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Section 230

Greene, Paul Social Media Developments Resurface Section 230 Debate

Five days into the new year and two developments bring Section 230 protections back into focus.

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Georgia Republican Representative Marjorie Taylor Greene

WASHINGTON, January 5, 2022 – The departure of Republican Kentucky Senator Rand Paul from YouTube and the banning of Georgia Republican Representative Marjorie Taylor Greene from Twitter at the beginning of a new year has rekindled a still lit flame of what lawmakers will do about Section 230 protections for Big Tech.

Paul removed himself Monday from the video-sharing platform after getting two strikes on his channel for violating the platform’s rules on Covid-19 misinformation, saying he is “[denying] my content to Big Tech…About half of the public leans right. If we all took our messaging to outlets of free exchange, we could cripple Big Tech in a heartbeat.”

Meanwhile, Greene has been permanently suspended from Twitter following repeated violations of Twitter’s terms of service. She has previously been rebuked by both her political opponents and allies for spreading fake news and mis/disinformation since she was elected in 2020. Her rap sheet includes being accused of spreading conspiracy theories promoting white supremacy and antisemitism.

It was ultimately the spreading of Covid-19 misinformation that got Greene permanently banned from Twitter on Sunday. She had received at least three previous “strikes” related to Covid-19 misinformation, according to New York Times. Greene received a fifth strike on Sunday, which resulted in her account’s permanent suspension.

Just five days into the new year, Greene’s situation – and the quickly-followed move by Paul – has reignited the tinderbox that is Section 230 of the Communications Decency Act, which shields big technology platforms from any liability from posts by their users.

As it stands now, Twitter is well within its rights to delete or suspend the accounts of any person who violates its terms of service. The right to free speech that is protected by the First Amendment does not prevent a private corporation, such as Twitter, from enforcing their rules.

In response to her Tweets, Texas Republican Congressman Dan Crenshaw called Greene a “liar and an idiot.” His comments notwithstanding, Crenshaw, like many conservative legislators, has argued that social media companies have become an integral part of the public forum and thus should not have the authority to unilaterally ban or censor voices on their platforms.

Some states, such as Texas and Florida, have gone as far as making it illegal for companies to ban political figures. Though Florida’s bill was quickly halted in the courts, that did not stop Texas from trying to enact similar laws (though they were met with similar results).

Crenshaw himself has proposed federal amendments to Section 230 for any “interactive computer service” that generates $3 billion or more in annual revenue or has 300 million or more monthly users.

The bill – which is still being drafted and does not have an official designation – would allow users to sue social media platforms for the removal of legal content based on political views, gender, ethnicity, and race. It would also make it illegal for these companies to remove any legal, user generated content from their website.

Under Crenshaw’s bill, a company such as Facebook or Twitter could be compelled to host any legal speech – objectionable or otherwise – at the risk of being sued. This includes overtly racist, sexist, or xenophobic slurs and rhetoric. While a hosting website might be morally opposed to being party to such kinds of speech, if said speech is not explicitly illegal, it would thus be protected from removal.

While Crenshaw would amend Section 230, other conservatives have advocated for its wholesale repeal. Sen. Lindsey Graham, R-South Carolina, put forward Senate Bill 2972 which would do just that. If passed, the law would go into effect on the first day of 2024, with no replacement or protections in place to replace it.

Consequences of such legislation

This is a nightmare scenario for every company with an online presence that can host user generate content. If a repeal bill were to pass with no replacement legislation in place, every online company would suddenly become directly responsible for all user content hosted on their platforms.

With the repeal of Section 230, websites would default to being treated as publishers. If users upload illegal content to a website, it would be as if the company published the illegal content themselves.

This would likely exacerbate the issue of alleged censorship that Republicans are concerned about. The sheer volume of content generated on platforms like Reddit and YouTube would be too massive for a human moderating team to play a role in.

Companies would likely be forced to rely on heavier handed algorithms and bots to censor anything that could open them to legal liability.

Democratic views

Republicans are not alone in their criticism of Section 230, however. Democrats have also flirted with amending or abolishing Section 230, albeit for very different reasons.

Many Democrats believe that Big Tech uses Section 230 to deflect responsibility, and that if they are afforded protections by it, they will not adjust their content moderation policies to mitigate allegedly dangerous or hateful speech posted online by users with real-world consequences.

Some Democrats have written bills that would carve out numerous exemptions to Section 230. Some seek to address the sale of firearms online, others focus on the spread of Covid-19 misinformation.

Some Democrats have also introduced the Safe Tech Act, which would hold companies accountable for failing to “remove, restrict access to or availability of, or prevent dissemination of material that is likely to cause irreparable harm.”

The reality right now is that two parties are diametrically opposed on the issue of Section 230.

While Republicans believe there is unfair content moderation that disproportionately censors conservative voices, Democrats believe that Big Tech is not doing enough to moderate their content and keep users safe.

Reporter Ben Kahn is a graduate of University of Baltimore and the National Journalism Center. His work has appeared in Washington Jewish Week and The Center Square, among other publications. He he covered almost every beat at Broadband Breakfast.

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.

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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.

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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.

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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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