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A Short History of Online Free Speech, Part I: The Communications Decency Act Is Born

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Photo of Chuck Grassley in April 2011 by Gage Skidmore used with permission

WASHINGTON, August 19, 2019 — Despite all the sturm und drang surrounding Section 230 of the Communications Decency Act today, the measure was largely ignored when first passed into law 23 years ago. A great deal of today’s discussion ignores the statute’s unique history and purposes as part of the short-lived CDA.

In this four-part series, Broadband Breakfast reviews the past with an eye toward current controversies and the future of online free speech.

This article looks at content moderation on early online services, and how that fueled concern about indecency in general. On Tuesday, we’ll look at how Section 230 is similar to and different from America’s First Amendment legacy.

On Wednesday, in Part III, Broadband Breakfast revisits the reality and continuing mythology surrounding the “Fairness Doctrine.” Does it or has it ever applied online? And finally, on Thursday, we’ll envision what the future holds for the legal treatment of “hate speech.”

While most early chat boards did not moderate, Prodigy did — to its peril

The early days of the internet were dominated by online service providers such as America Online, Delphi, CompuServe and Prodigy. CompuServe did not engage in any form of content moderation, whereas Prodigy positioned itself as a family-friendly alternative by enforcing content guidelines and screening offensive language.

It didn’t take long for both platforms to be sued for defamation. In the 1991 case Cubby v. CompuServe, the federal district court in New York ruled that CompuServe could not be held liable for third party content of which it had no knowledge, similar to a newsstand or library.

But in 1995, the New York supreme court ruled in Stratton Oakmont v. Prodigy that the latter platform had taken on liability for all posts simply by attempting to moderate some, constituting editorial control.

“That such control is not complete…does not minimize or eviscerate the simple fact that Prodigy has uniquely arrogated to itself the role of determining what is proper for its members to post and read on its bulletin boards,” the court wrote.

Prodigy had more than two million subscribers, and they collectively generated 60,000 new postings per day, far more than the platform could review on an individual basis. The decision gave them no choice but to either do that or forgo content moderation altogether.

Many early supporters of the internet criticized the ruling from a business perspective, warning that penalizing online platforms for attempting to moderate content would incentivize the option of not moderating at all. The resulting platforms would be less useable, and by extension, less successful.

The mid-1990s seemed to bring a cultural crises of online indecency

But an emerging cultural crisis also drove criticism of the Stratton Oakmont court’s decision. As a myriad of diverse content was suddenly becoming available to anyone with computer access, parents and lawmakers were becoming panicked about the new accessibility of indecent and pornographic material, especially to minors.

A Time Magazine cover from just two months after the decision depicted a child with bulging eyes and dropped jaw, illuminated by the ghastly light of a computer screen. Underneath a bold title reading “cyberporn” in all caps, an ominous headline declared the problem to be “pervasive and wild.”

And then it posed the question that was weighing heavily on certain members of Congress: “Can we protect our kids — and free speech?”

The foreboding study behind the cover story, which was entered into the congressional record by Sen. Chuck Grassley, R-Iowa, was found to be deeply flawed and Time quickly backpedaled. But the societal panic over the growing accessibility of cyberporn continued.

Thus was born the Communications Decency Act, meant to address what Harvard Law Professor Howard Zittrain called a “change in reality.” The law made it illegal to knowingly display or transmit obscene or indecent content online if such content would be accessible by minors.

Challenges in keeping up with the sheer volume of indecent content online

However, some members of Congress felt that government enforcement would not be able to keep up with the sheer volume of indecent content being generated online, rendering private sector participation necessary.

This prompted Reps. Ron Wyden, D-Ore., and Chris Cox, R-Calif., to introduce an amendment to the CDA ensuring that providers of an interactive computer service would not be held liable for third-party content, thus allowing them to moderate with impunity.

Section 230 — unlike what certain politicians have claimed in recent months — held no promise of neutrality. It was simply meant to protect online Good Samaritans trying to screen offensive material from a society with deep concerns about the internet’s potential impact on morality.

“We want to encourage people like Prodigy, like CompuServe, like America Online, like the new Microsoft network, to do everything possible for us, the customer, to help us control, at the portals of our computer, at the front door of our house, what comes in and what our children see,” Cox told his fellow representatives.

“Not even a federal internet censorship army would give our government the power to keep offensive material out of the hands of children who use the new interactive media,” Wyden said. Such a futile effort would “make the Keystone Cops look like crackerjack crime-fighters,” he added, referencing comedically incompetent characters from an early 1900s comedy.

The amendment was met with bipartisan approval on the House floor and passed in a 420–4 vote. The underlying Communications Decency Act was much more controversial. Still, it was signed into law with the Telecommunications Act of 1996.

Although indecency on radio and TV broadcasts have long been subject to regulation by the Federal Communications Commission, the CDA was seen as an assault on the robust world of free speech that was emerging on the global internet.

Passage of the CDA as part of the Telecom Act was met with online outrage.

The following 48 hours saw thousands of websites turn their background color to black in protest as tech companies and activist organizations joined in angry opposition to the new law.

Critics argued that not only were the terms “indecent” and “patently offensive” ambiguous, it was not technologically or economically feasible for online platforms and businesses to screen out minors.

The American Civil Liberties Union filed suit against the law, and other civil liberties organizations and technology industry groups joined in to protest.

“By imposing a censorship scheme unprecedented in any medium, the CDA would threaten what one lower court judge called the ‘never-ending world-wide conversation’ on the Internet,” said Ann Beeson, ACLU national staff attorney, in 1997.

By June of 1997, the Supreme Court had struck down the anti-indecency provisions of the CDA. But legally severed from the rest of the act, Section 230 survived.

Section I: The Communications Decency Act is Born

Section II: How Section 230 Builds on and Supplements the First Amendment

Section III: What Does the Fairness Doctrine Have to Do With the Internet?

Section IV: As Hate Speech Proliferates Online, Critics Want to See and Control Social Media’s Algorithms

Development Associate Emily McPhie studied communication design and writing at Washington University in St. Louis, where she was a managing editor for campus publication Student Life. She is a founding board member of Code Open Sesame, an organization that teaches computer skills to underprivileged children in six cities across Southern California.

Antitrust

Former Federal Trade Commission Chairman Says Biden is Inappropriately Exhorting the Agency

Former Chairman William Kovacic said that Biden’s direction of the FTC raises expectations for the agency.

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Photo of George Washington University professor William Kovacic giving a lecture in 2017 from the university

WASHINGTON, January 28, 2022 – A former Federal Trade Commission chairman criticized the Biden administration’s direction of the FTC to accomplish the president’s antitrust goals.

At a Wednesday forum of the Mercatus Institute, former FTC Chairman William Kovacic criticized Joe Biden’s “instruction, direction, and exhortation” to the FTC, which is an independent agency and not part of the executive branch.

In July, President Biden directed regulators to craft rules preventing manufacturers like Microsoft and Apple from restrict consumers’ ability to fix their own devices. After the FTC voted unanimously to increase its enforcement against “right to repair” restrictions, both Microsoft and Apple announced plans for consumers to repair their own products.

Kovacic said that Biden almost appears to have the attitude that he “gave [the FTC and DOJ] an assignment” to advance the Biden administration’s consumer protection goals.

Then imagining that he was arguing from the perspective of the Biden administration, Kovacic said Biden could argue that he gave the FTC “an assignment to work on those guidelines and an exhortation to the FTC to get the work done,” as opposed to specific marching orders on the topics.

Mismatched capabilities at the FTC

Kovacic, who served as a commissioner at the FTC beginning in 2006, and who chaired the agency from 2008 to 2009, said the FTC has a history of mismatching its commitments with its capabilities.

In developing consumer protection programs, currently a professor of law at George Washington University, said the FTC often fails to ask “basic questions about who would do it, how long it would take, how much it would cost, and whether or not the institution has the credibility or capacity” to administer successful programs.

Kovacic said that in order to achieve a successful regulatory agenda, there must be a “stability of perspectives” that will endure across administrations.

Policymakers should be mindful not to abandon the resistance from total regulatory overhaul that he said “afflicted” his predecessors as chairs of the agency.

“Everybody will step forward and say, ‘I have my list.’ I suspect the Commission already is getting a letter each day from members of Congress saying, ‘here’s another one.’”

Recalling the many prior presidents’ push for regulators to control petroleum prices – including by President Biden in November – Kovacic said the FTC can’t always deliver.

“Whenever there’s going to be a problem the new leadership, seen as competition policy superheroes, will be exhorted to do something, and it will not be an adequate response to say, ‘we’ve already got a lot on the agenda, we’ll get to it when we can.'”

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International

Facebook is Failing Iranians, and Iran’s Leaders Are About to Launch a Censored Internet

Social media platforms are harming Iran due to their ignorance of Iranian culture and the nation’s primary dialects.

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Photo of Mahsa Alimardani, Iran program officer for Article19, from March 2018 by ITU Pictures

WASHINGTON, January 28, 2022 – A lack of cultural understanding by Facebook, Instagram, and other social media platforms is a prevailing reason for inaccurate content moderation in Iran, Middle East experts said.

Moreover, and they said, Iran’s proposed international internet replacement, the National Information Network, is dangerously close to coming into effect.

Speaking at a Thursday event of the Atlantic Council designed to draw attention to the current status of social media in Iran, a human rights expert said that Big Tech’s chronic misunderstanding of the Persian language leads to censorship of content that is either entertainment-based or posted by Iranian activists.

Panelists at the event also highlighted a new report “Iranians on #SocialMedia,” as the inspiration for the discussion.

Facebook “needs someone who actually understands what is going on on the ground,” claimed Simin Kargar, a human rights and technology research fellow at Digital Forensic Research Lab. Because the company don’t employ or contract with such people, said Kargar, the platform and its sister Instagram are inappropriately censoring posts in the country.

Because of the platforms’ negligence in understanding and adapting to local concerns, the Iranian people are not benefiting from the internet.

And – because Iran also heavily monitoring and censoring the internet within its borders, the Iranian people end up being hindered by the double-whammy of Iranian and Facebook censorship, Kargar said.

Iranian censorship and Facebook censorship

Mahsa Alimardani, a researcher with the human rights organization Article19, agreed that misconceptions due to language are a dangerous foe. She made this comment when asked what America can do to help and whether American sanctions have played play a part in the rise in content moderation.

All panelists at the event said that while American sanctions against Iran impact the internet in the country, they are not responsible for what is currently happening in Iran.

However, Alimardani also blamed Meta, the new corporate name for the company that runs Facebook and Instagram, for improper and excessive content moderation.

She said Facebook currently flag anything related to the Iranian guard after the Trump Administration created a list of dangerous people that should be restricted on social media. She disagreed that the Islamic Revolutionary Guard Corps should be listed as a foreign terrorist organization.

Is the National Information Network a new model for authoritarian regimes?

The National Information Network, the new censored internet that Iran is currently working to implement, had been planned to launch in March. Alimardani said she believes that the release will be postponed because of disagreements about who within the government will control content moderation, and the impact the firewall could have on Iranian tech companies.

Alimardani highlighted the unique nature of the Iranian law that created the national internet. Instead of being voted on by the Iranian Parliament, the legislative body deferred action on the creation of a permanent national internet only until after an experimental period with the firewall, she said.

Yet the government has been pushing its own online streaming and video platforms. These platforms are part of the government’s attempt to incentivize an Iranian national “internet.”

Throwing cheap broadband into a censored internet to sweeten the pot?

Essentially, said Kargar, the government is promising more bandwidth at a lower cost through the National Information Network. The new network is also appealing to Iranian consumers because the NIN will primarily be in the country’s major dialect.

Holly Dagres, a nonresident fellow with the Atlantic Council’s Middle East Programs and the author of the “Iranians on #SocialMedia”, also spoke on the NIN. She said it would take Iran back to the Middle Ages, and also limit communication with other Iranians and with the outside world.

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Antitrust

Consolidation, Bloat, and a Waning American ‘Brand’ Hurt the Economy, Says Tim Wu

He argued that fundamental changes must be made to restore peoples’ faith in an American system that works for everyone.

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Photo of Tim Wu from January 2017 on Wikipedia Day used with permission

WASHINGTON, January 26, 2022 –White House Special Assistant Tim Wu said Wednesday that the U.S. economy is over-consolidated and bloated in the middle.

Speaking at an event hosted by the Institute for Local Self-Reliance, Wu, a member of the National Economic Council with a portfolio over Technology and Competition Policy, argued that that the “American dream” has suffered major setbacks in recent decades.

Wu, who is credited with coining the term “net neutrality” and a longstanding critic of telecom monopolies, has more recently become an outspoken critic of big technology companies.

See also:

“We can see very vividly how fragile this concentrated economic system we built has been and how poorly it is working for the whole country,” Wu said.

“Our country has become too centralized. It is too national in its character – in terms of where businesses are location – too centered on consumption, as opposed to production.

“Too many of the [economic] returns go to too few people who often live very far away from the communities they serve.”

Hearkening to the post-World War II decades in which Western nations endorsed significant government intervention in the economy as part of social democracy, Wu said that America is “relearning the virtues and merits of a mixed economy – that is the truer American tradition of small and medium business – market structures where [people] can all survive and prosper; what [President Joe Biden] calls ‘an economy that works for everyone.’”

Can elements of a new form of social democracy be revived in a technology-drenched age?

Wu distilled his criticisms to three primary points: Too many industries have become too consolidated, a bloated “middleman” economy has emerged, and the “American brand” has diminished.

“We have all seen so many industries consolidate into just the ‘big three’ or ‘big four,’” Wu said. “That is a traditional problem that I think extracts a lot from the economy.”

Wu went on to explain the “middleman” economy – a rise of a “highly concentrated middle layer” across many industries. This bloat on the processing end takes place somewhere between the inception of a product or service and the consumer is extracting too much revenue, Wu said.

“When you think about monopoly – which is just high prices – it leads to this problem where the middlemen have power over their suppliers and are able to squeeze their suppliers and also often able to squeeze their employees,” Wu said. This is “a new kind of problem for the economy, and one that we need to face.”

ILSR’s Stacey Mitchell and Tim Wu.

What is the ‘American brand’?

Wu’s final point related to what he referred to as the “American brand.”

“There has been a real sense that the sense of opportunity that has been the ‘American brand’ has diminished,” he said. “The statistics are a little depressing that confirm this.”

75 percent of U.S. industries are controlled by fewer companies than they were 20 years ago, Wu said. He pointed to mergers that skyrocketed in the 1980s and predicted that 2022 will feature a record number of mergers.

“These are real challenges and I just want to assure you that the administration of the White House is very focused on [them] and we see it not just in terms of the economy, but in terms of the Democratic soul of this nation,” Wu said. “Freedom and opportunity are not trivial things when it comes to describing what democracy is all about.

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