How Do You Debate Section 230 When One Side Constantly Lies About It?

from the this-is-not-a-both-sides-issue dept

The Federalist Society this week released an interesting and well-produced video all about the Section 230 debate. Whatever you might think about the Federalist Society, the video is worth watching. The video does not take a position on 230 but basically presents it as if there are two equally competing visions of 230 -- one in which it's good and one in which it's a problem. And if you just watch the video, you might think that this is because there are just disagreements about how 230 works and the impact it has on speech online. But that's only because one side of the debate is completely making shit up and the other is being accurate.

In this case, the person making up shit about 230 is... Senator Ted Cruz. Cruz has been lying about Section 230 for years. Indeed, I think we can trace most of the blatant falsehoods about 230 that seem to come from Republicans to Ted Cruz. It seems like 3 years ago, Cruz decided that it would be a fun culture war thing to "attack big tech" and lying about 230 seemed like the easiest way to do so. Other politicians (most notably Josh Hawley) have since followed him down that path, but it's Cruz who seems to be patient zero of the GOP's "making shit up about 230." Of course, what's perhaps most ironic is that everything that Cruz has been falsely saying about 230 conflicts directly with the other stuff he made up about net neutrality back when that fight was on.

Back in 2014, when the FCC finally put in place reasonable net neutrality rules, Cruz flipped out and insisted that simple rules against throttling or blocking access to websites was the government taking over the internet. Now, with 230, he insists (falsely) that 230 had some built in neutrality requirement, and he's mad that it's no longer there. He's wrong on... all of this.

Let's dig in:

Who in their right mind would want all of political discourse in America governed by a handful of Silicon Valley billionaires? With unfettered power to silence anyone. That's what we have now and I think it threatens our elections, it threatens our democracy, and it threatens free speech in a way we've never seen before in our democracy.

Oh come on. First of all, pre-internet, the vast majority of people had no outlet for them to speak to the vast majority of other Americans (or people around the globe). They could only speak to people around them, and that was an extremely limited audience. Today, the internet has enabled people to speak to tons of people across a wide variety of platforms or -- even better, to set up your own website and communicate to whatever audience you can attract. The idea that a few popular sites have "unfettered power to silence anyone" is ridiculous. First of all, they can't silence people. They can only refuse them service on their platforms. And the internet is much bigger than those platforms.

Second, they have strong incentives not to just randomly silence people and really are not doing so. While they sometimes make mistakes, it's not like they're suddenly deciding that idiots like Ted Cruz can't lie to the American public and create bogus culture wars. Hell, this video is... hosted on YouTube. Are there cases where these sites have over moderated content that they probably should not have? Sure, absolutely. But there remain many other options out there, and the idea that a few sites having moderation policies Ted Cruz doesn't like is in no way a "threat to free speech." And, it most certainly is not a historic threat the way Cruz presents it.

Again, compare this to what we had before. Before people had no significant tools to get their speech out there. If you wanted to speak to a wide audience, you were immediately limited by a bunch of giant gatekeepers who suppressed way more speech than any internet platform ever has. You needed to get a newspaper publisher, book publisher, or TV or radio station to agree to allow you to speak, and they rejected nearly all such efforts. They only allowed through a tiny fraction of those who wished to be published or put on the air.

The change today is massive. But if we're talking about the power of big companies to silence speech, we're in a fundamentally different world today where the primary purpose of many of these companies is enabling the vast majority of people to be able to speak to wider audiences. The old systems were focused on just allowing through a tiny minority of people to speak. We're currently in amazing times for freedom of speech, and the fact that a few platforms don't want assholes and disinformation merchants is not an attack on free speech.

Later Cruz does this misleading garbage thing where he says that the big tech companies have refused to tell him how many Republican candidates for office have had their content "blocked, shadowbanned, or restricted." He insists that there is a clear number "an integer" that these companies know and refuse to tell him and "that unchecked power is dangerous."

Except that entire statement is garbage. First of all, "shadowbanning" is not a defined thing, and most companies don't do anything that can be reasonably defined as "shadowbanning" or "throttling." But all of these platforms do have algorithms that suggest content to users, and they may rank certain content higher than others, because the algorithms believe users are more likely to want to see some content, and less likely to see other content. Is having the algorithm decide that one politician's content is less interesting than another's... is that "shadowbanning"? Is that "throttling"? Who the fuck knows? That's why Cruz's question is so disingenuous. He's asking an unanswerable question, and then pretending that when companies don't answer a question that can't be answered that they're dodging the issue.

And, no, that power is not "unchecked." Remember when Ted Cruz was a Republican who pretended to believe in the market? If these companies were really terrible at all of this, then that's an opportunity for alternatives to spring up. Or it's a reason for users to stop using the platforms. Or for advertisers to go elsewhere. There are all sorts of market incentives for these companies to be better. Cruz is just making shit up again.

Right now, Section 230 is part of how Congress continues to protect these monopolies that are abusing their power and trying to silence you.

Oh come on. Section 230 protects everyone online. It's got nothing to do with "monopolies" (and just the fact he is referring to multiple companies as monopolies should make you question if he knows what the word monopoly means). And, no, they're not trying to "silence you." They're trying to balance a ton of competing interests, including stopping spam, harassment, abuse, and disinformation that is creating larger societal problems that cynical opportunist politicians like Ted Cruz want to brush under the rug or deny.

The question of what to do about big tech censorship is a difficult question. I will readily concede that as a policy matter, that is not easy to solve. Nobody in their right mind wants to see a federal government speech police.

And here he is trying to have it both ways, because everything else he says is demanding exactly that. Having the federal government force websites to host some speech while removing some other speech. But Cruz wants to have it both ways. Because he's lying.

But it's no longer the case that tech companies are these tiny little startups. It's no longer the case that they're a couple of kids starting something in their college dorm room.

Uh, there are still tons of startups, including started by kids in their dorm rooms that are protected by 230.

So it then becomes a thorny problem. How do you solve this blatant censorship and bias coming from Silicon Valley. First, which we're talking about right now, is repealing or modifying Section 230. Eliminating the special immunity from liability that big tech gets that was based on the belief that they would be neutral public forum. They've abandoned that promise. They've decided that they're not neutral. They're partisan, they will silence your views if they disagree with them.

Everything he says here is hogwash. First, the small lie: Section 230 is not about "big tech." It protects small sites and users as well. It protects Ted Cruz when he retweets something or when he forwards an email.

Then the big lie: the idea that 230 was premised on "neutrality." While the video later does show Chris Cox -- who wrote Section 230 -- debunking this myth, it's much later in the video and people watching it might not even realize that he's basically calling out Cruz as a blatant liar. Section 230 was never based on the idea of any website being "a neutral public forum." As Cox says later, how would that even make any sense? No one would expect, say, the Republican National Committee to have to host speech promoting Democrats.

The entire point of Section 230 was to allow websites to moderate how they saw fit for the community they wanted to have on their website. It's why we see so many different websites with so many different approaches. Because no one wants or needs a one-size-fits-all approach. So, if websites wanted to be biased, that's exactly what 230 was designed to support. So no site "broke" any promise, because no promise was made.

And finally, it's bullshit that any of the big companies are "partisan" in their moderation. They're not banning people for their political views. They're banning them when they're spewing disinformation or harassment in a way that makes it difficult for others using the site as well. The only site I've seen admit to being "partisan" was Parler, whose former CEO bragged to reporters about banning "leftists." I didn't see Cruz complain about that.

I think there should be strong incentive in federal law for the big companies to go back to being neutral public fora. They know how to do that. They did that for years. Because if they silence anyone who disagrees with the leftwing orthodoxy we'll only hear one view.

Oh come on. Again, they were never "neutral public fora." They have always had content moderation policies, removing spam and harassment -- and things they were legally required to remove, such as copyright infringement and child sexual abuse material.

And, again, remember that the one regulation we did have about making a part of the internet "neutral" resulted in Cruz himself screaming about how it was "Obamacare for the internet" and "the government takeover of the internet." Ted Cruz is a lying fucking hypocrite.

Oh, and there is no site out there that is silencing "anyone who disagrees with leftwing orthodoxy." Again, Ted Cruz -- who clearly disagrees with leftwing orthodoxy -- is still on all these platforms. This video is hosted by YouTube. Cruz is just culture warrioring, by lying to you.

That's the world of big tech, but it's even worse because it's 3 or 4 billionaires in Silicon Valley deciding what you get to hear, what you get to say, what you get to know. That is an incredible danger to our Constitution, to our Bill of Rights, and to our democracy.

Again, no. The Bill of Rights and the Constitution are mostly about limiting what Congress can do. Private companies exercising editorial discretion on their platforms is actually protected by the Bill of Rights.

I'm not sure there was a single thing in this entire video that came out of Ted Cruz's mouth that was anywhere near truth. It was all cynical bullshit that was not only ridiculous and wrong, but was designed to mislead people. I know the Federalist Society wants to present "both sides" of this issue, but how do you do that when the people you choose have no compunction about just flat out lying?

Filed Under: content moderation, lies, neutrality, section 230, ted cruz

Hello! You've Been Referred Here Because You're Wrong About Section 230 Of The Communications Decency Act

from the duty-calls dept

Hello! Someone has referred you to this post because you've said something quite wrong about Section 230 of the Communications Decency Act.

I apologize if it feels a bit cold and rude to respond in such an impersonal way, but I've been wasting a ton of time lately responding individually to different people saying the same wrong things over and over again, and I was starting to feel like this guy:

And... I could probably use more sleep, and my blood pressure could probably use a little less time spent responding to random wrong people. And, so, for my own good you get this. Also for your own good. Because you don't want to be wrong on the internet, do you?

Also I've totally copied the idea for this from Ken "Popehat" White, who wrote Hello! You've Been Referred Here Because You're Wrong About The First Amendment a few years ago, and it's great. You should read it too. Yes, you. Because if you're wrong about 230, there's a damn good chance you're wrong about the 1st Amendment too.

While this may all feel kind of mean, it's not meant to be. Unless you're one of the people who is purposefully saying wrong things about Section 230, like Senator Ted Cruz or Rep. Nancy Pelosi (being wrong about 230 is bipartisan). For them, it's meant to be mean. For you, let's just assume you made an honest mistake -- perhaps because deliberately wrong people like Ted Cruz and Nancy Pelosi steered you wrong. So let's correct that.

Before we get into the specifics, I will suggest that you just read the law, because it seems that many people who are making these mistakes seem to have never read it. It's short, I promise you. If you're in a rush, just jump to part (c), entitled Protection for “Good Samaritan” blocking and screening of offensive material, because that's the only part of the law that actually matters. And if you're in a real rush, just read Section (c)(1), which is only 26 words, and is the part that basically every single court decision (and there have been many) has relied on.

With that done, we can discuss the various ways you might have been wrong about Section 230.

If you said "Once a company like that starts moderating content, it's no longer a platform, but a publisher"

I regret to inform you that you are wrong. I know that you've likely heard this from someone else -- perhaps even someone respected -- but it's just not true. The law says no such thing. Again, I encourage you to read it. The law does distinguish between "interactive computer services" and "information content providers," but that is not, as some imply, a fancy legalistic ways of saying "platform" or "publisher." There is no "certification" or "decision" that a website needs to make to get 230 protections. It protects all websites and all users of websites when there is content posted on the sites by someone else.

To be a bit more explicit: at no point in any court case regarding Section 230 is there a need to determine whether or not a particular website is a "platform" or a "publisher." What matters is solely the content in question. If that content is created by someone else, the website hosting it cannot be sued over it.

Really, this is the simplest, most basic understanding of Section 230: it is about placing the liability for content online on whoever created that content, and not on whoever is hosting it. If you understand that one thing, you'll understand most of the most important things about Section 230.

To reinforce this point: there is nothing any website can do to "lose" Section 230 protections. That's not how it works. There may be situations in which a court decides that those protections do not apply to a given piece of content, but it is very much fact-specific to the content in question. For example, in the lawsuit against Roommates.com for violating the Fair Housing Act, the court ruled against Roommates, but not that the site "lost" its Section 230 protections, or that it was now a "publisher." Rather, the court explicitly found that some content on Roommates.com was created by 3rd party users and thus protected by Section 230, and some content (namely pulldown menus designating racial preferences) was created by the site itself, and thus not eligible for Section 230 protections.

If you said "Because of Section 230, websites have no incentive to moderate!"

You are wrong. If you reformulated that statement to say that "Section 230 itself provides no incentives to moderate" then you'd be less wrong, but still wrong. First, though, let's dispense with the idea that thanks to Section 230, sites have no incentive to moderate. Find me a website that doesn't moderate. Go on. I'll wait. Lots of people say things like one of the "chans" or Gab or some other site like that, but all of those actually do moderate. There's a reason that all such websites do moderate, even those that strike a "free speech" pose: (1) because other laws require at least some level of moderation (e.g., copyright laws and laws against child porn), and (2) more importantly, with no moderation, a platform fills up with spam, abuse, harassment, and just all sorts of garbage that make it a very unenjoyable place to spend your internet time.

So there are many, many incentives for nearly all websites to moderate: namely to keep users happy, and (in many cases) to keep advertisers or other supporters happy. When sites are garbage, it's tough to attract a large user base, and even more difficult to attract significant advertising. So, to say that 230 means there's no incentive to moderate is wrong -- as proven by the fact that every site does some level of moderation (even the ones that claim they don't).

Now, to tackle the related argument -- that 230 by itself provides no incentive to moderate -- that is also wrong. Because courts have ruled Section (c)(1) to have immunized moderation choices, and Section (c)(2) explicitly says that sites are not liable for their moderation choices, sites actually have a very strong incentive provided by 230 to moderate. Indeed, this is one key reason why Section 230 was written in the first place. It was done in response to a ruling in the Stratton Oakmont v. Prodigy lawsuit, in which Prodigy, in an effort to provide a "family friendly" environment, did some moderation of its message boards. The judge in that case rules that since Prodigy did moderate the boards, that meant it would be liable for anything it left up.

If that ruling had stood and been adopted by others, it would, by itself, be a massive disincentive to moderation. Because the court was saying that moderation itself creates liability. And smart lawyers will say that the best way to avoid that kind of liability is not to moderate at all. So Section 230 explicitly overruled that judicial decision, and eliminated liability for moderation choices.

If you said "Section 230 is a massive gift to big tech!"

Once again, I must inform you that you are very, very wrong. There is nothing in Section 230 that applies solely to big tech. Indeed, it applies to every website on the internet and every user of those websites. That means it applies to you, as well, and helps to protect your speech. It's what allows you to repeat something someone else said on Facebook and not be liable for it. It's what protects every website that has comments, or any other third-party content. It applies across the entire internet to every website and every user, and not just to big tech.

The "user" protections get less attention, but they're right there in the important 26 words. "No provider or user of an interactive computer service shall be treated as the publisher or speaker...." That's why there are cases like Barrett v. Rosenthal where someone who forwarded an email to a mailing list was held to be protected by Section 230, as a user of an interactive computer service who did not write the underlying material that was forwarded.

And it's not just big tech companies that rely on Section 230 every day. Every news organization (even those that write negative articles about Section 230) that has comments on its website is protected thanks to Section 230. This very site was sued, in part, over comments, and Section 230 helped protect us as well. Section 230 fundamentally protects free speech across the internet, and thus it is more properly called out as a gift to internet users and free speech, not to big tech.

If you said "A site that has political bias is not neutral, and thus loses its Section 230 protections"

I'm sorry, but you are very, very, very wrong. Perhaps more wrong than anyone saying any of the other things above. First off, there is no "neutrality" requirement at all in Section 230. Seriously. Read it. If anything, it says the opposite. It says that sites can moderate as they see fit and face no liability. This myth is out there and persists because some politicians keep repeating it, but it's wrong and the opposite of truth. Indeed, any requirement of neutrality would likely raise significant 1st Amendment questions, as it would be involving the law in editorial decision making.

Second, as described earlier, you can't "lose" your Section 230 protections, especially not over your moderation choices (again, the law explicitly says that you cannot face liability for moderation choices, so stop trying to make it happen). If content is produced by someone else, the site is protected from lawsuit, thanks to Section 230. If the content is produced by the site, it is not. Moderating the content is not producing content, and so the mere act of moderation, whether neutral or not, does not make you lose 230 protections. That's just not how it works.

If you said "Section 230 requires all moderation to be in "good faith" and this moderation is "biased" so you don't get 230 protections"

You are, yet again, wrong. At least this time you're using a phrase that actually is in the law. The problem is that it's in the wrong section. Section (c)(2)(a) does say that:

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected

However, that's just one part of the law, and as explained earlier, nearly every Section 230 case about moderation hasn't even used that part of the law, instead relying on Section (c)(1)'s separation of an interactive computer service from the content created by users. Second, the good faith clause is only in half of Section (c)(2). There's also a separate section, which has no good faith limitation, that says:

No provider or user of an interactive computer service shall be held liable on account of... any action taken to enable or make available to information content providers or others the technical means to restrict access to material....

So, again, even if (c)(2) applied, most content moderation could avoid the "good faith" question by relying on that part, (c)(2)(B), which has no good faith requirement.

However, even if you could somehow come up with a case where the specific moderation choices were somehow crafted such that (c)(1) and (c)(2)(B) did not apply, and only (c)(2)(A) were at stake, even then, the "good faith" modifier is unlikely to matter, because a court trying to determine what constitutes "good faith" in a moderation decision is making a very subjective decision regarding expression choices, which would create massive 1st Amendment issues. So, no, the "good faith" provision is of no use to you in whatever argument you're making.

If you said "Section 230 is why there's hate speech online..."

Ooof. You're either the The NY Times or very confused. Maybe both. The 1st Amendment protects hate speech in the US. Elsewhere not so much. Either way, it has little to do with Section 230.

If you said "Section 230 means these companies can never be sued!"

I regret to inform you that you are wrong. Internet companies are sued all the time. Section 230 merely protects them from a narrow set of frivolous lawsuits, in which the websites are sued either for the content created by others (in which case the actual content creators remain liable) or in cases where they're being sued for the moderation choices they make, which are mostly protected by the 1st Amendment anyway (but Section 230 helps get those frivolous lawsuits kicked out faster). The websites can and do still face lawsuits for many, many other reasons.

If you said "Section 230 is a get out of jail card for websites!"

You're wrong. Again, websites are still 100% liable for any content that they themselves create. Separately, Section 230 explicitly exempts federal criminal law -- meaning that stories that blame things like sex trafficking and opioid sales on 230 are very much missing the point as well. The Justice Department is not barred by Section 230. It says so quite clearly:

Nothing in this section shall be construed to impair the enforcement of... any other Federal criminal statute

So many of the complaints about criminal activity are not about Section 230, but about a lack of enforcement.

If you said "Section 230 is why there's piracy online"

You again may be the NY Times or someone who has not read Section 230. Section 230 explicitly exempts intellectual property law:

Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

If you said "Section 230 gives websites blanket immunity!"

The courts have made it clear this is not the case at all. In fact, many courts have highlighted situations in which Section 230 does not apply, from the Roommates case, to the Accusearch case, to the Doe v. Internet Brands case, to the Oberdorf v. Amazon case, we see plenty of cases where judges have made it clear that there are limits to Section 230 protections, and the immunity conveyed by Section 230 is not as broad as people claim. At the very least, the courts seem to have little difficulty targeting what they consider to be "bad actors" with regards to the law.

If you said "Section 230 is why big internet companies are so big!"

You are, again, incorrect. As stated earlier, Section 230 is not unique to big internet companies, and indeed, it applies to the entire internet. Research shows that Section 230 actually helps incentivize competition, in part because without Section 230, the costs of running a website would be massive. Without Section 230, large websites like Google and Facebook could handle the liability, but smaller firms would likely be forced out of business, and many new competitors might never get started.

If you said "Section 230 was designed to encourage websites to be neutral common carriers"

You are exactly 100% wrong. We've already covered why it does not require neutrality above, but it was also intended as the opposite of requiring websites to be "common carriers." Specifically, as mentioned above, part of the impetus for Section 230 was to enable services to create "family friendly" spaces, in which plenty of legal speech would be blocked. A common carrier is a very specific thing that has nothing to do with websites and less than nothing to do with Section 230.

If you said "If all this stuff is actually protected by the 1st Amendment, then we can just get rid of Section 230"

You're still wrong, though perhaps not as wrong as everyone else making these bad takes. Without Section 230, and relying solely on the 1st Amendment, you still open up basically the entire internet to nuisance suits. Section 230 helps get cases dismissed early, whereas using the 1st Amendment would require lengthy and costly litigation. 230 does rely strongly on the 1st Amendment, but it provides a procedural advantage in getting vexatious, frivolous nuisance lawsuits shut down much faster than they would be otherwise.

There seems to be more and more wrong stuff being said about Section 230 nearly every day, but hopefully this covers most of the big ones. If you see someone saying something wrong about Section 230, and you don't feel like going over all of their mistakes, just point them here, and they can be educated.

Filed Under: cda 230, free speech, intermediary liability, neutrality, platform, publisher, section 230, speech, wrong, you're wrong

Let's Talk About 'Neutrality' -- And How Math Works

from the you-don't-want-moderation-neutrality dept

So if the First Amendment protects site moderation and curation decisions, why are we even talking about “neutrality?”

It’s because some of the bigger tech companies -- I’m looking at you, Google and Facebook -- naively assumed good faith when asked about “neutrality” by congressional committees. They took the question as inquiring whether they apply neutral content moderation principles, rather than as Act I in a Kabuki play where bad-faith politicians and pundits would twist this as meaning that the tech companies promised “scrupulous adherence to political neutrality” (and that Act II, as described below, would involve cherry-picking anecdotes to try to show that Google and Facebook were lying, and are actually bastions of conversative-hating liberaldom).

And here’s the thing -- Google, Twitter, and Facebook probably ARE pretty damn scrupulously neutral when it comes to political content (not that it matters, because THE FIRST AMENDMENT, but bear with me for a little diversion here). These are big platforms, serving billions of people. They’ve got a vested interest in making their platforms as usable and attractive to as many people as possible. Nudging the world toward a particular political orthodoxy? Not so much.

But that doesn’t stop Act II of the bad faith play. Let’s look at how unmoored from reality it is.

Anecdotes Aren’t Data

Anecdotes -- even if they involve multiple examples -- are meaningless when talking about content moderation at scale. Google processes 3.5 billion searches per day. Facebook has over 1.5 billion people looking at its newsfeed daily. Twitter suspends as many as a million accounts a day.

In the face of those numbers, the fact that one user or piece of content was banned tells us absolutely nothing about content moderation practices. Every example offered up -- from Diamond & Silk to PragerU -- is but one little greasy, meaningless mote in the vastness of the content moderation universe.

“‘Neutrality?’ You keep using that word . . .”

One obvious reason that any individual content moderation decision is irrelevant is simple numbers: a decision representing 0.00000001 of all decisions made is of absolutely no statistical significance. Random mutations -- content moderation mistakes -- are going to cause exponentially more postings or deletions than even a compilation of hundreds of anecdotes can provide. And mistakes and edge cases are inevitable when dealing with decision-making at scale.

But there’s more. Cases of so-called “political bias” are, if it is even possible, even less determinative, given the amount of subjectivity involved. If you look at the right-wing whining and whinging about their “voices being censored” by the socialist techlords, don’t expect to see any numerosity or application of basic logic.

Is there any examination of whether those on “the other side” of the political divide are being treated similarly? That perhaps some sites know their audiences don’t want a bunch of over-the-top political content, and thus take it down with abandon, regardless of which political perspective it’s coming from?

Or how about acknowledging the possibility that sites might actually be applying their content moderation rules neutrally -- but that nutbaggery and offensive content isn’t evenly distributed across the political spectrum? And that there just might be, on balance, more of it coming from “the right?”

But of course there’s not going to be any such acknowledgement. It’s just one-way bitching and moaning all the way down, accompanied with mewling about “other side” content that remains posted.

Which is, of course, also merely anecdotal.

Reposted from the Socially Awkward blog.

Filed Under: content moderation, content moderation at scale, errors in moderation, neutrality
Companies: facebook, google, twitter

Senator Mark Warner Repeats Senator Ted Cruz's Mythical, Made Up, Incorrect Claims About Section 230

from the not-how-it-works,-senator dept

Senator Mark Warner was supposed to be the "tech savvy" Senator. He's not really showing that. He's been leading the charge to regulate various parts of the internet, which might be fine if he knew what the fuck he was talking about. But, as is made clear in his latest interview with Newsweek, he's extremely confused about the legal underpinnings of the internet. Specifically, he is repeating Senator Ted Cruz's myth that Section 230 was designed to only apply to "neutral" platforms that don't moderate.

Can you explain Section 230?

Section 230 was called the Communications Decency Act in the late '90s, and at that moment in time, there was a decision made that social media companies, and their connections, were going to be viewed as kind of just dumb pipes, not unlike a telco. The platform companies would have no obligation for the content that went over their networks. In the late '90s, that might have made sense. But in 2019, when 65 percent of Americans get some—or all—of their news from Facebook and Google, there is clearly some curation going on.

This is literally the opposite of truth. It is the opposite of what happened and is the opposite of why Section 230 was put in place. As we've discussed over and over again, Section 230 was a direct response to the ruling in Stratton Oakmont v. Prodigy, in which Prodigy (an ISP, not a "social network") was deemed liable for content it had not moderated, because it did heavy moderation on its forums in an effort to be "family friendly." The point of Section 230 was to encourage moderation, and to not have internet services be "dumb pipes."

Senator Warner might know this if he just read the law. There's a whole section on how the law is designed to encourage more moderation by the platforms, and then it says directly:

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected

That's the law encouraging sites to moderate.

Senator Warner's description is just repeating the myth that Senator Cruz has been stating for over a year. We weren't surprised that other members of Cruz's party were repeating that nonsense, but Warner's party had mostly been making different stupid comments about Section 230, so it's disappointing to see him revisit this myth.

Other parts of the interview are actually good -- and he even brings up that interoperability and the ability to move to a competing service with your data might be a better approach than breaking up the big internet companies. And, on that, he's correct. But if he's premising his decisions regarding 230 on a history that gets the law literally exactly backwards, it's difficult to put much faith in him getting any changes correct.

Filed Under: intermediary liability, mark warner, neutrality, section 230, ted cruz

Enough With The Myth That Big Tech Is 'Censoring' Conservatives AND That The Law Requires Them To Be Neutral

from the these-things-are-not-accurate dept

I feel like we need to repost this on a near weekly basis, but there are two big myths that keep making the rounds over and over and over again, so they need to be repeatedly debunked. First, it's the idea that internet companies are "censoring" conservatives. And, yes, I know that we're going to get some angry commenters pinky swearing that it's true, and calling me all sorts of creative names for not being willing to admit it, but it remains true that there has been absolutely no evidence shown to support that premise. The other one, which is related, is the idea that Section 230 of the Communications Decency Act somehow was premised on platforms being "neutral." Three recent articles tackle these myths, and it seemed worth highlighting all three.

We'll start with Siva Vaidhyanathan's piece in the Atlantic, responding to the bogus cries of censorship. Vaidhyanathan points out that, rather than censoring conservatives, Republicans seem to have used these platforms to great advantage:

There is no evidence for these accusations. There are no legitimate studies supporting these contentions. There is no documentation of company officials ordering up anti-conservative bias or policies.

But to say there is no evidence for these accusations is too weak. These complaints are just false. Coming from smart people who know better—smart people like Cruz, the first U.S. presidential candidate to hire Cambridge Analytica and try to use its trove of personal Facebook data on millions of Americans—this looks like an intentionally duplicitous move.

Cruz knows that conservatives need Facebook and Google and that they benefit greatly from the algorithmic amplification that occurs in both systems. Trump’s 2020 campaign manager is Brad Parscale, who ran digital operations for the president’s successful 2016 campaign. Parscale declared that his mastery of Facebook for advertising, amplifying pro-Trump videos and memes, and fundraising won the 2016 election.

He further notes that there actually are studies showing that conservative campaigns have leveraged social media to a much greater advantage:

Scholarship supports this conclusion. As the sociologist Jen Schradie demonstrates in great detail in her new book,

The Revolution That Wasn’t: How Digital Activism Favors Conservatives, Facebook and Google work better for top-down, well-funded, disciplined, directed movements. Those adjectives tend to describe conservative groups more than liberal or leftist groups in the United States. In our current media ecosystem, right-wing sources of news and propaganda spread much further and faster than liberal or neutral sources do, according to a rigorous quantitative study of communication-network patterns by Yochai Benkler, Robert Faris, and Hal Roberts at Harvard’s Berkman Klein Center for Internet & Society. Internet platforms are demonstrably not silencing conservative ideas. If anything, the opposite is true.

So why do conservatives keep lying? Well, for one, to make sure that they retain this advantage:

First, conservatives are working the refs. If conservatives put media executives on their heels, constantly defending themselves or excusing themselves or apologizing for misunderstandings, then these companies are likely to bend toward conservatives out of fear or just exhaustion. This strategy has succeeded before. The liberal-media critic Eric Alterman has argued that such campaigns in the 1990s and early 2000s resulted in mainstream outlets such as The New York Times pushing unjustified right-wing causes like the Whitewater investigation and the invasion of Iraq.

Working the refs is still effective. Mark Zuckerberg of Facebook and Jack Dorsey of Twitter are not wise enough to understand what’s happening. So both Facebook and Twitter have allowed themselves to be worked.

There's a lot more in that article, but it's absolutely worth reading. The second article is Stanford's Daphne Keller's op-ed in the Washington Post, responding to the ridiculous op-ed the Washington Post published a few weeks ago claiming (totally incorrectly) that Section 230 was based on platforms being neutral. Unlike the author of that piece, Keller is actually an expert on Section 230. We've discussed why the neutrality claim is bunk in the past, but it's good to have another version to point to:

The “neutrality” idea, which has been raised by critics on the left and the right, seems to have gained particular currency among conservatives like Sen. Ted Cruz (R-Tex.), who has insisted that the law protects only sites that act as “neutral public forums.” Similarly, critics like Sen. Josh Hawley (R-Mo.) have claimed that this immunity is available only to platforms “providing a forum free of political censorship.” Platforms that are not “neutral,” Hawley says, face the same legal responsibilities as a publisher like The Washington Post.

That’s not what the law says. If it did, no one would like the results.

CDA 230 isn’t about neutrality. In fact, it explicitly encourages platforms to moderate and remove “offensive” user content. That leaves platform operators and users free to choose between the free-for-all on sites like 8chan and the tamer fare on sites like Pinterest.

Importantly, Keller highlights that it is reasonable to question how the big platforms handle moderation, but targeting Section 230 will make almost every problem worse. As our own Cathy Gellis has explained in the past, Section 230 is uniquely designed to balance a competing set of interests, encouraging the most "good" content on a platform, while limiting the "bad" content. As Keller points out, while people on both sides of the aisle seem to be targeting Section 230 for opposite reasons, they'll both be disappointed by the results:

Requiring platforms to address these concerns by carrying everything the law permits won’t solve our problems, though. After all, platform users and policymakers of all political stripes often call for platforms to take down more content — including speech that is legal under the First Amendment. That category can include Holocaust denial, bullying, anti-vaccine material and encouragement of teen suicide.

[....]

If platforms with insufficiently neutral policies were “legally responsible for all the content they publish,” as some critics have proposed, no one would like that either. A platform held to the legal standards of publishers like The Washington Post would have to vet everything users post before the public could see it. Users would have to wait while lawyers decide if its political opinions or cat videos break the law. If the lawyers thought any speech exposed the platform to liability, or even the expense of litigating groundless claims, they wouldn’t let the content be shared.

The drafters of CDA 230 recognized this problem. They created a law that let the wide array of Internet intermediaries shape their own policies, without facing the binary choice between becoming traditional publishers or remaining entirely passive.

The final piece is a recent one from Reason, highlighting just how ridiculous it is that both Republicans and Democrats are attacking Section 230.

Widely misunderstood and widely misinterpreted, often by those with political ambitions and agendas, Section 230 is, at its core, about making the internet safe for both innovation and individual free speech. It is the internet's First Amendment—possibly better. And it is increasingly threatened by the illiberal right and the regressive left, both of which are now arguing that Section 230 gives tech industry giants unfair legal protection while enabling political bias and offensive speech.

Ending or amending Section 230 wouldn't make life difficult just for Google, Facebook, Twitter, and the rest of today's biggest online platforms. Eroding the law would seriously jeopardize free speech for everyone, particularly marginalized groups whose ideas don't sit easily with the mainstream. It would almost certainly kill upstarts trying to compete with entrenched tech giants. And it would set dangerous precedents, with ripple effects that extend to economic and cultural areas in the U.S. and around the world.

I'm sure this won't end the nonsense people continue to spew over these laws. Indeed, responding to the Atlantic piece about his own lies about "anti-conservative bias," Senator Ted Cruz whined that "lefty journos ignore facts," while never actually responding to any of the actual facts he ignores. He claimed that the article's claim that he "suspended that habit of evidentiary discrimination" because he's held a couple hearings on "Big Tech bias & censorship." But that's misleading claptrap in its own right. Both of the hearings Cruz held were not about gathering evidence. They were performative nonsense, in which he promoted falsehoods about bias and the law.

There are reasonable debates to be held about the power of big internet companies -- but they're not currently being held. Instead, we're getting pure propaganda and nonsense. Don't fall for it.

Filed Under: anti-conservative bias, cda 230, intermediary liability, neutrality, platforms, working the refs

NY Times Calls Out Politicians For Lying About Section 230

from the good-job dept

We've spent months now highlighting how politicians (of both parties) continually misrepresent what Section 230 of the CDA says. There are open questions as to whether or not this is because they don't know the law, or they don't care, and they think lying about it helps them politically. Considering that two of the most vocal individuals are Senators Ted Cruz and Josh Hawley -- both of whom have a long history of being Constitutional lawyers -- it is difficult to believe that both aren't fully aware that they are lying.

Now the NY Times is calling them out, with an opinion piece by editorial board member Sarah Jeong, highlighting how badly they get the law wrong. She notes that the law is short and easy to read, and therefore no one has an excuse for blatantly misrepresenting it.

Section 230 of the C.D.A. is neither long nor particularly inscrutable. It clocks in at under 1,000 words, and it makes clear that the law does not premise protection on political neutrality. Neither does it force tech companies to assume either the role of “publisher” or “platform.” And it states that C.D.A. 230 has no bearing on federal criminal law — or on intellectual property law, for that matter.

She also highlights that there are some reasonable arguments to be made that the existence of Section 230 has stopped lawsuits from people who have legitimately been harmed -- something we've discussed quite a bit as well. There are real and legitimate questions over how to handle those situations (and, relatedly, if the internet platforms themselves are the proper party on which to place liability or responsibility). However, you aren't going to have reasonable and nuanced conversations about any of that if you're lying about the law.

But there can be no honest debate over a version of C.D.A. 230 that doesn’t exist. Political neutrality has never been part of C.D.A. 230, and to make it so would require a complete overhaul of the law. Senator Hawley’s bill calls for government regulation of the internet on an unprecedented scale. The Federal Communications Commission used to enforce the Fairness Doctrine on the airwaves, a policy under which broadcasters were required to air balanced opinions on controversial issues — balanced from the F.C.C.’s perspective, that is. It’s already perilous to have a government regulator decide what is fair and balanced. It makes even less sense when applied to the internet. In 1969, the Supreme Court upheld the F.C.C.’s power to enforce the Fairness Doctrine on the grounds that the airwaves are an inherently limited resource. But the sea of internet postings is boundless.

The Republican Party’s new obsession with “political neutrality” has left former allies reeling. Berin Szôka, the president of the libertarian-leaning think tank TechFreedom, said in an interview that Republicans were once his natural allies on a wide range of issues, but have now “betrayed their most fundamental principles, principles they spent decades fighting about — to keep the government out of meddling in broadcast media, fighting against the Fairness Doctrine. And now they want exactly that but on steroids for the internet.”

As Jeong notes in her piece, it might make sense to have an actual debate on Section 230, but almost no one -- least of all the legislators who are responsible for doing so -- seem willing to have an honest discussion about the law.

But the debate is not focused on the real issues with C.D.A. 230 — indeed, it is not focused on the actual text of C.D.A. 230.

Perhaps the discourse will be improved if we all take a moment to actually read the text of C.D.A. 230, but Mr. Szôka is not optimistic. Senators Cruz and Hawley, he said, are totally aware of what the statute says and what the case law around it actually is. “They’re smart lawyers. And they absolutely know what they’re talking about is a warping of Section 230.”

Of course, what the opinion piece does not discuss is why Hawley and Cruz are so eager to misrepresent the law and to grandstand about it. It doesn't discuss how this misrepresentation plays to a certain base, and gets them riled up and angry. Indeed, I'll expect many people in the comments of this very post to continue to make false claims about CDA 230 and "neutrality" that are simply untrue. It has created a narrative that is not accurate and is so far from truth that any debate on it gets mired in the complexities of having to call out statements so dishonest that they cannot have been made in good faith.

There may be legitimate debates to be had over the impact of 230 and how it works -- but when politicians are so focused on scoring political points rather than dealing with real issues, that's never going to happen.

Filed Under: cda 230, josh hawley, neutrality, sarah jeong, section 230, ted cruz

Once More With Feeling: There Is No Legal Distinction Between A 'Platform' And A 'Publisher'

from the stop-pushing-this-nonsense dept

Alexis Madrigal, over at the Atlantic has a mostly interesting piece recounting the history of how the big internet companies started calling themselves platforms. The history is actually pretty fascinating:

There was a time when there were no “platforms” as we now know them. That time was, oh, about 2007. For decades, computing (video games included) had had this term “platform.” As the 2000s began, Tim O’Reilly and John Battelle proposed “the web as a platform,” primarily focusing on the ability of different services to connect to one another.

The venture capitalist Marc Andreessen, then the CEO of the also-ran social network Ning, blasted anyone who wanted to extend the definition. “A ‘platform’ is a system that can be programmed and therefore customized by outside developers,” he wrote. “The key term in the definition of platform is ‘programmed.’ If you can program it, then it’s a platform. If you can’t, then it’s not.” My colleague Ian Bogost, who co-created an MIT book series called Platform Studies, agreed, as did most people in the technical community. Platforms were about being able to run code in someone else’s system.

This was Facebook’s original definition of its product, Facebook Platform, which allowed outside developers to build widgets and games, and extend the core service. In the years before 2016, nearly all of Mark Zuckerberg’s public references to Facebook as a platform were technical, about connecting with developers.

Amusingly, this actually reminded me of articles I had written over a decade ago, talking up why Google and Facebook needed to become a new kind of internet platform -- which I meant in the same manner as Madrigal describes above and which most people talking about "platforms" meant in the mid-aughts. It meant a system on which others could develop new applications and services. I have to admit that I don't know quite how and when the world switched to calling general internet services "platforms" instead, and I'm just as guilty of doing so as others.

I have two quick thoughts on why this may have happened before I get back to Madrigal's piece. First, many of the discussions around these big internet companies didn't really have a good descriptive term. When talking about the law, things like Section 230 of the Communications Decency Act refer to them as "interactive computer services" which is awkward. And the DMCA refers to them as "service providers," which is quite confusing, because "internet service provider" has an existing (and somewhat different) meaning, as the company who provides you internet access. Ideally, those company should be called "internet access providers" (IAPs) rather than ISPs, but what's done is done. And, then of course, there's the equally awkward term "intermediary," which just confuses the hell out of most non-lawyers (and some lawyers). So "platform" came out in the wash as the most useful, least awkward option.

And if Madrigal's piece had just stuck with that interesting historical shift, and maybe dug into things like I did in the previous paragraph, that might be really compelling. Unfortunately, Madrigal goes a step or two further -- and one that goes right up to the line (though it doesn't totally cross it) of suggesting that there's some legal significance to calling oneself a platform. This is something we've seen too many reporters do of late, spreading a false impression that internet "platforms" somehow get magic protections that internet "publishers" don't get.

As we've explained there is literally no distinction here. Usually people are making this argument with regards to CDA 230's protections, but as we've discussed in great detail that law makes no distinction between a "platform" and a "publisher." Instead, it applies to all "interactive computer services" including any publisher, so long as they host 3rd party content. Madrigal's piece doesn't call out CDA 230 the way others have, but, unfortunately, his piece absolutely can be read in a misleading way to suggest that there is some magical legal distinction here that matters. Specifically this part:

This new rhetorical device wasn’t just for press releases, but also for ginning up business and creating a legal architecture.

Uh, what "legal architecture"? Again, CDA 230, the key law in this area, makes no special distinction for "platforms." There was no need for a "rhetorical device" to consider yourself protected (and there still isn't). Nothing in calling oneself a platform set up any legal architecture, no matter how many ignorant people on Twitter claim it is so. Unfortunately, someone who has already heard that false claim is likely to read Madrigal's piece as a confirmation of that incorrect bit of info.

So, let's be clear, once again and state that there is no special legal distinction for "platforms," and it makes no difference in the world if an internet company refers to itself as a platform, or a publisher (or, for that matter, an instigator, an enabler, a middleman, a gatekeeper, a forum, or anything). All that matters is do they meet the legal definition of an interactive computer service (which, if they're online, the answer is generally "yes"), and (to be protected under CDA 230) whether there's a legal question about whether or not they're to be held liable for third party content.

Some people may want the law changed. And they may think that "internet platforms" should require some specific rules and regulations -- including silly, unenforceable ideas like "being neutral," -- but that's got nothing to do with the law today, and any suggestion that it does is simply incorrect.

Filed Under: cda 230, intermediary, neutrality, platform, publishers, section 230
Companies: facebook, google

Appeals Court Issues Strong CDA 230 Ruling, But It Will Be Misleadingly Quoted By Those Misrepresenting CDA 230

from the mostly-good,-but-a-bit-of-bad dept

Last Friday, the DC circuit appeals court issued a mostly good and mostly straightforward ruling applying Section 230 of the Communications Decency Act (CDA 230) in a perfectly expected way. However, the case is notable on a few grounds, partly because it clarifies a few key aspects of CDA 230 (which is good), and partly because of some sloppy language that is almost certainly going to be misquoted and misrepresented by those who (incorrectly) keep insisting that CDA 230 requires "neutrality" by the platform in order to retain the protections of the law.

Let's just start by highlighting that there is no "neutrality" rule in CDA 230 -- and (importantly) the opposite is actually true. Not only does the law not require neutrality, it explicitly states that it's goal is for there to be more content moderation. The law explicitly notes that it is designed:

to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material

In short, the law was designed to encourage moderation, which, by definition, cannot be "neutral."

Now, onto the case. It involved a bunch of locksmiths who claim that there are "scam locksmiths" claiming to be local in areas they are not, and the various search engines (Google, Microsoft and Yahoo are the defendants here) are putting those fake locksmiths in their search results, meaning that the real locksmiths have to spend extra on advertising to get noticed above the scam locksmiths.

You might think that if these legit locksmiths have been wronged by anyone, it's the scam locksmiths, but because everyone wants to blame platforms, they've sued the platforms -- claiming antitrust violations, false advertising, and a conspiracy in restraint of trade. The lower court, and now the appeals court, easily finds that Section 230 protects the search engines from these claims, as the content from the scam locksmiths is from the scam locksmiths, and not from the platforms.

The attempt to get around CDA 230 is mainly by focusing on one aspect of how the local search services work -- in that most of the services try to take the address of the local business and place a "pin" on a map to show where the business is physically located. The locksmiths argue that creating this map and pin involves content that the search engines create, and therefore it is not immune under CDA 230. The appeals court says... that's not how it works, since the information is clearly "derived" directly from the third parties:

The first question we must address is whether the defendants’ translation of information that comes from the scam locksmiths’ webpages -- in particular, exact street addresses -- into map pinpoints takes the defendants beyond the scope of § 230 immunity. In considering this question, it is helpful to begin with the simple scenario in which a search engine receives GPS data from a user’s device and converts that information into a map pinpoint showing the user’s geographic location. The decision to present this third-party data in a particular format -- a map -- does not constitute the “creation” or “development” of information for purposes of § 230(f)(3). The underlying information is entirely provided by the third party, and the choice of presentation does not itself convert the search engine into an information content provider. Indeed, were the display of this kind of information not immunized, nothing would be: every representation by a search engine of another party’s information requires the translation of a digital transmission into textual or pictorial form. Although the plaintiffs resisted this conclusion in their briefs, see Locksmiths’ Reply Br. 3 (declaring that the “location of the inquiring consumer . . . is determined entirely by the search engines”), they acknowledged at oral argument that a search engine has immunity if all it does is translate a user’s geolocation into map form, see Recording of Oral Arg. at 12:07-12:10.

With this concession, it is difficult to draw any principled distinction between that translation and the translation of exact street addresses from scam-locksmith websites into map pinpoints. At oral argument, the plaintiffs could offer no distinction, and we see none. In both instances, data is collected from a third party and re-presented in a different format. At best, the plaintiffs suggested that a line could be drawn between the placement of “good” and “bad” locksmith information onto the defendants’ maps. See id. at 12:43-12:58 (accepting that, “to the extent that the search engine simply depicts the exact information they obtained from the good locksmith and the consumer on a map, that appears to be covered by the [Act]”). But that line is untenable because, as discussed above, Congress has immunized the re-publication of even false information.

That's a nice, clean ruling on what should be an obvious point. But having such clean language could be useful for citations in future cases. It is notable, at least, (and useful) that the court clearly states: "Congress has immunized the re-publication of even false information." Other courts have made this clear, but having it in such a nice, compact form that is highly quotable is certainly handy.

There are a few other attempts to get around CDA 230 that all fail -- including using the fact that the "false advertising" claim is under the Lanham Act (which is often associated with trademark law), and CDA 230 explicitly excludes "intellectual property" law. But that doesn't magically make the false advertising claims "intellectual property," nor does it exclude them from CDA 230 protections.

But, as noted up top, there is something in the ruling that could be problematic going forward concerning the still very incorrect argument that CDA 230 requires the platforms be "neutral." The locksmiths' lawyers argued that even if the above case (of putting a pin on a map) didn't make the search engines "content creators," perhaps they were content creators when they effectively made up the location. In short: when these (and some other) local search engines don't know the actual exact location of a business, they might put in what is effectively a guesstimate, usually placing it in a central location of an expected range. As the court explains:

The plaintiffs describe a situation in which the defendants create a map pinpoint based on a scam locksmith’s website that says the locksmith “provides service in the Washington, D.C. metropolitan area” and “lists a phone number with a ‘202’ area code.” Locksmiths’ Br. 8; see also Locksmiths’ Reply Br. 4-5. According to the plaintiffs, the defendants’ search engines use this information to “arbitrarily” assign a map location within the geographic scope indicated by the third party.

Legally, that does represent a slightly different question -- and (if you squint) you can kinda see how someone could maybe, possibly, make the argument that if the local search engines take that generalized info and create a pin that appears specific to end users, that it has somehow "created" that content. But the court (correctly, in my opinion) says "nope," and that since that pin is still derived from the information provided by a 3rd party, 230 protects. This is good and right.

The problem is that the court went a bit overboard in using the word "neutral" in describing this, using the word in a very different way than most people mean when they say "neutral" (and in a different way than previous court rulings -- including those cited in the case -- have used the word neutral):

We conclude that these translations are also protected. First, as the plaintiffs do not dispute, the location of the map pinpoint is derived from scam-locksmith information: its location is constrained by the underlying third-party information. In this sense, the defendants are publishing “information provided by another information content provider.” Cf. Kimzey v. Yelp!, Inc., 836 F.3d 1263, 1270 (9th Cir. 2016) (holding that Yelp’s star rating system, which is based on receiving customer service ratings from third parties and “reduc[ing] this information into a single, aggregate metric” of one to five stars could not be “anything other than usergenerated data”). It is true that the location algorithm is not completely constrained, but that is merely a consequence of a website design that portrays all search results pictorially, with the maximum precision possible from third-party content of varying precision. Cf. Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir. 2003) (“Without standardized, easily encoded answers, [Matchmaker.com] might not be able to offer these services and certainly not to the same degree.”).

Second, and also key, the defendants’ translation of thirdparty information into map pinpoints does not convert them into “information content providers” because defendants use a neutral algorithm to make that translation. We have previously held that “a website does not create or develop content when it merely provides a neutral means by which third parties can post information of their own independent choosing online.” Klayman, 753 F.3d at 1358; accord Bennett, 882 F.3d at 1167; see Kimzey, 836 F.3d at 1270 (holding that Yelp’s “star-rating system is best characterized as the kind of neutral tool[] operating on voluntary inputs that . . . [does] not amount to content development or creation” (internal quotation marks omitted) (citing Klayman, 753 F.3d at 1358)). And the Sixth Circuit has held that the “automated editorial act[s]” of search engines are generally immunized under the Act. O’Kroley v. Fastcase, Inc., 831 F.3d 352, 355 (6th Cir. 2016).

Here, the defendants use automated algorithms to convert third-party indicia of location into pictorial form. See supra note 4. Those algorithms are “neutral means” that do not distinguish between legitimate and scam locksmiths in the translation process. The plaintiffs’ amended complaint effectively acknowledges that the defendants’ algorithms operate in this fashion: it alleges that the words and numbers the scam locksmiths use to give the appearance of locality have “tricked Google” into placing the pinpoints in the geographic regions that the scam locksmiths desire. Am. Compl. ¶ 61B. To recognize that Google has been “tricked” is to acknowledge that its algorithm neutrally translates both legitimate and scam information in the same manner. Because the defendants employ a “neutral means” and an “automated editorial act” to convert third-party location and area-code information into map pinpoints, those pinpoints come within the protection of § 230.6

See all those "neutral means" lines? What the court means is really automated and not designed to check for truth or falsity of the information. It does not mean "unbiased," because any algorithm that is making decisions is inherently and absolutely "biased" towards trying to choose what it feels is the "best" solution -- in this case, it is "biased" towards approximating where to put the pin.

The court is not, in any way, saying that a platform need be "neutral" in how it applies moderation choices, but I would bet a fair bit of money that many of the trolls (and potentially grandstanding politicians) will use this part of the court ruling to pretend 230 does require "neutrality." The only thing I'm not sure about is how quickly this line will be cited in a bogus lawsuit, but I wouldn't expect it to take very long.

For what it's worth, after I finished writing this, I saw that professor Eric Goldman had also written up his analysis of the case, which is pretty similar, and includes a few other key points as well, but also expects the "neutral means" line to be abused:

I can see Sen. Cruz seizing on an opinion like this to say that neutrality indeed is a prerequisite of Section 230. That would be less of a lie than his current claim that Section 230 only protects “neutral public forums,” but only slightly. The “neutrality” required in this case relates only to the balance between legal and illegal content. Still, even when defined narrowly and precisely like in the Daniel v. Armslist case, the term “neutrality” is far more likely to mislead than help judges. In contrast, the opinion cites the O’Kroley case for the proposition that Section 230 protects “automated editorial act[s],” and that phrasing (though still odd) is much better than the term “neutrality.”

The overall ruling is good and clear -- with just this one regrettable bit of language.

Filed Under: cda 230, intermediary liability, local search, locksmiths, neutrality, scam locksmiths, section 230
Companies: google, microsoft, yahoo

Rep. Louie Gohmert Wants To Strip Section 230 Immunity From Social Media Platforms That Aren't 'Neutral'

from the making-everything-'fair'-by-making-it-suck-for-everyone dept

Rep. Louie Gohmert is one of the most technologically inept Congressmen we have the misfortune of being "served" by. Getting to the top of this list isn't easy. The halls of Congress are filled with people who truly don't understand the tech they're attempting to regulate. Nor do they appear to be making any effort to educate themselves. Gohmert, however, seems to believe his position as an elected official gives him tech smarts he actually doesn't have, so he spends a great deal of time embarrassing himself when grilling tech reps during Congressional hearings.

Gohmert was one of the participants in the Social Media Bloodsport Hearings of 2018. Held over the course of several months, the hearings were 75% grandstanding and 20% misunderstanding the issues at hand. Social media services have been hit hard recently for appearing to bury/deplatform right-wing accounts while simultaneously allowing the platforms to be overrun with foreign state-operated bots. It's ugly but the ignorance displayed by Gohmert and others during the hearings was just as galling.

It was at these hearings a new myth about internet platform immunity came into being. Somehow, these lawmakers looked at Section 230 of the CDA and decided it required platforms to be "neutral" to avail themselves of this protection. A Senate hearing in April featured Rep. Ted Cruz demanding to know if Facebook considered itself a "neutral public forum." Mark Zuckerberg said he'd look into it, claiming he wasn't familiar with the "specifics" of the "law [Cruz] was speaking to."

Bad answer. And the bad answer made Cruz look like he'd just played a successful round of "Stump the Tech Magnate." But he had done nothing more than state something not backed by actual law. That should have been the end of it, but people who really wanted to believe Section 230 immunity requires "neutral" moderation used Cruz's ignorance as the starting point for stupid lawsuits almost certainly destined for quick dismissals.

It's one thing for the public to make bad assumptions about federal laws. It's quite another when federal lawmakers do it. Rep. Gohmert, playing to the home crowd [read the replies], has declared he's going to strip immunity from service providers who "use algorithms to hide, promote, or filter user content."

That would be all service providers. Gohmert wants to strip immunity from all platforms solely because he believes in Ted Cruz's ignorant fiction. The bill hasn't been written yet, but the statement issued by Gohmert explains the basis for this incredibly idiotic legislation proposal:

Social media companies like Facebook, Twitter, and Google are now among the largest and most powerful companies in the world. More and more people are turning to a social media platform for news than ever before, arguably making these companies more powerful than traditional media outlets. Yet, social media companies enjoy special legal protections under Section 230 of the Communications Act of 1934, protections not shared by other media. Instead of acting like the neutral platforms they claim to be in order obtain their immunity, these companies have turned Section 230 into a license to potentially defraud and defame with impunity.

Section 230 does not require neutrality. It never has. It does not forbid content moderation. It actually encourages good faith efforts to keep platforms free of content they don't want. Twitter and Facebook could remove every right-leaning account on their platforms without losing Section 230 immunity -- which solely shields them from being held liable for content posted by third parties. It does not insulate them from charges of fraud or defamation if, in fact, either of these were committed by the companies, rather than their users.

For Gohmert's proposal to work, he would either need to add the missing "neutrality" component or do away with Section 230 immunity altogether. Both of these are terrible ideas. Neutrality would be impossible to define, much less enforce. And the removal of immunity would mean the end of social media platforms as we know them, as companies will not be willing to be sued for content created by platform users.

Gohmert's disingenuous idiocy doesn't end there.

In one hearing, one of the internet social media executives indicated a desire to be treated like Fox News. Fox News does not have their immunity and this bill will fulfill that unwitting request. Since there still appears to be no sincere effort to stop this disconcerting behavior, it is time for social media companies to be liable for any biased and unethical impropriety of their employees as any other media company. If these companies want to continue to act like a biased medium and publish their own agendas to the detriment of others, they need to be held accountable.

The difference between Fox News and Twitter is Fox News creates the content it publishes. Twitter does not. That's why Twitter has immunity and Fox News doesn't. Maybe some tech exec said something stupid during a stupid hearing filled with chest-beating and misconceptions, but that doesn't make Gohmert's proposal any less moronic.

Make no mistake: the same people agitating for "neutral public forums" are the people who will be deplatformed first if Section 230 immunity is removed. It's already happening while the immunity remains in place. Anyone trafficking in controversy will be shown the door before they can do any damage to the platforms that used to host them. If you want more blanket moderation and faster banning, by all means, gripe about immunity and neutrality. If you actually value the free flow of speech, keep dimwits like Gohmert out of office.

Filed Under: cda 230, content moderation, gohmert, intermediary liability, louis gohmert, neutral platform, neutrality, section 230