WASHINGTON, February 25, 2020 – Two high-profile panelists, including the president of American University and the CEO of the New America think tank, took issue with America’s free-wheeling freedom of speech tradition at a Monday event.
American University President Sylvia M. Burwell and New America CEO Anne-Marie Slaughter grappled with the negative consequences of technology and the strain created by freedom of speech at the university’s Washington College of Law. Burwell suggested that along with the negative effects of internet usage, American values are at stake, showing that harmful internet speech is “embedded in the larger issues.”
Slaughter said that companies are now the face of American values and they are not “universally favored.”
Although both panelists agreed that freedom of expression is crucial to the United States’ democracy, technology has drastically changed the landscape of free speech.
There are “four things that change the dynamic” of freedom of expression through technology: speed, amplification, removal of nuance, and speed of response, said Burwell.
Burwell said that there is a need for better education, something she is trying to implement on the American University campus through specific courses.
Burwell said that students need to get the “facts before [they] use [their] voice”—thereby fostering civil discourse instead of disinformation.
At this point, this isn’t a “cut and dry free speech issue,” said Slaughter.
Slaughter said that America’s “absolutist free speech tradition” no longer holds in this new technological terrain.
When asked by the audience what greater accountability for tech companies might look like, Slaughter said that the United States needs a “legal framework.” Burwell agreed that the U.S. needs a new “legal and policy construct.”
Facebook is the “largest country in the world,” said Slaughter. The U.S. needs to recognize that Facebook occupies public and private sectors, said Slaughter.
The moderator asked how the panelists can distinguish between novel situations brought about by tech and patterned consequences from innovation. Slaughter said the creation of new technology and the realization that it has harmful consequences is not new, like the role of technology in World War I mass killing, said Slaughter.
What is new is the lack of personalization, “particularly in a world where there is less community than ever before,” stated Slaughter.
However, other panelists at the event argued that “obnoxious” speech is not unprecedented in America.
For example, American University School of Communication Professor W. Joseph Campbell argued that “obnoxious speech” can be traced back through American history.
Campbell said the close of the 19th century was the “proto-twitter” world. He said he does not consider the age of harsh political rhetoric unique to the 21st century.
University of British Columbia Assistant Professor Heidi Tworek said she notices a “nostalgia” for the eras “before the internet.” From a history perspective, Tworek said the past also exhibits stretched boundaries of free speech; this isn’t a modern phenomenon.
“The present can sometimes catch up with history,” argued Tworek.
Judge Rules Exemption Exists in Section 230 for Twitter FOSTA Case
Latest lawsuit illustrates the increasing fragility of Section 230 legal protections.
August 24, 2021—A California court has allowed a lawsuit to commence against Twitter from two victims of sexual trafficking, who allege the social media company initially refused to remove content that exploited the underaged plaintiffs – and then went viral.
The anonymous plaintiffs allege that they were manipulated into making pornographic videos of themselves through another social media app, Snapchat, after which the videos were posted on Twitter. When the plaintiffs asked Twitter to take down the posts, it refused, and it was only after the Department of Homeland Security got involved that the social media company complied.
At issue in the case is whether Twitter had any obligation to remove the content at least “immediately” under Section 230 of the Communications Decency Act, which provides legal liability protections for the content the platforms’ users post.
The court ruled Thursday that the case should proceed after finding that Twitter knowingly knew such content was on the site, had to have known it was sex trafficking, and refused to do something about it immediately.
“The Court finds that these allegations are sufficient to allege an ongoing pattern of conduct amounting to a tacit agreement with the perpetrators in this case to allow them to post videos and photographs it knew or should have known were related to sex trafficking without blocking their accounts or the Videos,” the decision read.
“In sum, the Court finds that Plaintiffs have stated a claim for civil liability under the [Trafficking Victims Protection Reauthorization Act] on the basis of beneficiary liability and that the claim falls within the exemption to Section 230 immunity created by FOSTA.”
The Stop Enabling Sex Traffickers Act and the Allow States and Victims to Fight Online Sex Trafficking Act that became the package law SESTA-FOSTA was passed in 2018 and amended immunity claims under Section 230 to exclude enforcement of federal or state sex trafficking laws from intermediary protections.
The court dismissed other claims against the company made by the plaintiffs, but met the relatively low bar to move the case forward.
The plaintiffs allege that Twitter violated the TVPRA because it allegedly knew about the videos, benefitted from them and did nothing to address the problem before it went viral.
Twitter argued that FOSTA, as applied to the CDA, only narrowly applies to websites that are “knowingly assisting and profiting from reprehensible crimes;” the plaintiffs allegedly fail to show that the company “affirmatively participated” in such crimes; and the company cannot be held liable “simply because it did not take the videos down immediately.”
Experts asserted companies may hesitate to bring Section 230 defense in court
The case is yet another instance of U.S. courts increasingly poking holes in arguments brought by technology companies that suggests they cannot be liable for content on their platforms, per Section 230, which is currently the subject of hot debate in Washington about whether to reform it or completely abolish it.
A number of state judges have ruled against Amazon, for example, and its Section 230 defense in a number of case-specific instances in Texas and California. Experts on a panel in May said if courts keep ruling against the defense, there may be a deluge of lawsuits to come against companies.
And last month, citing some of these cases, lawyers argued that big tech companies may begin to shy away from bringing the 230 defense to court in fear of awakening lawmakers to changing legal views on the provision that could ignite its reform.
Facebook, Google, Twitter Register to Lobby Congress on Section 230
Companies also want to discuss cybersecurity, net neutrality, taxes and privacy.
August 3, 2021 — The largest social media companies have registered to lobby Congress on Section 230, according to lobby records.
Facebook, Google, and Twitter filed new paperwork late last month to discuss the internet liability provision under the Communications Decency Act, which protects these companies from legal trouble for content their users post.
Facebook’s registration specifically mentions the Safe Tech Act, an amendment to the provision proposed earlier this year by Sens. Amy Klobuchar, D-Minnesota, Mark Warner, D-Virginia, and Mazie Hirono, D-Hawaii, which would largely keep the provision’s protections except for content the platforms are paid for.
A separate Facebook registration included discussion on the “repeal” of the provision.
Other issues included in the Menlo Park-based company’s registration are privacy, data security, online advertising, and general regulations on the social media industry.
Google also wants to discuss taxes and cybersecurity, as security issues take center stage following high-profile attacks and as international proposals for a new tax regime on tech companies emerge.
Notable additional subject matters Twitter includes in its registration are content moderation practices, data security, misinformation, and net neutrality, as the Federal Communications Commission is being urged to bring back Obama-era policies friendly to the principle that ensures content cannot be given preferential treatment on networks.
Section 230 has gripped Congress
Social media critics have been foaming at the mouth over possible retaliatory measures against the technology companies that have taken increasingly strong measures against those that violate its policies.
Those discussions picked up steam when, at the beginning of the year, former President Donald Trump was banned from Twitter, and then from Facebook and other platforms, for allegedly stoking the Capitol Hill riot on January 6. (Trump has since filed a lawsuit as a private citizen against the social media giants for his removal.)
Since the Capitol riot, a number of proposals have been put forward to amend — in some cases completely repeal — the provision to address what some Republicans are calling outright censorship by social media companies. Even Florida tried to take matters into its own hands when it made law rules that penalized social media companies that banned politicians. That law has since been put on hold by the courts.
The social media giants, and its allies in the industry, have pressed the importance of the provision, which they say have allowed once-fledgling companies like Facebook to be what it is today. And some representatives think reform of the law could lean more toward amendment than outright repeal. But lawyers have warned about a shift in attitude toward those liability protections, as more judges in courts across the country hold big technology companies accountable for harm caused by the platforms.
Companies May Hesitate Bringing Section 230 Arguments in Court Fearing Political Ramifications: Lawyers
Legal experts say changing views on Section 230 will make platforms less willing to employ that defense in future cases.
July 14, 2021—Legal experts are speculating that companies may shy away from testing Section 230 arguments in future court cases because recent legal decisions against the defense could influence political action on amending the intermediary liability provision.
Section 230 of the Communications Decency Act offers online platforms immunity from civil liability based on content their users post on their websites. But recent decisions by various courts that have ruled against the companies’ Section 230 defenses and held them liable for incidents could have a lasting effect on how companies approach these cases.
“People are being a lot more thoughtful when they use a 230 defense, and sometimes not using one at all, because they realize that that just won’t bode well for their future cases,” Michele Lee, assistant general counsel and the head of litigation at social media company Pinterest, said at a conference hosted by the Federal Communications Bar Association on Tuesday.
“The number of companies that operate within this space, frankly, aren’t that many. And I think people are thinking much more long term than just the cases that are in front of them.”
Legal experts at the conference argued that firms would be increasingly selective about what cases they elect to employ for a Section 230 defense. The more attention it receives, they argue, the more likely it is to receive political attention, which could reignite discussion about its reform.
Debate about what to do with Section 230 has enamored Capitol Hill for many months, with the climax of discussions occurring after former President Donald Trump was banned from several platforms at the start of the year for comments he made on the services that allegedly stoked the Capitol riot on January 6.
Since then, several proposed amendments were put forth, including from Sen. Amy Klobuchar, D-Minnesota, who proposed to keep Section 230 protections largely the same except for paid content.
And last month, Sen. Marco Rubio, R-Florida, introduced his own proposed legislation, which would “halt Big Tech’s censorship of Americans, defend free speech on the internet, and level the playing field to remove unfair protections that shied massive Silicon Valley firms from accountability.”
Legal precedent and policy: two vehicles for change
The concern for companies that provide platforms for the flow of information is that they could lose certain liability protections through legislation or a change in precedent. Historically, those protections did take up much mental real estate for Congresspeople, the White House and is often held up in court.
But that tide may be shifting.
In May, the court ruled against the popular messaging company Snapchat’s Section 230 defense, claiming that it could be held civilly liable because it had created a dangerous product following the death of a 20-year-old Snapchat user who crashed his car in 2020 while using a filter on the app that rewarded fast driving.
Reaching 120 miles-per-hour at one point, the crash also killed two teenage passengers. Two of the victims’ parents sued Snapchat for wrongful death, claiming that the reward system on that filter encouraged reckless driving.
The case was thrown out of court on Section 230 grounds, but the Ninth Circuit Appeals Court revived the case, reversing the ruling and favoring the victims, holding Snapchat liable for creating an inherently dangerous product.
Carrie Goldberg, founder of C.A. Goldberg, a victims’ rights law firm, said Tuesday that this ruling offers a “small window of online platform accountability,” in which platforms might be held liable for published content when that content demonstrates a harm to the public.
Goldberg referenced another case out of Texas last month, where the state’s supreme court ruled that Facebook could be held liable after three plaintiffs filed separate suits against the company, alleging that they became victims of sex trafficking, being lured in through people they met on Facebook and Instagram.
Facebook claimed immunity through Section 230, but the court sided with the plaintiffs, saying the provision does not “create a lawless no-man’s-land on the Internet.” The court made a further clarification that Section 230 protects online platforms from the words or actions of others, but “[h]olding internet platforms accountable for their own misdeeds is quite another thing.”
This particular case may only be applicable to Texas jurisdiction, however, and hold little impact for the rest of the country, as part of the case was fought using a Texas-specific statute that allows civil lawsuits “against those who intentionally or knowingly benefit from participation in a sex-trafficking venture.”
In May, observers noted that a number of these legal decisions reversing course on Section 230 matters could lead to a floodgate of other lawsuits across the country.
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