North Dakota Bill Would Let Censored Citizens Sue Facebook, Twitter(arstechnica.com)
arstechnica.com
North Dakota Bill Would Let Censored Citizens Sue Facebook, Twitter
https://arstechnica.com/tech-policy/2021/01/facebook-and-twitter-could-be-sued-for-censorship-under-proposed-state-law/
45 comments
"There's no question that this would target conduct immune under federal law—and, in fact, if [Section] 230 were repealed nobody could ever be liable under this law (since it only reaches immune conduct)," Cohen wrote. In other words, the North Dakota bill is "incredibly stupid," he wrote.
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This is a pretty biased take from that random person on Twitter that ArsTechnica is quoting (this is all sourced from just this person's tweets). The proposed bill has value in terms of gauging legislative support, inviting copycat bills, in terms of building momentum across states, and ultimately leading to a better piece of legislation that meaningfully protects citizens from big tech censorship. It doesn't have to be viable or "succeed" in the first iteration. You see this tactic (passing something that has no viability) all the time from legislators and activists that are left-leaning in states like California/Oregon/Washington, and now right-leaning states' politicians are adopting the same strategy as well.
It also allows a separate route through the federal court system, except one with the potential to be state funded.
To what ends? Idk- but I'd say interpretation of the "good-faith" aspect of section 230 is ripe for review.
To what ends? Idk- but I'd say interpretation of the "good-faith" aspect of section 230 is ripe for review.
Why do people want to repeal 230? It would make any site with user generated content completely neutered and things like Parler or gab would be sued to oblivion immediately
I think it’s mostly been because they’ve been fed a lot false narrative about what section 230 is. It’s been circulating that 230 somehow is allowing companies like Twitter and Facebook to censor whom they wish, and that is resulting in some kind of repression of conservative viewpoints (in the US).
I don’t think people (including those who have been pushing for it’s repeal) understand the consequences of its elimination.
I don’t think people (including those who have been pushing for it’s repeal) understand the consequences of its elimination.
Section 230 does allow companies to censor who they wish on their sites.
Section 230 provides that sites have no liability for user content, and they have no liability for moderating user content, subject to some limited exceptions for certain types of prohibited content, or prohibited moderation.
With existing case law, in my mind repealing section 230 without replacement would mean going back to the old standard, which was more or less don't moderate and have no liability for user content, or moderate perfectly, because you are liable for content your moderation missed. You would probably also have some liability to users whose content you moderated off, but I don't know that I've seen a case with those specifics.
Section 230 provides that sites have no liability for user content, and they have no liability for moderating user content, subject to some limited exceptions for certain types of prohibited content, or prohibited moderation.
With existing case law, in my mind repealing section 230 without replacement would mean going back to the old standard, which was more or less don't moderate and have no liability for user content, or moderate perfectly, because you are liable for content your moderation missed. You would probably also have some liability to users whose content you moderated off, but I don't know that I've seen a case with those specifics.
Before 230 the standard was "let's hope we dont make anyone mad enough they want to come after us". All online locations where people can post content in any form have to be moderated. This idea of a "neutral platform" is imaginary.
Yes this is about right. 230 allows moderation, but does not obligate it. Pretty much leaves full discretion to the platform and moderating one thing is not a commitment to moderate anything else.
One is the key examples that highlighted the need for this was Jordan "Wolf of Wall Street" Belfour's company suing Prodigy for allowing users to talk negatively about it on message boards.... and winning! https://en.m.wikipedia.org/wiki/Stratton_Oakmont,_Inc._v._Pr...
One is the key examples that highlighted the need for this was Jordan "Wolf of Wall Street" Belfour's company suing Prodigy for allowing users to talk negatively about it on message boards.... and winning! https://en.m.wikipedia.org/wiki/Stratton_Oakmont,_Inc._v._Pr...
I feel like it's silly to not to carve out legal space for social media to be something other than a common carrier.
FOSTA/SESTA already impose moderation requirements regardless of what section 230 says.
“Repeal section 230” is a rallying cry kind of like “defund the police” - it’s not the desired end state, but a statement that the status quo is unacceptable and pointing to a major reason why. It’s just another example of sound bite politics.
> “Repeal section 230” is a rallying cry kind of like “defund the police” - it’s not the desired end state
Well, neither states an end state, only an action, but “defund the police” is both exact and literal as to what is sought, so if you are saying “repeal section 230” is not, then the comparison is poorly chosen.
Well, neither states an end state, only an action, but “defund the police” is both exact and literal as to what is sought, so if you are saying “repeal section 230” is not, then the comparison is poorly chosen.
I do not think this is really true, the proposal published by Bill Barr's DOJ did not call it a repeal but if you examine the actual legal contents of it it wasn't a reform at all [1].
> On the whole, the Justice Department initiative is worse than an outright repeal of Section 230. It invites internet firms to chase an increasingly elusive quarry of immunity for third-party content while exposing them to a wider range of legal liability.
To quote President Trump, REPEAL SECTION 230!!! [2]. It's not really called sound bite politics if somebody consistently keeps saying something and also tries to do something about it.
[1] https://www.brookings.edu/techstream/trumps-section-230-refo...
[2] https://www.thetrumparchive.com/?searchbox=%22section+230%22
> On the whole, the Justice Department initiative is worse than an outright repeal of Section 230. It invites internet firms to chase an increasingly elusive quarry of immunity for third-party content while exposing them to a wider range of legal liability.
To quote President Trump, REPEAL SECTION 230!!! [2]. It's not really called sound bite politics if somebody consistently keeps saying something and also tries to do something about it.
[1] https://www.brookings.edu/techstream/trumps-section-230-refo...
[2] https://www.thetrumparchive.com/?searchbox=%22section+230%22
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Which people? The informed political factions that want to repeal, reform, or revise 230 have different goals from each other (and, on some cases, different goals than the ones they use to sell the idea to their followers.)
Because if they want to censor, I want to make them liable for their editorializing.
Without 230 you wouldn't be able to comment anywhere on the net. Where all content has to be reviewed and accepted. I don't see how this is going to reduce censorship. If anything it helps big content companies silence opinion.
Without 230, Businesses would use decentralised tech to process comments if they feel comments are integral part of their business model.
No, without 230 businesses just wouldn't have business models where UGC without pre-publication editorial review was part of their business model because there would be no way to make such a business model viable in the face of liability. General liability law was evolving in ways which were starting to make that clear at the time the Communications Decency Act was being drafted, which is why Section 230, a protection that was seen as essential to prevent the imminent destruction of the participatory net, was included in the CDA as a major tool to get political support for supporting the state censorship that made up the rest of the CDA. (Perhaps ironically, Section 230 is the only operative part of the CDA not struck down as unconstitutional.)
They would still be legally liable for that content, even if it were decentralized.
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I like the idea myself. Either everybody gets free speech or nobody does, the law can be amended to force accommodation of unpopular speech or it can be torn down so that everyone is equally silenced. I'm well passed letting millionaire sjw children do whatever they want.
You have freedom of speech. Make your own platform. Freedom of speech does not mean freedom of social and business repercussions by others. You don't get to use a private companies business to forcefully host your content.
Repealing 230 means you don't get an opinion on the net anymore. The threat of legal repercussions are a lot more censoring than twitter. Content will still be made by companies and they'll still continue whatever information manipulation they're up to.
Perhaps it's not the 'sjw children'. Maybe it's that your position is wrong and others arent going to put up with it. There's social repercussions the same as anywhere else.
Repealing 230 means you don't get an opinion on the net anymore. The threat of legal repercussions are a lot more censoring than twitter. Content will still be made by companies and they'll still continue whatever information manipulation they're up to.
Perhaps it's not the 'sjw children'. Maybe it's that your position is wrong and others arent going to put up with it. There's social repercussions the same as anywhere else.
"Make your own platform." That worked well for Parler and Gab, right? Let's be honest, the people who are pressuring big tech companies and others to deplatform and censor their political adversaries are doing so because they want to deny any power to those they disagree with. It won't stop with social media companies, because then they go to the app store vendors. It won't stop with app store vendors because then they go to the hosting providers. And from there it will undoubtedly go to backbone carriers. And ultimately to power utilities. And they'll be denied payment processing and other financial services.
At some point, this line of thinking will culminate in jailing dissidents and denying them basic services like public transportation. Wait that's already happening, with transit unions asking to create no ride lists (https://www.cato.org/blog/transit-unions-dhs-give-america-no...). And the supporters of such policies actually feel they hold the moral high ground to criticize the CCP for social credit scores.
I also don't get why people keep claiming "you don't get to do X with a private business". We regulate private business all the time. If you disagree, then lift all the COVID restrictions and let every business open up. Or remove regulations from existing utilities, from airlines, from financial services, etc. Or let a private business refuse to bake a cake. Otherwise, drop this trope because it is trite and unhelpful.
Ultimately the reason why the "private company" argument does not work is because there is no real choice or competition at all for the tech companies. First, social media companies have little competition due to the moats of their network effects. Second, to the extent there is competition (say between Apple and Google's app stores/mobile phone platforms), there is indirect collusion because these companies all exist in Silicon Valley and reflect the political culture of their headquarters - which is why they make the same decisions on the same day. Third, Google, Amazon, Apple, Facebook, Microsoft, and likely others are way too big and in a sane world would need to be broken up on anti-trust grounds. Fourth, Facebook and Twitter are the public's digital town square. The mere technicality of them being private is a poor excuse for recognizing their role as a public utility. They should be regulated to carry all speech that is not explicitly illegal.
At some point, this line of thinking will culminate in jailing dissidents and denying them basic services like public transportation. Wait that's already happening, with transit unions asking to create no ride lists (https://www.cato.org/blog/transit-unions-dhs-give-america-no...). And the supporters of such policies actually feel they hold the moral high ground to criticize the CCP for social credit scores.
I also don't get why people keep claiming "you don't get to do X with a private business". We regulate private business all the time. If you disagree, then lift all the COVID restrictions and let every business open up. Or remove regulations from existing utilities, from airlines, from financial services, etc. Or let a private business refuse to bake a cake. Otherwise, drop this trope because it is trite and unhelpful.
Ultimately the reason why the "private company" argument does not work is because there is no real choice or competition at all for the tech companies. First, social media companies have little competition due to the moats of their network effects. Second, to the extent there is competition (say between Apple and Google's app stores/mobile phone platforms), there is indirect collusion because these companies all exist in Silicon Valley and reflect the political culture of their headquarters - which is why they make the same decisions on the same day. Third, Google, Amazon, Apple, Facebook, Microsoft, and likely others are way too big and in a sane world would need to be broken up on anti-trust grounds. Fourth, Facebook and Twitter are the public's digital town square. The mere technicality of them being private is a poor excuse for recognizing their role as a public utility. They should be regulated to carry all speech that is not explicitly illegal.
There are plenty of T1 locations where you can colocate or use a companies provided solutions. They take private payments not subject to credit card companies.
Also known as "learn how to build servers".
Private businesses don't have to bake the cake. Equating gay discrimination to online opinions is not genuine. Having regulation does not mean you should regulate everything.
You're conflating private companies with government. Private companies can tell you to pound sand if you say something they don't like, that's their right same as any individual. Government cannot come after you for your speech.
Private entities doing this is very good reason why government does not at all have to be involved nor should be.
People that don't respect this explicit difference are wrong, but that does not mean the private companies actions are wrong either.
Lack of essential utilities prevents people from basic operation in society. No electricity means no water which means no sanitation, which becomes a significant public health problem that harms other people. No propane/electricity means no heat, no cooling, which can lead to you freezing in the north or dying of heat in the south.
You're not going to be severely irrepeirably harmed or have your economic freedoms restricted by not having twitter.
Social media companies are too big. Tax the rich, fund a government created version of twitter.
Also known as "learn how to build servers".
Private businesses don't have to bake the cake. Equating gay discrimination to online opinions is not genuine. Having regulation does not mean you should regulate everything.
You're conflating private companies with government. Private companies can tell you to pound sand if you say something they don't like, that's their right same as any individual. Government cannot come after you for your speech.
Private entities doing this is very good reason why government does not at all have to be involved nor should be.
People that don't respect this explicit difference are wrong, but that does not mean the private companies actions are wrong either.
Lack of essential utilities prevents people from basic operation in society. No electricity means no water which means no sanitation, which becomes a significant public health problem that harms other people. No propane/electricity means no heat, no cooling, which can lead to you freezing in the north or dying of heat in the south.
You're not going to be severely irrepeirably harmed or have your economic freedoms restricted by not having twitter.
Social media companies are too big. Tax the rich, fund a government created version of twitter.
You have no right to use others private property.
So it in effect makes it a crime to not host content from malicious individuals?
This isn't as strange conceptually as you make it sound. Power companies can't legally cut off electricity to consumers that they deem "malicious", even if they're violent actual neo-nazis or tankies, let alone the infinitely lower bar you're using.
What's under discussion is whether "the new public square" of Twitter/Facebook/et al constitute the same manner of oligopolistically-provided service that everyone has a right to.
What's under discussion is whether "the new public square" of Twitter/Facebook/et al constitute the same manner of oligopolistically-provided service that everyone has a right to.
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Power companies (1) get paid by their users, and (2) are heavily - and sensibly - regulated utilities. They are understood to be companies that operate in a very different business environment from the majority of other businesses. That is what also gives them the ability to place their equipment on other people's private property.
And remember that a power company can cut off power to people if they are intentionally attempting to disrupt the power system, or simply not paying.
And remember that a power company can cut off power to people if they are intentionally attempting to disrupt the power system, or simply not paying.
> are heavily - and sensibly - regulated utilities. They are understood to be companies that operate in a very different business environment from the majority of other businesses.
Yes, this is what's under discussion. One side of the debate thinks that the big social media products are critical enough to societal (and especially political) discourse that access should be guaranteed through regulation. It's a rather radical claim, and not one I'm sure I agree with, but it's not self-inconsistent.
> And remember that a power company can cut off power to people if they are intentionally attempting to disrupt the power system, or simply not paying.
Yes, and FB/Twitter can ban people for plenty of reasons that no one considers particularly controversial or critical. As with the power companies, the claim is that doing so for expressing legal-but-unpopular political speech is not conducive to the health of civic discourse and thus democracy.
> Power companies (1) get paid by their users
I don't see what this has to do with anything.
Yes, this is what's under discussion. One side of the debate thinks that the big social media products are critical enough to societal (and especially political) discourse that access should be guaranteed through regulation. It's a rather radical claim, and not one I'm sure I agree with, but it's not self-inconsistent.
> And remember that a power company can cut off power to people if they are intentionally attempting to disrupt the power system, or simply not paying.
Yes, and FB/Twitter can ban people for plenty of reasons that no one considers particularly controversial or critical. As with the power companies, the claim is that doing so for expressing legal-but-unpopular political speech is not conducive to the health of civic discourse and thus democracy.
> Power companies (1) get paid by their users
I don't see what this has to do with anything.
The electric utilities have a government created monopoly, and that truly justifies their obligation to serve everyone. AWS has no such monopoly nor obligation.
If you don't like it, you might be politically aligned with a progressive value: Regulate monopolies not speech.
If you don't like it, you might be politically aligned with a progressive value: Regulate monopolies not speech.
Perhaps you should reread my comments... This is exactly the claim that I'm describing. The claim rests on the premise that these companies are abusing their monopolistic or oligopolistic position over something posited as critical to society. Regulating viewpoint-based discrimination is one proposed remedy (another is removing "monopolies" by eg requiring federation). Nobody in this entire thread is saying that these platforms are legally in the wrong for inconsistently-applied viewpoint-based deplatforming. If they want to ban people for claiming the election was rigged or supporting single-payer healthcare or liking avocados, there's no legal issue at all. The topic under discussion is whether there should be, resting on the premise that these platforms are critical enough to public discourse that something like the utility model is appropriate.
Note that I'm speaking in the voice of those making this claim, not personally espousing the claim. My inclination is away from kneejerk regulation, and I don't think distribution on the Internet fits neatly into the existing categories we use to reason about market power. I'm just shocked at the degree to which so many HNers are gleefully misrepresenting the issue, presumably so they don't have to engage in any critical thinking.
Note that I'm speaking in the voice of those making this claim, not personally espousing the claim. My inclination is away from kneejerk regulation, and I don't think distribution on the Internet fits neatly into the existing categories we use to reason about market power. I'm just shocked at the degree to which so many HNers are gleefully misrepresenting the issue, presumably so they don't have to engage in any critical thinking.
> > Power companies (1) get paid by their users
> I don't see what this has to do with anything.
By and large people don't pay to use social media, so while a person uses power even if the utility company doesn't like it, they are still compensated.
If someone is using social media for reasons/things they don't like, they're now going to take the publicity hit for hosting it, while also paying to host it against their will.
I'd have more sympathy for the argument if the people forcing the hosting of content against the SMCs will had some system for compensating the SMC as well.
By and large people don't pay to use social media, so while a person uses power even if the utility company doesn't like it, they are still compensated.
If someone is using social media for reasons/things they don't like, they're now going to take the publicity hit for hosting it, while also paying to host it against their will.
I'd have more sympathy for the argument if the people forcing the hosting of content against the SMCs will had some system for compensating the SMC as well.
Neo nazis are not using the service to degrade the service of others and cause serious harm using electricity. If you somehow found a way to use electricity in a way that ruined it for the rest of your street you would get shut down pretty fast
I don't know if you've been following the news, but the removals under discussion haven't been on the basis of "degrading the service for other users". Leaving aside how ill-defined such a standard is, if that were the bar, Twitter would have to remove most of its users.
Again, I'm not taking a position here, but the legions of strawmen being propped up to misrepresent one side of the discussion isn't helping anyone (or one could say, "is degrading the service for other users").
Again, I'm not taking a position here, but the legions of strawmen being propped up to misrepresent one side of the discussion isn't helping anyone (or one could say, "is degrading the service for other users").
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As if Eternal September wasn’t eternal enough.
I believe this bill messes up in two ways:
First, it engages in content-based discrimination. If passed, it'd face immediate First Amendment challenges. It's exceedingly hard to pass a law that discriminates based upon the content of speech.
Second, it's trying to overwrite parts of Section 230 and seems, at least on its face, as blatantly violating the Supremacy Clause of the Constitution.
I don't see this going anywhere.
First, it engages in content-based discrimination. If passed, it'd face immediate First Amendment challenges. It's exceedingly hard to pass a law that discriminates based upon the content of speech.
Second, it's trying to overwrite parts of Section 230 and seems, at least on its face, as blatantly violating the Supremacy Clause of the Constitution.
I don't see this going anywhere.
Canter and Siegel would approve of this law.
There's no market for a social network just for people in North Dakota, so North Dakota doesn't really have any leverage in situations like this.