Senator Blumenthal, After Years Of Denial, Admits He's Targeting Encryption With EARN IT

from the he-just-came-out-and-said-it dept

Senator Richard Blumenthal has now admitted that EARN IT is targeting encryption, something he denied for two years, and then just out and said it.

Since the very beginning many of us have pointed out that the EARN IT Act will undermine encryption (as well as other parts of the internet). Senator Richard Blumenthal, the lead sponsor on the bill, has insisted over and over again that the bill has nothing to do with encryption. Right after the original bill came out, when people called this out, Blumenthal flat out said "this bill says nothing about encryption" and later claimed that "Big Tech is using encryption as a subterfuge to oppose this bill."

That's been his line ever since -- insisting the bill has nothing to do with encryption. And to "show" that it wasn't about encryption, back in 2020, he agreed to a very weak amendment from Senator Leahy that had some language about encryption, even though as we pointed out at the time, that amendment still created a problem for encryption.

The newest version of EARN IT replaced Leahy's already weak amendment with one that is a more direct attack on encryption. But it has allowed slimy "anti-porn" groups like NCOSE to falsely claim that it has "dealt with the concerns about encryption." Except, as we detailed, the language of the bill now makes encryption a liability for any web service, as it explicitly says that use of encryption can be used as evidence that a website does not properly deal with child sexual abuse material.

But still, through it all, Blumenthal kept lying through his teeth, insisting that the bill wasn't targeting encryption. Until yesterday when he finally admitted it straight up to Washington Post reporter Cat Zakrzewski. In her larger story about EARN IT, I'm not sure why Zakrewski buried this point all the way down near the bottom, because this is the story. Blumenthal is asked about the encryption bit and he admits that the bill is targeting encryption:

Blumenthal said in an interview that lawmakers incorporated these concerns into revisions, which prevent the implementation of encryption from being the sole evidence of a company’s liability for child porn. But he said lawmakers wouldn’t offer a blanket exemption to using encryption as evidence arguing companies might use it as a “get-out-of-jail-free card.”

In other words, he knows that the bill targets encryption despite two whole years of blatant denials. To go from "this bill makes no mention of encryption" to "we don't want companies using encryption as a 'get-out-of-jail-free card'" is an admission that this bill is absolutely about encryption. And if that's the case, why have their been no hearings about the impact this would have on encryption and national security? Because, that seems like a key point that should be discussed, especially with Blumenthal admitting this thing that he denied for two whole years.

During today's markup, Blumenthal also made some nonsense comments about encryption:

The treatment of encryption in this statute is the result of hours, days, of consultation involving the very wise and significant counsel from Sen. Leahy who offered the original encryption amendment and said at the time that his amendment would not protect tech companies for being held liable for doing anything that would give rise to liability today for using encryption to further illegal activity. That's the key distinction here. Doesn't prohibit the use of encryption, doesn't create liability for using encryption, but the misuse of encryption to further illegal activity is what gives rise to liability here.

This is, beyond being nonsense word salad, just utterly ridiculous. No one ever said the bill "prohibited" encryption, but that it would make it a massive liability. And he's absolutely wrong that it "doesn't create liability for using encryption" because it literally does exactly that in saying that encryption can be used as evidence of liability.

The claim that it's only the "misuse of encryption" shows that Senator Blumenthal (1) has no clue what he's talking about and (2) needs to hire staffers who actually do understand this stuff, because that's not how this works. Once you say it's the "misuse of encryption" you've sunk encryption. Because now every lawsuit will just claim that any use of encryption is misuse and the end result is that you need to go through a massive litigation process to determine if your use of encryption is okay or not.

That's the whole reason why things like Section 230 are important, because they avoid having every company have to spend over a million dollars to prove that the technical decision they made were okay and not a "misuse." But now if they have to spent a million dollars every time someone sues them for their use of encryption, then it makes it ridiculously costly -- and risky -- to use encryption.

So, Blumenthal is either too stupid to understand how all of this actually works, or as he seems to have admitted to the reporter despite two years of denial, he doesn't believe companies should be allowed to use encryption.

EARN IT is an attack on encryption, full stop. Senator Blumenthal has finally admitted that, and anyone who believes in basic privacy and security should take notice.

Oh, and as a side note, remember back in 2020 when Blumenthal flipped out at Zoom for not offering full end-to-end encryption? Under this bill, Zoom would be at risk either way. Blumenthal is threatening them if they use encryption and if they don't. It's almost as if Richard Blumenthal doesn't know what he's talking about regarding encryption.

Filed Under: earn it, encryption, liability, richard blumenthal

House Votes For COMPETES Act, Even With Its Problems, Almost Entirely On Party Lines

from the that's-too-bad dept

Congress is trying to overload anyone who supports an open internet with terrible bill after terrible bill. Last week, they brought out the "COMPETES Act" (renamed from Endless Frontiers which had already been renamed as "USICA" and then became COMPETES). The underlying concept of the bill actually is important -- reviving American innovation. The Senate version of the bill was mostly good and had broad bipartisan support. However, for reasons I don't understand, Nancy Pelosi allowed the bill to be loaded up with a bunch of items on the Democrats' wish list, including the ridiculously dangerous SHOP SAFE Act.

This week, of course, we've been stuck dealing with the reintroduction of the also terrible EARN IT Act in the Senate, and while all of the open internet activists were gearing up to fight that, the House went ahead and voted to approve the COMPETES Act with no changes. It was an almost strict party-line vote, ending up at 222 for and 210 against. One Democrat -- Rep. Stephanie Murphy -- voted against it, and one Republican -- Rep. Adam Kinzinger (who technically is still a Republican) voted for it.

This all seems so incredibly counterproductive by Pelosi and the Democrats. I know they want a "win" and when there's a bill that will move they feel they need to hang all sorts of gifts on it, but following the Senate's lead and coming up with a more reasonable bill that wasn't stuff full of bad ideas would have presented this as an actually interesting and useful bill, rather than turning it into a partisan thing. Politics is where policy goes to die. And, unfortunately, it may take parts of the open internet with it.

That said, the Senate version does not have the nonsense and dangerous SHOP SAFE bill attached, and the hope is that during the conference process where the House and Senate try to square up the different bills, SHOP SAFE will get left on the cutting room floor, where it belongs.

Filed Under: competes act, competition, innovation, jerry nadler, liability, nancy pelosi, shop safe, trademarks

Senator Blumenthal Blames TikTok... Due To A Popular And Widely Championed Science Experiment Gone Wrong

from the why-do-you-hate-science? dept

Senator Richard Blumenthal seems to fill our pages with every possible moral panic about an internet he doesn't understand, but on which he's made a name over-reacting to. This goes back over a decade, honestly, since well before he was even a Senator.

For the last few months he's been really ramping up the moral panic about TikTok, complaining about various trends on TikTok and demanding execs testify before him. The latest is that he has sent a letter to TikTok's CEO, Shou Zi Chew, demanding an explanation of how a kid in Connecticut (Blumenthal's state) was burned by messing up a science experiment called the "Whoosh Bottle Experiment." Lots of news sites -- and Blumenthal in his letter -- imply that "The Whoosh Bottle Experiment" is some sort of TikTok thing.

I write to express my grave concerns over TikTok’s failure to ensure the safety of the users on its platform. Time and again, TikTok users—including children—are seriously injured attempting to emulate videos they watch. TikTok must do better to enforce its own community guidelines and promote the safety and best interests of all users on its platform.

Last week, a twelve-year-old boy in East Haven, Connecticut, was hospitalized after suffering severe burns. He had watched a video on TikTok of the “Whoosh Bottle Experiment,” where alcohol is poured in a plastic bottle set aflame to hear a “whoosh” sound as the alcohol burns off. Because alcohol is highly flammable, its mishandling can inflict serious injury and lead to devastating consequences. TikTok knows of this danger: multiple people were injured in a previous trend to draw shapes in rubbing alcohol and ignite them.

Thing is, the Whoosh Bottle Experiment is not "a TikTok thing" it's a science thing. It's listed as a useful science experiment/demonstration for students on tons of educational resources, including the Royal Society of Chemistry, ChemEdX, STEM Learning and many, many other respected educational resources. Atlas Obscura referred to it years ago as "science's coolest fire experiment," noting dozens of science teachers doing demonstrations of the Whoosh Bottle Experiment.

Now, yes, this is the kind of experiment that should involve adult supervision, but it's not just some dumb random "TikTok challenge" and it's ridiculous to somehow hold TikTok to blame here. There are tons of science experiments that, if done wrong, could lead to injury. Is Senator Blumenthal really saying that all such educational resources teaching such science experiments need to be taken offline?

This kind of grandstanding seems to get Blumenthal headlines, which is what he seems to care about most. And the media seems to be eating up the false claim that the Whoosh Bottle Experiment is somehow "a TikTok thing." But it's not. It's a science thing and it's utterly ridiculous that Blumenthal is blaming TikTok for that -- and that the media is aiding him in this stupid, stupid moral panic. Stick to misunderstanding "finsta," Senator. You don't need to attack cool science experiments too.

Filed Under: blame, education, liability, richard blumenthal, science experiments, stem, whoosh bottle experiment
Companies: tiktok

The Making Of A Moral Panic, Courtesy Of The NY Times

from the stop-this dept

We've been talking a bit lately about how the media creates moral panics, especially ones that blame social media for problems that are much more likely mostly created by the media themselves.

And here's another example of the virtuous cycle, in which the New York Times is able to first create a moral panic, and then gets to keep reporting on Congress "investigating" the moral panic the NY Times itself created. It started with an article in the NY Times discussing a website, which I will not name, that has created forums for those interested in suicide. The article is presented as saying (1) that the website encourages suicide... and (2) then appears to blame Section 230 for it. The reality, on both of those points, is a hell of a lot more complicated.

First off, discussions about "encouraging" suicide are always somewhat fraught. I've lost two friends to suicide, and it's very, very natural to look for people to blame. But it's often counterproductive, and no one can ever know for sure what actually caused someone to decide to end their life. A decade ago we talked about this a bit, in regards to two separate lawsuits looking to hold liable people who, it was argued, "drove" others to suicide. Except, as we noted at the time, when you blame people for "driving" or "encouraging" suicide, you are actually giving way more power to the suicide itself, because it gives more power to those thinking of killing themselves, knowing that it will punish people who had been mean to them. In other words, trying to hold people liable for "encouraging" suicide can, unfortunately, actually encourage more suicide in and of itself.

Suicide itself is a very fraught topic. In early 2021, Katie Engelhart's book The Inevitable: Dispatches on the Right to Die came out, and it's worth reading. It made me, personally, feel conflicted about the idea of assisted suicide and the right to die -- and reminded me that it's impossible to decide that there's a "right" answer here. Every case is unique and they all involve a whole bunch of difficult moral decisions that different people weigh in different ways. But blaming others for the very personal decisions that an individual makes seems incredibly dangerous. Yet, the entire structure of the NY Times piece seems to want to put the blame on a website. And, on Section 230.

But, as the article itself noted, the existence of the site in question is due to other sites removing it. It apparently was a response to Reddit shutting down a forum that discussed suicide:

It came online after Reddit shut down a group where people had been sharing suicide methods and encouraging self-harm. Reddit prohibited such discussion, as did Facebook, Twitter and other platforms. Serge wrote days after the new site opened that the two men had started working on it because they “hated to see the community disperse and disappear.” He assured users that “this isn’t our first rodeo and we know how to keep the website safe.”

It seems notable that Section 230's encouragement for websites to determine on their own what content they find acceptable and what content they do not, resulted in these major sites -- Reddit, Facebook, Twitter and "other platforms" -- not allowing such a discussion to happen on their websites. And yet... this separate community still formed. That should be notable, but the NY Times piece completely brushes by it. The fact is that people will form communities around such things. It is human nature. Indeed, it could be argued that if such communities had been allowed on places like Reddit, where they could more directly and easily be monitored by experts and professionals, there might be more opportunity to intervene and to help troubled individuals.

Instead, by continually banning such communities, the end result is that they move to ever darker places online, where it is harder and harder to monitor them, and where it's more likely that unhelpful people begin to exert more and more power over those sites. As we've discussed before (also in relation to a NY Times article!), so much of these kinds of attacks on the internet are really just people upset that the internet is shining light on larger societal problems that have not been fixed -- including those around mental health. It seems like a better system would be one designed to try to figure out ways to intervene in sites like the one the NY Times covers, and look for ways in which professionals could help guide those who need real help to the kinds of resources they actually need.

Instead, it's just victimization all the way down, with everyone looking to point the blame finger, and no one looking to fix the underlying problem. They seem to think if only this website is taken offline (despite the fact it was a response to other sites shutting down communities) then, magically, communities of people exploring how to kill themselves will disappear. That's not how it works.

But, of course, once the NY Times has created the moral panic, grandstanding politicians leap in to fluff it up even more -- not noting that this article alone almost certainly drove way more attention to the website than it had received in the past.

Just weeks after the NY Times told so many people where to go to learn about how to kill themselves, the same NY Times reporters announced triumphantly that Congress is on the job of investigating the site. Are they looking to fund more efforts to help deal with mental health issues? Of course not! Are they looking at ways to help guide troubled individuals to better, more helpful resources? What, are you a communist or something? No, Congress wants to punish this website and anyone else who promotes it (except, of course, for the NY Times, which only wrote a giant article about the site, telling people how to find it).

Responding to a New York Times investigation of the site published this month, the House Committee on Energy and Commerce on Monday released a bipartisan statement requesting briefings from search engines, web-hosting companies and other tech companies whose services might have been leveraged by the suicide site.

“It is imperative that companies take the threat of such sites seriously and take appropriate steps to mitigate harm,” said the statement from the panel, led by Representative Frank J. Pallone Jr., Democrat of New Jersey.

A representative for Microsoft’s search engine, Bing, told The Times last week that the company had altered its search engine to lower the ranking of the site, which has been linked to a trail of deaths. On Monday, Senator Richard Blumenthal, Democrat of Connecticut, sent a letter to Google and Bing asking the companies to fully remove the suicide site from their search results — a step further than either search engine was willing to take.

On Tuesday, Representative Lori Trahan, Democrat of Massachusetts, along with six other House members, wrote to Attorney General Merrick B. Garland asking what options the Justice Department had for investigating the site and its founders and what steps lawmakers could take to allow for a prosecution. Noting that other countries had taken steps to restrict access to the site, the lawmakers also asked about removing it from search results in the United States.

Look how proud they are of what they've set in action -- without any recognition of how none of this actually helps and how much they themselves contributed to the promotion of the site. This is how the media creates a moral panic.

It would be great if we saw politicians respond to this by focusing on the underlying problem -- but why do that when you can just randomly try to blame everyone's favorite bogeyman, "big tech."

Filed Under: assisted suicide, blame, congress, doj, frank pallone, liability, lori trahan, merrick garland, moral panic, search, section 230, suicide
Companies: ny times

Federal Court Dismisses Another Negligence Suit Against Online Gun Marketplace Armslist But Says Section 230 Doesn't Protect It

from the it's-a-win...-but-what-is-it-worth? dept

Two years ago, the Wisconsin Supreme Court handed down a pretty important decision, only somewhat tempered by its limited jurisdiction. It decided Section 230 immunity applied to the buying and selling of guns via a third-party platform, Armslist.

Survivors of a mass shooting in Wisconsin tried to hold Armslist directly responsible for the criminal act, arguing that the site's facilitation of sales that bypassed local regulations on gun sales (mainly background checks) allowed the shooter to arm himself illegally. The shooting may have been on the mass shooter, but Armslist was apparently an accomplice because its marketplace allowed someone who shouldn't have had access to guns to acquire one.

The plaintiffs hoped to bypass Section 230 immunity with arguments that centered on negligence. The Copia Institute (a Mike Masnick joint) filed an amicus brief on behalf of Armslist, asking the court to reject arguments that would carve some very damaging holes in Section 230 protections.

The court found in favor of Armslist, specifically citing Section 230.

The court of appeals held that 47 U.S.C. § 230 (2018), the federal Communications Decency Act of 1996, did not bar Daniel's claims against Armslist for facilitating Radcliffe's illegal purchase. We disagree, and conclude that § 230(c)(1) requires us to dismiss Daniel's complaint against Armslist. Section 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider, as the publisher or speaker of information posted by a third party on its website. Because all of Daniel's claims for relief require Armslist to be treated as the publisher or speaker of information posted by third parties on armslist.com, her claims are barred by § 230(c)(1). Accordingly, we reverse the decision of the court of appeals, and affirm the circuit court's dismissal of Daniel's complaint.

Another court has found in favor of Armslist. And again, the case involves a tragedy: the killing of someone using a weapon purchased through Armslist. Unfortunately, the federal court handling this case says Section 230 has nothing to do with Armslist securing a dismissal. While it doesn't weaken any Section 230 protections, it certainly doesn't add anything either, ensuring lawsuits brought against third-party platforms will still have to pay to defend themselves from accusations that they're culpable for the criminal actions of their users. (h/t Volokh Conspiracy)

The plaintiff, Richard Webber, sued Armslist after a gun purchased on the site was used to murder his daughter. The underlying incident is horrific. This is from the Wisconsin federal court decision [PDF]:

As a result of Armslist’s design decisions and business practices, Plaintiff alleges, Schmidt’s estranged husband, who was prohibited from owning a firearm under Wis. Stat. §§ 941.29(1m)(g), 813.25 and 18 U.S.C. § 922(g)(8), was able to purchase a firearm from a private seller who listed a firearm for purchase on Armslist.com. Shortly thereafter, Schmidt’s estranged husband used the firearm he purchased from the private seller to fatally shoot Schmidt after Schmidt had arrived at her mother’s house to drop off her three children. Schmidt’s estranged husband then committed suicide in the backyard of the house. Plaintiff alleges that, but for Armslist’s failure to enact adequate safeguards, and but for Armslist’s conscious decision to design Armslist.com in an irresponsible, unreasonable, and unlawful manner, Sara Schmidt’s estranged husband would not have been able to purchase the firearm that he used to kill her.

From that tragedy arose a list of alleged violations and harms, including common law negligence, civil conspiracy, and wrongful death -- all pursued under Wisconsin state law but handled by a federal court.

After deciding it has jurisdiction to preside over state law claims, the court details why it thinks Section 230 does not apply to this case -- one that involves a buyer and a seller utilizing the marketplace created by Armslist, but does not involve any direct action by Armslist.

In dismissing Armslist's Section 230 immunity defense, the court cites not only Justice Clarence Thomas (who holds some… questionable… views on Section 230) but also quotes the Seventh Circuit's misreading on how the "Good Samaritan" clause of the law has been applied by platforms.

But even setting aside the tricky task of discerning legislative intent, it is the text of the statute from which a court should draw its true meaning. Subsection (c) is entitled “protection for ‘good samaritan’ blocking and screening of offensive material.” As the Seventh Circuit has noted, this title is “hardly an apt description if its principal effect is to induce ISPs to do nothing about the distribution of indecent and offensive materials via their services.” Doe, 347 F.3d at 660. Furthermore, nothing in the text of § 230(c)(1) indicates an intent to provide sweeping immunity for providers or users of interactive computer services who face claims based on their own misconduct.

The "Good Samaritan" clause does not encourage a hands-off approach. It actually encourages vigorous moderation efforts by ensuring platforms cannot be sued for removing content platform owners find objectionable, rather than limiting themselves to clearly illegal content.

From these, it gets worse. The court decides this lawsuit isn't about the action of two third parties who utilized a platform to perform an illegal gun sale. It says this is about Armslist being less than cautious about who it allows to utilize the service, shifting the culpability from the murderer and the party closest to the act of murder (the person who sold him the gun) one more step up the chain to the platform that merely allowed people to sell and buy guns.

Even if § 230 applies to this type of case, Plaintiff’s claims do not seek to treat Defendants as the “publisher or speaker” of the post in question. Here, Plaintiff seeks to hold Defendants liable for their “role in developing or co-developing [their] own content.” Specifically, Plaintiff faults Defendants for failing to prohibit criminals from accessing or buying firearms through Armslist.com; actively encouraging, assisting, and facilitating illegal firearms transactions through their various design decisions; failing to require greater details from users, such as providing credit-card verified evidence of users’ identities; failing to require that sellers certify under oath that they are legal purchasers; and failing to provide regularly updated information regarding applicable firearms laws to its users, among many other things. In essence, the complaint “focuses primarily on Armslist’s own conduct in creating the high-risk gun market and its dangerous features,” not on the post in question. This type of claim, then, does not seek to treat Defendants as the “publisher or speaker” of the post that led to Schmidt’s killer obtaining a firearm; rather, it seeks to hold Defendants liable for their own misconduct in negligently and recklessly creating a service that facilitates the illegal sale of firearms. 47 U.S.C. § 230(c)(1). For these reasons, the Court concludes that § 230 does not immunize Defendants from liability in this case.

But having successfully dodged Section 230 immunity isn't enough to find Armslist culpable for the actions of a person who purchased a gun through the site. There's nothing that connects the violent act to Armslist other than the weapon used to commit it. And, as the court points out, if it wasn't a gun purchased on Armslist, it might have been a gun purchased elsewhere… or any weapon at all, given the facts of this case.

It is clear from the complaint that Schmidt was shot and killed by her estranged husband, not Defendants, with a handgun he purchased from another party, again not Defendants. Based on the facts alleged, there is no reason to believe that even if Schmidt’s estranged husband had not purchased a gun from a person who posted an advertisement on the Armslist website, Schmidt would still be alive. Armslist is hardly the only source of guns in this country, and one does not even need a gun to take another person’s life. Schmidt was killed by a person so determined to take her life, so consumed by hatred, that he was even willing to take his own. The likelihood that such a person would have found another source from which to obtain a firearm or another way to take Schmidt’s life is more plausible than Plaintiff’s claim that she would still be alive. Absent cause, Plaintiff’s negligence claim against Defendants fails.

Armslist escapes. But not by much. And the decision doesn't bolster Section 230 protections. Instead, it encourages litigants to pursue esoteric claims in hopes of bypassing immunity, rather than be forced to confront the fact they're seeking to hold a platform responsible for the violent acts of its users. That fact alone should have given Section 230 immunity better consideration than it received here. And it's pretty disheartening to hear federal courts quoting Justice Clarence Thomas' unhinged (but published) dissenting rants about a law he clearly doesn't respect, much less understand.

Filed Under: guns, liability, secondary liability, section 230, wisconsin
Companies: armslist

Netflix Files Anti-Slapp Motion To Dismiss Lawsuit Claiming One Of Its Series Caused A Teen To Commit Suicide

from the even-an-algorithm-is-protected-speech dept

Because Netflix is big, it draws lawsuits. It has been sued for defamation, copyright infringement, and, oddly, defamation via use of a private prison's logo in a fictional TV show. It has also been sued for supposedly contributing to a teen's suicide with its series "13 Reasons Why," which contained a lot of disturbing subject matter that teens deal with daily, like bullying, sexual assault, and -- most relevant here -- suicide. The final episode of the first season contained a suicide scene, one that was removed by Netflix two years after the show debuted.

While undeniably a tragedy, the attempt to blame Netflix for this teen's suicide is severely misguided. The lawsuit filed by the teen's survivors alleges Netflix had a duty to warn viewers of the content (content warnings were added to the show a year after its release) and it failed to do so, making it indirectly liable for this death.

Netflix is now trying to get this lawsuit dismissed using California's anti-SLAPP law because, as it argues persuasively, this is all about protected speech, no matter how the plaintiffs try to portray it as a consumer protection issue. (h/t Reason)

Netflix's anti-SLAPP motion [PDF] points out this isn't the first time teen suicide has been depicted in pop culture, nor is it the first time people have tried to sue creators over the content of their creations. None of those lawsuits have been successful.

13 Reasons Why is not the first work to tell a story about teen suicide. The subject has been explored in countless literary works, motion pictures, songs, and TV shows—everything from Romeo and Juliet to Dead Poets Society. And this is not the first lawsuit that has claimed that the media’s depiction of suicide and violence is to blame, and should be held legally liable, for real-life suicides and other tragic events. Courts, however, have repeatedly rejected such suits.

Since this lawsuit directly implicates creative expression, Netflix says California's anti-SLAPP law applies.

Without question, 13 Reasons Why is protected expression under the First Amendment. And the FAC itself, which is replete with citations to articles about 13 Reasons Why and its subject matter, makes plain that 13 Reasons Why’s speech is in “connection with a public issue.” Plaintiffs try to sidestep the anti-SLAPP statute and the First Amendment by insisting that their claims are not based on the content of 13 Reasons Why, but on an alleged “failure to warn” or breach of a purported duty to protect “vulnerable populations” from the content. But without the allegations that the show’s content is “dangerous,” Plaintiffs’ theories fall apart. Not only do those theories strike at the free expression embodied in the show, they target Netflix’s conduct “in furtherance” of the distribution of the show, and therefore bring this lawsuit squarely within the ambit of the anti-SLAPP statute.

Not only is the content of the series protected expression, but so is the algorithm that possibly recommended the show to the teen. The plaintiffs' "failure to protect" theory argues that Netflix's algorithm is itself reckless and dangerous, given that it prompts users to select titles that may contain disturbing subject matter. But whether or not a human is performing the recommendation makes no difference. It's a form of editorial control which is protected under the First Amendment.

The recommendations system, and the display of suggested titles, is speech. It evinces “[a]n intent to convey a particularized message,” Spence v. Washington, 418 U.S. 405, 410–11 (1974)—namely, a message about what shows and movies a viewer might choose from to watch. The recommendations fall within the well-recognized right to exercise “editorial control and judgment.” Miami Herald Pub. Co. Tornillo, 418 U.S. 241, 258 (1974). Plaintiffs allege that the recommendations here are different because they are dictated by an algorithm. But the fact that the recommendations “may be produced algorithmically” makes no difference to the analysis.

[...]

The suggestion that a viewer watch a particular show falls within the broad scope of conduct in furtherance of the right to free speech. The subject of the recommendation—13 Reasons Why—is itself protected speech, and the recommendations facilitate Netflix’s protected distribution and dissemination of that speech.

The plaintiffs' claims can't be separated from the undeniable fact that the allegations are all about creative expression, which is exactly why the state's anti-SLAPP law should apply.

Finally, like Plaintiffs’ failure-to-warn theory, Plaintiffs’ recommendation theory cannot be disentangled from Plaintiffs’ allegation that the underlying content is “dangerous”: the entire premise of the claim is that Netflix had a duty to identify which viewers are “vulnerable,” and ensure that the algorithm does not recommend 13 Reasons Why (or other content Plaintiffs deem unsuitable) to such viewers.

If, as the plaintiffs argue, creators and producers of disturbing content can be held directly liable for the actions of viewers, the end result would be self-censorship and a dearth of options for creators to distribute their creations. Suicide has been the subject matter of countless creative efforts for hundreds of years. A lack of content warnings ahead of viewing doesn't make a viewer's death Netflix's fault. Viewers have control over what they watch and, given the vast amounts of information contained on the internet about movies and TV series, there's little reason to believe viewers have to go into any show "blind."

As tragic as this situation is, the blame (if there even is any) doesn't lie with Netflix. Netflix is no more responsible for this death as the creators of the series or the writer of the novel that inspired it.

Filed Under: 13 reasons why, 1st amendment, anti-slapp, blame, california, liability, protected speech, suicide
Companies: netflix

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

from the i-mean,-come-on dept

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

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

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

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

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

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

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

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

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

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

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

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

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