found... the same type of discriminatory ads on Facebook. So, whatever Facebook is doing, it hasn't been able to solve this issue.

Given all of that, it might seem totally reasonable to argue that this bill makes sense. But, if you start to peel back the layers, that does not appear to be the case, and this bill might do a lot more harm than good. First off, let's go back to the core reason why Section 230 exists in the first place: to put liability in the right place. There is nothing, right now, that stops anyone from properly holding landlords who advertise in a discriminatory fashion liable. Indeed, if they're the ones doing the targeting in this manner, it seems only appropriate to correctly accuse them of violating Fair Housing laws. And, if you go after many of them for abusing targeting tools in this manner, that will hopefully get rid of much of the problem simply by convincing the ad buyers themselves to avoid such discriminatory and disgusting practices.

But it gets worse from there. As Public Knowledge pointed out in an article last year, holding a platform liable for some types of speech can lead to significant suppression of important and useful speech:

While an unpopular opinion among some, the fundamental ideas behind Section 230 around third party speech are still sound. Online platforms are not like publishers that can vet and stand behind every user post, and we want online platforms to have a free hand to moderate content without fear of liability for what they take down. A regime where platforms are responsible for third-party discriminatory conduct could very easily make platforms chill the speech of their users for fear of liability. We have evidence that this would likely be the case as seen in platform’s struggles to curb COVID-19 misinformation. Current content moderation AI is not as sophisticated as some of the platforms would like us to believe, especially when moderating the content of BIPOC people. Complicating this even further is that the roles of the platform and the user (employer, realtor, financial institution etc.) are not always clear. Did the user engage in the discriminatory action with the tools provided by the platform or did the platform present discriminatory tools to an unknowing user? A recent study showed that even when given neutral advertisements, Facebook showed different ads to different groups at different rates even when controlled for population, which highlights that even under the best intentions there may be a need to prioritize the platform’s liability as opposed to the third-party content of the advertiser or user.

And, let's be realistic about what's likely to happen if a bill like this became law. The threat of liability in a realm that, as noted in the paragraph above, is effectively impossible to deal with, would lead to a vast overreaction and clamping down of incredibly useful tools -- and could do more harm than good for the very people it seeks to help and support. For example, in the past few years (in part thanks to the power of the internet) a large number of new companies have sprung up that provide healthy & beauty supplies, with a target of serving people of color who are often not as well served by the market.

It's not difficult to see that, as a result of this law, Facebook and others completely block out the ability to effectively target audiences like this, even when it's totally appropriate and non-discriminatory. But the risk of liability may be too high for internet websites, and therefore, you end up back in the regrettable world where the default advertisement targets a white middle-class consumer (as it has for decades) because anything more accurately targeted... runs the risk of liability under such a law.

Another way to think of this, is that there are times when it is entirely non-nefarious to target members of a specific community with ads based on a particular characteristic. If you're selling Passover Hagadadahs, you tend to want to target a Jewish population. You might advertise in Jewish magazines or publications. That's not violating civil rights law, and it wouldn't if you ran those advertisements aimed at Jewish people online either. But, because of the very risk of liability, websites might ban all such targeted advertising entirely, leading again to end result where those niche communities are underserved, because the only ads you can place are targeted at the most mainstream, least common denominator audiences.

That seems like the opposite of what people who support civil rights should want.

And then there's a very serious question of whether or not Section 230 is even a problem here in the first place. As noted above, Facebook has already been sued multiple times by both civil rights organizations and the government over the ads. And while it's true it has tried to use 230 in response to the HUD lawsuit, we already have a somewhat similar case on the books, which is considered one of the key Section 230 cases. In Fair Housing Council of San Francisco v. Rommates.com, the 9th Circuit found that Roommates was not protected by Section 230 for discriminatory content that it created. In that case, also involving housing and race, Roommates created a pull down menu letting users select a preferred race of a roommate. And the court found that since that pulldown was created by the company and not a 3rd party, it was not immune from the lawsuit. (For what it's worth, an oft-forgotten coda to this story is that even though the court rejected Roommates' Section 230 defense, years later, it found that the company had not actually violated fair housing discrimination rules).

There's one other reason to be very wary of this civil rights carveout for Section 230: there's a very, very big chance that rather than being used to crack down on discrimination in housing, it would be abused by white nationalists to demand access to services that don't want them. If you look at the actual case law of where civil rights claims have been brought in an attempt to get around Section 230, you find a series of highly questionable cases -- including a Russian internet troll farm, a proudly misogynistic video blogger, a Twitter user who lost his account for tweeting hateful content directed at Daily Show host Trevor Noah, a guy who claims he lost his Twitter account for expressing his "heterosexuality and Christian affiliation," and a well known white supremacist -- all of whom claimed their civil rights were violated by being removed from social media.

Most of those claims were rejected on Section 230 grounds, but opening up the possibility of removing civil rights law from Section 230's protections may lead to a flood of similar lawsuits from truly awful people who are mad that they were removed from social media for hateful views, and claiming that such removals violate their civil rights.

Again, the bill almost certainly comes from a place of good intentions. And there are quite reasonable concerns about how Facebook's targeting in particular has been used to discriminate in housing, and possibly in other venues as well (such as jobs). But that's not a problem that we need 230 to fix. Instead, you'd think that a smarter approach would be to go after those doing the actual discrimination.

In summary, this bill is:

1. Not clearly needed / mistargeted
2. Likely to harm marginalized communities by limiting some of their own perfectly reasonable advertising abilities
3. Already dealt with in the Roommates case
4. Likely to be abused by terrible, terrible people, to claim their hateful views are being discriminated against.

Filed Under: civil rights, discrimination, intermediary liability, mike doyle, section 230, yvette clarke
Companies: facebook

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And Section 230 finishes Wilson's lawsuit off:

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

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

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

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

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

TSA's Expensive Scanners Can't Figure Out Afros Or Turbans, So Guess Who's Getting Searched More Often

from the can't-solve-any-real-problems-so-let's-just-focus-on-making-people-angry dept

The TSA accidentally admitted years ago that its (annoying) presence at airports was extraneous. Summoned into existence by the 9/11 attacks, the TSA was nothing more than an obsolete government fixture a few years later. With terrorism being pretty much ground-based at this point in time, we're left to wonder why we still need to jump through all the TSA's hoops just to board a plane agents haven't made any safer with their elaborate security pantomime.

The TSA may not be able to find any bombs headed for planes, but it will leave no baby stroller/terminal disease sufferer unturned in its quest to justify its continued existence. It may not be able to stop terrorists, but it will not let an inert souvenir go uncrowed about on its blog or social media accounts.

Instead of doing anything useful, the TSA busies itself with the busywork of looking busy. To ensure maximum harassment of travelers, it's adding things like this to its list of annoying traits:

The futuristic full-body scanners that have become standard at airports across the United States are prone to false alarms for hairstyles popular among women of color.

[...]

Two officers interviewed by ProPublica said the machines’ alarms are frequently triggered by certain hairstyles.

“With black females, the scanner alarms more because they have thicker hair; many times they have braids or dreadlocks,” said a TSA officer who works at an airport in Texas and asked not to be named. “Maybe, down the line, they will be redesigning the technology, so it can tell apart what’s a real threat and what is not. But, for now, we officers have to do what the machine can’t.”

A government report in 2014 found that the machines also “had a higher false alarm rate when passengers wore turbans and wigs.”

We're spending an awful lot of money to increase the perception of racial bias by the TSA. Turbans, wigs, and "black hair:" that's 2/3rds of a Stormfront post being funded by tax dollars and inflicted on people whose heads have been deemed more "suspicious" by machines that answer to no one.

The more you read of this ProPublica report (written by Brenda Median and Thomas Frank), the more ridiculous it gets. The TSA's attempt to talk its way out of this mess is cringe-worthy and inadvertently hilarious. I don't know what this is, but it's one of the least credible things an anonymous official has ever said:

A senior TSA official said in an interview that hair pat-downs are not discriminatory and are done when a body scanner indicates that a passenger has an object in his or her hair. “I get a hair pat-down every time I travel. I’m a white woman,” said the official, who agreed to be interviewed on the condition that she not be named.

Do tell. Fill me in with the details while I notify @_DHOTYA. As a "senior TSA official," I doubt she's getting patted down on a regular basis, much less her hair... much less getting patted down AT ALL, really.

The TSA also believes its covered because it once said something about this on a website few travelers read.

The TSA advises passengers to remove all items from their hair before going through airport security and warns on its website that “wearing a hairpiece, extensions or a wig as well as a ponytail, a hair bun or braids” may trigger an alarm.

Dear TSA,

Just because you've posted your stupid warning about hair bombs to your website doesn't make this particular search any less stupid. How do I know? Well, I picked it up from something you said.

The TSA would not say if it had ever found a weapon in a passenger’s hair.

Yeah, that's a "no" in any other language. Trust me, if the TSA had ever found a weapon or bomb precursor or child porn or a bag of drugs in anyone's hair, it would have been covered by all major new outlets and we would all -- not just those of us with turbans or non-straight hair -- be subjected to the sort of head prodding we haven't seen since the heyday of phrenology.

So, for $150k/per, we're getting "state of the art" scanners that can't detect metal like our older, dumber metal detectors or spot actually suspicious objects encased in human hair. Whatever bias the expensive scanners can't provide, agents can create for themselves. As the TSA points out, hair searches are at agents' discretion. Hair styles and types agents find more suspicious than others can result in head patdowns, so long as they clear this ultra-low discretion bar:

...if “an individual’s hair looks like it could contain a prohibited item or is styled in a way an officer cannot visually clear it.

We're paying billions a year for this it's-funny-because-it's-oh-so-very-unfortunately-true comedy. We all need to line up for a refund.

Filed Under: discrimination, scanners, tsa