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Section 230

Changes to Section 230 Might Lead To Removal of Legitimate Speech, Subtract from Historical Record



Screenshot taken from South By Southwest event

March 17, 2021 – Changes to Section 230 of the Communications Decency Act may not lead to the solution that America wants or needs, said panelists during a South by Southwest event Tuesday.

Section 230 grants immunity to social media platforms for user-generated content. It’s an increasingly visible topic before Congress, in the media and in the tech industry as many are concerned about the spread of misinformation and extremism. Like many others, the panel agreed that something needs to change, but the answer to that is not clear.

For Kate Ruane, senior legislative counsel at the American Civil Liberties Union, one of the main concerns is data algorithms that tech companies use for moderating content. They’ll build systems “that will identify speech that is ‘bad’ or could create a liability risk, they will build those programs and just run them automatically, and there will be no human review of it. And what’s going to happen is far, far more over-moderation than anybody intends,” she said.

Marginalized communities and speech that is considered outside the mainstream will be targeted, she explained. “Speech like that is speech that we want,” she said. “We don’t get marriage equality without speech like that, we don’t get Black Lives Matter without speech like that,” she said.

Rather than changing Section 230, Ruane targeted the core business model for big tech companies like Google, Facebook and Twitter. “Actually go after the business model of these companies, which is to collect your data, and market you as the product,” she said. If we can interrupt that, we’re moving in the right direction, she said.

Steven Rosenbaum, managing director at NYC Media Lab, said that disturbing online content is good revenue for social media platforms because users are drawn to it like people driving past a car accident. But these companies need to address the philosophical question of whether they want to support the amplification of this type of content, he said.

In recent months, social media companies have engaged in de-platforming users, including the Twitter ban of former-President Donald Trump after a group of his supporters caused a riot at the U.S. Capitol on January 6, and Amazon Web Services shut down servers for the conservative social media site Parler. But many other instances have happened over the years, such as AWS shutting down the news publication site Wikileaks in 2010 and various social media platforms collectively targeting ISIS in 2015.

Facebook also suspended Trump’s account, but that action is currently under review by the company’s new oversight board—a committee formed in 2020 that is akin to the Supreme Court for Facebook’s content moderation.

Protecting user’s freedom of speech is a concern for many, but Twitter and Facebook are not required to ensure the first amendment rights of their users. Despite that, Ruane said that companies need to be viewpoint-neutral in how they moderate content. “It is very important for platforms like Twitter, FB, YouTube, that are responsible for the speech of billions of people around the world, to be avoiding censorship to the extent that they can, because they are gatekeepers to the public square. And when they moderate content, they often get it wrong,” she said.

Social media has been a medium for recruiting and spreading violent groups, such as ISIS and, more recently, far-right extremists. Much of that content has been banned from online platforms, which the panelists agreed was a good thing.

Determining what content is removed can be a challenge though, depending on what type it is, said Amarnath Amarasingam, professor at Queen’s University in Canada. ISIS content was fairly easy to target because a lot of it was branded, he said. But with other content, such as from far-right extremist groups, it is more difficult because those groups don’t have a brand, he said.

But preserving that content in some way is also important for academic and historical reasons, said Jillian York, director for international freedom of expression at the Electronic Frontier Foundation, stressing the importance of documenting human rights. She expressed concern over the loss of content that is being scrapped from the internet that details atrocities and other problems in areas like Syria.

“There is a case to be made even if that material should not be allowed to be publicly posted, that it should still be documented in some way, and the vast majority of it is thrown in the bin of history by content moderators,” she said.

Ruane agreed with York, referring to the Capitol riot as a recent example. “We’re seeing so much evidence, we’re seeing so much documentation of what happened on January 6 being removed from the internet entirely with no sense of whether we will be able to preserve it for research value or for historical value at all,” she said.

Ruane also expressed concern about the lack of transparency from tech companies in their decisions to remove users and content. These platforms are not consistent and are not transparent, she said.

Whether or not de-platforming actually works to limit one’s influence is a major question. The panel said it is possible that users banned from mainstream sites may find other platforms that agree with their sentiments.

Reporter Tim White studied communication and political science at the University of Utah, and previously worked on Capitol Hill for a member of Congress. A native of Salt Lake City, he escapes to the Pacific Northwest as often as he can. He is passionate about politics, Star Wars, and breakfast cereal.

Section 230

Supreme Court Sides With Google and Twitter, Leaving Section 230 Untouched

A wide range of tech industry associations and civil liberties advocates applauded the decision to leave Section 230 untouched.



Photo of Justice Clarence Thomas by Stetson University used with permission

WASHINGTON, May 18, 2023 — The Supreme Court on Thursday sided with Google and Twitter in a pair of high-profile cases involving intermediary liability for user-generated content, marking a significant victory for online platforms and other proponents of Section 230.

In Twitter v. Taamneh, the court ruled that Twitter could not be held liable for abetting terrorism by hosting terrorist content. The unanimous decision was written by Justice Clarence Thomas, who had previously signaled interest in curtailing liability protections for online platforms.

“Notably, the two justices who have been most critical of Section 230 and internet platforms said nothing of the sort here,” said Ari Cohn, free speech counsel at TechFreedom.

In a brief unsigned opinion remanding Gonzalez v. Google to the Ninth Circuit, the court declined to address Section 230, saying that the case “appears to state little, if any, plausible claim for relief.”

A wide range of tech industry associations and civil liberties advocates applauded the decision to leave Section 230 untouched.

“Free speech online lives to fight another day,” said Patrick Toomey, deputy director of the ACLU’s National Security Project. “Twitter and other apps are home to an immense amount of protected speech, and it would be devastating if those platforms resorted to censorship to avoid a deluge of lawsuits over their users’ posts.”

John Bergmayer, legal director at Public Knowledge, said that lawmakers should take note of the rulings as they continue to debate potential changes to Section 230.

“Over the past several years, we have seen repeated legislative proposals that would remove Section 230 protections for various platform activities, such as content moderation decisions,” Bergmayer said. “But those activities are fully protected by the First Amendment, and removing Section 230 would at most allow plaintiffs to waste time and money in court, before their inevitable loss.”

Instead of weakening liability protections, Bergmayer argued that Congress should focus on curtailing the power of large platforms by strengthening antitrust law and promoting competition.

“Many complaints about Section 230 and content moderation policies amount to concerns about competition and the outsize influence of major platforms,” he said.

The decision was also celebrated by Sen. Ron Wyden, D-Ore., one of the statute’s original co-authors.

“Despite being unfairly maligned by political and corporate interests that have turned it into a punching bag for everything wrong with the internet, the law Representative [Chris] Cox and I wrote remains vitally important to allowing users to speak online,” Wyden said in a statement. “While tech companies still need to do far better at policing heinous content on their sites, gutting Section 230 is not the solution.”

However, other lawmakers expressed disappointment with the court’s decision, with some — including Rep. Cathy McMorris Rodgers, R-Wash., chair of the House Energy and Commerce Committee — saying that it “underscores the urgency for Congress to enact needed reforms to Section 230.”

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Broadband Roundup

White House Meets AI Leaders, FTC Claims Meta Violated Privacy Order, Graham Targets Section 230

The Biden administration announced $140 million in new funding for national AI research.



Photo of Vice President Kamala Harris by Gage Skidmore used with permission

May 5, 2023 — Vice President Kamala Harris and other senior officials on Thursday met with the CEOs of Alphabet, Anthropic, Microsoft and OpenAI to discuss the risks associated with artificial intelligence technologies, following the administration’s announcement of $140 million in funding for national AI research.

President Joe Biden briefly stopped by the meeting, telling the tech leaders that “what you’re doing has enormous potential and enormous danger.”

Government officials emphasized the importance of responsible leadership and called on the CEOs to be more transparent about their AI systems with both policymakers and the general public.

“The private sector has an ethical, moral and legal responsibility to ensure the safety and security of their products,” Harris said in a statement after the meeting.

In addition to the new investment in AI research, the White House announced that the Office of Management and Budget would be releasing proposed policy guidance on government usage of AI systems for public comment.

The initiatives announced Thursday are “an important first step,” wrote Adam Conner, vice president of technology policy at the Center for American Progress. “But the White House can and should do more. It’s time for President Joe Biden to issue an executive order that requires federal agencies to implement the Blueprint for an AI Bill of Rights and take other key actions to address the challenges and opportunities of AI.”

FTC claims Facebook violated privacy order

The Federal Trade Commission on Wednesday proposed significant modifications to its 2020 privacy settlement with Facebook, accusing the company of violating children’s privacy protections and improperly sharing user data with third parties.

The suggested changes would include a blanket prohibition against monetizing the data of underage users and limits on the uses of facial recognition technology, among several other constraints.

“Facebook has repeatedly violated its privacy promises,” said Samuel Levine, director of the FTC’s Bureau of Consumer Protection. “The company’s recklessness has put young users at risk, and Facebook needs to answer for its failures.”

Although the agency voted unanimously to issue the order, Commissioner Alvaro Bedoya expressed concerns about whether the changes exceeded the FTC’s limited order modification authority. “I look forward to hearing additional information and arguments and will consider these issues with an open mind,” he said.

Meta responded to the FTC’s action with a lengthy statement calling it a “political stunt” and outlining the changes that have been implemented since the original order.

“Let’s be clear about what the FTC is trying to do: usurp the authority of Congress to set industry-wide standards and instead single out one American company while allowing Chinese companies, like TikTok, to operate without constraint on American soil,” wrote Andy Stone, Meta’s director of policy communications, in a statement posted to Twitter.

Meta now has thirty days to respond to the proposed changes. “We will vigorously fight this action and expect to prevail,” Stone said.

Sen. Graham threatens to repeal Section 230 if tech lobby kills EARN IT Act

The Senate Judiciary Committee on Thursday unanimously approved the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act, a controversial bill that would create new carveouts to Section 230 in an attempt to combat online child sexual abuse material.

But Sen. Lindsey Graham, R-S.C., the bill’s cosponsor and ranking member of the committee, expressed doubt about the legislation’s future, claiming that “the political and economic power of social media companies is overwhelming.”

“I have little hope that common-sense proposals like this will ever become law because of the lobbying power these companies have at their disposal,” he said in a statement on Thursday. “My next approach is going to be to sunset Section 230 liability protection for social media companies.”

If Congress fails to pass legislation regulating social media companies, Graham continued, “it’s time to open up the American courtrooms as a way to protect consumers.”

However, large tech companies are not the only critics of the EARN IT Act. The American Civil Liberties Union on Thursday urged Congress to reject the proposed legislation, alongside two other bills related to digital privacy.

“These bills purport to hold powerful companies accountable for their failure to protect children and other vulnerable communities from dangers on their services when, in reality, increasing censorship and weakening encryption would not only be ineffective at solving these concerns, it would in fact exacerbate them,” said Cody Venzke, ACLU senior policy counsel.

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Section 230

Narrowing Section 230 Could Destroy Smaller Platforms, Warns Nextdoor

Many small to mid-sized platforms operate on a business model that relies on content moderation.



Screenshot of Nextdoor Global Head of Policy Laura Bisesto from the CCIA webinar

WASHINGTON, April 4, 2023 — Narrowing Section 230 protections for online services could have significant economic repercussions, particularly for smaller platforms that rely on content curation as a business model, according to experts at a panel hosted by the Computer & Communications Industry Association Research Center on Tuesday.

“There’s really unintended consequences for the smaller players if you take a ‘one size fits all’ approach here,” said Laura Bisesto, global head of policy, privacy and regulatory compliance for Nextdoor.

Many small to mid-sized platforms operate on a business model that relies on content moderation, Bisesto explained. For example, Reddit hosts thousands of active forums that are each dedicated to a stated topic, and consumers join specific forums for the purpose of seeing content related to those topics.

Similarly, Bisesto claimed that Nextdoor’s proximity-based content curation is what makes the platform competitive.

“We want to make sure you’re seeing relevant, very hyper-local content that’s very timely as well,” she said. “It’s really important to us to be able to continue to use algorithms to provide useful content that’s relevant, and any narrowing of Section 230 could really impede that ability.”

Algorithmic organization is also crucial for large platforms that host a broad range of content, said Ginger Zhe Jin, a professor of economics at the University of Maryland. The sheer volume of content on platforms such as YouTube — which sees 500 hours of new video uploaded each minute — would make it “impossible for consumers to choose and consume without an algorithm to sort and list.”

Without Section 230, some companies’ platforms might choose to forgo the use of algorithms altogether, which Jin argued would “undermine the viability of the internet businesses themselves.”

The alternative would be for companies to broadly remove any content that could potentially generate controversy or be misinterpreted.

“Either way, we’re going to see maybe less content creation and less content consumption,” Jin said. “This would be a dire situation, in my opinion, and would reduce the economic benefits the internet has brought to many players.”

Who should be updating Section 230?

In February, the Section 230 debate finally reached the Supreme Court in a long-awaited case centered around intermediary liability. But some industry experts — and even multiple Supreme Court justices — have cast doubt on whether the court is the right venue for altering the foundational internet law.

Bisesto argued that the question should be left to Congress. “They drafted the law, and I think if it needs to be changed, they should be the ones to look at it,” she said.

However, she expressed skepticism about whether lawmakers would be able to reach a consensus, highlighting the “fundamental disagreement” between the general Republican aim of leaving more content up and Democratic aim of taking more content down.

If the Supreme Court refrains from major changes, “pressure will increase for Congress to do something as the 50 different states are passing different statutes on content moderation,” said Sarah Oh Lam, a senior fellow at the Technology Policy Institute.

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