Platform Liability Doesn't -- And Shouldn't -- Depend On Content Moderation Practices

from the stifling-free-speech-the-other-way dept

In April 2018, House Republicans held a hearing on the “Filtering Practices of Social Media Platforms” that focused on misguided claims that Internet platforms like Google, Twitter, and Facebook actively discriminate against conservative political viewpoints. Now, a year later, Senator Ted Cruz is taking the Senate down the same path: he lead a hearing earlier this week on “Stifling Free Speech: Technological Censorship and the Public Discourse.”

While we certainly agree that online platforms have created content moderation systems that remove speech, we don’t see evidence of systemic political bias against conservatives. In fact, the voices that are silenced more often belong to already marginalized or less-powerful people.  

Given the lack of evidence of intentional partisan bias, it seems likely that this hearing is intended to serve a different purpose: to build a case for making existing platform liability exemptions dependent on "politically neutral" content moderation practices. Indeed, Senator Cruz seems to think that’s already the law. Questioning Facebook CEO Mark Zuckerberg last year, Cruz asserted that in order to enjoy important legal protections for free speech, online platforms must adhere to a standard of political neutrality in their moderation decisions. Fortunately for Internet users of all political persuasions, he’s wrong.

Section 230—the law that protects online forums from many types of liability for their users’ speech—does not go away when a platform decides to remove a piece of content, whether or not that choice is “politically neutral.” In fact, Congress specifically intended to protect platforms’ right to moderate content without fear of taking on undue liability for their users’ posts. Under the First Amendment, platforms have the right to moderate their online platforms however they like, and under Section 230, they’re additionally shielded from some types of liability for their users’ activity. It’s not one or the other. It’s both.

In recent months, Sen. Cruz and a few of his colleagues have suggested that the rules should change, and that platforms should lose Section 230 protections if those platforms aren’t politically neutral. While such proposals might seem well-intentioned, it’s easy to see how they would backfire. Faced with the impossible task of proving perfect neutrality, many platforms—especially those without the resources of Facebook or Google to defend themselves against litigation—would simply choose to curb potentially controversial discussion altogether and even refuse to host online communities devoted to minority views. We have already seen the impact FOSTA has had in eliminating online platforms where vulnerable people could connect with each other.

To be clear, Internet platforms do have a problem with over-censoring certain voices online. These choices can have a big impact in already marginalized communities in the U.S., as well as in countries that don’t enjoy First Amendment protections, such as places like Myanmar and China, where the ability to speak out against the government is often quashed. EFF and others have called for Internet companies to provide the public with real transparency about whose posts they’re taking down and why. For example, platforms should provide users with real information about what they are taking down and a meaningful opportunity to appeal those decisions. Users need to know why some language is allowed and the same language in a different post isn’t. These and other suggestions are contained in the Santa Clara Principles, a proposal endorsed by more than 75 public interest groups around the world. Adopting these Principles would make a real difference in protecting people’s right to speak online, and we hope at least some of the witnesses tomorrow will point that out.

Reposted from the EFF Deeplinks blog

Filed Under: cda 230, content moderation, intermediary liability, section 230, ted cruzy

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  1. identicon
    Anonymous Coward, 12 Apr 2019 @ 9:32pm

    Re: Re:

    Facebook is not an ISP, it is something much bigger and powerful

    What. The actual. Fuck.

    Bigger? Maybe. More powerful? No. When one company can only restrict my access to their service, but another can restrict my access TO THE ENTIRE FREAKING INTERNET, I'd say ISPs are FAR more powerful.

    If I cannot communicate on my ISP I can always use a VPN, proxy server,

    That's assuming they still provide you internet access and don't block VPNs and proxies.

    the library

    I have yet to encounter a library that allows you more than 30-60 minutes of internet time in one sitting; let's you install games on their computers; use VoIP of any kind; or do online shopping. Please do tell how this is a replacement for home internet service.

    even work computer to get around that

    Would that be a work computer used at home where you have no internet? Or a work computer at work when you are supposed to be working; where they have acceptable use policies; block many communication sites, protocols, and shopping; you can't stream anything; and also don't allow you to install whatever software you want/need?

    Facebook is a global communication network

    A network. As in one of many. Most Americans have a choice of exactly one viable ISP.

    that can block my account preventing me from communicating with anyone else on the network.

    Yes. On their specific network. That doesn't prevent you from using any of the other networks including, but not limited to: Twitter, Myspace (yes it still exists), Instagram, Snapchat, Reddit, LinkedIn, Youtube, Skype, Discord, Slack, IRC, etc... I could go on and on and on. Whereas an ISP cutting you off blocks your access to ALL of those. No exceptions.

    A law needed to pass to prevent companies like Verizon from denying service based on race/ethnicity.

    Yes, because some people are racists and no human should be treated as any less than another solely because of their INVOLUNTARY ATTRIBUTE and INABILITY TO CHOOSE their skin color. That's not the same as violating a site's terms of use by your VOLUNTARY actions that you CHOSE TO CARRY OUT WILLFULLY.

    Non bigoted people unanimously agree that should cover political beliefs.

    No, they really don't. Some may, but a lot of them recognize that making political beliefs a protected class would lead to LOTS of issues. For example, it would make political party support rallies pretty much illegal because they couldn't kick out anyone with an opposing political viewpoint. Which flies right in the face of the First Amendment because now the government is telling people what speech they can and cannot allow. Also, that's not what a bigot is.

    Discrimination based on attributes you can't change and have no control over, is not the same as your voluntary personal thoughts and beliefs that you can change at any time if you so choose. Making those a protected class is absolutely ludicrous.

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