Florida Officially Asks Supreme Court To Review Its Social Media Content Moderation Law

from the let's-gooooooooooooooooooo dept

Back in May, an 11th Circuit appeals court panel found that Florida’s ridiculous content moderation law was clearly unconstitutional, mostly upholding a district court ruling saying the same thing. As you’ll recall, Florida passed this law, mainly in response to Trump being banned from social media, that limits how websites can moderate content, largely focused on content posted by politicians. The 11th Circuit did push back on one part of the lower court decision, saying that the transparency requirements of the law were likely constitutional.

As you also know, Texas passed a similar law and the various fights over both states’ laws have been mostly intertwined. Last week, the 5th Circuit issued its bewildering ruling (we’ll have more on that soon) that basically ignored a century’s worth of 1st Amendment law, while misreading both other existing precedent and literally rewriting Section 230 and pretending it was somehow controlling over the 1st Amendment.

Anyway, over the summer, Florida had told the lower courts that it intended to ask the Supreme Court to hear the appeal over its law, and on Wednesday that finally happened. Florida has petitioned the Supreme Court to review the decision, highlighting the two key questions it sees from the ruling. While the Supreme Court does not need to take the case, it seems likely it will. It’s possible that an appeal on the 5th Circuit’s ruling will get consolidated into this case as well, or perhaps it will remain separate.

Florida presents these as the two questions the appeal seeks to answer:

1. Whether the First Amendment prohibits a State from requiring that social-media companies host third-party communications, and from regulating the time, place, and manner in which they do so.

2. Whether the First Amendment prohibits a State from requiring social-media companies to notify and provide an explanation to their users when they censor the user’s speech.

Both of these questions could have a huge impact on the future of the internet. The answer to both of these should be yes. Indeed, there’s some argument that it’s a little weird that Florida constructed the questions in a way where they want the answer to be “no” rather than “yes.” But, beyond that, this case is going to be a big, big deal.

It’s unclear if Florida deliberately waited for the 5th Circuit’s opinion, but the petition plays up the circuit split between the 5th and 11th Circuits.

The Fifth Circuit split with the decision below on the threshold question of whether the platforms are speaking at all when they censor a user’s speech.

The Eleventh Circuit below said “yes.” It reasoned that “[w]hen a platform selectively removes what it perceives to be incendiary political rhetoric, pornographic content, or public-health misinformation, it conveys a message and thereby engages in ‘speech’ within the meaning of the First Amendment.” App.19a–20a. And it reached that conclusion because it thought that “editorial judgments” are protected by the First Amendment. App.20a.

The Fifth Circuit said “no.” In rejecting the Eleventh Circuit’s reasoning, it explained that the Eleventh Circuit’s “‘editorial-judgment principle’ conflicts with” this Court’s cases. Paxton, 2022 WL 4285917, at *39. As the Fifth Circuit pointed out, this Court has held that some hosts can be denied the “right to decide whether to disseminate or accommodate a” speaker’s message

That certainly tees things up for the 5th Circuit ruling to be consolidated into this case.

Much of the argument by Florida is basically just repeating the 5th Circuit’s nonsense ruling, which is to be expected. I don’t need to go over why it’s all wrong — that’s pretty well established. I will have more soon on why multiple Supreme Court justices would need to completely reverse themselves on earlier decisions to agree with both Texas and Florida, but that’s not impossible these days.

Either way, the Supreme Court is likely to hear this and it’s just the future of the open internet and editorial freedom at stake.

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Stephen T. Stone (profile) says:

Whether the First Amendment prohibits a State from requiring that social-media companies host third-party communications, and from regulating the time, place, and manner in which they do so.

Of course it should. No one should be required to host or disseminate anyone else’s speech⁠—and that holds in both cyber- and meatspace. To think otherwise is to believe in the imagined (and deranged) right of free reach. Only fools, assholes, and disruptive little shits⁠—whoops, tautology!⁠—believe they should be able to make other people host their speech.

יונתן פֿאליק , عطا الله عفلق (profile) says:

Re: A depraved white racist/elitist continues to babble incoherently and stupidly!

I guess the ignorant vile racist/elitist and moron never heard of mass mailing common carriage or of a mass announcement common carriage.

A common carrier has no First Amendment right to deny common carriage, but the nitwit does not permit reality to interfere with his perverted worldview.

Hosting in the Internet context means temporary storage in a backend database server. Hosting is completely unrelated to speech. Hosting is like the temporary storage of mail in a postal satchel at a post office facility.

It is hard to be more brain-dead than a white racist/elitist supporter of discrimination by a social medium platform.

A common carrier is a person who holds himself out as willing to serve any shipper who offers him a reasonable fee to transport the kinds of goods he professes to carry to a place he professes to serve, provided they were not unfit and his conveyance was not already full. See Lovett v. Hobbs, 2 Show. K.B. 127, 89 Eng. Rep. 836 (K.B. 1680); Jackson v. Rogers, 2 Show. K.B. 327, 89 Eng. Rep. 968 (K.B. 1683).

By definition, a common carrier has to serve all comers. If he wrongfully refuses to accept a consignment, he is suable in tort. *Jackson v. Rogers&, 2 Show. K.B. 327, 89 Eng. Rep. 968 (K.B. 1684);

John85851 (profile) says:

Bets on how the Supreme Court will decide

Should we start placing bets on how the Supreme Court will decide?

I’ll put down $100 that the Supreme Court decides in favor of Texas and Florida. They’ll say they won’t make a ruling other than these laws should be at the state level and the federal government has no right to tell states how to make laws.
Oh, and if the federal government wanted to make laws protecting free speech, then Congress should pass a law.
BUT the original Constitution doesn’t mention computers or the internet, so the Founding Fathers never meant for the first amendment to apply to websites.

The Court won’t care that, like abortion, this will create 50 separate laws about website speech and hosted content.

Rocky says:

Re:

Oh, and if the federal government wanted to make laws protecting free speech, then Congress should pass a law.

Why should they pass a law when the First Amendment exists?

BUT the original Constitution doesn’t mention computers or the internet, so the Founding Fathers never meant for the first amendment to apply to websites.

Are you really arguing that if the Constitution doesn’t explicitly mention things, it doesn’t apply to them?

I guess all those Constitutional lawyers, will be very surprised to learn that a large part of their work was in vain.

PaulT (profile) says:

Re: Re:

“Which is why Stephen King et al have no constitutional protections and Carrie was never published and made into two movies. /s”

Two movies? There’s been at least 3 official adaptations I’m aware of, a sequel and all sorts of unofficial imitations (Jennifer, for example)

I know your point, but let’s get the numbers right when refuting such nonsense 😉

Naughty Autie says:

Re: Re: Re:

I live in the UK, so when I say ‘movie’, I mean anything released in cinemas only. As for The Rage: Carrie 2, that doesn’t really count because it has nothing to do with the novel beyond its name and the fact that the psychokinetic character has the same father as Carrie does. So my numbers are right: there are two movies based on Stephen King’s Carrie.

Anonymous Coward says:

Re: originalism leads to anomalous results

There is no right to privacy in the U.S. Constitution. Thus, no right to decide what goes on between your or your wife’s legs. At least so long as it is not an explicit search, which might be regulated by the 4th Amendment. If there is a state right, then your naughty bits may be your own.

Also no right to use your naughty bits as you will. So if you are in Connecticut, you might have to drive across state lines for contraception. You can send the wife, I guess.

Also, no right to associate with people of different skin tones. So, no right to share a table in the dining car with a person of color. And no right to share a room, or a bed, with them. Your state may provide here.

Also, no right to marriage. So if a state likes your preferred spouse, you should be in good shape.

Remember, no right to education. So even if there were a right to associate with persons of different skin colors, you still might not be able to attend school with them. It will depend on your state.

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Koby (profile) says:

Platform vs Publisher In Action

Both of these questions could have a huge impact on the future of the internet. The answer to both of these should be yes.

On question one, we know that the first amendment isn’t a defense against discrimination, anymore than a restaurant can claim a first amendment right to not serve customers based on religion. It is noteworthy that the majority of speech on the platform is user generated, and the internet provider disavows themselves of speech (rightfully so!) using section 230(c)(1) as soon as there’s a problem. The content is not that of a social media company, just as the writing on a piece of paper doesn’t belong to Hammermill. Social media companies are an intermediary, and not the speaker, so it’s not their speech to claim.

On question two, we already require such explanations of existing companies such as banks, and we can expand the requirements to other companies. The answer to both questions is a clear “no”.

Stephen T. Stone (profile) says:

Re:

we know that the first amendment isn’t a defense against discrimination

And if people could prove they’ve been kicked off Twitter for any reason other than violating the TOS, that might mean something. But if people have a right to speak their mind freely, other people⁠—and private entities⁠—have a right to not host, repeat, or disseminate that person’s speech. To hold that Twitter should be made to do so is to create a right of free reach, for which there is no reasonable equivalent in meatspace, only because of the phrase “but the Internet”.

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Koby (profile) says:

Re: Re: Re:

And if people could prove they’ve been kicked off Twitter for any reason other than violating the TOS,

That sounds like the exact purpose of the law: determine if there was a TOS violation. If minorities with a 750 credit score get denied for the loan, while others get approved, it can be proven in court.

have a right to not host, repeat, or disseminate that person’s speech

There is no such right for someone other than the speaker. Commercial entities that offer a contract for service to the general public can be held to their contract.

Stephen T. Stone (profile) says:

Re: Re: Re:

That sounds like the exact purpose of the law: determine if there was a TOS violation.

Except it’s not. And even if it were: For what reason should Twitter’s moderation decisions be of any concern to the government?

Commercial entities that offer a contract for service to the general public can be held to their contract.

And last I checked, the Twitter TOS isn’t a contract in the sense that it gives people (or their speech) a legal right to stay on Twitter.

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Chozen (profile) says:

Re: Re: Re:2

“Except it’s not. And even if it were: For what reason should Twitter’s moderation decisions be of any concern to the government?”

Because a TOS is a legal contract and all legal contracts come under the jurisdiction of the government.

Who exactly do you think adjudicates contract disputes?

BigTech wanted the legal authority that comes with TOS being legal contracts but they want to avoid the legal oversight that comes with it. They want the best of both worlds.

So they pay people like Mike to campaign against it.

Rocky says:

Re: Re: Re:3

Because a TOS is a legal contract and all legal contracts come under the jurisdiction of the government.

So? You break the contract, you get the boot.

BigTech wanted the legal authority that comes with TOS being legal contracts but they want to avoid the legal oversight that comes with it.

You are of course free to cite instances where “Big Tech” have successfully been sued for breach of contract for their moderation practices.

So they pay people like Mike to campaign against it.

Are you making a statement of fact here?

Chozen (profile) says:

Re: Re: Re:4

“You are of course free to cite instances where “Big Tech” have successfully been sued for breach of contract for their moderation practices.”

All that matters is that they get sued at all. That is an expense the court and the public has to bear. The public has an interest in regulating the language used in contracts. Always has.

Rocky says:

Re: Re: Re:5

All that matters is that they get sued at all. That is an expense the court and the public has to bear. The public has an interest in regulating the language used in contracts. Always has.

There are about 4.7 billion social media users world wide, if social media platforms TOS was such a big problem I’d expect to see a lot of platforms being sued for it – but they aren’t. From that we can infer that those who want to sue social media for their moderation practices haven’t a leg to stand on, legally speaking, which correlates with what has happened the times a case have been argued in front of a judge.

Tanner Andrews (profile) says:

Re: Re: Re:5 regulation of contract

The public has an interest in regulating the language used in contracts. Always has

Yes, but it is a very limited interest. And it only applies to future contract: a law which alters or impairs the terms of an existing contract, which these anti-moderation laws would do, is invalid.

Note as well the difference between an interest in the language allowed in contracts (e.g. statute making confession of judgment provisions invalid) and enforcement. The enforcement is normally left to the parties, who may pay to file in court and may also pay large sums to their attorneys.

That One Guy (profile) says:

Re: Re: Re:2

Even if a social media’s TOS is to be considered a legal contract that’s still not helping their case because any even remotely smart platform is going to have a ‘we reserve the right to ban your content and/or you at our discretion’ clause in there to deal with situations that might not otherwise be covered.

If it’s not a contract than the courts/government has no grounds to get involved and ‘enforce’ it.

If it is a contract then them booting content/users is entirely within said contract that the users agreed to in order to use the service, and the courts still have no grounds to get involved.

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Chozen (profile) says:

Re: Re: Re:3

‘we reserve the right to ban your content and/or you at our discretion’

Yeah in most situations under most state regulatory law that kind of language isn’t allowed in contract law. That’s like a landlord tenant agreement saying ‘I can kick you out whenever for whatever.’ That shit doesn’t fly in almost every state in the Union.

That’s kind of the problem, big tech likes to write contracts that would be illegal in most other context. Its only the complete and total lack of regulation that allows it.

Stephen T. Stone (profile) says:

Re: Re: Re:4

Yeah in most situations under most state regulatory law that kind of language isn’t allowed in contract law.

Online speech platforms aren’t “most situations”.

big tech likes to write contracts that would be illegal in most other context

You say that as if smaller social media services don’t have similar rules in their TOS agreements. Hell, the summarized server rules for the Masto instance I’m on specifically says, “We may take administrative action for reasons not listed here.” And that server has less than a thousand users.

Yes or no, Chozen: Do you believe the government should have the legal right to compel any privately owned interactive web service into hosting legally protected speech that the owners/operators of said service don’t want to host? Remmeber, this question applies to interactive web services of all kinds, not just the “large” ones or the ones you hate.

Rocky says:

Re: Re: Re:6

Why what makes them so special? Whey does social media companies get to avoid basic contract law?

So why aren’t they all being sued and dragged into a court for not adhering to basic contract law? It should be a slam dunk for any competent lawyer if they just used your argument, it’s not like there aren’t people with deep pockets that want to geld social media companies at any opportunity.

PaulT (profile) says:

Re: Re:

“And if people could prove they’ve been kicked off Twitter for any reason other than violating the TOS, that might mean something”

Realistically, they don’t even need to do that. If I set up a platform, and Ben Shapiro signed up, I’d get rid of him immediately. I’d be within my rights to do that because I’m not discriminating against a class, I just wouldn’t want him anywhere near my property.

If I were in the US, I’d presume the right to free association would protect me in my decision.

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Strawb (profile) says:

Re:

Platform vs Publisher In Action

No, it isn’t. This case is about the 1st Amendment, not section 230.

And even if it were about section 230, it still wouldn’t be “platform vs publisher in action”, because that distinction only exists in the minds of certain politicians, and ignorami such as yourself.

The answer to both questions is a clear “no”.

Thank you for confirming that you’re against the 1st Amendment.

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Chozen (profile) says:

Re: Re:

1st amendment – No reasonable person would consider it the platforms speech. You have no first amendment rights if no reasonable person would consider it your speech.

Section 230 – No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another.

So section 230 both voids any claim of editorial rights because you are not the publisher or any 1st Amendment claim because it cant legally be considered your speech.

Naughty Autie says:

Re: Re: Re:

Except for the fact that previous caselaw has found that Facebook (for example) removing a post or banning an account for violation of its ToS is effectively the company saying, “You don’t say things like that here.” This is recognised as the company exercising the right to freedom of association on behalf of its users, and is therefore an extension of the company’s free speech rights under the First Amendment. Or are you trying to claim that Walter was right and the Dude was wrong about the diner waitress’ request in The Big Lebowski?

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Chozen (profile) says:

Re: Re: Re:2

“Except for the fact that previous caselaw has found that Facebook ”

What caselaw? The 5th and 11th circuit can wipe their ass with the 9th circuits corrupt rulings. Just about every member of the northern district of Cali has an immediate family member with a nice 6-7 figure job at some BigTech company. They are all bought off. Luckily the other circuits can tell the corrupt 9th to go fuck themselves.

The controlling case law here is Pruneyard. No reasonable person would consider the speech the social media platforms speech. That is all that matters. There is no first cae because under SCOTUS precedence and existing law its not the speech of the social media. Section 230 explicitly says its not their speech.

You would have an easier time trying to claim a 4th and 5th amendment issue but again the case law is stacked against you going all the way back to Munn 1876.

Rocky says:

Re: Re: Re:3

No reasonable person would consider the speech the social media platforms speech. That is all that matters.

Yeah, lets totally ignore what the owners of the platforms think, they just doesn’t count at all because forced association is just fine.

The truth is no reasonable person or platform wants to be associated in the slightest with assholes, fascists, misogynists, racists and other people who lack discretion and common sense.

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Chozen (profile) says:

Re: Re: Re:4

“Yeah, lets totally ignore what the owners of the platforms think, they just doesn’t count at all because forced association is just fine.”

No such right exists in the First Amendment. There is an implied right of group speech and group assembly, that has been called “freedom of association”. Since no reasonable person would consider the platform to be part of the group speech there again is no First Amendment case here.

Rocky says:

Re: Re: Re:5

Since no reasonable person would consider the platform to be part of the group speech there again is no First Amendment case here.

So there are no reasonable persons having ownership in a social media company then? The problem with your argument is that you exclude one party from it.

If we for one moment take your argument to be true then it follows that everyone who criticize social media for not removing abhorrent speech must be unreasonable plus that they have associated said speech with the platform it’s on.

Just ask 10-20 random persons on the street if they think social media platforms should remove posts they find offensive or not, and if they want the posts gone ask them what they think of a platform that refuses to remove it.

Rocky says:

Re: Re: Re:7

Not the right question. Ask 20 random people if Trump’s tweets represents the opinion of Twitter.

That question is worthless for a very simple reason: Twitter banned Trump so there is only one valid answer to it: No

After the fact, we must ask a what if question: If Twitter didn’t ban Trump even though his tweets broke the TOS, would that mean that Twitter agreed with his opinions?

Stephen T. Stone (profile) says:

Re: Re: Re:

No reasonable person would consider it the platforms speech.

Irrelevant. Until the law says otherwise, Twitter can choose who (and what speech) will have the privilege of posting (and being posted) on that platform. No law or binding legal precedent requires any interactive web service to give any third party a platform⁠—and you can’t cite a law or binding precedent that says otherwise.

section 230 both voids any claim of editorial rights

Except it doesn’t. Editorial decisions made by a speech platform are, in and of themselves, a form of speech. 230 helps protects the right of cyberspace platforms to make those decisions without being held legally liable for the speech they leave up because of those decisions.

I know you’re a batshit troll who says a lot of dumb shit to garner a reaction, but even you can’t be so dumb that you completely misunderstand legal concepts that a shitload of people have explained to you over and over and over and over again.

Chozen (profile) says:

Re: Re: Re:2

“230 helps protects the right of cyberspace platforms to make those decisions without being held legally liable for the speech they leave up because of those decisions.”

Thats not what the act says the act says

” “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”

It says unequivocally they are not the speaker as such they have no free speech rights over someone else’s speech. An editor has free speech rights because an editor can be sued over what they chose to publish. The 10 letters to the editor are not all the letters the editor got. The editor choosing to publish those 10 is the editors speech.

Stephen T. Stone (profile) says:

Re: Re: Re:3

It says unequivocally they are not the speaker as such they have no free speech rights over someone else’s speech.

But they do have the right to control whether they will host that speech. That decision is editorial discretion, and that is protected by the First Amendment. Can you show me the law or binding legal precedent that says it’s not?

An editor has free speech rights because an editor can be sued over what they chose to publish.

And until Section 230 became the law of the land, the courts seemed to be heading in a direction where online platforms would be held legally liable for speech as a result of moderation efforts⁠—if not for the speech they took down, then for the speech they left up. Section 230 headed that outcome off by making platforms legally liable only for their own speech. The upshot there is that the right of editorial discretion comes with the right to moderate without risking legal liability.

The 10 letters to the editor are not all the letters the editor got. The editor choosing to publish those 10 is the editors speech.

Similarly: Someone saying the N-word on Twitter isn’t Twitter’s speech⁠—but the decisions to both say “this word isn’t acceptable on our platform” in the TOS and moderate that word off the platform sure as hell are. Prove they’re not, fucker.

PaulT (profile) says:

Re: Re: Re:3

“It says unequivocally they are not the speaker as such they have no free speech rights over someone else’s speech”

Freedom of association is part of freedom of speech. Telling someone to GFTO of their property because they don’t want to be associated with them is a type of speech.

“An editor has free speech rights because an editor can be sued over what they chose to publish”

So, they can tell some people they’re free to use their property to speak and others that they’re not? So, the same as any online platform, with the difference being that the order is given after the person has spoken and not before.

PaulT (profile) says:

Re:

“we know that the first amendment isn’t a defense against discrimination, anymore than a restaurant can claim a first amendment right to not serve customers based on religion”

Yes, and we know that “idiot” and “white supremacist” aren’t in the list of protected classes that the rule applies to.

“It is noteworthy that the majority of speech on the platform is user generated”

…meaning that the platform didn’t create the speech and that time is better spent going after the person who said something rather than the nearest bystander.

“On question two, we already require such explanations of existing companies such as banks”

While it’s telling that you think that speech and money are the same thing, different rules do apply and I suspect that shitbags like yourself will still be angry when you realise that a law applied equally would prevent you from censoring “leftists” as much as it prevents you from censoring them, even though right-wing sites are currently more likely to do that.

That One Guy (profile) says:

Re: Re:

Yes, and we know that “idiot” and “white supremacist” aren’t in the list of protected classes that the rule applies to.

Not for lack of trying or desire anyway, there’s a reason the toxic individuals always try to frame their deplorable behavior as political or religious based, and it’s so that they can claim that anyone calling them on it or ‘discriminating’ against them is doing so for political/religious reasons rather than because they’re being assholes.

ML2 (profile) says:

My prediction

I am going to guess the exact opposite: that SCotUS will go against Florida and Texas.

The thing is that unlike in this case, we knew how the Dobbs ruling would fall before the case was even argued, let alone before the leak happened. The justices were if anything preselected based primarily on being “pro-life”. The other positions they may have aren’t as big an issue. I should also note that while this SCOTUS doesn’t care as much about precedent from previous SCOTUS courts, it’s generally consistent when it comes to its own rulings: in particular, individual justices aren’t generally going to contradict themselves.

On the other hand if I am wrong I will eat a crow and find a way, by hook or by crook, to post it here.

Stephen T. Stone (profile) says:

Re:

Given the logic in the Kavanaugh-authored decision in Halleck and the nature of the rulings in both NetChoice and the PragerU case in the Ninth Circuit, I have a hard time thinking the court would rule that a service like Twitter must be forced by law to host any and all third party speech. I’ll pray I’m not proven wrong…and prepare for the chance that I will be.

That One Guy (profile) says:

Re: Re:

That’s the really chilling thing about the current batch of justices, they’ve shown that they have no problem tossing established law and previous rulings into the bin when it gets them what they want so while I’m hoping they’ll rule that the anti-first amendment laws are unconstitutional whether they actually will is still very much in the air.

Anonymous Coward says:

Re: Re:

I’ll pray I’m not proven wrong…and prepare for the chance that I will be.

Fido net is still in operation in some remote areas of the world, and would not take much effort to make it suitable for sneaker net using high capacity micro SD cards. (A matchbox full of micro SD card has an even higher capacity that a truck load of tapes, and band width depends on how fast it can be moved from a to b.)

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Chozen (profile) says:

Re: Re: Re: Follow Up

As I said before since everyone here takes extreme literal and etymological interpretations of certain words like Public and Monopoly when it suits them how exactly is this site called techdirt?

When I ask Mike to engage in an actual techne logos he never responds. Asking Mike to explain how social media falls outside of wired or airwave communication which is an actual techne and logos Mike has no logos.

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Chozen (profile) says:

Re: Re: Re:2 MBA

And I get it Mike is an MBA. He couldn’t engage in a techne logos if he wanted to. I’m a EE and a CPE I will and have mopped the floor with him in any technos logos. But Mike who has no problem calling his blog TechDirt will then turn around and scream its not a “monopoly mono means one!”

Oh now etymology matters!

Chozen (profile) says:

Re: Re: Re:4 Your Own Source

“Courts do not require a literal monopoly before applying rules for single firm conduct; that term is used as shorthand for a firm with significant and durable market power”

As I have said before compare the market share of google Facebook etc. in their niche markets to Bell Telephone and Standard Oil at the time of their breakups. Its not even close.

Standard oil had a 69% market share when it was broken up. Googles market share is 86.95%.

Anonymous Coward says:

Re: Re: Re:5

Standard oil had a 69% market share when it was broken up. Google’s market share is 86.95%.

According to Wikipedia:

“Standard Oil dominated the oil products market initially through horizontal integration in the refining sector, then, in later years vertical integration; the company was an innovator in the development of the business trust. The Standard Oil trust streamlined production and logistics, lowered costs, and undercut competitors. ‘Trust-busting’ critics accused it of using aggressive pricing to destroy competitors and form a monopoly that threatened other businesses.”

None of the above is true of Google or its parent company Alphabet, even if your figures aren’t reversed or otherwise cooked up.

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Chozen (profile) says:

Re: Re:

And in Halleck Kavanaugh compleatly regarded the states authority to regulate cable operators

“Federal Communications
Commission regulations required certain cable operators
to set aside channels on their cable systems for public
access. In 1979, however, this Court ruled that the FCC
lacked statutory authority to impose that mandate. See
FCC v. Midwest Video Corp., 440 U. S. 689 (1979). A few
years later, Congress passed and President Reagan signed
the Cable Communications Policy Act of 1984. 98 Stat.
2779. The Act authorized state and local governments to
require cable operators to set aside channels on their cable
systems for public access. 47 U. S. C. §531(b).”

The issue in Halleck was that no one was arguing that MMN had violated the states regulatory code. I MMN had the case would have had a much different outcome.

The Texas and FL social media laws are fundamentally regulations no different than the cable regulations referenced in Halleck. Halleck makes it quite clear that Time Warner owns the cable but is still subject to state regulation in the public interest.

Government has regulatory power over all communications wired and airwaves at both the federal and state level. As I asked Mike and got now answer, if social media falls outside of wired and airwave communication how exactly does it work? ESP?

Rocky says:

Re: Re: Re:

As I asked Mike and got now answer, if social media falls outside of wired and airwave communication how exactly does it work? ESP?

As I said earlier – the question is stupid. I should point out that social media functions better with electronic communication, but you could run it by ordinary mail if necessary which is how social clubs before the rise of the internet did it.

Anonymous Coward says:

Re: Re: Re:3

Since when do postal regulation stipulate whose words you must include in a magazine or club news letter distributed via the post? Regulation of the postal service is not regulation of its users or what content they put in posted items; (except regulations about posting dangerous materials, like poisons or explosives).

Rocky says:

Re: Re: Re:3

Then they would just fall under postal regulations instead of The Federal Communications Act. Whats your point?

I want you to point out which law or statue says that speech contained in a letter falls under postal regulations.

I’m fully aware that postal regulations in some instances allow the postal service to open letters to verify that the content fit the postage paid but they aren’t allowed to read the content of letters.

Also, postal regulations are irrelevant at the moment a letter is delivered.

PaulT (profile) says:

Re: Re:

Honestly, Werner Herzog presented a short film of himself eating a shoe when he lost a bet. If Koby did something as honest, insightful or real as Werner frigging Herzog, I’d want it preserved for the history books.

He won’t, but even an attempt at dealing with the real world after everything he’s said here would be noteworthy.

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Chozen (profile) says:

Re: Re: Funding Will Dry Up

This issue is where Mike makes his money. He is paid to help keep this kind of regulation off of BigTech. He is a paid corporate shill nothing more. He is a Jimmy Kimmel or a Kevin Smith. He is a generation X who talked the talk in the 90s and 00s but when the culture changed he sold out.

If BigTech loses here all of Mike’s funding will disappear and so will Mike.

Mike knows this.

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Chozen (profile) says:

Re: Freedom of the Press

“It does not require that anyone provide that soapbox for you to stand on.”

That’s called freedom of the press. In 1791 a journalist was someone who kept a journal. What we would eventually call “journalists” or “press” were called pamphleteers.

Freedom of the Press meant freedom of the printing press. The free access to the physical thing so people could disseminate their speech. Freedom of the press means the free access to the means of communication because without freedom of the press the people are just screaming on a soap box.

The idea that Press means institutional modern journalists is a late 19th century invention where mainstream journalists tried to invent a right that applied only to them by changing the definition of words.

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Chozen (profile) says:

Re: Re: Re:

Is it really “their” press.

It sits upon a network wire and airwaves. As such it is subject to regulation in the public interest to assure the people have access.

As I asked Mike over a year ago. If social media falls outside of wired and airwaves communication how exactly does it work? Mike never answered.

Apparently TechDirt isn’t very interested in a techne logos.

Anonymous Coward says:

Re: Re: Re:2

It sits upon a network wire and airwaves. As such it is subject to regulation in the public interest to assure the people have access.

The ISPs should be regulated as a common carrier. So long as you can get that common carrier service you can have a voice on the Internet by running your own servers in your own basement, at your own expense. All that freedom of speech guarantees is that you can publish your words at your own expense, indeed at their own expense was the only option available to most people before the Internet, as the studios, labels, publishers and newspapers were very selective about what they published.

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Chozen (profile) says:

Re: Re: Re:3 Halleck

In Halleck the case Mike loves to cite Time Warner owned the cable. Manhattan Neighborhood Network used the cable Time Warner owned.

In no point in the decision, a framed portrait of which Mike prays to every dawn, noon, mid-afternoon, sunset and evening, facing Bill Gate’s house, does Kavanaugh ever deny the State’s Authority under the communications acts to regulate MNN.

So how is your argument about ISPs and social media any different than Time Warner and MMN?

Chozen (profile) says:

Re: Re: Re:5 Nope

Again Time Warner owned the cable MMN like many small cable TV providers just used Time Warners cable.

Again the communications act 1934 gives the federal and later state governments immense power to regulate all communications wired and airwaves. How does social media fall outside of this. Halleck the case Mike likes to cite above all others says unequivocally that you don’t need to own the wire to be regulated under communications act.

Stephen T. Stone (profile) says:

Re: Re: Re:6

How does social media fall outside of this.

They’re not public forums, that’s how. The primary gist of Halleck is simple: A privately owned institution that opens its doors to the public does not become a state actor⁠—in this context, a true public forum⁠—only because it opens its doors to the public. That’s little different than a bar (or a pub, if you will…) opening its doors to the public: The government can regulate a lot of things about how the bar operates, but outside of those regulations, the bar can still choose what drinks it’ll serve, what constitutes acceptable behavior on its grounds, and how to best deal with disruptive little shits who think the bar is their own personal soapbox. That the bar exists within a state, operates under regulations made by the state, and is reachable by roads owned by the public/the state doesn’t make the bar a state actor⁠—which means that bar can’t be forced to platform both any kind of third party speech and the people who say it.

Yes or no: Do you sincerely believe a bar, a television station, or a social media service should be forced by law to give white supremacists a soapbox only because the law may regulate those entities in other ways?

Rocky says:

Re: Re: Re:6

Again the communications act 1934 gives the federal and later state governments immense power to regulate all communications wired and airwaves. How does social media fall outside of this.

Setting aside the qualifications for what a public forum is, social media isn’t either a transmission/data carrying medium. They are interactive computer services that happens to use the internet but they could also use RFC 2549 if they where particularly peculiar in how people should communicate with them.

Tanner Andrews (profile) says:

Re: Re: Re:4 common carriers and things carried

A common carrier is obliged to provide service to all applicants, often according to a published tariff. On the other hand, the applicants are not required to deal with everyone.

So, for instance, at my factory I can expect the railroad to bring me hopper-loads of raw materials, and to carry my finished goods to my customers. The railroad has little discretion here. So long as the raw materials vendor pays the published rate, the railroad brings my factory its inputs. And so long as I pay the published rate, the railroad will carry my finished goods to the distribiutors.

The thing is that if my finished goods are yard signs for the candidate running on the ``abolish the railroad” platform, the railroad cannot embargo my factory sidings. Yet, my factory need not print signs for the ``lay more tracks” campaign, simply because I do not like those folks.

That is because my factory is not a common carrier, even though it uses common carriers to receive inputs and send outputs. It is connected to the common carriers. My sidings are well maintained. Yet still, those sidings and the loading docks are mine and their use is offered only to those folks whom I like.

A similar situation holds with web sites, which are connected to the internet, but which are owned and operated separately from the carriers who carry the bits around the state and around the world.

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Anonymous Coward says:

The MAGA cult wants to change both of those.

Errr, not quite. What they want to change is that you, the citizen passing by, must stop and listen with full interest to any and all drivel coming from that soapbox. The soapbox itself is just a tool used to expound that drivel. A convenient tool, to be sure, but only a tool nonetheless.

My proposed solution: For all of those websites meeting the various criteria in size, etc. I say they should simply shut down for 24 hours. I mean completely, not even a DNS server operating for that time period. How many GQPers do you think will be on the horn to their Congress critters to “Do Something!” in response to having their ill-thought-out demands acted upon?

And that’s my idea for a pre-Opinion demonstration. After the Opinion, if it goes South, then simply shut up shop permanently. I say to you, the rich bastards of Big Tech – do you really need any more money? No, you don’t. Then let all the “little people” who work for you fend for themselves, as the law has been interpreted by SCOTUS to mean no one gives a flying fuck about those ‘little people’ because they don’t “donate” large amounts of money to campaigns. Simply retire to your condo in the Bahamas, you’ve earned your rest. Leave the remnants of the Internet to be picked over by, oh, I don’t know, perhaps the gubbermint, who knows….

sumgai

PaulT (profile) says:

Re:

“Errr, not quite. What they want to change is that you, the citizen passing by, must stop and listen with full interest to any and all drivel coming from that soapbox.”

Yes, their aim is to get an audience that they haven’t gained through other means. There’s reasons why they haven’t got that audience, and it’s not because there’s a conspiracy against them. They live by the lie of them being a “silent majority”, but in reality they’re a loud, depressingly active, minority.

“How many GQPers do you think will be on the horn to their Congress critters to “Do Something!” in response to having their ill-thought-out demands acted upon?”

Some, but they will have been pre-programmed to believe that any action is “big tech” trying to remove their “rights”. The problem we face is that some of these people are not dealing with actual reality. There’s still people claiming that Jan 6th was just a bunch of tourists and that the election was stolen…

“I say to you, the rich bastards of Big Tech – do you really need any more money? No, you don’t”

Neither do the people who supply them that conveniently get left out of that label (what, you think that Facebook, etc., can operate without larger corporations giving people access to the internet?). Killing the companies that currently sit at the top does nothing to solve the actual problems, and might actually make some worse (for example, killing Amazon doesn’t fix the issues that allowed them to dominate, and doesn’t kill Wal Mart).

If you obsess over “big tech”, you are missing some of the real issues. One is that this relatively new sector are not monopolies and can be replaced. Another is that they are not the root cause of most of the problems at hand. They do a lot of bad things, but their dominance is not something you can wipe away by breaking up or destroying a handful of companies.

PaulT (profile) says:

Re: Re: Re:

That’s part of my point. When people refer to “big tech”, they usually just mean Google, Amazon, Microsoft, Apple and Facebook. Apart from the fact that this doesn’t include ISPs, mobile operators, etc. that all of these companies depend on to operate and hardware manufacturers, etc., but there’s little they actually do that’s unique. They’re where they are due to user base and momentum.

Some currently have a defacto monopoly due to current trends, but nothing actually stops others from coming in to replace them – yet, legislation intended to curb their activities often demands that nobody can. They could shut down tomorrow, and the underlying reasons why they dominate would remain, changing the names of who is in “charge”.

There’s way more fundamental issues at hand, and trying to do things like set in stone how services can do things like moderation will do nothing to solve them, and might in fact make things worse.

Anonymous Coward says:

Re: Re: Re:2

-> PaulT

Yes, there are deeper issues than the surface ones I’ve alluded to, and also there are other players in the game as well. Do recall that I said “those sites/platforms who meet the requirements (of the various laws) vis-a-vis size, number of visitors, etc.” That was meant, as the law clearly implies, to include all successors when the current crop of big-boys go away.

When all is said and done, the law is intended to remove all players from the game, not just the current mega-platforms. When the law makers finally figure out that those who don’t meet the current requirements are now in their respective driver’s seats, then the goal posts will move to include them as well.

But more to the point…. when people are habitually comfortable with calling up Google to search for XYZ, and Google suddenly goes away, how many of those couch potatoes do you think will actually engage an alternate search engine? I’m betting, a very small percentage. The rest will start whinging about their rights to use the Internet as they’ve become accustomed to doing, and they’ll simply mob up (read: dumb themselves down to the point of throwing all sensibilities to the wind) and start marching in the streets for laws requiring the return of the commonly accepted platforms, regardless of what any law-maker thinks of them.

I agree with you, my proposal is very nearly absurdly overboard, no question there. (Only “very nearly”, because such actions worked to defeat SOPA, way back when.) But I also predict that it will take a near-look-alike event to demonstrate to the legislators exactly what to expect when they write (and pass) shitty laws such as this one. (Klobuchar’s Link Tax law (read: forced transfer of wealth from one class of donors to a much larger set of donors with seemingly infinite checks in their collective checkbook) being another dumpster fire that confirms what H.L Mencken said about idiots and elections, all the way back in 1920.)

PaulT (profile) says:

Re: Re: Re:3

“But more to the point…. when people are habitually comfortable with calling up Google to search for XYZ, and Google suddenly goes away, how many of those couch potatoes do you think will actually engage an alternate search engine? ”

You’re aware that search engines existed before Google right? They’ll go to whatever alternative gets the headlines.

Kelly Gray says:

Re:

The MAGA cult wants to change both of those.

Errr, not quite. What they want to change is that you, the citizen passing by, must stop and listen with full interest to any and all drivel coming from that soapbox. The soapbox itself is just a tool used to expound that drivel. A convenient tool, to be sure, but only a tool nonetheless.

Oh, but they do want to be able to punish you for saying something they don’t like. Take a look at the “fake news” claims, and the death threats against anyone mentioning inconvenient facts.

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LostInLoDOS (profile) says:

Understanding the constitution

The two questions present two separate concerns.

Question one, the constitution clearly prohibits forced speech. Forced expression.

But on 2? Well, I see nothing anywhere in the constitution that would prohibit any level of government from enacting and enforcing a mandate of knowing.
In fact, under the premise of fair justice I think knowing is important.

I know the slap fit reaction is to say, ‘but the quantity’. And here, I point to CIS. Who at their highest periods were comparable in user numbers.
And as someone who filled out some of the letters, they managed to bend over backwards and into pretzels to make things clear when users got punished, blocked, and eventually outright banned.
Be it from a section of the service, from one of the on-ramps, or from the service itself.

Maybe it’s my time in tech, maybe it’s my personality. But to this day I try to be as direct as I can be when someone ultimately faces my ban-saw. This is why, a, b, c, and most definitely d!

Do I believe the government should force companies to be direct, through, and honest, with users in their practices? No.
But, at the same time, do I think it would be bad if the government forced local laws (that is the private laws governing the service, the TOS) be detailed and in plain English, also no.

It’s an internal debate I have with myself. One more commentators should have with themselves. Is having rules, laws, spelled out explicitly actually a bad thing? Separate your thoughts on/about the service in question first, then ask:
Would it be ok for the state to not publish a law because people will seek ways around it?
How about a town or village. A community.
A housing or dorm association.
A floor or block.
A single web service.

Should any rules at any level be hidden or less than direct?

Stephen T. Stone (profile) says:

Re:

Is having rules, laws, spelled out explicitly actually a bad thing?

As with a great many things, there is no black-and-white, only shades of grey. This is especially true in re: content moderation.

Spelling out the kinds of content you want to keep off your platform is generally a good thing. But even then, that ends up being a generalized thing, because you’re banning broad swaths of speech (e.g., racial slurs) from being posted on your site without being detailed about it. That can often generate “false positive” reports against innocuous speech that seems like it would break the rules but doesn’t. And if you do go into more detail, you’re likely to make a bunch of rules-lawyering assholes search for loopholes to exploit⁠—all so they can go “technically, I didn’t break the rules, so you can’t touch me”.

Adaptation without rigidity is the key. Lean too far in the generalized or the specific, and you run the risk of having to do more work than necessary. Staying only as specific as necessary lets you adapt to the trolls and avoid “false positive” reports without needing to either keep adding new rules or constantly update old ones. Also: Having a “we reserve the right to kick you out for any reason not listed here” rule definitely helps.

LostInLoDOS (profile) says:

Re: Re:

Having a “we reserve the right to kick you out for any reason not listed here” rule definitely helps.

I was reading an article in the last few days somewhere (not remembering where) about understanding justice in a democracy.
It touched on many of optics, including racial concerns, law enforcement, and moderation. I also read the follow up from NYT on the ASU multicultural room debacle from Sat/Sun.

The make points that stuck with me. And forced a question on me I didn’t want to ask myself:
Can you be fair in equality?

Think on that for a moment.
Side-stepping the troll issues, can we be fair. Is it fair to ban people based on actual beliefs and opinions?
No, but it is ‘just’ in my belief. Allowing disruption produces debate but also produces conflict.

And then the question becomes what level of conflict is the dividing line.?

I point to you and me. We have had some brutal debates. And clearly have different views we believe strongly. Yet I would like to think we are both better for them.
In many cases we find common ground where we can reach understanding in the view, and then target small subsections.

Can that work in numbers of millions? I don’t know. When o was with AOL I had two tiny (few hundred thousand active users) sections of responsibility. And dozens of other guides to help. They were also a rare spot for conflict.

But at CIS any moderator would get any random complaint that came through the system reporting. Some was truly bad. Other complaints were nothing more than hurt feelings.
Do you really ban a person for hurting the feelings of some random thin-skinned bonehead?

Moderation is not easy. Nor cut and dry. Which, again, is why I always resort to the lesser possibility available.

My libertarian mindset mandates I respect the right of personal properties. And I do, deeply. It’s a hard division in my views to accommodate both my hatred of censorship in all its forms and my love of the personal choice and freedom.

Sometimes the greater good is the act of deletion or banishment. It’s definitely not fair. But it is just.
But sometimes conversations should play out as well. No matter how heated.
Progress requires change. But change often requires conflict.
If the conflict can be directed and controlled, maintained and somewhat passive in passions, I lean to let it stay.
Without conflict we become stagnant. Simple clones of thought.

Ultimately, banning and ignoring conflicting opinions doesn’t make them go away. You will never change every mind. But you can change a few. And a few changes is Better than none. Right?

Stephen T. Stone (profile) says:

Re: Re: Re:

Moderation, as I’ve said before, is a form of community curation. How strictly or loosely one moderates is generally indicative of the kind of community they want to see. To wit: 4chan’s moderation is nearly non-existent, and its community is…well, the phrase “Worst People Problem writ large” comes to mind.

The real goal of moderation isn’t about “banning and ignoring conflicting opinions”, but about banning and ignoring people who intentionally try to disrupt a community for arbitrary reasons. In a queer-friendly community, two people debating the quality and merits of queer-focused media is not the same thing as two people debating whether queer people should be allowed to live openly in society. If I were a mod in such a community, I’d kick the rabblerouser out because they were trying to be a disruptive little shit and push their homophobia on everyone else. Some stances aren’t worth debating as if they’re valid opinions; one of them is “queer people need to get back in the closet”.

People disagree with me here on a regular basis; as long as their arguments are reasonable, I’m more than willing to give them credit for any fair points. I wouldn’t ban them even if I could (and I can’t) because a reasonable argument for a reasonable opinion isn’t something I’m “afraid” of seeing. But I would ban assholes like Hyman Rosen, whose perverse obsession with trans people’s genitals has made him a troll whose only real arguments are meaningless dribble such as “woke [x] ideologues are ruining [y]”.

Oh, and one more thing: If you can do so in the future, please try to avoid using that “right?” rhetorical gimmick.

LostInLoDOS (profile) says:

Re: Re: Re:2

You make valid points.
And clearly I do and have agreed with many. I’ve put more people in the sandbox than most moderators in shared responsibility have. Mainly because I find it funny to watch the Uber trolls try to eat the windings. But also because being a stupid bigot is environmental to your raising and development. Maybe some can be reformed.

Even I have limitations and am willing to ban true filth.
Posting illegal material is gonna get you banned. And likely reported. (Though I take into account legality in the hosting country).

When it comes to the fear of trans people it see a legitimate, as in actual, fear, to them. But I think it’s more a subconscious fear they may look at someone’s bum or boobs or something and find they are attracted.
To the “wrong” gender. It’s my personal thoughts on it. Nothing more.
I have concerns from my studies on child development and child psychology that suggest serious personal concerns for some of the more extreme measures, that is irreversible actions, pushed with children. But also recognise that it is extremely rare despite coverage in some circles.

It’s one thing to question, like i do, long term consequences of mistakes in comprehension… and those that simply disagree with the practice at any stage.
But if your opinion is disruptive for the sake of being disruptive… you’re a turd. Turds get flushed.

Ultimately moderation methodology is never going to please everyone. Especially those moderated. Though that is partly the point. Go be a shite over there. And all.

Stephen T. Stone (profile) says:

Re: Re: Re:4

(CW: I’ll be using a bit of anti-queer language here.)

How far is too far and [how] little is not enough.

Again: No clear answer exists for that question. Much of the time, the answer depends on multiple contexts⁠—not the least of which is the general tenor and direction of the community one is moderating.

I hang out on a Discord server where use of the “-fag” suffix, made (in)famous by 4chan-borne terms like “newfag” and “drawfag”, is flat-out banned. In a server that has a more 4chan-esque moderation policy, those terms might be fine to post. Neither decision is wrong for that community (though I would disagree with the second server’s decision). But each of those servers⁠—those communities⁠—should have the right to make that decision for themselves rather than the law force them to either allow or ban those terms.

Stephen T. Stone (profile) says:

Re: Re: Re:3

being a stupid bigot is environmental to your raising and development. Maybe some can be reformed.

Victims of bigotry have no obligation or responsibility to reform a bigot. The bigot is responsible for their hatred; they should take responsibility for it and reform themselves. If a victim (or potential victim) of that bigotry wants to voluntarily help with that reformation, so be it.

I think it’s more a subconscious fear they may look at someone’s bum or boobs or something and find they are attracted. To the “wrong” gender.

It’s far more than that.

The existence of queer people (but trans people in particular) shatters rigid gender roles and traditions. If gender identity can be fluid instead of fixed, the idea that all men should be [x] and all women should be [y] gets tossed out the window. A lot of people⁠—especially conservative religious folks⁠—have invested so much of their own identity into those gender roles and their gender identity that someone else shattering the paradigm scares the rigid-thinking people half to death.

Now add in the notions that children can know more about their identity at a given age than a lot of adults think they can, and you can see why a shitload of folks are up in arms about “groomers” and “woke gender ideologists”. Their fear is that their perfect little boy or girl is going to grow up to be gay or trans⁠—even if the parents aren’t gay or trans themselves. Incidentally, that’s why “conversion ‘therapy’ ” is (still) a thing.

Some of the bigotry does come down to a fear of sexual attraction to “the wrong gender”, though⁠—or, perhaps more accurately, a fear of the social consequences for expressing that attraction in any way. Queer people do still get attacked (and killed…) for being openly queer these days, after all.

LostInLoDOS (profile) says:

Re: Re: Re:4

Victims of bigotry have no obligation or responsibility to reform a bigot.

You missed the idea of my use of punishment. Separation of the bigotry and placing them in the verbal equivalent of a death match. It is possible, as I’ve seen it happen, to reform some people purely by placing them in an environment the makes them understand what they themselves have done. What it feel like on the other end.

Sometimes it works. On occasion.
Sometimes they survive happily in the sandbox.
Most of the time they simply give up. But most trolls will eventually stop coming back. Once each attempt gets sandboxed a half dozen times they simply give up and move on. Creating a new account just to troll and get boxed up fairly quickly is more trouble than value for many. In my experience.

I won’t go into details on ‘recovery’ aspects i implement beyond public apologies to victims is required.

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