GOP Senators Release Latest Truly Stupid Section 230 Reform Bill; Would Remove 'Otherwise Objectionable'; Enable Spamming

from the this-is-not-the-reform-you're-looking-for dept

Honestly, you’d think that the Senate might have a few more important things to be working on right now than introducing what has to be the… what… 8th bill to try to rewrite Section 230 of the Communications Decency Act this year? Either way, three Senators on the Commerce Committee have released yet another truly ridiculous attempt at reforming Section 230. Senators Roger Wicker, Lindsey Graham, and Marsha Blackburn are the three clueless Senators behind the ridiculously named “Online Freedom and Viewpoint Diversity Act.”

Before we dig deeper, I should remind you that Marsha Blackburn hates net neutrality with the passion of a thousand suns. Hell, she even put together this lovely video nearly a decade ago where she sings the praises of the open internet, and companies like “Facebook, YouTube, Twitter.” And then she says: “There has never been a time that a consumer needed a federal bureaucrat to step in to intervene.”

So, anyway, federal legislator Marsha Blackburn, along with Senators Wicker and Graham have decided to “intervene” in order to attack Facebook, YouTube and Twitter, because those companies are moderating their private property in a way that these Senators don’t like. It seems that they want… a bit more… what’s the word I’m thinking of? Oh, right, “neutrality” in how content moderation works.

Blackburn’s press release quote is particularly hilarious after what she said about net neutrality:

…the contentious nature of current conversations provides perverse incentive for these companies to manipulate the online experience in favor of the loudest voices in the room. There exists no meaningful alternative to these powerful platforms, which means there will be no accountability for the devastating effects of this ingrained ideological bias until Congress steps in and brings liability protections into the modern era.

Oh really? Wicker’s quote is just as dumb:

?For too long, social media platforms have hidden behind Section 230 protections to censor content that deviates from their beliefs,? said Wicker. ?These practices should not receive special protections in our society where freedom of speech is at the core of our nation?s values. Our legislation would restore power to consumers by promoting full and fair discourse online.?

No, Senator, they’ve relied on the 1st Amendment to do that. You know, the thing you swore an oath to protect and defend? Even without Section 230, internet platforms would have every right to take down content. Indeed, they’d likely do so more often to avoid having to fight over it in court.

Meanwhile, Senator Graham’s quote just emphasizes that this legislation is designed to violate the 1st Amendment:

?Social media companies are routinely censoring content that to many, should be considered valid political speech. This reform proposal addresses the concerns of those who feel like their political views are being unfairly suppressed.?

See, here’s the thing about the 1st Amendment, Senator, it means that you don’t get to decide what is and what is not “valid political speech.” It also means you can’t compel speech, meaning you cannot compel private companies to host speech they don’t want.

So what does this silly and unconstitutional bill do? Not what it’s backers think. The key part is that they want to limit the liability protections for moderation to a very specific list of things that the government deems okay to moderate. We’ll get into why that’s unconstitutional shortly, but it is. The first part is that it tries to reinvigorate Section (c)(2) (and then cut it down). If you don’t recall, (c)(1) is the part that says a website can’t be held liable for third party content. (c)(2) then says that a website can’t be held liable for moderation choices. In practice (c)(2) is never used, because courts have determined that holding a website liable for moderation practices would also be making them liable for third party content. So (c)(2) rarely even gets brought up in court.

So this bill first rewrites (c)(1) to say that it “shall not apply to any decision or agreement made or action taken by a provider or user of an interactive computer service to restrict access to or availability of material by another information content provider.” And then further says that any immunity for moderation can only be protected under (c)(2). Then, it totally neuters (c)(2). First, it changes the part that says a website or user can moderate if it “considers” the content “to be” a long list of things “or otherwise objectionable” and now says it has to have the “objectively reasonable belief” of those things — but without the otherwise objectionable part. It would strike the term “otherwise objectionable” from (c)(2)(A) and replace it with: “promoting self-harm, promoting terrorism, or unlawful.” That would then make it say that (new parts in bold):

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user has an objectively reasonable belief is obscene, lewd, lascivious, filthy, excessively violent, harassing, promoting self-harm, promoting terrorism, or unlawful.”

So… the end result is that moderation decisions would no longer be protected under (c)(1), and without the “otherwise objectionable” only a limited number of categories of content would get this protection under (c)(2). Note that “posting disinformation,” for example, would no longer be covered. So, under this, Section 230 would no longer protect a website if it pulled down disinformation about, say, an election. Or COVID safety. Also it would seem to remove spam from 230 protections.

Of course, sites would almost certainly still be protected under the 1st Amendment, but it would be a hell of a lot more expensive for companies to defend against a slew of vexatious lawsuits regarding their moderation practices. This would be a full employment bill for tort lawyers (remember when Republicans used to whine about tort lawyers and their vexatious lawsuits?).

Finally, the bill would also change the definition regarding what constitutes an “information content provider.” The law has always said that an ICP is anyone “that is responsible, in whole or in part, for the creation or development” of the content in question. Thus, in the Roommates.com case, Roommates was found to be the ICP for the content that potentially violated the Fair Housing Act, and therefore did not get 230 protections over that content (but did get 230 protections over actual 3rd party content).

In the new bill, it tries to redefine the “being responsible” bit to say that it “includes any instance in which a person or entity editorializes or substantively modifies the content of another person or entity.”

You can think of this is the “make Twitter liable for fact checking Trump” clause. Of course, as I’ve argued in the past, the content of Twitter’s fact check was never protected by 230 in the first place. Because it created that content. However, that content is 100% protected by the 1st Amendment. As would almost all content moderation decisions even under this bill.

So this bill would create a bunch of wasteful litigation and probably end up in the same basic place: platforms still able to moderate content, though they could face more expensive lawsuits about it all.

But it’s also worth highlighting that the bill itself is obviously unconstitutional. By limiting the types of content that gets immunity protections, these three Senators have created a bill that is literally the opposite of content neutral. The Supreme Court has made it clear that you can’t pass laws that are not content neutral. And this bill explicitly is not — saying that only certain types of pre-approved content get legal protections (even if the content itself is legal), and others don’t. That’s a huge 1st Amendment no-no. In Ward v. Rock Against Racism, the Supreme Court said it pretty clearly:

Government regulation of expressive activity is content neutral so long as it is “justified without reference to the content of the regulated speech.”

Yet here, the content is directly referenced, with a list of acceptable moderation reasons.

Either way the end result here is that (1) the bill is obviously unconstitutional, (2) it won’t create more speech online, (3) won’t stop Trump and his fans from getting fact checked, but (4) might lead to a bunch of wasteful litigation that will lose in the end, and (5) might destroy niche communities, and (6) encourage spam.

Those last two are kind of important. Because it would mean that niche communities might face vexatious lawsuits for moderating merely off-topic content. And it would mean that nearly all spam filtering is no longer protected by 230. Again, in the long run, they’d likely be protected under the 1st Amendment, but boy would there be wasteful litigation in the middle.

Anyway, I’m only moderately amused that this ridiculously unconstitutional piece of garbage, which focuses on the removal of the phrase “otherwise objectionable” happens to be released the day after we released “otherwise objectionable” merchandise. I guess get it while it still matters?

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Comments on “GOP Senators Release Latest Truly Stupid Section 230 Reform Bill; Would Remove 'Otherwise Objectionable'; Enable Spamming”

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76 Comments
This comment has been deemed insightful by the community.
That One Guy (profile) says:

The 'Stop Moderating Assholes' bill, take 8

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user has an objectively reasonable belief is obscene, lewd, lascivious, filthy, excessively violent, harassing, promoting self-harm, promoting terrorism, or unlawful."

Under that change one could easily argue that content that promotes one race/gender/sexuality as inherently superior to others would be out of bounds for moderation, along with blatant lies, delightful positions as holocaust denial or arguing that Hitler was an amazing guy and had some great ideas…

By trying to force sites to only be able to moderate specific things one can fairly easily infer what they want protected, and to say it’s damning both of their person and their positions is a monumental understatement.

Stephen T. Stone (profile) says:

Re: A proper example:

Under that proposed change, religious anti-LGBT propaganda could potentially be out of bounds for moderation so long as it wasn’t aimed directly at an LGBT person on the service. That means someone could post something that openly advocates for the torture that is “conversion ‘therapy’ ” and could avoid getting dinged for that post so long as they don’t tag a queer person in the post.

This comment has been deemed insightful by the community.
Scary Devil Monastery (profile) says:

Re: The 'Stop Moderating Assholes' bill, take 8

"Under that change one could easily argue that content that promotes one race/gender/sexuality as inherently superior to others would be out of bounds for moderation, along with blatant lies, delightful positions as holocaust denial or arguing that Hitler was an amazing guy and had some great ideas…"

In other words it would work as intended by the people pushing for this amendment.

Scary Devil Monastery (profile) says:

Re: Re: Re: The 'Stop Moderating Assholes' bill, take 8

Of course. Nothing to do with the fact that the alt-right fuckwits of the KKK and other white supremacy groups are long tired of being shown the door from any civilized establishment and want the law changed so no one can opt to throw the unpleasant dickhead with a bullhorn out from their own property.

I keep saying it, the way the Very Fine People want the law changed, if it were applied to the real world, would prevent Bar owners from banning unruly patrons and homeowners from telling people to get out.

That One Guy (profile) says:

Re: Re: Re:2 'Imma 'murican, you can't throw me out!'

I keep saying it, the way the Very Fine People want the law changed, if it were applied to the real world, would prevent Bar owners from banning unruly patrons and homeowners from telling people to get out.

Given the overlap between the Very Fine People online and offline I imagine that would be seen as a feature, not a bug.

Scary Devil Monastery (profile) says:

Re: Re: Re:3 'Imma 'murican, you can't throw me out!'

"Given the overlap between the Very Fine People online and offline I imagine that would be seen as a feature, not a bug."

Of course it would. The tiki torch-toting mob would just love it if they could run inconvenient non-racist business owners out of business just by sitting around screaming at the customers while the cops were shrugging their shoulders saying "Nothin’ we can do. They’re within their rights. You shoulda thought twice before opening a bar or store in a city with a KKK chapter".

Anonymous Coward says:

Politicians please note that not being able to use the big social media sites doe not prevent online speech; see Parler, Gab etc. Also, will you allow forums, FaceBook goups etc. to remove off topic posts, or will you insist that they allow political speech, and so ensure the destruction forums and groups that want to avoid politics?.

This comment has been flagged by the community. Click here to show it.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re: Re:

Even if that were 100% true — and it’s not — those “editors” still have First Amendment protections. Twitter admins can “editorialize” Trump’s tweets all they want and the government can’t legally do a damn thing about it.

This comment has been deemed insightful by the community.
PaulT (profile) says:

Re: Re: Re:

"You think that the sort of censorship that youtube / twitter et al is protecting "freedom"."

No, he’s saying that they are using their own freedom of speech and freedom of association to ban your stupid ass if you act stupidly, and you don’t have the right to remove their freedoms just because you don’t like that – and that calling the removal of their freedoms some kind of protection of freedom is some Orwellian bullshit.

"If you edit the content of your website by censoring then you are an EDITOR and you lose section 230 protection."

Lol, good luck with that. I can name numerous right-wing cesspools that censor all the time, and I’m happy that you’re calling for them to be shut down, although I disagree with your methods.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: 'We support a free market so long as it supports us.'

‘We support a free market!’

‘The free market has determined that it doesn’t want you around because your arguments are just as horrible as you are.’

‘The free market can hang, platforms must be forced to host us so that we always have a guaranteed audience!’

This comment has been flagged by the community. Click here to show it.

Scary Devil Monastery (profile) says:

Re: Re:

"For left wingers anything that contradicts their propaganda is spam and trolling."

As that "propaganda" often includes observable reality that statement tells us more about you and the "right wing" than it does about "left-wingers".

Tell me more about how drinking bleach might cure covid or that the pandemic itself is a "democrat hoax", eh?

This comment has been deemed insightful by the community.
Anonymous Anonymous Coward (profile) says:

Misinformation

Just who will define misinformation? If them, then anything that denies their viewpoint, or calls bullshit on lies they tell will be misinformation. If an objective reasonable person, then their lies and bullshit (a.k.a. actual misinformation) will be called out, like it is now.

The problem being that if any of these § 230 (ahem) reforms passes (which are all likely unconstitutional) it will take years for it to pass through the courts to be found so, and then it is a serious question that it will be found so. I bet they will start with anyone who complains will have a lack of standing.

In the meantime, think about the damage that will have been done. It is highly possible that they know this and the actual plan is in that damage they could do to cement themselves into positions that will be difficult to be undone.

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Koby (profile) says:

Commercial Spam

Currently, if someone gets ripped off when attempting to purchase illicit drugs, they usually don’t file a police report. Similarly, I don’t expect many commercial spammers to file a lawsuit claiming that their solicitations for bogus products were being removed by moderators. The commercial spammers can’t afford to come out of hiding. Removal of 230 protection against spam won’t increase the levels of spam seen currently, nor does it provide them an avenue for legitimacy in court. No cause for concern.

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Stephen T. Stone (profile) says:

Re:

Removal of 230 protection against spam won’t increase the levels of spam seen currently

Can you guarantee, with the absolute certainty of God Herself, that your statement will hold up if lawmakers get rid of 230 protections for moderating spam?

No cause for concern.

If this were only about spam? Maybe, and that’s still a big maybe. But you know this isn’t only about spam, so stop pretending that it is. You’re not as good a bullshitter as you think you are.

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That One Guy (profile) says:

Re: Re: Re:

Can you guarantee, with the absolute certainty of God Herself, that your statement will hold up if lawmakers get rid of 230 protections for moderating spam?

… obscene, lewd, lascivious, filthy, excessively violent, harassing, promoting self-harm, promoting terrorism, or unlawful."

Barring spam for porn sites with explicit images none of the ‘you are cleared to moderate this’ categories would seem to apply to spam, so no, spam would not be covered and as such any site that took it down would risk legal action, and even if they knew they would win thanks to the first amendment that ‘conservatives’ seem to hate so much it would still be costly, which would lead them to be less likely to do so.

This comment has been deemed insightful by the community.
Rocky says:

Re: Commercial Spam

Removal of 230 protection against spam won’t increase the levels of spam seen currently

This statement belongs together with some other famously wrong statements:

"Television won’t be able to hold on to any market it captures after the first six months. People will soon get tired of staring at a plywood box every night."
-Darryl Zanuck, producer for 20th Century Fox, 1946.

"We don’t like their sound. Groups of guitars are on their way out."
-Decca Recording Company, after rejecting Beatles in 1962.

"No, it will make war impossible."
-Hiram Maxim, inventor of the machine gun

"There is no reason for any individual to have a computer in his home."
-Ken Olson, 1977

Ann Brush (profile) says:

Sign me out

The toxic mess that has followed social media. Why people participate in this garbage is beyond me. Engaging on FB, Twitter, Instagram, Tik Tok etc has become a super unpleasant activity and really diminishes the perceived benefits. It’s the modern equivalent of hate and propaganda leaflets dropped from the air in WWII except now your friends are sending them to you, and you are judged by the ones that land at your door.

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PaulT (profile) says:

Re: Re: Re:3 Re:

"calls Mbps "Millions of Brave People Succumbing" in her first post"

How pathetic do you have to be to try turning a basic descriptive technical term into some kind of political conspiracy? Even as a troll, that’s wallowing in the depths of stupidity.

This comment has been deemed insightful by the community.
Scary Devil Monastery (profile) says:

Re: Re: Re:4 Re:

"How pathetic do you have to be to try turning a basic descriptive technical term into some kind of political conspiracy?"

And in that same comment she uses "Mbps" to determine deaths caused by 5G "waves".

So a technologically illiterate conspiracy nut who believes her own at-home router gives her cancer – because she’s too dumb to realize that 5G is essentially just an attempt to provide smartphones with the same OTA connection as the average wifi router.

Plenty you can say about 5G – that it’s dumb, far past the point of diminishing returns when it comes to data transfer contra range, and that we’d be better off pouring money into expanding the existing 4G network instead…
…but the part where 5G turns into a friggin’ death ray experiment is something you wouldn’t even find in bad superhero comics these days.

I shouldn’t even bring the part up where the person complaining about the toxicity and undesirable qualities of social media tries to make that point…on social media.

PaulT (profile) says:

Re: Re: Re:5 Re:

"And in that same comment she uses "Mbps" to determine deaths caused by 5G "waves"."

I believe I was sufficiently warned not to bother investigating the comment first hand, lest the stupidity affect my ability to finish the rest of my work week. But, I hope someone told her that whichever connection she was using, chances are it’s also measured in Mbps. By her own standards, she’s killing millions of people just to post her drivel!

"I shouldn’t even bring the part up where the person complaining about the toxicity and undesirable qualities of social media tries to make that point…on social media."

Yeah, this happens all the time. I always laugh when I see someone using an open sourced browser to use open protocols to access a site using open sourced web server and database software to whine that open source is evil / will never beat proprietary software.

But, I’ll hazard a guess as to that being the very place they unironically got their misinformation from in the first place. If moderation is a problem, it’s because these people are not moderated before dangerous stupidity is able to fester. People have already been attacked and has property burned because of this stupidity, I won’t be surprised is someone actually gets hurt or killed. Whether it’s do do with pizza, furniture or school shootings, these people have a worrying tendency to get violent when the rest of the world rightfully laughs at their idiocy.

Scary Devil Monastery (profile) says:

Re: Re: Re:6 Re:

"Whether it’s do do with pizza, furniture or school shootings, these people have a worrying tendency to get violent when the rest of the world rightfully laughs at their idiocy."

True dat.

The trusty old Hanlon Mk 1 Razor isn’t reliable at all any longer without Grays Law to prop it up.

To paraphrase Popehat once again with a twist, If you do evil shit and claim you didn’t know any better the shit you’ve done is still evil.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: ... okay?

If you’re not a fan of social media(I’m not either) then there’s nothing forcing you to use it, but politicians putting forth unconstitutional bills should still be of concern to you because if they’re willing to do so once(or eight times, as the case may be) then odds are good they’d be willing to do so again, and the other targets they go after may be something you do care about and are involved in.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Sign me out

Your opinion on social media says more about you and the people you follow than it does about social media. Most people manage to avoid the toxic trolls most of the time, and use social media to stay in touch with friends family, and people with shared interests.

This comment has been deemed insightful by the community.
PaulT (profile) says:

Re: Sign me out

"Engaging on FB, Twitter, Instagram, Tik Tok etc has become a super unpleasant activity"

Not for me, maybe you need to choose better people to be friends with? The last unpleasant exchanges I personally had on Facebook involved two sets of friends who had to cancel their weddings this month due to COVID restrictions, but you can hardly blame Facebook for them being the best medium to communicate the bad news.

"It’s the modern equivalent of hate and propaganda leaflets dropped from the air in WWII"

If you choose not to visit the site… how?

"you are judged by the ones that land at your door"

No, you’re judged by the ones you send and share. So, either stop using social media, or stop sharing misleading propaganda on there?

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PaulT (profile) says:

Re: Re:

"If SM wasn’t so toxic we wouldn’t have need for most of this."

Yes, and what makes it toxic is toxic people. There’s plenty of social media that is not toxic, the problem is when toxic people are allowed to be such without moderation. If you’re calling for section 230 to be removed, you’re calling for the removal of that moderation, thus you are calling for it to get worse.

Anonymous Coward says:

Re: Re:

I disagree. The meddling attempts are symptoms of social resitance to the inherent messiness of human freedom. Humans were always "toxic". Now we think that mess needs to be reined in because we see the darker side shoved in our faces more, have lost our culture of privacy, are surveilled constantly, and are denied adequate tools to determine our online experiences for ourselves. The frightening thing isn’t the toxicity, it’s the shift toward treating the internet like a carefully curated TV channel instead of a bunch of phone conversations.

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Anonymous Coward says:

Irony

It strikes me as extremely odd that ultra-right folk consider themselves to be the purported victims of censorship. Whoever is allegedly censoring all that stuff is doing an awful job of it, because I have never seen such a teeming pool of ultra-right and hate material in all my life as I see nowadays.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re: Irony

Not for lack of trying.

Parler was supposed to be that bullhorn,where they could pat each other on the back and be mean to democrats and libs. Until they realized, "Wait, democrats and libs are coming on here to be mean to us. We don’t want that." So they put in checks and systems to make sure the democrats and libs couldn’t come in.

Of course, all that did was make them realize "Wait, now there aren’t any democrats and libs here for us to make fun of." And that’s on top of all the conservatives who fucked off after realizing they had to surrender personal information to the platform, who they trusted to screw over the libs but not enough to give all their info to… for reasons.

Anonymous Coward says:

Re: Irony

Fascists always accuse others of their own crimes. I notice it constantly with Trump. This is just another example. Social media platforms are pretty biased in their favor. Before I threw in the towel I got repeatedly banned for obvious jokes and harmless political discourse, while righties advocated for the deaths of their enemies. Leftists get banned for being mildly subversive, but rightists get banned only if they slip and use one of a small set of slurs. Now Facebook has escalated and is even openly banning mainline and peacenik anarchists and antifascists, under the pretense of fighting "violence".

PaulT (profile) says:

Re: Re: Irony

"Fascists always accuse others of their own crimes."

This is the one thing that concerns me about QAnon idiocy. Sure, run of the mill people falling for such a hilarious fiction are just stupid, but I worry about the possibility that someone is using it to deflect from something they are actually doing themselves.

"Leftists get banned for being mildly subversive, but rightists get banned only if they slip and use one of a small set of slurs."

Which is of course hilarious, because right-wingers claim that it’s the other way around.

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Bloof (profile) says:

‘Hey, society as a whole hates the message we’re preaching, maybe we should do something about it.’ ‘So we’re going to cut out the xenophobia, racism, misogyny, homophobia and billionaire bootlicking?’ ‘Oh heck no, that’s 99% of the party platform! We’ll just change the laws to make it easier for right wing spambots and make it illegal for anyone to tell a conservative to shut up. That’ll show those snowflakes.’

Anonymous Coward says:

One of the more bizarre aspects of the deep stupidity of this bill is the notion that something can be objectively obscene. What? Why can’t rightwingers accept their weird hangups/taboos are entirely subjective? Obscenity is just idiotic as a legal concept. And "filthy"? That is possibly even more loaded and ridiculous. Are they banning videos about mud? "Lewd" and "lascivicious" are weird too. What a weird fucking society.

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