Five Decisions Illustrate How Section 230 Is Fading Fast
from the courts-hate-230 dept
Professor Eric Goldman continues to be the best at tracking any and all developments regarding internet regulations. He recently covered a series of cases in which the contours of Section 230’s liability immunity is getting chipped away in all sorts of dangerous ways. As it’s unlikely that I would have the time to cover any of these cases myself, Eric has agreed to let me repost it here. That said, his post is written for an audience that already understands Section 230 and nuances related to it, so be aware that it doesn’t go as deep into the details. If you’re just starting to understand Section 230, here’s a good place to start, though, as Eric notes, the old knowledge may be increasingly less important.
Section 230 cases are coming faster than I can blog them. This long blog post rounds up five defense losses, riddled with bad judicial errors. Given the tenor of these opinions, how are any plaintiffs NOT getting around Section 230 at this point?
District of Columbia v. Meta Platforms, Inc., 2024 D.C. Super. LEXIS 27 (D.C. Superior Ct. Sept. 9, 2024)
The lawsuit alleges Meta addicts teens and thus violates DC’s consumer protection act. Like other cases in this genre, it goes poorly for Facebook.
Section 230
The court distills and summarizes the conflicting precedent: “The immunity created by Section 230 is thus properly understood as protection for social media companies and other providers from “intermediary” liability—liability based on their role as mere intermediaries between harmful content and persons harmed by it…. But-for causation, however, is not sufficient to implicate Section 230 immunity….Section 230 provides immunity only for claims based on the publication of particular third-party content.”
I don’t know what “particular” third-party content means, but the statute doesn’t support any distinction based on “particular” and “non-particular” third-party content. It refers to information provided by another information content provider, which divides the world into first-party content and third-party content. Section 230 applies to all claims based on third-party content, whether that’s an individual item or the entire class.
Having manufactured the requirement of that the claim must be based on “particular” content to trigger Section 230, the court says none of the claims do that.
With respect to the deceptive omissions claims, Section 230 doesn’t apply because “Meta can simply stop making affirmative misrepresentations about the nature of the third-party content it publishes, or it can disclose the material facts within its possession to ensure that its representations are not misleading or deceptive within the meaning of the CPPA.”
With respect to a different deceptive omissions claim, the court says Facebook “could avoid liability for such claims in the future without engaging in content moderation. It could disclose the information it has about the prevalence of sexual predators operating on its platforms, and it could take steps to block adult strangers from contacting minors over its apps.” I’d love for the court to explain how blocking users from contacting each other on apps differs from “content moderation.”
With respect to yet other deceptive omissions claims, the court says “If the claim seeks to hold Meta liable for omissions that make its statements about eating disorders misleading, then, as with the omissions regarding the prevalence of harmful third-party content on Meta’s platforms, the claim seeks to hold Meta liable for its own false, incomplete, and otherwise misleading representations, not for its publication of any particular third-party content. If the claim seeks to hold Meta liable for breaching a duty to disclose the harms of its platforms’ features, including the plastic surgery filter, then the claim is based on Meta’s own conduct, not on any third-party content published on its platforms.”
First Amendment
“Meta’s counsel was unable to articulate any message expressed or intended through Meta’s implementation and use of the challenged design features.” The court distinguishes a long list of precedents that it says don’t apply because they “involved state action that interfered with messaging or other expressive conduct—a critical element that is not present in the case before this court.” I don’t see how the court could possibly say that a government agency suing Facebook for not complying with government rules about the design of speech venues isn’t state action that interferes with expressive conduct. (Also, the “expressive conduct” phrase doesn’t apply here. It’s called “publishing”).
The court distinguishes the Moody case:
Deprioritizing content relates to “the organizing and presenting” of content, as do the design features at issue here. But the reason deprioritizing specific content or content providers can be expressive is not that it affects the way content is displayed; it can be expressive because it indicates the provider’s relative approval or disapproval of certain messages.
I don’t understand how the court can acknowledge that Facebook’s design features relate to the “organizing and presenting” of content and still not say those features are not expressive.
The court continues with its odd reading of Moody:
The Supreme Court, moreover, expressly limited the reach of its holding in Moody to algorithms and other features that broadly prioritize or deprioritize content based on the provider’s preferences, and it emphasized that it was not deciding whether the First Amendment applies to algorithms that display content based on the user’s preferences
Huh? Every algorithm encodes the “provider’s preferences.” If the court is trying to say that Facebook didn’t intend to preference harmful content, that ignores the inevitability that the algorithm will make Type I/Type II errors. The court sidesteps this:
the District’s unfair trade practice claims challenge Meta’s use of addictive design features without regard to the content Meta provides, and Meta has failed to articulate even a broad or vague message it seeks to convey through the implementation of its design features. So although regulations of community norms and standards sometimes implicate expressive choices, the design features at issue here do not.
Every “design feature” implicates expressive choices. Perhaps Facebook should have done a better job articulating this, but the judge was far too eager to disrespect the editorial function.
The court adds that if the First Amendment applied, the enforcement action will be subject to, and survive, intermediate scrutiny. “The District’s stated interest in prosecuting its claims is the protection of children from the significant adverse effects of the addictive design features on Meta’s social media platforms. The District’s interest has nothing to do with the subject matter or viewpoint of the content displayed on Meta’s platforms; indeed, the complaint alleges that the harms arise without regard to the content served to any individual user. ”
It’s impossible to say with a straight face that the district is uninterested in the subject matter or viewpoint of the content displayed on Meta’s platforms. Literally, other parts of the complaint target specific subject matters.
Prima Facie Elements
The court says that the provision of Internet services constitutes a “transfer” for purposes of the consumer protection statute, “even though Meta does not charge a fee for the use of its social media platforms.”
The court says that the alleged health injuries caused by the services are sufficient harm for statutory purposes, even if no one lost money or property.
The court says some of Meta’s public statements may have been puffery, and other statements may not have been issued publicly, but “many of the statements attributed to Meta and its top officials in the complaint are not so patently hyperbolic that it would be implausible for a reasonable consumer to be misled by them. Others are sufficiently detailed, quantifiable, and capable of verification that, if proven false, they could support a deceptive trade practice claim.”
State v. Meta Platforms, Inc., 2024 Vt. Super. LEXIS 146 (Vt. Superior Ct. July 29, 2024)
Similar to the DC case, the lawsuit alleges Meta addicts teens and thus violates Vermont’s consumer protection act. This goes as well for Facebook as it did in DC.
With respect to Section 230, the court says:
Meta may well be insulated from liability for injuries resulting from bullying or sexually inappropriate posts by Instagram users, but the State at oral argument made clear that it asserts no claims on those grounds….
The State is not seeking to hold Meta liable for any content provided by another entity. Instead, it seeks to hold the company liable for intentionally leading Young Users to spend too much time on-line. Whether they are watching porn or puppies, the claim is that they are harmed by the time spent, not by what they are seeing. The State’s claims do not turn on content, and thus are not barred by Section 230.
The State’s deception claim is also not barred by Section 230 for the same reason—it does not depend on third party content or traditional editorial functions. The State alleges that Meta has failed to disclose to consumers its own internal research and findings about Instagram’s harms to youth, including “compulsive and excessive platform use.” The alleged failure to warn is not “inextricably linked to [Meta’s] alleged failure to edit, monitor, or remove [] offensive content.”
Facebook’s First Amendment defense fails because it “fails to distinguish between Meta’s role as an editor of content and its alleged role as a manipulator of Young Users’ ability to stop using the product. The First Amendment does not apply to the latter.” Thus, the court characterizes the claims as targeting conduct, not content, which only get rational basis scrutiny. “Unlike Moody, where the issue was government restrictions on content…it is not the substance of the speech that is at issue here.”
T.V. v. Grindr, LLC, 2024 U.S. Dist. LEXIS 143777 (M.D. Fla. Aug. 13, 2024)
This is an extremely long (116 pages), tendentious, and very troubling opinion. The case involves a minor, TV, who used Grindr’s services to match with sexual abusers and then committed suicide. The estate sued Grindr for the standard tort claims plus a FOSTA claim. The court dismisses the FOSTA claim but rejects Grindr’s Section 230 defense for the remaining claims. It’s a rough ruling for Grindr and for the Internet generally, twisting many standard industry practices and statements into reasons to impose liability and doing a TAFS-judge-style reimagining of Section 230. Perhaps this ruling will be fixed in further proceedings, or perhaps this is more evidence we are nearing the end of the UGC era.
FOSTA
The court dismissed the FOSTA claim:
T.V., like the plaintiffs in Red Roof Inns, fails to allege facts to make Grindr’s participation in a sex trafficking venture plausible. T.V. alleges in a conclusory manner that the venture consisted of recruiting, enticing, harboring, transporting, providing, or obtaining by other means minors to engage in sex acts, without providing plausible factual allegations that Grindr “took part in the common undertaking of sex trafficking.”…, the allegations that Grindr knows minors use Grindr, knows adults target minors on Grindr, and knows about the resulting harms are insufficient.
This is the high-water mark of the opinion for Grindr. It’s downhill from here.
Causation
The court says the plaintiff adequately alleged that Grindr was the proximate cause of TV’s suicide:
reasonable persons could differ on whether Grindr’s conduct was a substantial factor in producing A.V.’s injuries or suicide or both and whether the likelihood adults would engage in sexual relations with A.V. and other minors using Grindr was a hazard caused by Grindr’s conduct
Strict Liability
The court doesn’t dismiss the strict liability claim because the Grinder “service” was a “product.” (The plaintiff literally called Grindr a service). The court says:
Like Lyft in Brookes, Grindr designed the Grindr app for its business; made design choices for the Grindr app; placed the Grindr app into the stream of commerce; distributed the Grindr app in the global marketplace; marketed the Grindr app; and generated revenue and profits from the Grindr app….
Grindr designed and distributed the Grindr app, making Grindr’s role different from a mere service provider, putting Grindr in the best position to control the risk of harm associated with the Grindr app, and rendering Grindr responsible for any harm caused by its design choices in the same way designers of physically defective products are responsible
This is not a good ruling for virtually every Internet service. You can see how problematic this is from this passage:
T.V. is not trying to hold Grindr liable for “users’ communications,” about which the pleading says nothing. T.V. is trying to hold Grindr liable for Grindr’s design choices, like Grindr’s choice to forego age detection tools, and Grindr’s choice to provide an interface displaying the nearest users first
These “design choices” are Grindr’s speech, and they facilitate user-to-user speech. The court’s anodyne treatment of the speech considerations doesn’t bode well for Grindr.
The court says TV adequately pleaded that Grindr’s design choices were “unreasonably dangerous”:
Grindr designed its app so anyone using it can determine who is nearby and communicate with them; to allow the narrowing of results to users who are minors; and to forego age detection tools in favor of a minor-based niche market and resultant increased market share and profitability, despite the publicized danger, risk of harm, and actual harm to minors. At a minimum, those allegations make it plausible that the risk of danger in the design outweighs the benefits.
Remember, this is a strict liability claim, and these alleged “defects” could apply to many UGC services. In other words, the court’s analysis raises the spectre of industry-wide strict liability–an unmanageable risk that will necessarily drive most or all players out of the industry. Uh oh.
Also, every time I see the argument that services didn’t deploy age authentication tools, when the legal compulsion to do so has been in conflict with the First Amendment for over a quarter-century, I wonder how we got to the point where the courts so casually disregard the constitutional limits on their authority.
Grindr tried a risky argument that everyone knows it’s a dangerous app, so basically, caveat user. Having flipped the argument around on the court, all of the sudden, the court doesn’t find the offline analogies so persuasive:
Grindr fails to offer convincing reasons why this Court should liken the Grindr app to alcohol and tobacco—products used for thousands of years—and rule that, as a matter of Florida law, there is widespread public knowledge and acceptance of the dangers associated with the Grindr app or that the benefits of the Grindr app outweigh the risk to minors.
Duty of Care
The court says TV adequately alleged that Grindr violated its duty of care:
Grindr’s alleged conduct created a foreseeable zone of risk of harm to A.V. and other minors. That alleged conduct, some affirmative in nature, includes launching the Grindr app “designed to facilitate the coupling of gay and bisexual men in their geographic area”; publicizing users’ geographic locations; displaying the image of the geographically nearest users first; representing itself as a “safe space”; introducing the “Daddy” “Tribe,” as well as the “Twink” “Tribe,” allowing users to “more efficiently identify” users who are minors; knowing through publications that minors are exposed to danger from using the Grindr app; and having the ability to prevent minors from using Grindr Services but failing to take action to prevent minors from using Grindr Services. These allegations describe a situation in which “the actor”—Grindr—”as a reasonable [entity], is required to anticipate and guard against the intentional, or even criminal, misconduct of others….
considering the vulnerabilities of the potential victims, the ubiquitousness of smartphones and apps, and the potential for extreme mental and physical suffering of minors from the abuse of sexual predators, the Florida Supreme Court likely would rule that public policy “lead[s] the law to say that [A.V. was] entitled to protection,” and that Grindr “should bear [the] given loss, as opposed to distributing the loss among the general public.”…Were Grindr a physical place people could enter to find others to initiate contact for sexual or other mature relationships, the answer to the question of duty of care would be obvious. That Grindr is a virtual place does not make the answer less so.
That last sentence is so painful. There are many reasons why a “virtual” place may have different affordances and warrant different legal treatment than “physical” space. For example, every aspect of a virtual space is defined by editorial choices about speech, which isn’t true in the offline world. The court’s statement implicates Internet Law Exceptionalism 101, and this judge–who was so thorough in other discussions–oddly chose to ignore this critical question.
IIED/NIED
It’s almost never IIED, and here there’s no way Grindr intended to inflict emotional distress on its users…right?
Wrong. The court says Grindr engaged in outrageous conduct based on the allegation that Grindr “served [minors] up on a silver platter to the adult users of Grindr Services intentionally seeking to sexually groom or engage in sexual activity with persons
under eighteen.” I understand the court was making all inferences in favor of the plaintiff, but “silver platter”–seriously? The court ought to push back on such rhetorical overclaims rather than rubberstamp them to discovery.
The court also says that Grindr directed the emotional distress at TV and never discusses Grindr’s intent at all. I’m not sure how it can be IIED without that intent, but the court didn’t seem perturbed.
The NIED claim isn’t dismissed because of the assailants’ physical contact with TV, however distant that is from Grindr.
Negligent Misrepresentations
The court says that Grindr’s statement that it “provides a safe space where users can discover, navigate, and interact with others in the Grindr Community” isn’t puffery, especially when combined with Grindr’s express “right to remove content.” Naturally, this is a troubling legal conclusion when every TOS reserves the right to remove content, and the First Amendment provides that right as well, while the word “safe” has no well-accepted definition and could mean pretty much anything–and certainly doesn’t act as a guarantee that no harm will ever befall a Grindr user. Grindr’s TOS also expressly said that it didn’t verify users, and the court said it was still justifiable to rely on the word “safe” over the express statements why the site might not be safe.
Section 230
The prior discussion shows just how impossible it will be for Internet services to survive their tort exposure without Section 230 protection. If Section 230 doesn’t apply, then plaintiffs’ lawyers can always find a range of legal doctrines that might apply, with existential damages at stake if any of the claims stick. Because services can never plaintiff-proof their offerings to the plaintiff lawyers’ satisfaction, they have to settle up quickly to prevent those existential damages, or they have to exit the industry because any profit will be turned over to the plaintiffs’ lawyers.
Given the tenor of the court’s discussion about the prima facie claims, any guess how the Section 230 analysis goes?
The court starts with the premise that it’s not bound by any prior decisions:
The undersigned asked T.V. to state whether binding precedent exists on the scope of § 230(c)(1). T.V. responded, “This appears to be an issue of first impression in the Eleventh Circuit[.]” Grindr does not dispute that response.
The court is playing word games here. The court is discounting a well-known precedential case, Almeida v. Amazon from 2006. The court says Almeida’s 230(c)(1) discussion–precisely on point–was dicta. That ruling focused primarily on 230(e)(2), the IP exception to 230, but the case only reaches that issue based on the initial applicability of 230(c)(1). In addition, there are at least three non-precedential 11th Circuit cases interpreting Section 230(c)(1), including McCall v. Zotos, Dowbenko v. Google, and Whitney v. Xcentric (the court acknowledges the first two and ignores the Whitney case). These rulings may not be precedential, but they are indicators of how the 11th Circuit thinks of Section 230 and deserved some engagement rather than being ignored. The Florida federal court might also apply Florida state law, which includes the old Doe v. AOL decision from the Florida Supreme Court and numerous Florida intermediate appellate court rulings.
The court acknowledges an almost identical case from a Florida district court case, Doe v. Grindr, where Grindr prevailed on Section 230 grounds. This court says that judge relied on “non-binding cases”–but if there are no binding 11th Circuit rulings, what else was that court supposed to do? And this court has already established that it will also rely on non-binding cases, so doesn’t pointing this out also undercut the court’s own opinion? The court also acknowledges MH v. Omegle, not quite identical to Grindr but pretty close and also a 230 defense-side win. This court also disregards it because it relied on “non-binding cases.”
This explains how the court treats ALL precedent as presumptively irrelevant so that it can treat Section 230 as a blank interpretative slate despite hundreds of precedent cases. The court thus forges its own path, redoes 230 analyses that have been done in superior fashion previously dozens of times, and cherrypicks precedent that supports its predetermined conclusion–a surefire recipe for problematic decisions. So unfortunate.
The court says “The meaning of § 230(c)(1) is plain. The provision, therefore, must be enforced according to its terms.” Because the language is so plain 🙄, the court uses dictionary definitions of “publisher” and “speaker” (seriously). It says that the CDA “sought to protect minors and other users from offensive content and internet-based crimes” (basically ignoring the legislative history), and because the CDA exhibited schizophrenia about its goals (something fully explained in the literature–extensively–but the court didn’t look), the court thinks it should “avoid the predominance of some congressional purposes over others, the provision should be interpreted neither broadly nor narrowly.”
Reminder: the Almeida opinion, in language this court chooses to ignore, said “The majority of federal circuits have interpreted the CDA to establish broad ‘federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service’” (citing Zeran, emphasis added).
Having gone deeply rogue, the court says none of the plaintiff’s common law claims treat Grindr as the publisher of third-party content. “Grindr is responsible, in whole or in part, for the “Daddy” “Tribe,” the “Twink” “Tribe,” the filtering code, the “safe space” language, and the geolocation interface. To the extent the responsible persons or entities are unclear, discovery, not dismissal, comes next.”
The court acknowledges that “Grindr brings to the Court’s attention many cases” supporting Grindr’s Section 230 arguments, including the Fifth Circuit’s old Doe v. MySpace case. To “explain” why these “many cases” don’t count, the court marshals up the following citations: Justice Thomas’ statement in Malwarebytes, Justice Thomas’ statement in Doe v. Snap, Judge Katzmann’s dissent in Force v. Facebook, Judge Gould’s concurrence/dissent in Gonzalez v. Google (which was likely rendered moot by the Supreme Court’s punt on the case), and randomly, a single district court case from Oregon (AM v. Omegle). Notice a theme here? The court is relying exclusively on non-binding precedent–indeed, other than the Omegle ruling, not even “precedent” at all.
With zero trace of irony, after this dubious stack of citations, the court says it can ignore Grindr’s citations because “MySpace and the other cases on which Grindr relies are non-binding and rely on non-binding precedent.” Hey judge…the call is coming from inside the house…
(I could have sworn this was the work of a TAFS judge, especially with the shoutouts to Justice Thomas’ non-binding statements, the poorly researched conclusions, and cherrypicked citations. But no, Magistrate Judge Barksdale appears to be an Obama appointee).
Because this is a magistrate report, it will be reviewed by the supervising judge. For all of its prolixity, it’s shockingly poorly constructed and has many sharp edges. Grindr has unsurprisingly filed objections to the report. I’m sure this case will be appealed to the 11th Circuit regardless of what the supervising judge says.
A.S. v. Salesforce, Inc., 2024 WL 4031496 (N.D. Tex. Sept. 3, 2024)
Another FOSTA sex trafficking case against Salesforce for providing services to Backpage. The court previously rejected the Section 230 defense in a factually identical case (SMA v. Salesforce) and summarily rejects it this time.
In yet another baroque and complex opinion that’s typical for FOSTA cases, the court greenlights one claim of tertiary liability against Salesforce but rejects a different tertiary liability claim. If I thought there was value to trying to reconcile those conclusions, I would do it to benefit my readers. Instead I was baffled by the court’s razor-thin distinctions about the various ecosystem players’ mens rea and actus rea (another common attribute of FOSTA decisions).
ProcureNet Ltd. v. Twitter, Inc., 2024 WL 4290924 (Cal. App. Ct. Sept. 25, 2024)
The plaintiffs were heavy Twitter advertisers, spending over $1M promoting their accounts. Twitter suspended all of the accounts in 2022 (pre-Musk) for alleged manipulation and spam. The plaintiffs claim they were targeted by a brigading attack, but allegedly Twitter disregarded their evidence of that. Eventually, the brigading attack took out the plaintiffs’ personal accounts too. The plaintiffs claim Twitter breached its implied covenant of good faith and fair dealing. Twitter filed an anti-SLAPP motion to strike.
The court says that Twitter’s actions related to a matter of public interest. However, the court says the plaintiffs’ claims have enough merit to overcome the anti-SLAPP motion.
Twitter argued that Section 230 protected its decisions. The court disagrees: “the duty Twitter allegedly violated derives from its Advertising Contracts with plaintiffs, not from Twitter’s status as a publisher of plaintiffs’ content.”
Twitter cited directly relevant California state court decisions in Murphy and Prager that said Section 230 could apply to contract-based claims that would override the service’s editorial discretion, but the court distinguishes them: “These cases, however, do not address claims that a provider breached a separate enforceable agreement for which consideration was paid, like the Advertising Contracts here.” This makes no sense. Whether or not cash was involved, the Murphy and Prager cases involved mutual promises supported by contract consideration. In other words, in each case, the defendant had a contract agreeing to provide services to the plaintiff that the plaintiff valued, so I don’t see any basis to distinguish among these cases. The court might have found better support by citing the also-on-point Calise and YOLO Ninth Circuit cases, but neither case was cited.
Beyond the Section 230 argument, Twitter said that its contracts reserved the unrestricted discretion to deny services. The court says that the unrestricted discretion might still be subject to the implied covenant of good faith and fair dealing: “the purpose of the Advertising Contracts here was not to give Twitter discretion—its purpose, as alleged in plaintiffs’ complaint, was to buy advertising for plaintiffs’ accounts on Twitter’s platform.” In other words, the court effectively reads the reservation of discretion out of the contract entirely.
How bad a loss is this? The plaintiffs had moved to voluntarily dismiss the case while it was on appeal, so they no-showed at the appeal and the court ruled on uncontested papers filed only by Twitter. Ouch. The voluntary dismissal also makes this decision into something of an advisory opinion, and I’m surprised the court decided to issue it rather than deem the appeal moot.
BONUS: Corner Computing Solutions v. Google LLC, 2024 WL 4290764 (W.D. Wash. Sept. 25, 2024). This is also an implied covenant of good faith and fair dealing case. The plaintiff thinks Google should have removed some allegedly fake reviews. The court says the TOS never promised the removal of those reviews in its TOS, but some ancillary disclosures might have implied that Google would. Thus, despite dismissing the case, the court has some sharp words for Google:
It may be misleading for Defendant to state in a policy that fake engagement will be removed while admitting in its briefing that its policies are merely aspirational. But that does not make Defendant’s actions here a breach of contract.
Filed Under: 1st amendment, algorithms, consumer protection, duty of care, fosta, intermediary liability, section 230
Companies: google, grindr, meta, salesforce, twitter, x
Comments on “Five Decisions Illustrate How Section 230 Is Fading Fast”
Given these opinions, anyone should have agood case against any government or corporation for the design of roads, sidewalks, and cars, and the mere existence of such, pollution, police behavior, bad laws, bad court rulings, whatever.
They set the bar so low that they make rulings over things for which there is zero evidence, therefore anone should be able to very successfuly sue for things for which there is metric craptons of evidence.
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Cool, so what you’re telling me is that section 230 is doomed and the internet is just fucked? Goodbye everything?
I guess I liked having friends and community online while it lasted. Fuck everything.
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stop with the doom posting
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Just as I thought section 230 might be left alone for a while, I discover it’s being butchered further.
This feels extremely bleak, I don’t see how the internet’s gonna survive as we know it anymore, the future looks dark.
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stop doom posting
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Sorry, but I don’t know how else I’m supposed to interpret this article or any of the other ongoing trends regarding the topic.
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Nothing ever happens. Always bet on nothing ever happens.
Re: Re: Re:2
Things clearly are happening, or at least there’s about to be a litigation bloodbath by the sound of it.
Re: Re: Re:3
Tech companies are likely to win in the end.
Re: Re: Re:4
If courts care about facts and precedent. Which so far has been a bit of a toss-up.
You never know, though. I’ve been wrong before.
Re: Re: Re:2
And have hope.
🙏
Re: Re: Re:3
Believe me, I want to have hope. I want to say I’m not completly without hope even now, still.
It just keeps getting weakened every time articles like these pop up. It feels like the things I care about are, figuratively speaking, getting murdered right infront of me and I can’t do anything about it.
Re: Re: Re:4
Stop complaining and start doing: Tell your friends about this issue, write your representatives, things like that. Despair is easy; hope requires effort. Put in the work or accept your fate—the choice is yours, and yours alone.
Re: Re: Re:5
^^^. Even for all the flaws of the anti-censors and their inability to work together, it’s at least something. Be the change you want to see.
Re: Re: Re:6
And if they refuse, vote them out.
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Feel free to interpret it however you like but useless whinging in the comments is useless. You’re developing learned helplessness. Do what you can with what you have. Sure, you might be fucked in the long run, but at least you can say you made an effort rather than gave into despair and cringe.
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I think a big part of why speech laws have been getting attacked so much is because the anti-censors have a complete inability to pool resources and money together to fight against the censors.
The censors are incredibly well organized and constantly communicate with each other, sharing money, resources, and strategies. On the contrary, anti-censors take the ultimate “screw you, I got mine” attitude and refuse to band together in any meaningful way. I wish I could say I had a good explanation for why, but I just can’t. Like what does the EFF even do besides flail about? The last big thing I remember them trying was Protect the Stack and they’ve essentially done nothing with that movement that matters. I think the last time they tried to make a statement was with defending KF and they immediately turned tail and fled because they got pushback for it.
And that’s not to mention that the anti-censors take the most legalistic approach possible to issues of censorship. They’re perfectly fine throwing out their rights on technicalities. Like, I really hope everyone on Twitter who defended them censoring people with the “it’s a private company they can do whatever they want with impunity” line enjoys it when corporations one day control all of their avenues of speech.
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It really just feels hopeless, man. It feels like it’s too late to turn things around if it’s already getting to this point.
Re: Re:
stop doom posting or you will be flagged
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I’ll stop feeling doomed when something happens that proves the contrary. But fine.
Re: Re: Re:2
If you are venting despair in a blog comments section, you probably need to do something else, likely involving therapy. If you are trolling for attention, you definitely need therapy.
You probably should try therapy. Works well for me.
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“I’ll stop feeling doomed when something happens that proves the contrary. But fine.”
More like: the shit posting will stop when Vladolf stops paying.
Re: Re: Re:3
Struggling with feeling optimistic about the future is not a bot-exclusive thing.
Besides, Russia sucks.
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Lowercase Anonymous Coward, I usually have a witty line to rebut my detractors, but you are such an annoying pest I have literally nothing funny or clever to say you. You are literally the only member of Techdirt I 100% unabashedly hate.
Die out.
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that should be good cuase your obviously impersonating a troll name matt
Re: Re: Re:2
“I usually have a witty line to rebut my detractors”
Yeah, yer a real riot. Very funny guy there.
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Lots of unhelpful people here are dismissing you out of hand so I’m going to try and give you some advice.
Online publications rely on exploiting your fear for your engagement. Techdirt, while slightly more decent than rags like CNN, is no stranger to this. If you engage with the current news cycle as it is, you will find yourself burnt out very quickly, as I assume has happened to you now.
A lot of people say “just turn it off and walk away and go outside” but that’s not particularly helpful when people around you in real life engage with this news cycle, so here’s what’s worked for me; stop caring.
Seriously. Lots of bad things that people say will happen, will never ever happen. This is especially true of American journalism, since trying to make mountains out of molehills to keep you reading is a bread-and-butter part of their line of work. Invest in your own life first. People were not meant to constantly know everything about the state of the entire world 24/7.
Even if bad things come to pass, there will always be people to either adapt to the new circumstance or actively fight against it. You, too, can be part of this. You don’t have to take a super active stance, just spread the message. Talk to your friends about it. I personally believe in a God who will make things right in the end, but even if you don’t, have faith in the future and the people who come after you to say “enough.”
Re: Re: Re: The weird who enjoys pissing people off is right.
…in a sense, at least.
Trying to care about everything all the time will leave you with nothing but despair. You can’t fix every problem in the world no matter how hard you want it to happen. Worrying about each and every attack on 230 will leave you without the energy to worry about other attacks on the Internet, to say nothing of other social and political issues.
The best you can do is to do the best you can, when you can, however you can. The odds that you alone will save 230 are so laughable that they may not even exist. But you can still help save 230 by writing your reps, getting other people on board with the cause, and any other actions you think might help. (Please note that by “actions”, I mean “legally permissible actions”. I neither condone nor endorse illegal acts such as political violence.)
You are not alone in feeling as if the fall of 230 is inevitable. You are not alone in believing the fall of 230 will change the Internet for the worse. But believing those things never means you have to believe you can do absolutely nothing about them. Defeatism is the asshole’s way out of caring because it ensures a negative outcome: When you expect the worst and do nothing to prevent it, you can feel justified in your apathy when the worst comes to pass.
Maybe you don’t save 230. Maybe it does fall and the Internet gets a lot worse. We don’t know what the future holds because the future isn’t set. But what do you accomplish by worrying about the future to the point of defeatism other than making yourself sound like you would seriously consider dying by suicide if 230 falls?
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“Defeatism is the asshole’s way out of caring because it ensures a negative outcome: When you expect the worst and do nothing to prevent it, you can feel justified in your apathy when the worst comes to pass.”
It does seem there’s been a increase in this, lately.
The rest though, I agree.
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You know what, you’re right.
Whatever happens, happens. I’ve got no energy left to argue or care anymore.
Might as well just enjoy what time remains, however long or short it’ll be.
I just wish I was better at enjoying it rather than drowning in anxiety over the potential loss of it.
(Time left for the internet, that is.)
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The Internet will never die.
We’ll keep fighting to the end.
Regardless of how dire it is, we. will. keep. **FIGHTING*”.
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My point wasn’t “stop caring altogether”. My point was this: If you have to worry about 230, turn that energy into productive actions, otherwise worry less about 230.
I read the same Techdirt as you do. That means I see all the same stories about the attacks on 230 that everyone else does. And yes, I’m worried about 230, because I know what its demise means for the Internet. But unlike you, I don’t spend a shitload of time being worried about that future because that future isn’t set. Maybe it could come to pass, sure, but it could also be averted. We can all help avert it by finding ways to help the cause of highlighting how important 230 is to the modern Internet.
Delving into apathy because it’s easier to do nothing and feel justfied in doing nothing is the mark of a coward and a fool. You are no better than every person who refuses to vote in an election because “both sides are the same”. You can either work to avert a future you don’t want to happen or you can say “fuck it, shit’s only ever gonna get worse every day forever” and retreat into a cocoon of comfortable melancholy. I can’t make you choose between the inaction of despair and the action of hope. That is your burden to bear.
Re: Re: Re:3
The internet and 230 will win in the end.
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History tells us what humans have been doing in the past, study it .. because human nature has not changed over the centuries, only our tools have improved. We have become more efficient at destroying things that is clear.
History can provide a somewhat skewed vision of the future, but ya gotta read a lot. It could provide a useful distraction.
Just sayin ….
Be careful what you wish for...
Watching people try to punch holes in or get rid of 230 is like watching someone with a pickaxe chipping away at a cement platform covering a giant vat while standing on top of the platform, a vat they think is filled with gold but you know is filled with pressurized, radioactive acid.
While the resulting mess with be a problem for everyone should they ever succeed there is at least some schadenfreude to be found in the knowledge that the people who are most eagerly trying to remove the ‘obstacle’ in their way will be the first to find out the hard way why people were telling them to stop trying to remove it.
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Knowing their track record so far, I’m not so sure they’ll learn their lesson, or just keep going with a shittier, fractured internet where people can barely talk with each other anymore.
We may not even have a Youtube, I reckon.
Re: Re: I'm slightly more optimistic
Instead we’ll have an underground internet where everyone is anonymized all to heck just to get their cat-pics.
But it also means people need to be just as untraceable to get their cat-pics and argue politics as they would to get CSAM and signal to their militant brethren to proceed with the terror attacks.
And when the thirteen-year-old gets caught by the FBI noodling around on the internet to chat with her fam, it’s not going to look great when they charge her with federal crimes and give her the lengthy sentence it is due.
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I’m not sure how that’s “optimistic” good sir/ma’am/whatever you prefer.
Re: Re: Re:2 Optimistic
Because then the internet will be generally out of reach of states that want to control it. It will legitimately belong to the global public.
And that’s why they’re trying to kill Section 230, not to stop terrorists or fentanyl trade or CSAM or human trafficking, but because when state agents do something embarrassing or scandalous or brutal, it is more likely to get shown to the public.
The reason we’re considering alternatives to the current justice system is because of videos of law enforcement killing innocents.
The reason Palestine is a such a hot controversy now (rather than say thirty years ago) is because we get to see viscerally how the IDF treats normal people.
The worker class getting information freaks the ownership class out.
Re: Re: Re:3
It still doesn’t stir any hopes in me. But I’m done looking for it.
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Fucking around and finding out doesn’t mean they’ll actually learn anything useful, no.
Re: Oh it's gold alright.
It’s just molten, and not so useful when being dropped into it.
I.m confused at these court decisions I thought meta and other websites can design their services as they like eg menus and app layout schemes are protected by free speech and long as you do not try to lie or deceive users .do dating websites not have sign on forms eg I am male or I am female I am over the age of 18 click yes no ok
Website forms design layout are a form of free speech
Can a court just choose to ignore all previous precedents and court cases relating to singning up users and asking for user data like name age sex etc
Can they just make weird tangled arguments in order to ignore section 230 protections
Eg if a user makes threats or posts misinformation or illegal content sue the user
Not the website or app it’s posts on
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Apparently they can do all of those things to justify sueing big tech, yes.
Re:
They are protected under the first amendment, but liability can still apply to speech in certain cases. One of the claims for instance is “Meta engages in deceptive trade practices” i.e., fraud. Free speech doesn’t protect fraud. (The issue of course, being whether it’s actually fraud).
The other claim about unfair trade practices, the court is claiming they aren’t expressive like a layout scheme would be, and are content-neutral.
They are specifically saying they lied/deceived users.
In the Meta case, they’re arguing that things Meta did are what they’re suing over, not user content. And saying they can’t sue users over it, because of that.
Re: Translation
I’m confused about these court decisions. I thought Meta (Facebook) and other websites can design their sites (for example, menus and page layout) as they like. These are protected as free speech as long as one does not try to lie to or deceive one’s users.
Websites’ design are a form of free speech.
Can a court just choose to ignore all previous precedents and court cases relating to this topic? Can they just make weird, tangled arguments in order to ignore section 230 protections?
If a user makes threats or posts misinformation or illegal content, one can sue the user, not the website where they’re posting their content.
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The court case explains this. Because they’re suing (in this case for addiction) over Facebook features like autoscroll, and not say, a specific 3rd party post. Facebook is liable for it’s own feature. This isn’t a distinction over different types of 3rd party content, but a 1st party vs 3rd party distinction. See for instance: holding that Section 230 does not bar the plaintiff’s claims against Meta because “the features themselves allegedly operate to addict and harm Young Users, regardless of the particular third-party content viewed by the Young Users”
Basically, the argument Meta is making is that if a 3rd party post didn’t exist, features like auto scroll wouldn’t exist. It’s fundamentally dependent on 3rd party content. The court is saying stuff like the autoscroll/algorithm are first party even though they serve third party content.
There’s 2 things missing here:
One, this part seems to be relying in part specifically on Grindr allegedly making it easy to narrow down to minors (which in the context of an 18+ app doesn’t make much sense), using terms like Twink/Daddy. The court seems to be misunderstanding those terms as being ‘minor-related’, though.
But second, there seems to be a tension between “inferences in favor of the plaintiff” and 230’s robust protections. Not sure how you can square that.
The issue here seems to be that there’s nothing codified on what might apply. We don’t have to proof it to a plaintiff lawyers’ satisfaction, just a court’s.
230 not applying to contract-based claims seems… fine?
The thing that stands out to me about these cases is how Section 230 has seemingly been warped on the court side as being related to minors rather than just enabling speech et al. The implication is that, for example, the Grindr case wouldn’t exist even if it played out the same way, lawsuit and all, but TV was an adult. Logically speaking the argument presented in the Meta cases about addiction also applies to developed brains, but evidently adult users aren’t in the crosshairs. It reads like it goes so far into the idea of ‘protecting children’ that it’s swerved around into the notion that adults are cognitive übermensches. Or that the rights that are being ascribed to kids by the courts don’t exist for adults, which isn’t particularly encouraging.
I love and deeply respect Eric but the title does not really show the full picture here and some of the cases are a mix bag, it is worrying but it’s likely tech companies will win the cases.
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i cant believe that people are taking polls seriously
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Not even remotely on-topic.
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i mean it’s now the latest thing now is people are taking polls too seriously
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It still has nothing to do with section 230, or its destruction potentially destroying the internet.
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“i mean it’s now the latest thing now is people are taking polls too seriously”
Yes, can confirm.
Why just the other day Donald was at another rally when he started talking about a pole. A magnificent pole it was, according to Donald.
Section 230:
DC Superior Court:
Hey court? By law, Meta does NOT publish the third-party content. (I’m surprised they didn’t go with a synonym, like “distributes”, and pretend that’s different.)
As an aside, if anyone was wondering what TAFS was, it’s “Trump-appointed Federalist Society”. I got this from Goldman’s blog; that’s the only place the term seems to be used. I don’t know why we’re doing gratuitous insults of Trump-appointed judges when the magistrate in question was, as noted, an Obama appointee. “The call is coming from inside he house”, indeed.
As a second aside: I get that this is republished, but it’s still annoying to not have most of the cases linked or embedded. Especially for district-level cases which, unlike SCOTUS cases, aren’t trivial to find by searching.
Well, I guess we’ll see if the internet’s still here by this time next year?
Re:
Stop with the dooming.
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Eric Goldman - a lying sniveling shill, just like Masnick
Can’t believe you idiots are actually listening to Eric Goldman, one of Google’s biggest shills and liars whose only goal is to preserve the outdated, unethical Section 230 so tech companies can continue to kill users and children for selfish profits.
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Wow, got any more hag wash there Biff?
It is common place for those interested in discussing a topic to provide some sort of reference to data from which they have drawn a conclusion. However, there are some who do not see the value in supporting their claims as they think simply shouting out opinions is the best way to get your point across. We can also see this in our political representatives – vote wisely.
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lmao
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You could literally not make your trolling any more obvious.
Maybe aside from getting yourself a trollface for an icon, I guess.
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Hey John Smith – you back to your F230 strategies again, are you? You sure picked a strange time to repeat your blubbering, crying meltdown strategy like you did over at the food safety article last year.
Don’t worry your pretty little head, everyone is more than happy to help embarrass you again.
Re: Re:
Oooooh! I hate you, Masnick! Oooooooh!
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Copyright law’s best and brightest.