Jeffrey Toobin's Zoom Dick Incident Is The Perfect Example Of Why We Need Section 230

from the look,-it's-2020,-okay dept

I know that it’s 2020 and the normal concepts no longer make any sense, but on Monday of this week, quite a story broke that spread quickly through the media world. CNN and New Yorker famed legal analyst Jeffrey Toobin was apparently suspended from both companies, after it was revealed that he was caught masturbating on a Zoom call with New Yorker colleagues, in which they were playing an election simulation game (that appears to be similar, but not identical to the election simulation game we created — though I swear that ours does not involve any masturbating legal analysts).

Shoshana Weissmann noted that this story — as horrific as it might be — is also a perfect example of why we have Section 230.

Revealing one’s self in a work setting can invariably lead to lawsuits. And if lawsuits are filed, Toobin, rather than Zoom, should be liable. Zoom likely had no knowledge of the incident until it was reported, nor did Zoom have anything to do with his actions. Toobin is also not an employee of Zoom. It is this same principle that Section 230 protects: that platforms should not be liable for content published by users. But platforms are liable for their own content that they publish, such as tweets from @Twitter or any static pages on Facebook.com created by Facebook.

It’s this fairly simple concept that so many people seem to be having difficulty grasping: Section 230 is about the proper application of liability. The person who actually did the thing should be held responsible, rather than the tools that they use. That’s Section 230 in a nutshell, and the reasoning is bizarrely demonstrated by what is now being called the Zoom Dick Incident.

Weissmann’s piece goes on to explain why this is so important for free speech:

Furthermore, if Section 230 protections were removed, that would mean that websites would face liability for all user content if they moderated any user content. Websites would then moderate nothing, so they’re not liable, or they would moderate so much that users would face massive barriers to posting. If conservatives think that too much of their content is being censored now, just wait until Facebook becomes liable for everything its users post. This is known as the “moderator’s dilemma.” In terms relevant to the Toobin news, Zoom would either have to allow everybody to show their genitals on the platform or strictly police meetings to ensure that none made it through. This regulatory burden would likely be crushing to new market entrants who lack the resources for a robust moderation program. As we learned from the GDPR regulations in Europe, these types of regulations harm competition by squashing startups and entrenching existing players.

If you read Techdirt enough, you know this already. However, if you hear people talking about the Zoom incident, now you have yet another way to talk about the importance of 230. Toobin should be held responsible for his own actions. Not Zoom.

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Comments on “Jeffrey Toobin's Zoom Dick Incident Is The Perfect Example Of Why We Need Section 230”

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Stephen T. Stone (profile) says:

This regulatory burden would likely be crushing to new market entrants who lack the resources for a robust moderation program.

And to think, several Section 230 opponents in Techdirt’s comments section also hate the idea of Google, Facebook, etc. having too much control over the market. Repealing 230 would give them even more power.

I wonder how anyone can square away that cognitive dissonance.

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'Power' Don D. Vice says:

Re: How would being subject to same law as other corps,

taking away the unique immunity which print publishers don’t and never had, be giving them more power?

Glenn Greenwald says it best:

https://theintercept.com/2020/10/15/facebook-and-twitter-cross-a-line-far-more-dangerous-than-what-they-censor/

THE summary quote:

No company can claim such massive, unique legal exemptions from the federal law and then simultaneously claim they owe no duties to the public interest and are not answerable to anyone. To advocate that is a form of authoritarian corporatism: simultaneously allowing tech giants to claim legally conferred privileges and exemptions while insisting that they can act without constraints of any kind.

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PaulT (profile) says:

Re: Re: How would being subject to same law as other corps,

"taking away the unique immunity which print publishers don’t and never had, be giving them more power?"

Once again, a lie. You’ve never had the right to sue a newspaper for something that was written on a copy without their knowledge.

"simultaneously allowing tech giants to claim legally conferred privileges and exemptions while insisting that they can act without constraints of any kind."

That is a nice misrepresentation of the situation aimed a the ignorant, so no wonder you agree with it.

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Anonymous Coward says:

Re: Re: How would being subject to same law as other corps,

I know what you mean… the proper application of liability to those responsible for the posting of the content, not the hosting of the content, would just make it too difficult to file suit, if all you were likely to get was the posting removed (and they wouldn’t have as deep of pockets…amirite?)

Unique legal exemption aka proper application of liability is just so hard to deal with…

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David says:

How is this _not_ the fault of Zoom?

he was caught masturbating on a Zoom call, with New Yorker colleagues in which they were playing an election simulation game

Frankly, if Zoom provided audio quality sufficient for clearly distinguishing "election" from "erection", this misunderstanding might have been entirely avoidable.

Scary Devil Monastery (profile) says:

Re: How is this _not_ the fault of Zoom?

"Frankly, if Zoom provided audio quality sufficient for clearly distinguishing "election" from "erection", this misunderstanding might have been entirely avoidable."

Well, that.

There’s also the idea that living in the 21st century might have taught the average user that camera mounted on the lid of your laptop is not always your friend.

I don’t know about the rest of y’all but in my world it makes some sort of sense that if you are about to rub off a quick one one item which should be conspicuously absent would be a web camera – unless you are practicing a certain sort of kink or running a professional service requiring the combination of a camera lens and your dick.

Does anyone else find it disturbing that what brought on this spontaneous bout of self-pleasurement was a conference call where they played out the 2020 elections?

Anonymous Coward says:

Re: Re: How is this _not_ the fault of Zoom?

Does anyone else find it disturbing that what brought on this spontaneous bout of self-pleasurement was a conference call where they played out the 2020 elections?

More depressing than disturbing, this seems pretty consistent with the level of discourse I’ve come to expect from this election. I suppose it’s healthier than watching the news and just getting angry or despondent.

Scary Devil Monastery (profile) says:

Re: Re: Re: How is this _not_ the fault of Zoom?

"I suppose it’s healthier than watching the news and just getting angry or despondent."

I’m not sure masturbating to the showdown of a pair of senior citizens; one of which is a malicious orange personification of dunning-kruger and the other of which is in persistent danger of being abducted and put back in the sarcophagus you’d have to assume he escaped from; could be considered all that healthy.

If that’s Toobin’s kink he might save himself and his colleagues the trouble and just go look at lemonparty pics in his basement where he wouldn’t be upsetting the rest of his social circle by polishing his knob in a conference call.

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'Power' Don D. Vice says:

WHO even suggested Zoom is responsible? NO ONE.

You are making up a hypothetical in order to argue and "win" on what NO ONE advocates.

The ACTUAL argument with Section 230 defenders is that you believe Zoom and other corporations have an absolute arbitrary "right" to stop the not even near questionable "election simulation" itself, NOT the probably accidental exposure.

Now, I’m not making up YOUR position. Here yet again are your own words on the alleged powers that you wish the gov’t to confer on corporations through Section 230:

"And, I think it’s fairly important to state that these platforms have their own First Amendment rights, which allow them to deny service to anyone."

https://www.techdirt.com/articles/20170825/01300738081/nazis-internet-policing-content-free-speech.shtml

YOU put NO qualifier on it. YOU wish corporate control to be TOTAL AT ALL TIMES, a completely literal reading of OBVIOUSLY too broad S230: the text is "whether or not such material is constitutionally protected". That would mean the Constitution itself is irrelevant to the gov’t conferred powers and immunity granted in CDA, which simply cannot be upheld.

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Stephen T. Stone (profile) says:

Re:

The ACTUAL argument with Section 230 defenders is that you believe Zoom and other corporations have an absolute arbitrary "right" to stop the not even near questionable "election simulation" itself, NOT the probably accidental exposure.

Private property falls under the control of the owners of said property. Zoom’s higher-ups have every right to decide what speech they will or will not allow on Zoom. The government shouldn’t have the right to force Zoom, or Twitter, or someone’s 30-person Mastodon instance into hosting (or not hosting) any kind of legally protected speech.

YOU wish corporate control to be TOTAL AT ALL TIMES

I don’t know how you draw this conclusion from the fairly uncontroversial notion that the owners of private property get to decide who is allowed on and what they can say on that property. The same principle would apply to, as I mentioned earlier, some regular jackoff’s 30-person Mastodon instance. It would apply to any service you own and operate, too — and I don’t think you’d appreciate a government agent telling you “you’re going to host Mike Masnick’s speech in its entirety or else”.

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Anonymous Coward says:

Re: Re: Re:2 innocuous leader, seems the topic is locked down...

Re: I’m not forcing M to make the offer: he’s then cheating.

Doubling down to state another reason that you advocate TOTAL ARBITRARY CORPORATE CONTROL — over PERSONAL websites merely hosted by Zoom, NOT its own corporate site — only re-inforces my point.

Your own and Masnick’s wish to discriminate against viewpoints and censor them away is handily shown right here, on this alleged "Free Speech" site which — and this is a KEY point — solicits of its own free will, I’m NOT forcing Techdirt to make the offer. In fact, Techdirt is breaching its form contract AFTER I accept it.

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Anonymous Coward says:

Re: Re: Re:3 innocuous leader, seems the topic is locked down

SO, eight tries to get that in, yet the exact text (without the funny screen name) still allowed in when use the AC option.

It’s another hidden tactic, happens OFTEN to viewpoints Maz doesn’t want on "his" site, even though he’s conceded his Right by soliciting The Public with plain HTML code.

THIS is what needs fixed on the Internet. We don’t want Ivy League censors.

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Stephen T. Stone (profile) says:

Re: Re: Re:3

Your own and Masnick’s wish to discriminate against viewpoints and censor them away is handily shown right here, on this alleged "Free Speech" site

You have the right to speak freely. You don’t have the right to make others give you attention. You don’t have the right to make Techdirt give you an audience. And you sure as shit don’t have the right to make Techdirt host your speech.

Now tell me why that entire paragraph shouldn’t apply to Twitter, Facebook, YouTube, DeviantArt, mastodon.social, Gab, Parler, Reddit, Voat, Imgur, 4chan, or literally any other interactive web service that accepts and hosts third-party speech. And don’t whine about “corporate censorship” or “corporate control” or any other bullshit — only explain why the four sentences in the paragraph above this one shouldn’t apply to all other interactive web services.

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Anonymous Coward says:

So I work at corporation BigMart, or maybe it’s MicroShop. And I use the corporate premises for something they don’t like–maybe painting rude graffiti across the outside wall, or shouting offensive slogans from the windows. Are those corporations "exercising total control over me", or are they "cleaning up the trash on their own premises"?

Are they keeping me from shouting offensive slogans from my windows, in my own behalf? Are they keeping me from painting rude graffiti on my own front door? NO. THEN THEY’RE NOT EXERCISING TOTAL CONTROL. THEY’RE JUST CLEANING UP THE TRASH IN THEIR OWN YARD.

Different companies have different definitions of "trash". Some want a solid bermuda-grass lawn around the building; some want native-looking wildflowers. Some companies don’t mind a corporate image involving sexual predators, or mendacious salesman. (Hi, Oracle!) Some companies clean up that kind of trash. Some don’t. Just like some people think a yard looks bare without a 1966 Chevy on cinder blocks.

You don’t get benefits (a job, or a soapbox) from a company unless you aren’t the kind of trash THEY choose to take out.

THERE IS NO TOTAL CONTROL HERE. IT’S JUST CLEANING UP THEIR OWN DEFINITION OF TRASH.

THERE CAN BE NO TOTAL CONTROL, UNLESS A GOVERNMENT (OR ORGANIZED CRIME) IS INVOLVED.

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Koby (profile) says:

Platform not a Publisher

Zoom is just a platform, hosting video conference sessions. They are not editorializing, or engaging in corporate censorship to only permit messages that agree with their viewpoint. Because they have a neutral point of view, I don’t think that anyone has a problem with them receiving protections.

For corporations that create an internet version of a town square, they ought to maintain that neutral POV. If they don’t, then they don’t deserve editorial protection. Bait & switch should not be allowed. Maintain that open platform, or close down.

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Stephen T. Stone (profile) says:

Re:

They are not editorializing

Interactive web services are allowed to editorialize if they wish. They become liable for that speech, yes. But nothing in the law stops them from putting it out there.

engaging in corporate censorship

Is it “corporate censorship” when someone gets banned from Twitter for posting a tweet with the N-word in it and said someone goes right to 4chan so they can post that word all they want on /b/?

only permit messages that agree with their viewpoint

Neither Section 230 nor the First Amendment require “neutrality” of any kind in exchange for their protections. You haven’t proven (and can’t prove) otherwise.

they have a neutral point of view, I don’t think that anyone has a problem with them receiving protections

Should Mastodon instances that ban certain kinds of speech that would clearly be allowed under a strict “neutrality” policy — e.g., “untagged nudity, pornography and sexually explicit content”, per the Code of Conduct of mastodon.social — be denied the protections afforded by Section 230 and the First Amendment because of their lack of “a neutral point of view”?

For corporations that create an internet version of a town square, they ought to maintain that neutral POV.

And if their property were actually town squares — with all that distinction implies in regards to the law — you might have a point. But it’s not. So you don’t.

If they don’t, then they don’t deserve editorial protection.

230 is not “editorial protection” and you damn well know it. Stop using blatantly false and obviously disingenuous arguments.

Bait & switch should not be allowed. Maintain that open platform, or close down.

I have One Simple Question for you, Koby. Yes or no: Should the law force Twitter to host all legally protected speech under the notion that Twitter is a “public square” (even though it’s not) even — and especially — if Twitter admins don’t want Twitter to host certain kinds of speech?

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Mike Masnick (profile) says:

Re: Platform not a Publisher

Zoom is just a platform, hosting video conference sessions. They are not editorializing, or engaging in corporate censorship to only permit messages that agree with their viewpoint.

Ah, but Koby, you forget it did exactly that, blocking a Palestinian activist from using their platform.

https://www.techdirt.com/articles/20200926/16434745387/hypocrite-fcc-commissioner-cheers-zoom-block-usage-person-he-disagrees-with-while-insisting-social-media-shouldnt-block-people.shtml

Either way, it doesn’t make one bit of difference legally.

For corporations that create an internet version of a town square, they ought to maintain that neutral POV. If they don’t, then they don’t deserve editorial protection. Bait & switch should not be allowed. Maintain that open platform, or close down.

This is so stupid for so many fucking reasons.

(1) It’s impossible to be neutral. Sooner or later you’re going to have assholes and you have to figure out a way to deal with them.
(2) The assholes will always, always, always whine and lie about why they were moderated (I mean, just look at the nonsense you put here).
(3) The whole point of 230 was to let niche communities form, meaning they wanted sites to heavily moderate out certain viewpoints.

Without it, the internet becomes a mess. Full of assholes like you. No one wants that Koby.

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Stephen T. Stone (profile) says:

Re: Re: Re:3

If it was only for espousing socialism, then yes they should lose 230 protection.

For what reason should Parler be forced to host pro-socialism propaganda if the admins don’t want to host it? Under what legal reasoning should Parler admins not have the absolute legal right to decide what speech Parler, a privately owned interactive web service, will and will not host?

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PaulT (profile) says:

Re: Re: Re:3 Platform not a Publisher

"No American should be punished for espousing their political beliefs."

Unless they own private property, then they should have the right to use that to speak as they wish removed from them because some other asshole is trying to shout louder than they are…

Scary Devil Monastery (profile) says:

Re: Re: Re:3 Platform not a Publisher

"No American should be punished for espousing their political beliefs."

So Bar owners should not, in the future, be allowed to toss a patron out if said patron stood in the middle of the floor and kept quoting "Mein Kampf", for instance?

Yeah, you know, I think the american response ought to be that the cops were standing to the side, making faces, but the bar owner and the patrons carry out the nazi on a frigging rail and ban him from ever coming back.

Apparently, Koby, you haven’t a fucking clue as to what being "american" means. You are, however, pulling off some very classy USSR policy about how private property is conditional to government opinion.

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Stephen T. Stone (profile) says:

Re: Re: Re:

Then they SHOULD lose their 230 protection.

Should I be denied my First Amendment–protected right of association if I don’t let someone from the Westboro Baptist Church yell “God Hates F–gs” on my front lawn?

Whether you like what Zoom did in that case with the Palestinian activist doesn’t matter. Zoom had the legal right to do that. You’ve yet to present, and likely will never present, a solid fact-based argument as to why Zoom, or Twitter, or any other interactive web service should be denied that legal right. Claiming shit about “open platforms” which has no basis in the law doesn’t help you unless you can define “open platform” in a a way that helps us understand your argument. (Then again, I suspect you’re not willing to do that because…well, you’ve already been humiliated on this front a couple dozen times or more, and I doubt you want more egg on your face.)

Either present a good argument as to why privately owned interactive web services such as Twitter should be compelled by law to host all legally protected speech on, and allow everyone to use, said services. Your argument must explain why (and how) the law should deny to service admins any legal ability to enforce the Terms of Service/Code of Conduct, since any law that would compel the forced hosting of speech or forced association with a given user must do exactly that.

Scary Devil Monastery (profile) says:

Re: Re: Re: Platform not a Publisher

"Then they SHOULD lose their 230 protection. No American should lose their ability to speak on an open platform for political reasons."

But it’s not an open platform. It’s the very definition of private property. Zoom aren’t beholden to give anyone a soapbox to stand on. Not anymore than you owe it to everyone to allow them free access to your rooftop and a bullhorn.

You insisting the state should seize the means of production and abolish private property rights still isn’t a good look for someone who at least pretends to be a right-winger.

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Anonymous Coward says:

Re: Platform not a Publisher

So you also agree that Britebard, Fox turd news, Hannity, and Tucker should also be required to spend 50% of their time talking about liberal left wing points of view (in a positive manner, not just dissing them)?

They must maintain a NEUTRAL POV, right? right?

I don’t hear you agreeing to this, so shut the F*** up about other sites having to be neutral…

David says:

Re: Re: Platform not a Publisher

Frankly, I find Fox News right now interesting to look at. They have a few analysts and commentators that are factual, mainstream, or even Democrat-leaning on occasion ("left" is something completely different: there is not a lot to be had of that in the U.S.). The level of those is just enough for an occasional double-take. But they are there, even if they stick out like a healthy thumb.

Now in the main, the News site has the U.S. drown in civil war and the Democrats steeped in scandalous misbehavior. OK.

But what is readily apparent is that the ilk of Hannity and Tucker is shrilling their messaging out in an increasingly hysterical manner.

Should Trump go down, Fox News will have different roles and positions for those people who have anchored their importance on him.

They are clearly not happy, and are currently putting the Fox News machinery in overdrive.

Frankly, I would actually be shocked if the White House and closely associated media don’t bring out some last-minute awful scandal about the Democrats and/or Biden that comes so close to the election that there is not sufficient time to debunk it.

They did it before, and they don’t have anything else in store right now.

PaulT (profile) says:

Re: Re: Re: Platform not a Publisher

"Frankly, I would actually be shocked if the White House and closely associated media don’t bring out some last-minute awful scandal about the Democrats and/or Biden that comes so close to the election that there is not sufficient time to debunk it."

Lol, have you been seeing the desperately unconvincing stuff they’ve been trying about Hunter Biden recently? The "Hunter dropped off a laptop on the other side of the country to a blind guy to repair, forgot to pick it up, the blind guy found dodgy emails on it and the hard drive just happened to make it to Rudy Giulani to publicise in October" story hasn’t flown so they’re trying to insinuate it had child porn on it as well. Not even the New York Post writers responsible believed it enough to put their names to it.

Fortunately, as a result of the pandemic, Trump’s promises to undermine the entire electoral process and few people remaining undecided, record numbers of Americans have already voted, so there’s little any other "scandal" can really do to upset things compared to last year. The main question now is how much proud Boy violence will be suppressing in person voting, and how many more mail in votes get "lost" or burned (there have been multiple arson attempts already).

Anonymous Coward says:

If I defame or threaten someone on a phone call the phone company is not responsible , before the Internet was invented this was well established in law,
Communications services could not exist if they had to monitor user calls in real time and if so it would lead to censorship of free speech.
Simple principal in law sue the person who creates bad content not the platform or the service provider.
And the platform needs to be free to Moderate or block users as it needs to in order to make a platform that’s welcoming
Eg techdirt needs to be able to remove spam or comments that racist or promoting hate speech

Anonymous Coward says:

Re: Re:

If I defame or threaten someone on a phone call the phone company is not responsible , before the Internet was invented this was well established in law

The same was held to be true on computers (internet and BBSes)—provided, like the phone companies, the electronic services involved were not making any editorial decisions about the content. Section 230 changed that, to let them moderate without becoming responsible for the things they leave up.

Wyrm (profile) says:

Now the tool is to blame?

I’m half-surprised that nobody reminds them, at every opportunity, that the current implementation and interpretation of section 230 is normal.
Nobody blames car manufacturers for a bank robbery when their car is used as escape vehicle.
Nobody blames alcohol producers for drunken bar brawls.
The rule is always that the tool is not the culprit.

And if anybody would go and blame gun manufacturers when someone shoots his neighbor, "second amendment" extremists would go up in arms. Possibly in the most literal sense.

But when it comes to section 230, suddenly the first amendment doesn’t mean anything and the tool is as responsible – if not more – as the tool user.

Next time someone goes to court for murder, let him blame the gun and refer to those anti-230 activists in their defense. "Don’t sue me, sue Smith & Wesson instead."

John85851 (profile) says:

Re: Now the tool is to blame?

I was just about to say this.
If Zoom is somehow responsible for the user’s actions, then we need to keep going up the service chain:

  • How about the ISP providing the internet connection? After all, if there was no internet, there would be no bad user activity.
  • How about the electric company? If there was no electricity, there would be no internet connection…
  • How about the bank that owns the building? If the user wasn’t in that building, then there wouldn’t be any bad activity.
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