Alt-Right Twitter App Developers Sue Google After Gab.Ai App Is Kicked Out Of The Play Store
from the symbolic-acts-of-litigation dept
Google’s decision to boot a controversial social media app from its Play store has resulted in a lawsuit. And it’s a very strange lawsuit — one that attempts to turn inconsistent moderation efforts into anti-trust allegations against Google.
Some background information is necessary. Some of this can be gleaned from the complaint [PDF], which was put together by Marc Randazza (of First Amendment fame), Ron Coleman (key to the Slants’ Supreme Court trademark win), and Jordan Rushie (who has participated in/fought against copyright trolling efforts). Given the litigation credentials behind the filing, it’s surprising there’s not more to the complaint.
But first, the background:
Gab.ai is the plaintiff in this suit. Gab sprung to life as a Twitter alternative, built in response to a perceived crackdown on alt-right accounts. It’s not as though the accusations are false. Twitter has frequently applied its moderation standards unequally, resulting in bans and shadowbans of alt-right accounts. As the lawsuit points out, Twitter removed alt-right figurehead Milo Yiannopoulos verified checkmark — not because Milo wasn’t who he said he was, but because it apparently didn’t like him or his millions of followers. Six months later, Twitter banned him for good, citing his harassment of actress Leslie Jones.
So, much like Voat became a Reddit for people who thought Reddit censored too much speech, Gab became Twitter for those who felt Twitter censored too much speech. Gab became a mostly-free alternative Twitter, supported by subscribers, and heavily-populated by alt-right Twitter users.
Gab claims to embrace free speech. It engages in very little moderation of users’ content, only culling certain content like child porn, posting of private information, threats, spam, and use of the platform to sell illegal goods. It does not police “hate speech” like Facebook, Twitter, and Google do. It’s the last part that bothers Google. Or at least that’s the stated reason for Google’s ban of Gab from its app store.
But this wasn’t Gab’s first app store ban. Apple blocked it twice, first citing pornographic content as the reason. (Obviously, Twitter allows pornographic posts and yet remains available in the iOS app store…) Gab added porn-blocking by default but was rejected again by Apple, with the company pointing to its rules on hate speech.
Pretty much the same thing happened with Google. Google claimed Gab did not include a “sufficient level of moderation” and did not act to remove content “encouraging violence and hate against groups of people.”
Gab’s response to Google’s ban pointed out it shouldn’t need to police speech that isn’t actually unlawful just to stay in Google’s app store graces. Roughly a month after Google’s decision, Gab has sued. What should probably have been left to public shaming of Google for belatedly distancing itself from Gab’s social media construct has now become a plea for federal intercession.
The lawsuit runs down the history of Gab, as well as Twitter’s shutdown of prominent alt-right/white supremacist accounts. The antitrust action appears to be limited to Google’s partnership with Twitter. Google now has access to Twitter’s “firehose” — all public posts from all Twitter users in real time. This allows Google to return tweets in its search results.
Apparently, this partnership — combined with Google’s domination of Android app services — is evidence of Google’s anticompetitive behavior. The problem with the argument is Google’s unwieldy application of its app store policies doesn’t appear to be Google attempting to eliminate a competitor. Gab doesn’t directly compete with Google+. If anything, it’s a Twitter competitor. Google’s only interest in Twitter is better search results. Kicking Gab out of the app store doesn’t remove its web presence, nor does it prevent Gab users from downloading the app directly from Gab itself.
Much is made of the danger of sideloading apps. And it’s true sideloading poses greater risks to Android users, especially if they’re careless with their sources. While this behavior is somewhat discouraged by the Android system during phone setup, the option to sideload can be turned on and off as needed to allow the installation of apps not included in Google’s Play store.
The lawsuit makes better points about removal from the Play store having deleterious financial effects on Gab, including the loss of ad placements in Google store and targeted ad campaigns utilizing Google’s tools to find new app users.
Included in the filing are several reasons why Gab’s removal is inconsistent with Google’s own app policies. But that doesn’t turn this into an anticompetitive act on Google’s part. The end result may be indistinguishable but there are plenty of innocuous reasons for the app’s removal that have nothing to do with Google killing Gab to protect its partnership with Twitter.
But that’s pretty much what the filing hopes the judge will find. Google’s history of anticompetitive behavior is detailed in the lawsuit, as well as its forays into patent enforcement. Twitter’s inconsistent application of its policies to shut down alt-right accounts is also detailed, providing evidence of nothing, considering Twitter isn’t party to this lawsuit.
Hidden in all of this are two paragraphs on Section 230 which misconstrue protections afforded to entities like Gab.
Even if it were possible for a social media platform to censor “defamatory and mean-spirited content” generated by 250,000 users, a level of content censorship by a social media platform that extended to “defamatory” and “mean-spirited” content place at risk that service’s status as a protected Internet Service Provider, as opposed to a publisher or speaker, under 47 U.S. Code § 230, also known as Section 230 of the Communications Decency Act (“CDA”).
Unlike an Internet Service Provider, a publisher or speaker is not granted the “safe harbor” benefits of Section 230, and may be held liable for defamation or other torts or other liability arising from content published on a platform it owns or manages.
This assertion greatly misconstrues how Section 230 protections work. This would be worth noting in any case, but especially so since it involves Marc Randazza, who has penned screeds pointing out the opposite: moderation efforts by ISPs do not undermine Section 230 protections.
I do delete comments from time to time. If I notice them and they are “excessively violent” or “harassing” or “otherwise objectionable,” I delete them. Why? First, its my blog, so my fucking rules. You have a right to express yourself, but not necessarily here. Second, I have absolutely no doubt in my mind that I can delete one comment and leave 100 filthy, objectionable, harassing, defamatory, nasty, and brutish comments and still not be liable.
Section 230 has been a wonderful thing. It has allowed the Internet to grow, and allowed services like Facebook, Craigslist, Fling.com, Pissedconsumer.com, and any number of other fun websites to exist. It allows me to have a comments section on each post, without worrying about whether I’ll be liable for something posted there. It does foster free speech online. So hooray Section 230.
And the relevant part of Section 230, being brushed aside here to portray Gab’s lack of moderation as somehow being essential to its 230 protections:
No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected…
Indeed, it’s this very part of CDA 230 that likely will help Google get this lawsuit tossed. Under widely established precedents concerning CDA 230, Google is free to moderate its platform — in this case, the Android Play Store — however it likes, without increasing its own liability. To misrepresent CDA 230 by saying that moderation takes away CDA 230 protections… and then ignoring that those same protections probably prevent this lawsuit is just strange.
This is a bizarre lawsuit, to say the least. It almost looks like a proxy salvo in the ongoing war between the “Alt-Right” and the “Establishment Left,” which is no longer political parties in power but West Coast tech companies shutting down speech they don’t like.
The problem is, Google can legally police speech however it wants. It pays the price in goodwill and public perception, but arbitrary enforcement of app store policies isn’t the same thing as antitrust violations, even if the end result is the death of apps and platforms.
At the end of it, we’re left with a lawsuit that serves mostly to cater to its base: pissed off Gab users. That’s fine, if that’s all you want from your legal representation. Google’s booting of the Gab app isn’t any more correct than this resulting lawsuit. It’s a move that caters to its base: progressives who feel speech they don’t like shouldn’t be allowed anywhere.
Google’s motivations for the shutdown are probably as simplistic as they are inexcusable: Google simply didn’t want to be known as the place where people could go to get the Gab app. Apple’s earlier rejection relegated it to the Android ghetto and Google is engaging in broken windows policing. It’s ugly all over and it does nothing to reconcile diametrically-opposed thinking, but it’s not anticompetitive. It’s just stupid.