Academic: Problems Created By Undermining Section 230 Can Be Solved... By Undermining Section 230?

from the say-that-again? dept

I remain confused at why so many people endorse Macarthur Genius award winner, Prof. Danielle Citron's views on Section 230. Over and over again people say that her ideas for reforming Section 230 are sensible. Except that they are not. She has falsely insisted that companies have no incentives to moderate and that their incentives are to push the most extreme content. This has been debunked over and over again. If it were true, then every website would turn into 8kun. But that doesn't happen, because most websites realize that when your website is full of garbage people, it drives away other users (including those more likely to support you or your advertisers) and it drives away advertisers.

Citron's big idea is to put in place a duty of care or "reasonableness" standard, but we've explained at length why that's the kind of idea only an academic with no experience running a website could love. It would lead to a ton of costly litigation in which companies would have to repeatedly defend their moderation practices in court. At best this would lead to companies all adopting nearly identical moderation practices to whichever company survived the litigation gauntlet first -- effectively crushing any ability to experiment and innovate in the moderation market, and likely locking in Facebook as one of the few companies that can afford to handle moderation's liability risks.

All that said, I'm even more flabbergasted by Citron's initial response to the (now walked back) news that OnlyFans was planning to phase out sexually explicit content. Many, many people have made the connection between OnlyFans' decision and FOSTA, the last time Section 230 was amended to add more liability to platforms. Of course, as we've now seen, FOSTA has had a massive human cost, is leading to some wacky vexatious civil lawsuits, and according to the GAO's own study, has failed to live up to any of its promises.

In an article at CNN about the OnlyFans decision, Citron makes an absolutely bizarre claim, that the answer to OnlyFans deplatforming sex workers... is to put more liability on OnlyFans so that those sex workers can sue. I only wish I were kidding.

Just like social media companies, payment processors are protected by Section 230 of the Communications Act of 1934, Citron said. That's the signature law that grants broad legal immunity to Facebook and Twitter for many of the content-moderation decisions they make — and the law that SESTA-FOSTA amended to create an exception for sex ads.

Citron wants to see changes made to Section 230 that could expose platforms to more liability under certain circumstances. Perhaps, she said, those changes might even allow sex workers who feel their businesses have been harmed by payment processors to sue them for tortious interference.

"We're talking about OnlyFans, where we're seeing sex workers doing safe work. It's from their own homes, they're making content on their own terms," Citron said.

So... the answer to sex workers being kicked off platforms that fear that they might face liability under FOSTA hole in Section 230, is to open up another hole in Section 230 so that those sex workers can then sue OnlyFans for tortious interference?!? Um, what?

Even just bringing up tortious interference as a cause of action is bizarre. That's the same sort of argument that people like Laura Loomer have used to say people reporting her to Twitter engaged in "tortious interference" when Twitter kicked her off the platform. Tortious interference in the context discussed here seems like a plan for vexatious nuisance litigation and SLAPP suits, not any kind of legitimate cause of action.

But, even more to the point, how is it a solution to the consequences of adding more liability to say "let's just pile on more liability to deal with those consequences"? It's liability all the way down. But it's completely disconnected from how all of this works in the real world.

Filed Under: danielle citron, duty of care, intermediary liability, liability, reasonableness, section 230
Companies: onlyfans

No, Internet Companies Do Not Get A 'Free Pass' Thanks To CDA 230

from the it's-just-not-true dept

There are many critics of CDA 230 these days, and there's a pretty wide range in the quality of their arguments. Law professor Danielle Citron is, for good reason, considered one of the more thoughtful critics of the law. And, to her credit, she actually does understand the law, what it enables, and what the wider impacts of the law might be. Her scholarship tends to be thoughtful and careful as well, and, just recently, she was awarded a MacArthur "genius grant." And that's why I find it frustrating that her presentations before Congress recently seem to miss the mark by a fairly wide margin. Earlier this year, we called out her testimony on "deep fakes" because she falsely suggested that internet platforms have "no incentive to address destructive deepfake content."

As we explained at the time, nothing could be further from the truth. The companies have been facing tremendous pressure from the media, the public, politicians, and (importantly) advertisers to clean up junk on their networks, or they risk losing users and revenue. The incentive is the desire not to have their platforms turn into complete garbage dumps.

Unfortunately, Citron is continuing to spread this misleading idea to Congress, as she did last week, when the House held a hearing on Section 230. Citron's opening statement has also been posted to Slate with the title: Tech Companies Get a Free Pass on Moderating Content, and the subtitle: "It's time to change that." Once again the premise is simply false. What is accurate is that platforms do have a legal free pass to decide what level of moderation is appropriate, but that level of appropriateness is very much driven by the concerns of all of the stakeholders mentioned above, with users and advertisers topping the list (for fairly obvious reasons).

It is misleading in the extreme to suggest that a lack of legal incentive somehow means no incentive at all. It is a kind of faith in legal systems (and an ignorance of markets) that is disconnected from reality. Citron's piece does mention market power, but only to brush it away with a blind insistence that it couldn't possibly work:

The market is unlikely to turn this tide. Content that attracts likes, clicks, and shares generates advertising income or a cut of the profits in the case of online firearm marketplaces. Salacious, negative, and novel content is far more likely to attract eyeballs than vanilla, accurate stories. Market pressure is not enough, and it should not have to be.

We need legal reform to ensure that platforms wield their power responsibly.

Again, I do appreciate that Citron -- unlike many other 230 critics -- recognizes the benefits of 230 and that there are inevitable tradeoffs to modifying it. We just disagree on the scope of the downsides to the modifications she suggests. For example:

Another approach would be to adopt the proposal that Benjamin Wittes and I have suggested: to condition the immunity on reasonable content moderation practices rather than the free pass that exists today. If adopted, when the courts consider a motion to dismiss on Section 230 grounds, the question would not be whether a platform acted reasonably with regard to a specific use of the service. For instance, if Grindr is sued for negligently enabling criminal impersonation on its dating app, the legal shield would not depend upon whether the company did the right thing in the plaintiff’s case. Instead, the court would ask whether the provider or user of a service engaged in reasonable content moderation practices writ large with regard to unlawful uses that clearly create serious harm to others. Thus, in the hypothetical case of Grindr, the court would assess whether the dating app had reasonable processes in place to deal with obvious misuses of its service, including criminal impersonation. If Grindr could point to such reasonable practices, like having a functioning reporting system and the ability to ban IP addresses, then the lawsuit should be dismissed even if that system fell short in the plaintiff’s case.

This is the kind of idea that sounds good in theory, but would inevitably be a disaster in practice. A "reasonable" standard is extremely ambiguous until after a whole bunch of expensive case law is established, and would certainly create massive costs, especially for platforms that try to be creative or different in how they approach content moderation. And, then, once the case law is established, it will effectively "lock in" certain approaches, even if they are not the best or don't apply appropriately to other forms of content. If you're a smaller or up-and-coming platform and you want to avoid potentially company-destroying litigation, you are simply going to mimic the models of other companies that have already gone through the litigation gauntlet.

Indeed, such an approach inevitably favors the largest platforms -- the Googles, the Facebooks, etc -- in multiple ways. First off, they can afford to fight the expensive court battles, but that also means that they're the ones to effectively set the standards that the rest of the internet has to use -- and they can set those standards in a manner that only they can afford.

This is not theory. We already have real world examples of this, most obviously in the copyright space. Given all of the litigation around copyright, YouTube spent over $100 million developing ContentID to help it identify potentially infringing material. And now, at least in Europe (and, if industry lobbyists get their way, elsewhere as well), other companies are effectively being told that they need to implement such a filtering solution, with people pointing to Google's setup as evidence that it can be done. Except almost no one else can afford to spend $100 million to build their own system, and while there may be a market for third party services, they tend to be expensive and limiting. At the very least, they shut off all alternative paths to innovation, and lock in the large company's choice.

What's funny is that Citron concludes her testimony by advocating for variety:

There is no one size fits all approach to responsible content moderation. Unlawful activity changes and morphs quickly online, and the strategies for addressing unlawful activity clearly causing serious harm should change as well. A reasonableness standard would adapt and evolve to address those changes.

Except that her own proposal would lead to the exact opposite of that. "Reasonableness" is a vague and unworkable policy that will lead to a one size fits all approach, dominated and controlled by the largest players in the field. It's the wrong approach, driven by the false belief that there is some sort of "free ride" provided by CDA 230, which ignores the reality of public and market pressure, which has shown -- time and time again -- to be quite effective in creating change on these platforms.

Filed Under: cda 230, content moderation, danielle citron, free speech, market power, market pressure, reasonableness, section 230
Companies: facebook, google

The Supreme Court's Real Technology Problem: It Thinks Carrying 2 Phones Means You're A Drug Dealer

from the how-can-it-judge-reasonableness dept

I spent a lot of the last week shaking my head at the commentary on the Supreme Court and its (lack of) technical expertise. Much of the criticism came in response to the oral arguments in Aereo, and broke down in two areas: it either misunderstood the nature of Supreme Court oral arguments and their transcripts, or mistook familiarity with a handful of Silicon Valley products with actual tech savviness.

But in a series of cases this week about law enforcement searches of cell phones, we caught a glimpse of the Supreme Court’s real technology problem. Here's what it comes down to: it's not essential that the Court knows specifics about how technology itself works—and as Timothy Lee argues, that might even tempt them to make technology-based decisions that don't generalize well. However, it is essential that the Court understands how people use technology, especially in areas where they're trying to elaborate a standard of what expectations are "reasonable."

So when Chief Justice Roberts suggests that a person carrying two cell phones might reasonably be suspected of dealing drugs, that raises major red flags. Not because of any special facts about how cell phones work, but because (for example) at least half of the lawyers in the Supreme Court Bar brought two cell phones with them to the courthouse that day. Should those attorneys (along with the many, many other people who carry multiple devices) reasonably expect less privacy because the Chief Justice is out of touch with that fact?

Contrast that with Justice Kagan’s point about storage location in the same argument. Justice Kagan suggested, correctly, that people don’t always know what is stored on their device and what is stored “in the cloud.” The actual answer to that question should be immaterial; the point is that it’s absurd for a person’s privacy interest to hinge on which hard drive private data is stored on.¹ Instead, the important fact here, which Justice Kagan recognizes, is that the distinction between local and cloud storage just doesn’t matter to many people, and so it can’t be the basis of a reasonable-expectation-of-privacy test.

If you’re feeling less generous, you might take Justice Kagan’s point as evidence that she herself doesn’t know where her files are stored. And in fact, that’s probably true—but it’s not important. You don’t actually need to know much about file systems and remote storage to know that it’s a bad idea for the law to treat it differently.

That’s not to say that technical implementation details are never relevant. Relevant details, though, should (and almost always do) get addressed in the briefs, long before the oral argument takes place. They don’t usually read like software manuals, either: they’re often rich with analogies to help explain not just how the tech works, but what body of law should apply.

What can’t really be explained in a brief, though, is a community’s relationship with a technology. You can get at parts of it, citing authorities like surveys and expert witnesses, but a real feeling for what people expect from their software and devices is something that has to be observed. If the nine justices on the Supreme Court can’t bring that knowledge to the arguments, the public suffers greatly. Again, Justice Kagan seems to recognize this fact when she says of cell phones:

They're computers. They have as much computing capacity as laptops did five years ago. And everybody under a certain age, let’s say under 40, has everything on them.

Justice Kagan is not under 40, and might not have everything stored on a phone (or on an online service accessible through her phone). But that quote shows me that she at least knows where other people’s expectations are different. Chief Justice Roberts’s questions show me exactly the opposite.

The justices live an unusual and sheltered life: they have no concerns about job security, and spend much of their time grappling with abstract questions that have profound effects on this country’s law. But if they fail to recognize where their assumptions about society and technology break from the norm—or indeed, where they are making assumptions in the first place—we’re all in trouble.

Reposted from ParkerHiggins.net.

1. That speaks to a need to revisit the sort-of ridiculous third-party doctrine, which Justice Sotomayor has suggested, but one battle at a time.

Filed Under: 4th amendment, cloud, computing, mobile phones, privacy, reasonableness, supreme court, technology

How 'Reasonable Andy' Stopped NPR's Lawyers From Threatening Fan, And Actually Connected With Him

from the nice-to-see... dept

The actual story behind this is a few years old, but it was just retold in a recent video by a social media person at NPR, about how the broadcaster got control over their Facebook fan page that had been set up by a fan: Basically, this guy -- Geoff Campbell -- noticed that NPR didn't have a Facebook fan page. He emailed NPR about it and offered to set it up, and all he got back was a random "thanks for emailing us" note, which he took to mean "sure, go for it." It took some time, but eventually, NPR noticed the fan page and the lawyers freaked out, thinking that they needed to send him a cease-and-desist letter. However, as the video notes "along came 'Reasonable Andy'," who isn't named in the video, but is Andy Carvin, NPR's longtime social media guru who knows his way around the digital world better than most folks. Andy, smartly, told NPR to hold back on the legal threats, and just reached out to Geoff in a friendly manner, and a transfer of the Facebook group in a reasonable manner was arranged (though, Geoff insists that he never received any promised coffee mug). Some will note that there's nothing "remarkable" about this story. However, we still live in an age where so many organizations reach for the legal threats first, rather than seeking a friendly discussion on matters -- especially in cases where it's obviously a "fan" who is trying to help. So, it seems worth posting stories like this to try to spread the idea of holding off on the legal threats as the immediate response.

Filed Under: andy carvin, connecting, fans, reasonableness
Companies: npr

Apple Ordered To Pay Over $600 Million... For Patent Infringement Of Cover Flow?

from the you-can't-be-serious dept

I'd been meaning to write about the absolutely ridiculous Mirror Worlds patent infringement lawsuit against Apple for a few weeks now, not realizing a ruling was going to come so quickly. A few weeks ago, the Yale local newspaper had a really laughable one-sided article talking about how Apple had "stolen" the technology behind three of its offerings: cover flow, spotlight and time machine, because a Yale spinoff company, Mirror Worlds, had sued Apple for patent infringement. The original lawsuit covered four patents:

• 6,006,227: Document stream operating system
• 6,638,313: Document stream operating system
• 6,725,427: Document stream operating system with document organizing and display facilities
• 6,768,999: Enterprise, stream-based, information management system

The Yale article only takes the side of Yale computer science professor David Gelernter, who whines about not getting "credit" for his brilliant invention. Either that, or perhaps (just perhaps) multiple people were able to come up with the same basic ideas. This is what's so frustrating about reporting on patent issues. Everyone likes to report on how ideas were "stolen," when the vast majority of cases involve independent invention (often of obvious ideas).

This case went quickly, and amazingly the court has ordered Apple to pay over $600 million, claiming that it infringed on three of the patents and that it has to pay over $200 million for each of the three products that infringed. Apple is appealing, noting that, at the very least, charging $200 million on each product is, in effect, "triple dipping."

What's left unsaid is the blatant insanity of having to pay anywhere near $200 million for the way in which you display CD covers in iTunes. How anyone can see such a verdict and not think the patent system is horribly, horribly broken is beyond me.

Filed Under: coverflow, david gelernter, patents, reasonableness
Companies: apple, mirror worlds