NY Senator Proposes Ridiculously Unconstitutional Social Media Law That Is The Mirror Opposite Of Equally Unconstitutional Laws In Florida & Texas

from the just-stop dept

We've joked in the past about how Republicans hate Section 230 for letting websites moderate too much content, while Democrats hate it for letting websites not moderate enough content. Of course, the reality is they both are mad about content moderation (at different extremes) because they both want to control the internet in a manner that helps "their team." But both approaches involve unconstitutional desires to interfere with 1st Amendment rights. For Republicans, it's often the compelled hosting of speech, and for Democrats, it's often the compelled deletion of speech. Both of those are unconstitutional.

On the Republican side, we've already seen states like Florida and Texas sign into law content moderation bills -- and both have been blocked for being wholly unconstitutional.

We've already heard that some other Republican-controlled states have shelved plans for similar bills, realizing that all they'd be doing was setting taxpayer money on fire.

Unfortunately, it looks like the message has not made its way to Democratic-controlled states. California has been toying with unconstitutional content moderation bills, and now NY has one as well. Senator Brad Hoylman -- who got his law degree from Harvard, where presumably they teach about the 1st Amendment -- has proudly introduced a hellishly unconstitutional social media bill. Hoylman announces in his press release that the bill will "hold tech companies accountable for promoting vaccine misinformation and hate speech."

Have you noticed the problem with the bill already? I knew you could. Whether we like it or not, the 1st Amendment protects both vaccine misinformation and hate speech. It is unconstitutional to punish anyone for that speech, and it's even more ridiculous to punish websites that host that content, but had nothing to do with the creation of it.

Believe it or not, the actual details of the bill are even worse than Hoylman's description of it. The operative clauses are outlandishly bad.

Prohibited activities. No person, by conduct either unlawful In itself or unreasonable under all the circumstances, shall knowingly or recklessly create, maintain or contribute to a condition in New York State that endangers the safety or health of the public through the promotion of content, including through the use of algorithms or other automated systems that prioritize content by a method other than solely by time and date such content was created, the person knows or reasonably should know:

1. Advocates for the use of force, is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action;
2. Advocates for self-harm, is directed to inciting or producing imminent self-harm, and is likely to incite or produce such action; or
3. Includes a false statement of fact or fraudulent medical theory that is likely to endanger the safety or health of the public.

This is so dumb that it deserves to be broken down bit by bit. First off, any kind of content can, conceivably "endanger the health and safety of the public." That's so ridiculously broad. I saw an advertisement for McDonalds today on social media. Does that endanger the health and safety of the public? It sure could. Second, the bill says no use of algorithms or otherwise automated systems "other than solely by time and date such content was created" meaning that search is right out. Want the most relevant search result for the medical issues you're having? I'm sorry, sir, that's not allowed in New York, as a result might endanger your health and safety.

But it gets worse. The line that says...

Advocates for the use of force, is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action

... is a weird one because clearly someone somewhere thought that this magical incantation might make this constitutional. The "directed to inciting or producing imminent lawless action, and is likely to incite or produce such action" is -- verbatim -- the Brandenburg test for a very, very limited exception to the 1st Amendment. But, do you notice the issue? Such speech is already exempted from the 1st Amendment. Leaving aside how astoundingly little content meets this test (especially the "imminent lawless action" part) this part of the law, at best, seems to argue that "unconstitutional speech is unconstitutional." That's... not helpful.

The second point is even weirder. It more or less tries to mirror the Brandenburg standard, but with a few not-so-subtle changes:

Advocates for self-harm, is directed to inciting or producing imminent self-harm, and is likely to incite or produce such action

Which, nice try, but just because you mimicked the "inciting or producing imminent" part doesn't let you get around the fact that discussions of "self-harm" in most cases remains constitutionally protected. So long as the effort is not lawless, then there's a huge 1st Amendment problem here.

But the really problematic part is point 3:

Includes a false statement of fact or fraudulent medical theory that is likely to endanger the safety or health of the public.

Ooooooooooof. That's bad. First of all, most "false statements of fact" and many "fraudulent medical theories" do in fact remain protected under the 1st Amendment. And, last I checked, New York is still bound by the 1st Amendment. Also, this is dumber than dumb. Remember, we're in the middle of a pandemic and the science is changing rapidly. Lots of things we thought were clear at first turned out to be very different -- don't wear masks / wear masks, for example.

In fact, this prong most closely resembles how China first handled reports of COVID-19. Early on in the pandemic we wrote about how China's laws against medical misinformation very likely helped COVID-19 spread much faster, because the Chinese government silenced Dr. Li Wenliang, one of the first doctors in China who called attention to the new disease. The police showed up to Dr. Li's home and told him he had violated the law by "spreading untruthful information online" and forced him to take down his warnings about COVID-19.

And rather than realize just how problematic that was, Senator Hoylman wants to make it New York's law!

It gets worse. The law, like most laws, has definitions. And the definitions are a mess. It uses an existing NY penal law definition of "recklessly" that requires those attempting to prosecute the law to establish the state of mind of... algorithms? Again, the bill says that if an algorithm "recklessly" creates, maintains, or contributes to such banned information, it can violate the law. But the reckless standard requires a "person" be "aware of and consciously disregards a substantial and unjustifiable risk that such result will occur." Good luck proving that with an algorithm.

Then we get to the enforcement provision. Incredibly, it makes this much, much worse.

Enforcement. Whenever there shall be a violation of this article, the attorney general, in the name of the people of the state of New York, or a city corporation counsel on behalf of the locality, may bring an action in the Supreme Court or federal district court to enjoin and restrain such violations and to obtain restitution and damages.

Private right of action. Any person, firm, corporation or association that has been damaged as a result of a person's acts or omissions in violation of this article shall be entitled to bring an action for recovery of damages or to enforce this article in the Supreme Court or federal district court.

The government enforcing a speech code is already problematic -- but then enabling this private right of action is just ridiculous. Think of how many wasteful stupid lawsuits would be filed within seconds of this law going into effect by anti-vaxxers and anti-maskers against people online advocating in favor of vaccines and masks and other COVID-preventative techniques?

This law is so blatantly unconstitutional and problematic that it's not even funny. And that's not even getting to the simple fact that Section 230 pre-empts any such state law, as we saw in Texas and Florida. Hoylman, laughably, suggests that he can ignore the pre-emption issue in his press release by saying:

The conscious decision to elevate certain content is a separate, affirmative act from the mere hosting of information and therefore not contemplated by the protections of Section 230 of the Communications Decency Act.

Except that's wrong. 230 specifically protects all moderation decisions and that includes elevating content. That's why Section 230 protects search results. And, as Jeff Kosseff rightly notes the 2nd Circuit (which covers NY) already addressed this exact claim in the Force v. Facebook case (the ridiculous case that attempted to hold Facebook liable for terrorism that impacted the plaintiff, because some unrelated terrorists also used Facebook). There the court said, pretty clearly:

We disagree with plaintiffs' contention that Facebook's use of algorithms renders it a non-publisher. First, we find no basis in the ordinary meaning of "publisher," the other text of Section 230, or decisions interpreting Section 230, for concluding that an interactive computer service is not the "publisher" of third-party information when it uses tools such as algorithms that are designed to match that information with a consumer's interests. Cf., e.g., Roommates.Com, 521 F.3d at 1172 (recognizing that Matchmaker.com website, which "provided neutral tools specifically designed to match romantic partners depending on their voluntary inputs," was immune under Section 230(c)(1) ) (citing Carafano, Inc. , 339 F.3d 1119 ); Carafano , 339 F.3d at 1124–25 ("Matchmaker's decision to structure the information provided by users allows the company to offer additional features, such as ‘matching’ profiles with similar characteristics ..., [and such features] [a]rguably promote[ ] the expressed Congressional policy ‘to promote the continued development of the Internet and other interactive computer services.’ 47 U.S.C. § 230(b)(1)."); Herrick v. Grindr, LLC , 765 F. App'x 586, 591 (2d Cir. 2019) (summary order) ("To the extent that [plaintiff's claims] are premised on Grindr's [user-profile] matching and geolocation features, they are likewise barred ....").

So... the law clearly violates the 1st Amendment, is pre-empted by Section 230, and, if it actually went into practice, would actually be both wildly abused and dangerous.

What's it got going for it?

Well, as Kosseff also points out, if it passed, and somehow the Texas/Florida laws were brought back from the dead, social media websites might get in trouble both for leaving up the same content they could get in trouble for taking down elsewhere. And, at least for those of us who write about content moderation, well, that will be amusing to cover. But, beyond that, this bill is complete garbage. It's the mirror image of the garbage Florida and Texas passed -- equally as dumb, equally as dangerous, and equally as unconstitutional, just at the other end of the spectrum.

Filed Under: 1st amendment, brad hoylman, content moderation, democrats, florida, misinformation, new york, republicans, section 230, social media, texas

The Bipartisan Attacks On The Internet Are Easily Understood If You Realize They Just Want To Control Speech Online

from the that's-all-it-is dept

Understanding the "bipartisan" approach to internet regulations over the last couple of years really boils down to "both parties want to control the internet" and twist it to their own advantage. Almost everything you hear about "harms" from the internet are disingenuous nonsense from grandstanding politicians. That's not to say there aren't real problems with things on the internet or how it's structured -- but there is almost no realistic exploration of those issues by those in various legislatures. It's all about grabbing control over the internet. Two recent articles highlight pretty clearly how both Republicans and Democrats are clearly salivating to control speech online for their own benefit -- and not for the actual good of society or the internet.

First up, we have The Spectator. To be honest, this publication has been a garbage publication recently, pushing out all sorts of nonsense, but apparently there are still a few people there who can publish something good. Taylor Millard has written a short and to the point article noting, accurately, that so much of the bipartisan attacks on the internet lately are really about one thing: how both parties want to control your speech online. We've discussed how the policy plans of Republicans and Democrats often feel at odds, with Republicans complaining about too much moderation, and Democrats complaining about too little, but the truth is slightly more nuanced, and both are really just looking to have control over speech online -- control that is simply not allowed under the 1st Amendment.

The Democrats' attacks on free speech are pretty straightforward:

Congressional Democrats are hoping to enact rules due to their concerns over so-called misinformation and “harmful content.” Their anger over the 2016 election of Donald Trump and the bogeyman of Russian interference fueled the original push for new regulations. The coronavirus pandemic and 2020 presidential election fallout poured rocket fuel on the ideological pyre, as did the QAnon conspiracy and discussions around alternate Covid treatments, masks and vaccine efficacy.

Vermont congressman Peter Welch promoted a new five-member commission with civil penalty power making sure Big Tech is “unbiased” and doesn’t promote harmful content. The Democrat used the infamous “for the children” crusade as reasoning. Minnesota senator Amy Klobuchar desires Health and Human Services control over the internet where public health is involved. She believes more lives would be saved if Section 230 protections for Big Tech were removed. New Mexico senator Ben Ray Lujan took it a step further, saying that the spread of misinformation ended up “fueling distrust in public health officials, promoting conspiracy theories and putting lives at risk.” To paraphrase Frank Herbert: he who controls the information, controls the world.

The Republican side is just slightly more nefarious in that they falsely claim that their efforts are in support of free speech, though as rulings in Texas and Florida have shown, they're equally as problematic under the 1st Amendment.

Republicans are just as censorious — but they shroud their urge to regulate Big Tech under the guise of protecting free speech. The Florida and Texas legislatures passed rules requiring large social media companies not to remove users from their platforms if they express dissident viewpoints.

We see this elsewhere too -- not just in the states. Nearly all of Josh Hawley's policy proposals regarding the internet are about controlling how internet companies present speech. And Republicans are just as prone as Democrats to roll out "for the children!" legislation that is designed to simply give government more control over speech.

The second article is by Adam Thierer, and published over at The Hill and makes a very similar point:

The only thing unifying both sides is a desire for greater regulatory control of media. In today’s hyper-partisan world, tech platforms have become just another plaything to be dominated by politics and regulation. When the ends justify the means, principles that transcend the battles of the day – like property rights, free speech and editorial independence – become disposable. These are things we take for granted until they’ve been chipped away at and lost.

Is there any way to make both sides happy without undermining the digital economy, which has been dominated globally by American firms for over a quarter century? 

That’s unlikely, but it hasn’t stopped lawmakers from introducing a flurry of bills to weaken or eliminate protections afforded by Section 230, which limits liability for platforms that host user-generated content. Implemented in 1996, it has served as the cornerstone of America’s ascendancy in the digital world and helped spur an avalanche of innovation. Gutting it would put all that at risk. 

As Thierer rightly notes, this is entirely about attacking free speech and the 1st Amendment, by both parties, in order to control a medium they haven't been able to control for the past few decades:

Without admitting it, both sides are really at war against the First Amendment, which protects the editorial decisions made by private companies. To be sure, there is problematic content to be found on digital media platforms, and there are some legitimate complaints about overzealous takedown policies and lack of transparent standards. That does not mean there is an easy policy fix to those problems, however. But courts have held repeatedly that the First Amendment protects efforts by private media firms to devise their own approaches. Just last week, a Texas judge blocked a law that sought to limit social media platforms’ editorial freedoms. That followed a court in Florida enjoining a similar law this summer. 

Critics like to paint large tech companies as nefarious overlords out to destroy civilization. In reality, the problems we see and hear on modern platforms reflect deeper problems in our society. If these companies are to be blamed for anything, it’s making human communication so frictionless that every person now has a soapbox to speak to the world. That’s both a blessing and a curse. With unbounded speech comes many wonders but also many problems.

The battles here are not about making a better internet. Or "protecting children." It's very much about each of the political parties wanting control over the key tool that has enabled people to communicate with each other, without having that speech first filtered through an "official" source.

Filed Under: controlling speech, democrats, free speech, republicans, section 230, social media, speech

House Republicans Introduce Ridiculous, Contradictory, Unconstitutional Package Of 32 Bills About Section 230 And Content Moderation

from the performative-nonsense dept

If you read Techdirt, you already know that there have been literally dozens of ridiculous Section 230 reform bills introduced over the last few years. On Wednesday, the House Republicans on the Energy & Commerce Committee decided to not just add to the batch, but to flood the entire zone with a package of thirty-two more Section 230 reform bills. I mean, if you're going to go that far, why not go all the way and write 230 reform bills?

I'm not going to go through every bill. That would be a total waste of everyone's time. These bills are not designed to do anything constructive at all. They are not designed to pass. They are not designed to reform Section 230. They are designed for one reason and one reason only: to act as performative grandstanding for a deliberately ignorant base who are kept in ignorance by politicians pushing bills like this nonsense.

What I will note, however, is how many of the bills in this package clearly contradict one another (and just how many are obviously unconstitutional under the 1st Amendment in that they seek to regulate speech). In some ways, the package of 32 bills shows why all this focus on Section 230 is nonsense in the first place, and the difficulties of content moderation itself. For example, you have the "Preserving Constitutionally Protected Speech" bill from Reps. Cathy McMorris Rodgers and Jim Jordan. That one would punish websites that remove constitutionally protected speech (which is an unconstitutional attack on those websites' 1st Amendment rights). But, uh, then you have things like bills to require companies to remove cyberbullying and remove doxxing (among a few other things).

Of course, neither cyberbullying nor doxxing are well defined in those bills, but in both cases the speech described is almost certainly protected under the 1st Amendment. So you have some bills saying removing any speech that is protected by the 1st Amendment should lead to punishment, and other bills that say you are required to remove speech that is protected by the 1st Amendment or face massive penalties. Did no one bother to actually look at this collection of bills and realize they don't work together?

There are also a bunch of bills that seem to restate what the law already is. For example, there's one requiring companies to remove child sexual abuse material (though the bill uses the now disfavored term "child porn.") Except, um, that's already the case. Saying it with emphasis in a new law doesn't change that.

Anyway, I'm hard pressed to find anything even remotely sounding like a reasonable idea in all of these bills, but to be fair, I didn't have time to go through all 32 bills in full. Perhaps they can pass a bill to force someone to content moderate these 32 bills to algorithmically show me which ones actually have reasonable ideas, and which ones are just performative nonsense. I fear that the final tally will show that all 32 bills are performative nonsense.

Filed Under: 1st amendment, censorship, congress, content moderation, house, house energy and commerce committee, must carry, republicans, section 230

House Republican's Entire 'Big Tech' Platform Is 'We Must Force Big Tech To Display Our Conspiracy Theories And Lies'

from the sad-state-of-affairs dept

The Republican Party that once claimed to be the party of keeping government out of business and that actions have consequences has moved far, far beyond that. These days, it's a parody of everything it once derided. Take a look at House Speaker Kevin McCarthy's newly announced Framework to Stop the Bias and Check Big Tech. Even from the naming you can see quite clearly ridiculous victim-playing. There remains no evidence of any "anti-conservative bias" in social media content moderation. It is true that some Republican supporters have faced moderation... for breaking the rules. Just as some non-Republicans have faced moderation for those same reasons. It's just that these Republicans -- with no other fundamental principles to go on -- have tried to turn basic content moderation for policy breaking into a whiny victimhood.

Remember when Republicans used to mock Democrats for always playing the victim and being "whiny snowflakes"? Apparently it was all projection.

Just days before the 2018 primary election, Google search results for “California Republicans” identified our ideology as “Nazism.” At the same time, conservatives like Devin Nunes and Donald Trump Jr. were shadow banned on Twitter. For pro-life groups like Live Action and others, the discrimination wasn’t subtle at all. Since then, the examples of conservative censorship and bias across internet platforms has proliferated. Each one of you are all too familiar with how Big Tech and its overwhelmingly liberal executives want to set the agenda and silence conservatives.

Of course, each of those has a story behind them and none of them are presented accurately. Note that McCarthy doesn't bother to explore why any of the above happened (if they happened -- Twitter doesn't engage in "shadow banning" so that's just misleading claptrap). No one at social media companies wants to "silence conservatives." Again, most of the evidence suggests the exact opposite. But the fact is that if you violate policies -- including by spreading dangerous disinformation about, say, health or elections -- you might get kicked off.

That should be a policy that actual "conservatives" support. It's about the rights of private property owners to choose not to do business with those who are disruptive -- and for those being disruptive to face the consequences of their own actions. That seems like the kinds of things that conservatives used to insist they support.

Over 90 percent of search happens on Google and 90 percent of users drop off after first-page results. The ability to stack the deck protects the willing participants of the scheme and punishes the non-compliant. The same gatekeeper effect lies with Amazon and Apple. If your company or product doesn’t meet the criteria of corporate wokeism, it’s increasingly likely Americans won’t find it on these platforms.

What are you even talking about? It's got nothing to do with "corporate wokeism" -- a hilariously stupid term in its own right. And we've seen over and over again that the platforms have actually bent over backwards to have a light touch on conservatives to avoid being accused of bias. The reality is that there is unequal treatment: the sites have given conservatives a lot more leeway, and only proceeded to moderate in the most extreme cases.

Just to make this clear, looking at the accounts that get the most link clicking on Facebook, they are almost always dominated by famous "conservative" individuals and organizations.

Again, the evidence does not suggest "anti-conservative bias." If it's true (and even this could be disputed) that conservatives violate the policies of social media services more often -- for example, by posting utterly debunked conspiracy theories about elections, healthcare, and more -- well, perhaps that's on them. Not the companies.

Then we get to the actual policy recommendations:

Accountability: Our framework would rein in Big Tech and end their abusive practices, including by changing the law so that Americans can challenge Big Tech directly for their infringement of public speech rights. This effort starts by taking away the liability shield Big Tech has hidden behind for far too long. Section 230 of the Communications Decency Act would be changed to limit liability protections for moderation of speech that is not protected by the First Amendment and would preclude Big Tech from discriminating against Americans based on their political affiliation. We would also require regular reauthorization of Section 230 so Congress may update regulations of the constantly-evolving internet landscape.

Sigh. This is such garbage. Moderation is not an infringement of your right to speech. You can still speak -- you just don't have a guaranteed right to use someone else's property to speak. And if you took away 230, you'd get significantly less speech because you'd massively ramp up the legal liability and frivolous lawsuits against social media websites. Remember when Republicans were against handing plaintiffs' lawyers the easy ability to file vexatious lawsuits? Apparently that's out the window.

Also, what the hell does: "limit liability protections for moderation of speech that is not protected by the First Amendment" mean? That would be a massive 1st Amendment violation in its own right, saying that websites must leave up all protected speech. Lies, porn, hate speech, conspiracy theories, harassment, abuse are all protected speech under the 1st Amendment in most cases (there are a few edge cases that wouldn't count). But under such an approach, these Republicans would be turning the entire internet into a cesspool of garbage.

Similarly: "preclude Big Tech from discriminating against Americans based on their political affiliation." First of all, no one is being banned for being a Republican today. The only cases I've ever seen of someone being banned for political affiliation were Nazis. So the Republican Party is now making it official party platform that websites must protect Nazi speech? Really?

Transparency: Our framework would empower Americans by ending Big Tech’s ability to hide behind vague terms of service that have not constrained their conduct in any meaningful way. We will do so by mandating that any Big Tech content moderation decisions or censorship must be listed, with specificity, on a publicly available website. In addition, by requiring Big Tech to implement and maintain a reasonable user-friendly appeals process, our plan will empower conservatives and others whose speech rights have been infringed to challenge Big Tech’s attacks.

Anyone who knows anything about content moderation knows what this really means: give us the rules so we can figure out how to argue with you that we didn't break them. This is the abusers/harassers free pass to be a total asshole to the staff of social media companies, insisting that when they're harassing someone it wasn't "really" harassment. Or when they post racist garbage "it was just a joke." This is to open the floodgates on being able to continue to annoy and harass social media to try to make sure all garbage content must remain up.

Strengthening Anti-Trust Review: Our framework also recognizes that the status quo and bureaucratic delays are not acceptable when it comes to bringing long-overdue antitrust scrutiny to Big Tech. We will provide an expedited court process with direct appeal to the Supreme Court and empower state attorneys general to help lead the charge against the tech giants to break them up. We will also reform the administrative state and remove impediments that delay taking action on Big Tech power.

I mean, Republicans have spent the past four or five decades redefining anti-trust to make it effectively impossible to win a case on anti-trust grounds, so this is quite a turnaround -- but also one of those situations where you almost want to say "hey, you made this bed, now lay in it."

Anyway, a few days after McCarthy put out this ridiculous "framework," Republicans on the House Judiciary put out their own plan, which they claimed was "consistent" with McCarthy's framework -- and it is. It is consistently disconnected from reality.

It, of course, removes Section 230:

A cause of action to empower Americans. For far too long, Big Tech has been able to censor the views of conservatives with effectively no recourse available to those affected. This proposal would create a statutory basis for Americans to directly challenge Big Tech in court for its censorship and silencing of conservatives.

Overhauling Big Tech’s liability shield. Congress passed Section 230 of the Communications Decency Act to allow internet platforms to moderate unlawful or offensive content on their platforms. Big Tech has exploited this protection to make subjective content moderation decisions, often in a manner harmful to conservative voices. This proposal will ensure that any content moderation decisions are done in good faith, based on objectively reasonable criteria, and in accord with particularized rules.

As has become standard among politicians these days, this completely misstates and misunderstands how Section 230 (and the 1st Amendment) work. Both of the concepts above would be clear violations of the 1st Amendment, as we just saw with the Florida law that Florida Law that tried to create something similar.

The whole thing is one giant performative, grievance, pity party from the party that used to pretend to be against such things. It's just sad, but that is the state of the Republican party these days.

Filed Under: antitrust, bias, big tech, kevin mccarthy, republicans, section 230

Republican's 'Big Tech Accountability' Platform Calls For Both More And Less Moderation, And A 'Not Fairness Doctrine' Fairness Doctrine

from the all-over-the-map dept

It's become quite clear over the past few years that the Republicans' platform these days is "punish those who disagree with us," or, in the shorter vernacular: "cry moar, libs." This becomes blatantly clear as you look at the newly released "Big Tech Accountability Platform" that the Republicans in the House have released (coming from the ranking member of the House Energy & Commerce Committee, Rep. Cathy McMorris Rodgers). The platform actually starts out making some amount of sense, but note that it will ignore all of that within a single page. The principles laid out are actually good ones -- if the plan actually followed them (which it does not):

1. We will protect free speech: Republicans worked hard to repeal the Federal Communications Commission’s Fairness Doctrine and we will not advocate for a new one.

2. We will be mindful of small businesses and entrepreneurship: Any policy we pursue will balance these essential interests to preserve competition.

3. We will promote American tech leadership and innovation: We will continue to promote American global leadership while working to address issues here at home.

You could build a good platform around those pointers. But, this is not that. On the very next page, it lists out its legislative "concepts" for Section 230 reform, which quickly show how things go off the rails.

Legislative Concept 1: Limit the Right of Exclusion

a. Define Big Tech companies as places of public accommodation and prohibit discrimination based on political affiliation and/or viewpoint.

b. Alternatively, define Big Tech companies as places of public accommodation and limit liability protections to content moderation processes that provide a measure of due process to users.

So, uh, remember that whole thing about respecting free speech and not bringing back the fairness doctrine? This legislative concept is literally bringing back the fairness doctrine. It's also unconstitutional as it attacks the 1st Amendment rights of companies not to be compelled to host speech they don't want to host.

Perhaps even more incredible is that while the first legislative concept is basically "moderate less," the second legislative concept is "moderate more"!

Legislative Concept 2: Require Reasonable Moderation Practices

a. Require Big Tech companies to implement and maintain reasonable moderation practices to address illegal drug sales; child exploitation, including child pornography and trafficking; targeted harassment or bullying of users under the age of 18; terrorism; counterfeit products and materials sales; and all other illegal content on their platforms.

b. Failure to implement and maintain such reasonable moderation practices is a violation of Section 5 of the Federal Trade Commission (FTC) Act.

c. Such companies may be liable for content decisions related to content included above but may assert liability protections if they implement and maintain reasonable moderation practices.

This shows how totally unprincipled and ignorant the Republicans are on this topic. It's kind of the standard response of those who don't even understand the basics of content moderation. The assumption is always that there's some perfect level of moderation -- less moderation of speech we like, and more moderation of speech we dislike. But that assumes everyone agrees on which speech is liked and which speech is not. And that's not how any of this works.

This isn't a Goldilocks fairy tale, in which some moderation is too much, and some moderation is too little, and you can just turn the dials and find the kind of moderation that is "just right." And legislative proposals that pretend otherwise only show their complete disconnect from reality.

And they're not done yet.

Legislative Concept 3: Limit Liability to Protected Speech

a. Modify Section 230 to only provide liability protection for moderation of speech that is not protected by the First Amendment or specifically listed in the statute.

Uh, yikes? This might depend on what's "listed in the statute," but already listing types of speech that get immunity and that do not would raise serious 1st Amendment issues. But beyond that, it's not even clear what this means? If it means that 1st Amendment protected speech no longer gets 230 protections then, um, won't sites be much, much quicker to pull down all sorts of content? This would mean no 230 protections over abuse, harassment, hate speech, etc. Under such a proposal, you'd think that Republicans spreading disinformation would be at serious risk of having all their accounts banned. I know that the Democrats might like this, but it seems like a bizarre thing for Republicans to suggest.

Legislative Concept 4: Remove Liability Protections

a. Remove liability protection under Section 230 for content moderation decisions made by Big Tech companies that discriminate based on political affiliation or

viewpoint.

We've been over this before. It would violate the 1st Amendment and create compelled speech. Why do no politicians seem to understand this?

Legislative Concept 5: Require Appeals Processes

a. Require Big Tech companies to implement and maintain reasonable and userfriendly appeals processes for users to challenge content moderation decisions on constitutionally protected speech as well as decisions about suspending or deplatforming users. The appeals process must clearly explain the company’s content moderation policies and identify the specific provision(s) the content or user violated and why.

Why? Why is Congress interfering in the ways that private companies run their business? Most companies (and all large companies) do have an appeals process already. But mostly all these kinds of proposals do is serve to make it a lot more costly for websites to suspend bad actors. It's like an "all trolls get to troll" act, and often is used to test the boundaries of what people can get away with. It's a perfect tool for bad actors.

Legislative Concept 6: Carve Out Big Tech Companies from Section 230

a. Carve out Big Tech companies and/or only those that are specifically engaged in certain activities, such as hosting social media platforms and app stores, from Section 230 liability protections while retaining current liability protections for all new entrants and small companies.

b. Repeal Section 230 protections for companies engaged in targeted behavioral advertising.

It's unclear how either of these ideas does anything even remotely useful. I mean, you could carve big companies out of 230 and they'd survive, but all it would likely do is lead to a lot of wasteful litigation. It would also almost certainly lead the companies to be a lot more aggressive in taking down content, and would then rely on the 1st Amendment to protect those decisions. As for connecting 230 to advertising practices, we've seen a few bills that try to do that and no one has ever explained what useful thing that does -- other than basically attack one particular business model.

Nearly every one of these proposals doesn't seem to have any principled argument behind it. There's no policy rationale at all. It's entirely "big tech is bad, big tech likes 230, let's take 230 away from big tech." That's not leading. That's regulating based on perceived grievances.

Filed Under: big tech, cathy mcmorris rodgers, content moderation, fairness doctrine, free speech, republicans, section 230

Republicans Using Incredibly Sketchy And Manipulative 'Dark Patterns' To Dupe People Into Donating Way More Than Intended

from the sketchy-grifters dept

Last week the NY Times had an incredible article about how the Trump campaign tricked donors into giving way more money than they meant to, using so-called "dark patterns" (i.e., tricky UI design and wording) that got many people to think they were donating one time, but instead accidentally signed up to contribute the same amount every month. The Trump campaign ended up having to return an astounding $122 million of the money it raised in refunds, much of it due to these tricks.

Contributors had to wade through a fine-print disclaimer and manually uncheck a box to opt out.

As the election neared, the Trump team made that disclaimer increasingly opaque, an investigation by The New York Times showed. It introduced a second prechecked box, known internally as a “money bomb,” that doubled a person’s contribution. Eventually its solicitations featured lines of text in bold and capital letters that overwhelmed the opt-out language.

The tactic ensnared scores of unsuspecting Trump loyalists — retirees, military veterans, nurses and even experienced political operatives. Soon, banks and credit card companies were inundated with fraud complaints from the president’s own supporters about donations they had not intended to make, sometimes for thousands of dollars.

“Bandits!” said Victor Amelino, a 78-year-old Californian, who made a $990 online donation to Mr. Trump in early September via WinRed. It recurred seven more times — adding up to almost $8,000. “I’m retired. I can’t afford to pay all that damn money.”

Over at The Bulwark, Tim Miller noticed that, even following the NY Times expose of this practice, the National Republican Congressional Committee (NRCC) seems to have doubled down on this practice. First, it sent a text message to people falsely saying people needed to sign up within 10 minutes to Donald Trump's vaporware social media network. The page the link takes you to says you only have 10 minutes to "join" the social network (which makes no sense) and then asks you to "stand with Trump."

The framing of "Yes: I stand with Trump!" v. "No: I prefer Fake News!" is already quite something. But if you scroll down below the fold, it gets way more insane. When Tim first published his article, the sneaky money bomb dark pattern box (which again, you have to scroll down to see) has a bunch of text in bold, followed by an unbolded final line admitting that you'd be making your donation recurring.

It says:

We need your help to DRAFT Trump for President! Check this box if you want Trump to run again. Uncheck this box if you do NOT stand with Trump

Make this a monthly recurring donation.

You can see how that might be confusing. Lots of Trump supporters may check the box for the first, bolded, part, and not the latter. And that's not even mentioning the 2nd (also pre-checked box) for a second donation for a week later.

And then it got even more insane, because the NRCC updated the boxes... to make them even worse and more obnoxious:

So now it's not just click here to support Trump, now if you uncheck the sneaky recurring payments box, you're "a defector" and side with the Democrats. The full text:

We need to know we haven't lost you to the Radical Left. If you UNCHECK this box we will have to tell Trump you're a DEFECTOR & sided with the Dems. CHECK this box and we can win back the House and get Trump to run in 2024.

Again, it hides the "make this a monthly recurring donation" bit beneath that bolded text and still has the pre-checked "donate again soon" box.

As Tim Miller notes in his piece:

I’m sure there’s some formal legal difference between the NRCC tricking someone into signing up for a nonexistent social media site—and then having a default box opting them in to both double their pledged amount and make it recurring—and the criminal advance-fee scams made famous by the imaginary Nigerian princes.

But as a moral matter, the difference is awfully hard to suss out.

And that's only the tip of the iceberg, because Congress (in a bipartisan fashion) has been screaming about these supposed "dark patterns" on social media for the past few years, when nothing any social media company does is nearly as exploitive and sketchy as this. In fact, one of the NRCC's star children is Senator Josh Hawley, who keeps introducing bills to force social media sites to get rid of such "dark patterns." When that was happening, Hawley decried that "Too much of the 'innovation' in this space is designed not to create better products, but to capture more attention by using psychological tricks that make it difficult to look away."

I'm sure that Hawley will be along any moment to decry the efforts by the NRCC to trick people into donating way more money to his campaign than they meant to. Right? Right?

Filed Under: campaign fundraising, dark patterns, donald trump, fund raising, gop, money bomb, recurring payments, republicans
Companies: nrcc, winred

Congressional Panel On Internet And Disinformation... Includes Many Who Spread Disinformation Online

from the because-of-course dept

We've pointed out a few times how silly all these Congressional panels on content moderation are, but the one happening today is particularly silly. One of the problems, of course, is that while everyone seems to be mad about Section 230, they seem to be mad about it for opposite reasons, with Republicans wanting the companies to moderate less, and Democrats wanting the companies to moderate more. That's only one of many reasons why today's hearing, like those in the past, are so pointless. They tend to bog down in silly "but what about this particular moderation decision" which will then be presented in a misleading or out of context fashion, allowing the elected official to grandstand about how they "held big tech's feet to the fire" or some such nonsense.

However, Cat Zakrzewski, over at the Washington Post has highlighted yet another reason why this particular "investigation" into disinformation online is so disingenuous: a bunch of the Republicans on the panel, exploring how these sites deal with mis- and disinformation -- are guilty of spreading disinformation themselves online.

A Washington Post analysis found that seven Republican members of the House Energy and Commerce Committee who are scheduled to grill the chief executives of Facebook, Google and Twitter about election misinformation on Thursday sent tweets that advanced baseless narratives of election fraud, or otherwise supported former president Donald Trump’s efforts to challenge the results of the presidential election. They were among 15 of the 26 Republican members of the committee who voted to overturn President Biden’s election victory.

Three Republican members of the committee, Reps. Markwayne Mullin (Okla.), Billy Long (Mo.) and Earl L. “Buddy” Carter (Ga.), tweeted or retweeted posts with the phrase “Stop the Steal” in the chaotic aftermath of the 2020 presidential election. Stop the Steal was an online movement that researchers studying disinformation say led to the violence that overtook the U.S. Capitol on Jan. 6.

Cool cool.

Actually, this highlights one of the many reasons why we should be concerned about all of these efforts to force these companies into a particular path for dealing with disinformation online. Because once we head down the regulatory route, we're going to reach a point in which the government is, in some form, determining what is okay and what is not okay online. And do we really want elected officials, who themselves were spreading disinformation and even voted to overturn the results of the last Presidential election, to be determining what is acceptable and what is not for social media companies to host?

As the article itself notes, rather than have a serious conversation about disinformation online and what to do about it, this is just going to be yet another culture war. Republicans are going to push demands to have these websites stop removing their own efforts at disinformation, and Democrats are going to push the websites to be more aggressive in removing information (often without concern for the consequences of such demands -- which often lead to the over-suppression of speech).

One thing I think we can be sure of is that Rep. Frank Pallone, who is heading the committee for today's hearing is being laughably naïve if he actually believes this:

Rep. Frank Pallone Jr. (N.J.), the Democrat who chairs the committee, said any member of Congress using social media to spread falsehoods about election fraud was “wrong,” but he remained optimistic that he could find bipartisan momentum with Republicans who don’t agree with that rhetoric.

“There’s many that came out and said after Jan. 6 that they regretted what happened and they don’t want to be part of it at all,” Pallone said in an interview. “You have to hope that there’s enough members on both sides of the aisle that see the need for some kind of legislative reform here because they don’t want social media to allow extremism and disinformation to spread in the real world and encourage that.”

Uh huh. The problem is that those who spread disinformation online don't think of it as disinformation. And they see any attempt to cut back on their ability to spread it to be (wrongly) "censorship." Just the fact that the two sides can't even agree on what is, and what is not, disinformation should give pause to anyone seeking "some kind of legislative reform" here. While the Democrats may be in power now, that may not last very long, and they should recognize that if it's the Republicans who get to define what is and what is not "disinformation" it may look very, very different than what the Democrats think.

Filed Under: congressional hearings, content moderation, disinformation, donald trump, election disinformation, house energy and commerce committee, republicans, section 230, stop the steal
Companies: facebook, google, twitter

Trump Doubles Down On Threat To Defund Military Because People Are Mean To Him Online; Republicans Threaten To Override His Veto

from the what-a-way-to-end-the-presidency dept

On Tuesday, we highlighted that it looked like Congressional Republicans were willing to finally stand up to their party's insecure and whiny lame duck president and refuse to include a Section 230 repeal as part of the military authorization bill, the NDAA.

Senator Jim Inhofe, who heads the Senate Armed Services Committee and who lead the negotiation on the bill, has been a longtime supporter of the President, and has said that the two talk by phone every couple days. But on Wednesday, Inhofe apparently did his phone call telling Trump that the 230 repeal wasn't going into the NDAA while on a speakerphone walking down the hallway of a Senate building, meaning that people overheard Inhofe tell Trump that the 230 repeal wasn't going to happen.

On Thursday, the negotiations closed and a deal was made on the NDAA that does not include anything on Section 230 because, as Inhofe rightly notes, that's got nothing to do with the military at all. In response, Trump continued his temper tantrum and claims he really will veto the bill, putting the military he always claims to support so much at risk of severe cuts.

That's Trump saying that because the NDAA doesn't revoke Section 230, which Trump falsely says is "so bad for our National Security and Election Integrity" (it's not), he will veto. The thing is, everyone knows he's full of shit. And Republicans are not only saying that they have the votes to override a veto, they seem to be getting snippy with the President about it. Here's Republican Congressman Adam Kinzinger saying he'll vote to override the veto and concluding with the kind of thing you don't often hear from Republicans these days when talking to Trump: "Because it's really not about you."

No, it's not about him. But it is about him throwing a total whiny tantrum because people made fun of him online, and wanting to punish the entire internet and free speech in response. The idea that it's worth undermining the military (which he claims to support, and which frequently supports him) is... quite something.

Filed Under: confederate basis, congress, donald trump, jim inhofe, military, ndaa, republicans, section 230, veto

Republicans, Who Have Made Sure The Federal Election Commission Can't Do Anything, File A Complaint About Twitter's Moderation Practices

from the this-is-not-how-any-of-this-works dept

Last week, Senator Josh Hawley (who knows better) sent a ridiculous letter to the Federal Election Commission claiming that Twitter and Facebook's decision (based on different reasons) to limit the sharing of a sketchy NY Post article was election interference. We explained why that was nonsense, but it appears that the Republican Party no longer gives a shit about what the law actually says when it can play the victim.

On Friday, the Republican National Committee filed a formal complaint with the FEC as well. Before we get into the details of why this complaint is horseshit, it is worth noting that the FEC cannot meet right now because it does not have enough members for a quorum. And this is on the Republicans themselves. Last year, the FEC also was without a quorum, which prevents it from issuing fines, making rules, or conducting audits.

Earlier this year, the FEC very briefly had a quorum, when the Senate confirmed Trey Trainor to a spot in May. Yet a month later another Commissioner, Caroline Hunter, resigned. And, once again the FEC cannot conduct most business. And while Trump has announced who he "intends" to nominate, there is no indication that that nomination was ever officially sent to the Senate. At the very least, the Senate has shown no sign that it is moving ahead with the nomination. And that means there will not be a functioning FEC from now until at least the election.

Given that, it does seem at least somewhat ironic that the Republicans are now demanding FEC action over Twitter's content moderation practices. The FEC can't actually do anything right now. Because Republicans in the Senate haven't filled the seats.

And, of course, even if they did, this complaint would go nowhere for a variety of reasons (including that the person Trump is nominating has strong 1st Amendment credentials). But, more to the point, whether you agree with their policies or not, both Facebook and Twitter showed clear, long-standing policy reasons for why they slowed the spread of the NY Post story. And in neither case was it "because we want to help Joe Biden." That wasn't the rationale, and it's silly for Republicans to pretend otherwise. And for it to be an FEC violation, it would have to have been "for the purpose of influencing an election." There is no way that either company's actions qualify for that, no matter how many whiny Republicans insist that that is the reason.

On top of that, not wishing to host certain stories is not, in any way shape or form, making a "contribution" to a political campaign. If it was, Fox News has spent most of its life "interfering" with Democratic candidates, and providing "contributions" in the form of news coverage "of value... for the purpose of influencing an election." And, indeed, in the past some have argued that Fox News has violated campaign finance laws -- but the FEC has responded by pointing out that this is allowed under the 1st Amendment.

The same thing is true of Twitter choosing not to host a link as well. It has a 1st Amendment right not to be compelled to host speech it disagrees with. You would think that the party that fought hard to make sure a baker didn't have to bake a cake with a message it disagreed with would understand that concept.

Finally, this move goes against Republicans long-standing support for Citizens United, in which they insisted (and took to the Supreme Court and won) the claim that effectively says the 1st Amendment cannot be overruled by campaign finance law.

It is an incredibly ridiculous move for these very same Republicans who have long fought battles on the other side to now try to argue that Twitter's totally justifiable (even if I think wrongly decided) policy decision is somehow a campaign finance violation. It's not, and it's both cynical and hypocritical for Republicans to claim otherwise.

Filed Under: 1st amendment, content moderation, electioneering, fec, republicans
Companies: twitter