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from the make-section-230-boring-again dept

The other day Senator Schatz tweeted, "Ask every Senator what Section 230 is. Dont ask them if they want to repeal it. Ask them to describe it."

It's a very fair point. Most of the political demands to repeal Section 230 betray a profound ignorance of what Section 230 does, why, or how. That disconnect between policy understanding and policy demands means that those demands to repeal the law will only create more problems while not actually solving any of the problems currently being complained about.

Unfortunately, however, Senator Schatz's next tweet revealed his own misunderstanding. [Update: per this tweet, it wasn't his misunderstanding his next tweet revealed but rather the misunderstanding of other Senators who have proposed other sorts of "reforms" he was taking issue with. Apologies to Senator Schatz for misstating.] "I have a bipartisan bill that proposes changes to 230, but repeal is absurd. The platforms are irresponsible, but we should not have a government panel handing out immunity like it's a hunting license. We must rein in big tech via 230 reform and antitrust law, not lazy stunts."

There's a lot to unpack in that tweet, including the bit about antitrust law, but commenting on that suggestion is for another post. The issue here is that no, Section 230 is nothing like the government "handing out immunity like a hunting license," and misstatements like that matter because they egg on "reform" efforts that will ruin rather than "reform" the statute, and in the process ruin plenty more that the Constitution and our better policy judgment requires us to protect.

The point of this post is to thus try to dispel all such misunderstandings that tend to regard Section 230's statutory protection as some sort of tangible prize the government hands out selectively, when in reality it is nothing of the sort. On the contrary, it reads like a rule of civil procedure that, like any rule of civil procedure, is applicable to any potential defendant that meets its broadly-articulated criteria.

For non-lawyers "rules of civil procedure" may sound arcane and technical, but the basic concept is simple. When people want to sue other people, these are the rules that govern how those lawsuits can proceed so that they can proceed fairly, for everyone. They speak to such things as who can sue whom, where someone can be sued, and, if a lawsuit is filed, whether and how it can go forward. They are the rules of the road for litigation, but they often serve as more than a general roadmap. In many cases they are the basis upon which courts may dispense with cases entirely. Lawsuits only sometimes end with rulings on the merits after both parties have fully presented their cases; just as often, if not more often, courts will evaluate whether the rules of civil procedure even allow a case to continue at all, and litigation frequently ends when courts decide that they don't.

Which is important because litigation is expensive, and the longer it goes on the more cost-prohibitive it becomes. And that's a huge problem, especially for defendants with good defenses, because even if those defenses should mean that they would eventually win the case, the crippling cost involved in staying in the litigation long enough for that defense to prevail might bankrupt them long before it ever could.

Such a result hardly seems fair, and we want our courts to be fair. They are supposed to be about administering justice, but there's nothing just about letting courts being used as tools to obliterate innocent defendants. One reason we have rules of civil procedure is to help lessen the danger that innocent defendants can be drained dry by unmeritorious litigation against them. And that is exactly what Section 230 is designed to do as well.

An important thing to remember is that most of what people complain about when they complain about Section 230 are things that the First Amendment allows to happen. The First Amendment is likely to insulate platforms from liability in their users' content, and it's also likely to insulate them from liability for their moderation decisions. Section 230 helps drive those points home explicitly for providers of "interactive computer services" (which, it should be noted, include far more than just "big tech" platforms; they also include much smaller and non-commercial ICS providers as well, and even individual people), but even if there were no Section 230 the First Amendment would still be there to do the job of protecting platforms in this way. At least in theory.

In practice, however, defendant platforms would first have to endure an onslaught of litigation and all its incumbent costs before the First Amendment could provide any useful benefit, which will likely be too little, too late for most if not all of them. The purpose of Section 230 is therefore to make sure those First Amendment rights can be real, and meaningful, and something that every sort of interactive computer service provider can be confident in exercising without having to fear being crushed by unconstitutional litigation if they do.

What people calling for any change to Section 230 need to realize is how these changes will do nothing but open the floodgates to this sort of crushing litigation against so much that the Constitution is otherwise supposed to protect. It is a flood that will inevitably chill platforms by effectively denying them the protection their First Amendment rights were supposed to afford, and in the process also chill all the expressive user activity they currently feel safe to enable. It is not an outcome that any policymaker should be so eager to tempt; rather, it is something to studiously avoid. And the first step to avoiding it is to understand how these proposed changes will do nothing but invite it.

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Filed Under: brian schatz, civil procedure, section 230, subsidy

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Section 230 Isn't A Subsidy; It's A Rule Of Civil Procedure - Techdirt

Science and facts should outweigh emotions and political decision-making, Witt, of Madison Heights, said. The fact is social distancing is all we have. Wear a mask, wash your hands and stand 6 feet apart. Its not asking you to give up your First Amendment [rights].

Witt said federal, state and local governments have provided financial assistance for struggling businesses and organizations. She added she feels she has a right to be healthy.

I prefer a mask. Its all we have, Witt said.

Teresa Ray, a lifelong county resident, said everyone has made sacrifices during the pandemic to flatten the curve but restrictions have tightened, further damaging businesses and residents in the process, while cases increase.

If masks work, shouldnt these case numbers decline? Ray said, adding: The public has been programmed [to view] new cases as death sentences.

Several speakers strongly opposed one of Northams latest restrictions, a 10-person limit for gatherings, especially with the Christmas holiday approaching.

It is our constitutional right to assemble, especially in our own homes, Ray said.

Ben Summers, a county resident in favor of the resolution, said he sees businesses negatively affected by the restrictions. He cited his asthma as a reason he opposes the mask requirement he feels is unconstitutional.

Read the original here:
Amherst residents weigh in on potential resolution opposing COVID-19 restrictions - Lynchburg News and Advance

That enthusiasm didnt last, but mainstream platforms learned their lesson, accepting that they should intervene aggressively in more and more cases when users post content that might cause social harm. During the wildfires in the American West in September, Facebook and Twitter took down false claims about their cause, even though the platforms had not done the same when large parts of Australia were engulfed in flames at the start of the year. Twitter, Facebook, and YouTube cracked down on QAnon, a sprawling, incoherent, and constantly evolving conspiracy theory, even though its borders are hard to delineate. These actions had a domino effect, as podcast platforms, on-demand fitness companies, and other websites banned QAnon postings. Content moderation comes to every content platform eventually, and platforms are starting to realize this faster than ever.

As if to make clear how far things had come since 2016, Facebook and Twitter both took unusually swift action to limit the spread of a New York Post article about Hunter Biden mere weeks before the election. By stepping in to limit the storys spread before it had even been evaluated by any third-party fact-checker, these gatekeepers trumped the editorial judgment of a major media outlet with their own.

Gone is the naive optimism of social-media platforms early days, whenin keeping with an overly simplified and arguably self-serving understanding of the First Amendment traditionexecutives routinely insisted that more speech was always the answer to troublesome speech. Our tech overlords have been doing some soul-searching. As Reddit CEO Steve Huffman said, when doing a PR tour about an overhaul of his platforms policies in June, I have to admit that Ive struggled with balancing my values as an American, and around free speech and free expression, with my values and the companys values around common human decency.

Derek Thompson: The real trouble with Silicon valley

Nothing symbolizes this shift as neatly as Facebooks decision in October (and Twitters shortly after) to start banning Holocaust denial. Almost exactly a year earlier, Zuckerberg had proudly tied himself to the First Amendment in a widely publicized stand for free expression at Georgetown University. The strong protection of even literal Nazism is the most famous emblem of Americas free-speech exceptionalism. But one year and one pandemic later, Zuckerbergs thinking, and, with it, the policy of one of the biggest speech platforms in the world, had evolved.

The evolution continues. Facebook announced earlier this month that it will join platforms such as YouTube and TikTok in removing, not merely labeling or down-ranking, false claims about COVID-19 vaccines. This might seem an obvious move; the virus has killed more than 315,000 people in the U.S. alone, and widespread misinformation about vaccines could be one of the most harmful forms of online speech ever. But until now, Facebook, wary of any political blowback, had previously refused to remove anti-vaccination content. However, the pandemic also showed that complete neutrality is impossible. Even though its not clear that removing content outright is the best way to correct misperceptions, Facebook and other platforms plainly want to signal that, at least in the current crisis, they dont want to be seen as feeding people information that might kill them.

Continued here:
The Year That Changed the Internet - The Atlantic

Late on Tuesday evening, FCC Commissioner Brendan Carr suddenly issued aweird and misleading anti-230 Twitter thread, claiming (falsely) that supporters of Section 230 (who he incorrectly calls Big Techs lobbyists) routinely conflate statutory protections with First Amendment rights. Heres the thread in plain text, with my responses and corrections interjected.

The debate over Section 230 often produces more heat than light.

One reason: Big Techs lobbyists routinely conflate statutory protections with First Amendment rights.

I mean, what?!? This is like claiming day is night, up is down, or yellow is purple. There is one side of this debate that has regularly conflated Section 230 with the 1st Amendment: and thats the people arguing against Section 230. Almost every complaint about Section 230 isactually a complaint about the 1st Amendment. I mean, the NY Times has had torun a correctionsaying oops, we blamed 230 for this, but really it was the 1st Amendmentmultiple times.

For instance, they argue that action on the Section 230 Petition would force websites to carry speech in violation of their First Amendment rights.

Not at all. NTIAs Petition expressly says that websites would retain their 1st Amendment right to remove content for any reason.

This may be the weirdest of all the tweets in the bunch. The NTIA Petition is asking the FCC, including Brendan Carr, to reinterpret Section 230, to suggest that Congress (including those who wrote the law) and dozens of courts have all been interpreting it wrong. Let me repeat that: the petition is asking Carr to reinterpret the law. And yet, here he is citingthat requestas his evidencethat his reinterpretation wont implicate 1st Amendment rights? Its kind of like a judge pointing to the plaintiffs complaint as the binding legal precedent. It makes no sense at all.

Similarly, the claim that Section 230 reform would resurrect the Fairness Doctrine or mandate neutrality misses the mark.

The Petition is quite clear on this: It would not require any website to carry any sort of content at all.

Again, citing to the petition makes no sense. The petition is asking Carr to reinterpret the law. Its the request. It has no legal weight or authority (in part because its wrong on nearly everything).

What Section 230 reform *would do* is bring much needed clarity to the terms contained in the statutory text.

There has never, not once, been a complaint from judges or the authors of the law that the terms are unclear. There is no problem with clarity. There are just some people who are upset that some websites moderate in a way they dislike.

In other words, the question presented by the Section 230 Petition is not whether the First Amendment will continue to cover a take down decision (it will) but whether a particular take down *also* benefits from Section 230s statutory protections.

But thats not an open question. Its pretty damn well settled. Its not like theres a court split here. Every single court decision has agreed on this. Theres no confusion. Theres no disagreement. Theres no lack of clarity. The law is very clear.

The answer to that question flows from the text of the statute and leaves a websites constitutional rights uninfringed.

Right. Which is why weve pointed out that all the people complaining about content moderation decisions arent actually mad about 230, but are mad about the 1st Amendment. And this includes wait for it FCC Commissioner Brendan Carr who just months ago said thatwe need to reform Section 230to stop tech companies from biased moderation. Except that moderation (biased or not) is protection by the 1st Amendment.

So, Brendan Carr seems to be talking out of both sides of his mouth. To Trumpists he goes on Fox News and says that we need to reform Section 230 to change their moderation practices and force them to keep content they dont want online. But then, he goes on Twitter and insists its the other guys (the people who actually know the law) who want to conflate 230 with the 1st Amendment, and that changes to 230 wont stop companies from moderating speech. The very speech that Brendan Carr said we need to change 230 to force companies to host.

So which Brendan Carr is lying?

FCC Commissioner Brendan Carr Again Misrepresents The Debate Over Section 230

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Link:
FCC Commissioner Brendan Carr Again Misrepresents The Debate Over Section 230 - Above the Law

President Uhuru Kenyatta's speech delivered during the 57th Jamhuri Day celebrations on December 12 was the clearest indication that the Building Bridges Initiative train had already left the station and that it was on the right track.

Before this, BBI critics had dismissed it as a ploy by former Prime Minister Raila Odinga to reinvent himself politically and ascend to the presidency using "unorthodox" means.

As a firm believer in reconciliation, President Kenyatta extended the 'handshake' to Mr Odinga as a journey towards our nationhood, with the BBI being a roadmap to a long-term solution, which would not be an end in itself but a continuous work-in-progress.

The BBI, a culmination of the March 2018 'handshake', has key proposals aimed at ensuring inclusivity as well as end the divisive politics that have continued to dog the country every election.

Constitutional moment

Judging from the violence that permeates our nation every election cycle, change was inevitable. And history tells us that a country frequently in turmoil calls for a constitutional moment.

Ever since the advent of multiparty politics in 1991, all but one presidential election in Kenya has resulted in violence. In the run-up to the 1992 election, ethnic clashes saw the killing and displacement of non-Kalenjin communities from the Rift Valley region. The same scenario was replicated in 1997.

Then in the 2007-08 post-election violence, more than 1,500 Kenyans were murdered and 600,000 were forced from their homes. Bloodshed was also witnessed in 2017, when the Supreme Court, in an unprecedented ruling, nullified President Kenyattas election and ordered a repeat of the presidential poll.

Earlier, IEBC IT manager Chris Msando was brutally murdered only three days before the vote. Needless to say, this cycle of electoral violence is affecting both local and foreign investment in the country. Kenyans struggling to make a living also dread every election year as violence either disrupts their businesses or results in loss of property.

It is against this background that the BBI proposes amendments to our Constitution to give Kenyans hope for a better nation. The BBI is the driver to the first amendment to the 2010 Constitution.

Whereas it will not solve all the thorny constitutional grievances through a singular amendment, it starts a continuous process of refining our nascent nation's Constitution. Further amendments are likely to take place as the country continues to grow.

Fostering inclusion

It is noteworthy that the BBI incorporates the spirit of inclusion, co-creation, and justice. Regarding inclusion, the Executive has been expanded from two to five top positions, with the creation of the post of a prime minister and two deputy prime ministers.

The current dispensation, with only the President and Deputy President at the top, has resulted in exclusion in our ethnically diverse nation and become a source of discord. The Kofi Annan-led National Accord of 2008 provided for five positions at the top, and this worked very well.

Taking cognisance of the fact that five positions at the apex of the Executive are no panacea to inclusion, BBI proposes to reintroduce the position of leader of the official opposition that made significant contribution under the previous constitutional dispensation.

With a shadow cabinet to boot, s/he will keep the government of the day in check and ensure the development agenda stays on course. An expanded Executive and constitutional recognition of the opposition will go a long way in reducing tensions that escalate into violence every election year.

The BBI Report also urges Kenyans, and particularly the leadership in the public sector, to build systems that embrace merit while broadening inclusivity. It is especially crucial that political parties actively seek out and promote aspirants to elective office who, in addition to their political skills, are competent individuals. This will also be replicated in the public service where all state appointments will be based on merit and show the face of Kenya.

The BBI also proposes legal and political systems that carefully balance between equity and equality. There is no doubt that Kenya has a continuing legacy of marginalisation of some groups and areas, and that this is combined with existing pervasive under-servicing in many parts of the country. Through the BBI, the needs of the marginalised and under-served will be met, as much as is possible.

On the economic front, the BBI focuses on the equalisation of opportunity for all Kenyans, no matter their age, ethnicity, religion, or gender, as the primary aim of economic policy. We can only succeed in building wealth as a nation if we minimise the barriers to opportunity caused by discrimination, undermining of merit, poor education, and unequal service provision.

Co-creation

On co-creation, the spirit of the first amendment is a continuation and strengthening of the devolved system of governance as enshrined in the 2010 Constitution, whose framers envisaged a system where the national government co-creates solutions with county governments.

Nothing has demonstrated this partnership better than the Covid-19 pandemic, whose mitigation has witnessed tremendous success, thanks to the collaboration between the two levels of government.

Accordingly, the first amendment proposes to strengthen devolution by increasing fund allocated to counties by the national government from 15 per cent to 35 per cent.

And in order to take development closer to the people, the amendment proposes the creation of a Ward Development Fund. It also proposes a 50:50 representation in the Senate by both men and women in order to place women at the heart of devolution.

Evidently, the BBI train has already left the station; and it is on the right track.

The writer is Co-chair of the BBI Secretariat and former Dagoretti South MP

Go here to read the rest:
BBI: The case for the first amendment to the 2010 Constitution - The Star, Kenya