NY Times Publishes A Second, Blatantly Incorrect, Trashing Of Section 230, A Day After Its First Incorrect Article

from the what-is-wrong-with-the-times? dept

Last week we wrote about the NY Times having to issue a whopper of a correction on a giant front page of the Business Section, totally false claim, saying that Section 230 "protected hate speech" online -- which they later had to edit to note that it was actually the 1st Amendment that protected such speech (and the article leaves out that it's actually Section 230 that allows websites to remove hate speech). Coming from a paper that, just weeks earlier, had published an editorial mocking politicians for getting 230 wrong, this was kind of embarrassing.

Even more embarrassing, though, was the day after the NY Times had to totally correct that false article, they ran another blatantly wrong op-ed about Section 230, this one published by Jonathan Taplin, who two years previously had published another op-ed at the NY Times that completely fabricated a bunch of blatant lies about how YouTube and Google operate. You would think that would be enough for the NY Times to maybe think twice about having him publish another op-ed, especially about Section 230 a day after the paper got called out for getting the Constitution wrong. But, nope. Taplin got to publish his anti-Section 230 op ed with no problems, until the NY Times felt the need to issue a correction on that one too.

An earlier version of this article misstated the law containing a provision providing safe haven to social media platforms. It is the Communications Decency Act, not the Digital Millennium Copyright Act.

Taplin, if you don't recall, is an old-school movie and music producer, who a few years ago started getting renewed attention by blaming Google for basically all the ills in the world. He constantly popped up with facts-optional arguments, that seem to get lots of attention because attacking Google is the in-thing, whether or not it's based on any facts.

Here, again, Taplin gets basically all the facts wrong. While he purports to be an experts on copyright law (a dubious claim in itself), since everyone's focused on Section 230, he decided to jump in and pretend to be an expert on that (though, as the correction shows, he confused CDA 230's protections with the DMCA 512 safe harbors, which are quite different). Even post correction, Taplin's article is just... hilariously wrong.

After the El Paso massacre, the 8chan website briefly went offline when Cloudflare, the network provider, banned it. But it was only a matter of time before someone else agreed to support the site: By Tuesday morning, 8chan was back online, spewing a toxic mix of hatred, violence and QAnon conspiracies. Message boards like 8chan aren’t the only place where these things are spread: In March, when there were two mass shootings at mosques in Christchurch, New Zealand, the shootings were live-streamed on Facebook and then viewed millions of times on YouTube.

Of course, what Taplin leaves out is the rather Herculean efforts that Facebook and YouTube went through to block that video -- while also trying not to block legitimate news reports about the shooting. And you know what made that effort possible in the first place? Section 230 of the Communications Decency Act. But, to Taplin, Section 230 is to blame.

Though it may seem that there is little that platforms and politicians can do to stop the spread of online hatred, a great deal could be accomplished with one simple tweak to the existing Communications Decency Act: revise the safe harbor provisions of the law.

Well, here's the thing: The Communications Decency Act does not have any safe harbor provisions. This is the fundamental problem in the NY Times allowing Taplin to write his facts-optional nonsense in which he confused the DMCA 512 (which does have safe harbors) with CDA 230 (which does not) -- and then pretending that merely replacing DMCA 512 with CDA 230 fixes things. A safe harbor, such as what's found in the DMCA, says that if you take certain actions, you are protected. CDA 230 requires no such thing -- it just says that internet service providers cannot be held liable for third party content or for moderation choices.

And, again, it's the protections of 230 that made the actions that Facebook and YouTube took in response to the Christchurch shooting video possible in the first place. But, Taplin's got a beef with these companies, and he's going to scratch that itch, no matter how nonsensical.

A safe harbor provision of a statute or a regulation specifies that certain conduct will be deemed not to violate a given rule. For social media platforms like 8chan, Facebook and YouTube, the most important of these is Section 230 of the Communications Decency Act, which states, “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.”

That's not a safe harbor.

the second one should be: When Johnson & Johnson removed all the Tylenol from American stores in the wake of a poisoning scandal, it did so because of the liability it would face if anyone got hurt. But 8chan, Reddit, Facebook and YouTube are totally protected from being sued for content on their networks because of this unique set of laws created at the beginning of the internet.

What a weird and dumb analogy. Johnson & Johnson faced liability because its products were poisoned. Products where it controlled the manufacturing and the supply chain. That is not the case for the service providers Taplin names. Besides, as noted in the correction to the other NY Times article, the fucking 1st Amendment protects that content. But, of course, Taplin can't actually admit that he's really trying to blame the 1st Amendment.

The safe harbor laws were created for what is known as passive (or neutral) intermediaries.

This is a lie. This is such a lie that the NY Times itself called it out as a lie just a couple weeks ago. The safe harbor was not created for "passive (or neutral) intermediaries." Literally both of the authors of CDA 230 -- Chris Cox and Ron Wyden -- have directly said this is not true. Section 230 was created in direct response to the Stratton Oakmont v. Prodigy ruling, in which a judge said that because Prodigy heavily moderated its forums to keep them "family friendly," it took on liability for any content it left up. Cox and Wyden have both made it clear that the entire point of 230 was to enable sites to moderate content however they saw fit, to encourage the ability to create "family friendly" environments online.

In other words, it was created, explicitly, to enable non-passive intermediaries. Taplin is lying. I'd say he could just be misinformed, but this information has been out there long enough, and Taplin has been so wrong, so often, that it's difficult to see how he could be merely misinformed. At some point you have to wonder if these constant misrepresentations are intentional.

Verizon, for example, is a passive intermediary platform: It makes no attempt to edit or alter the bits flowing through its fiber optic cables. Facebook and YouTube, however, are active intermediaries; they present you with content different from what they present to me. They filter pornography and jihadist videos off their networks using artificial intelligence. As such, they should not be shielded from liability by safe harbor laws in the same way that Verizon is shielded.

This is also bizarre. Given what we just said above, without a CDA 230, then Facebook and YouTube would be incentivized not to filter pornography or jihadist videos. This entire piece is internally inconsistent. Taplin first says that because of 230 these sites don't have incentive to moderate (even though they do) and then says that because they moderate, they should lose the protections that make it possible to moderate.

How the hell did the NY Times think it was appropriate to publish this utter nonsense?

Even though Facebook was able to use A.I. to block 90 percent of the Christchurch streams after it identified the video, last year Mark Zuckerberg testified to Congress that it might take five to 10 years to perfect these tools. But society cannot wait five to 10 years — we need to stop these videos now, and banning toxic content must become the highest priority at 8chan, Reddit, Facebook and YouTube.

Dude. In the previous paragraph you argued that these sites shouldn't get 230 protections because they moderate. Now you're saying that they shouldn't get them unless they automatically stop all bad stuff? From paragraph to paragraph the argument changes, unless you consider "Facebook and YouTube are evil" is the only argument Taplin can make.

Some may argue that deciding what counts as toxic video content is a slippery slope toward censorship. However, for the past 75 years, since the first television broadcasts, the Federal Communications Commission has been able to regulate offensive content on television.

This is not a serious take. This is something someone with literally zero knowledge of how any of this works would make. It does not deserve to be placed on the op-ed pages of the NY Times and is a total embarrassment. First off, the FCC only has a mandate over the airwaves, because they are a (somewhat) limited resource, that the US government handed out for the public benefit -- and, as part of that exchange, there was a promise that those who received that spectrum, would not use it for obscenity. Second, the idea that the FCC has ever been able to successfully regulate "offensive" content on TV is laughable and shows a startling lack of understanding of the history of the FCC and its attempts to respond to claims of offensive content on TV. Third, there are strong arguments that the FCC's determinations on offensive content do, in fact, violate the 1st Amendment, and are very much part of a slippery slope towards censorship.

Finally, it's quite stunning to see a Hollywood producer coming out and supporting the FCC's attempts to regulate content on the airwaves. That used to be the kind of thing that Hollywood -- back decades ago when it actually was a force for free speech -- used to fight against.

I believe we can all agree that mass murder, faked videos and pornography should not be broadcast — not by cable news providers, and certainly not by Facebook and YouTube.

Then you better get to work repealing the 1st Amendment. Because that's what protects this content.

Since broadcasters do not have the protection of “safe harbor,” they engage in a certain level of self-regulation, to avoid being sued.

No, that's not what's going on at all. Broadcasters pick and choose what limited content goes online, because it's not an open platform that anyone can post to. They self-regulate because they are aiming for whatever content they put out to reach a mass audience because they can only produce so much content. It's not because they're afraid of the FCC or because they don't have CDA 230 to protect them.

And there is no reason to believe that the largest corporations in the world — Google, Apple, Facebook and Amazon — would behave differently from CBS, Fox, NBC or ABC.

Other than that this is an apples to orangutans comparison. CBS, Fox, NBC and ABC pick and choose exactly what content they broadcast. They have 24 hours a day to fill, and that's it. The other services are open platforms where anyone can post anything. And that's an entirely different situation. That Taplin seems to think these are comparable frankly does not speak well of Taplin's understanding of anything related to the internet.

In the past, Google and Facebook have shown that they can pivot quickly and that they already have the technology to keep certain content off their platforms. There is almost no pornography on Facebook or YouTube because of sophisticated tools that search for and prevent such uploads. And since 2017, both companies have actively removed jihadist videos. But it took the right incentives to get them to do both of those things.

Note that it did not take a change to CDA 230 to make Facebook and YouTube decide to remove jihadist videos. He's also wrong. This started way before 2017. Also, in taking down "jihadist videos," Facebook and YouTube have also been deleting and hiding evidence of war crimes. So, hey, if Taplin's cool with deleting evidence of war crimes, good on him. But some of us can recognize that there are serious tradeoffs to decisions that some people erroneously think are easy calls.

Changing the safe harbor laws so that social media platforms are held accountable for the content their users post would incentivize Facebook and YouTube to take things like the deep-fake video of Nancy Pelosi and the Christchurch shooting videos more seriously.

Except that both of those videos are protected by the 1st Amendment. So, no, it wouldn't create liability for those platforms. Indeed, creating such liability would create incentives for platforms to bury their heads and not learn of such videos, a la the Stratton Oakmont ruling.

In the wake of the Christchurch shootings, Prime Minister Jacinda Ardern of New Zealand remarked about the social networks: “They are the publisher, not the postman. There cannot be a case of all profit and no responsibility.”

A quip is not reality. Again, even Taplin admitted in his piece that Facebook blocked the vast majority of those videos. To then pretend that they don't block these videos because of a profit motive is... nonsensical.

In the end though, Taplin is going to Taplin. The real question is why would the NY Times allow this blatant joke of an op-ed to be published in the first place? Especially after Taplin's previous op-ed was filled with similar nonsense, which it got called out for, and the Times itself got mocked for misunderstanding 230 just a week after its own editorial pages mocked politicians for misunderstanding 230? The NY Times should admit that publishing Taplin was a mistake. But it won't, because it's the NY Times.

Filed Under: cda 230, dmca 512, jonathan taplin, misleading, section 230
Companies: ny times


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  • icon
    That One Guy (profile), 13 Aug 2019 @ 8:22am

    The New York Times: 'We will print ANYTHING handed to us'

    Given the NYT is apparently quite happy to be turned into a laughingstock by publishing utter tripe by fools and liars I have to wonder how long it will take before they get some good old flat-earthers gracing their illustrious pages with similarly sound and factual claims.

    I mean hell, at the rate they're going not like they've got a reputation for even remotely decent standards to lose...

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 13 Aug 2019 @ 8:30am

      Re: The New York Times: 'We will print ANYTHING handed to us'

      And here I thought they were working on the efficacy of their paywall.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Aug 2019 @ 10:38am

        Re: Re: The New York Times: 'We will print ANYTHING handed to us

        They're making it superfluous by ensuring all their content is so brain-dead that nobody ever sees it in the first place.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Aug 2019 @ 9:49am

    Mike, have you ever tried to submit your own op ed in response? You do have your own platform, of course, but the reach of the NYT is pretty awesome.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 13 Aug 2019 @ 9:53am

      Re:

      On the one hand they do seem willing to print pretty much anything someone hands them, on the other hand I suspect they might balk at an op-ed that essentially pointed out what fools they've been/been giving a platform to.

      Might be worth a shot just in case, but I suspect the odds of a submission along those lines actually getting accepted probably wouldn't be too great.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 13 Aug 2019 @ 10:36am

        Re: Re:

        It's more difficult than you might imagine to be selected for inclusion.

        they might balk at an op-ed that essentially pointed out what fools they've been

        On the contrary. They are a bunch of self-loathing liberals. They have no problem printing stuff like that.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Aug 2019 @ 10:33am

      Re:

      Yeah that would be a great idea. I would love to see that!

      reply to this | link to this | view in chronology ]

  • icon
    Vidiot (profile), 13 Aug 2019 @ 9:56am

    Stunning depth to this idiocy.

    Verizon, for example, is a passive intermediary platform: It makes no attempt to edit or alter the bits flowing through its fiber optic cables. Facebook and YouTube, however, are active intermediaries...

    ... so FB and YT are successfully altering the bits flowing through their... hey, wait a minute, they don't have any... what is Taplin taking about?

    I guess he can clarify by posting an explanation on that passive intermediary platform, Verizon. How will he do it? Not sure... try visiting verizon.com or verizon.net, and looking for the "post" button. Maybe if he types it on a piece of paper and scotch tapes that to a Verizon fiber trunk, he will have succeeded.

    reply to this | link to this | view in chronology ]

  • icon
    Thad (profile), 13 Aug 2019 @ 10:41am

    Relevant: the New York Times eliminated its public editor position in 2017.

    [Publisher Arthur Sulzberger Jr.], in a newsroom memo, said the public editor’s role had become outdated.

    “Our followers on social media and our readers across the internet have come together to collectively serve as a modern watchdog, more vigilant and forceful than one person could ever be,” he wrote. “Our responsibility is to empower all of those watchdogs, and to listen to them, rather than to channel their voice through a single office.”

    Of course, now what the Times is saying is "We won't be edited by Twitter outrage."

    reply to this | link to this | view in chronology ]

  • identicon
    urza9814, 13 Aug 2019 @ 11:26am

    No porn? Since when??

    "In the past, Google and Facebook have shown that they can pivot quickly and that they already have the technology to keep certain content off their platforms. There is almost no pornography on Facebook or YouTube because of sophisticated tools that search for and prevent such uploads."

    ...what OTHER social network is this guy using which he thinks is actually Facebook? Because that's half the reason I got rid of that friggin' site, I'd get a notification and pop open the app and get flooded with porn. Can't be having that when I'm sitting here at work. Go follow the 'Linux' page in particular for a week or two and THEN we can talk about how "great" Facebook is at filtering this garbage. I used to be seeing it in my feed on a daily basis.

    reply to this | link to this | view in chronology ]

    • identicon
      Roy Rogers, 13 Aug 2019 @ 2:32pm

      Re: No porn? Since when??

      "I used to be seeing it in my feed on a daily basis."

      I've been wondering why there are still so many people using Facebook. Should have been obvious

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Aug 2019 @ 11:37am

    I await your correction NYT

    Though there is little that can be done to stop bad journalism there is one thing that could stop things like the NYT from making mistakes like this: take away first amendment immunity.

    .....oh wait..

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Aug 2019 @ 12:44pm

    One for One

    And there is no reason to believe that the largest corporations in the world — Google, Apple, Facebook and Amazon — would behave differently from CBS, Fox, NBC or ABC.
    That is correct! CBS, Fox, NBC and ABC also have not solved the problem of user contributed content on their online platforms and suffer from the same issues; (I'm not counting where there is no user content.)
    If you meant the other way around, then yeah, Google, Apple, Facebook and Amazon have done a wonderful job moderating what they broadcast on the airwaves.
    So, yup... everything looks the same to me regardless of how big/little these guys are.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Aug 2019 @ 12:46pm

      Re: One for One (can't use markdown!)

      The quote was the first line, the rest was commentary... sorry that I apparently can't use markdown properly :0
      That is correct! CBS, Fox, NBC and ABC also have not solved the problem of user contributed content on their online platforms and suffer from the same issues; (I'm not counting where there is no user content.)
      If you meant the other way around, then yeah, Google, Apple, Facebook and Amazon have done a wonderful job moderating what they broadcast on the airwaves.
      So, yup... everything looks the same to me regardless of how big/little these guys are.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Aug 2019 @ 2:16pm

        Re: Re: One for One (can't use markdown!)

        sorry that I apparently can't use markdown properly

        Nothing to apologize for; you just have the opportunity to learn something new today.

        In future, put an extra blank line between the thing you're quoting and your response to it; otherwise, it'll be considered part of the quote.

        Example (backslashes added to inactivate the >):

         
         

        No blank line between quote and next line:

        Code:

        \>One
        Two

        Result:

        One
        Two

         
         

        Blank line between quote and next line:

        Code:

        \>One

        Two

        Result:

        One

        Two

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Aug 2019 @ 1:01pm

    I would think any journalist under 50 knows what section 230 is, and how it works, it basically means platforms can moderate and block users who post bad content,extreme content, and decide waht content they want to appear on their website.
    it also protects online media outlets from being sued for user content
    or comments .
    This op ed is a great example of fake news and it makes no logical sense.
    google or facebook are the same as nbc ,cbs ,abc .wtf ??
    By that logic a user blog on blogger.com is the same as the new york times .
    Its sad to see nyt publishing stupid and false article,s
    calling for the removal of section 230 .
    Section 230 is basically the main shield to protect all online media
    outlets and the right to free speech on the web.

    reply to this | link to this | view in chronology ]

  • icon
    Ben L (profile), 13 Aug 2019 @ 1:50pm

    Second time I've seen this mistake

    The first time I've seen an article mistake the DMCA with CDA 230 was in The Register, with the ironically titled article "The completely rational take you need on Europe approving Article 13: An ill-defined copyright regime to tame US tech". I suspect there's lots of confusion about the two laws since they both "protect" internet platforms. It's unfortunate that supposedly reputable sources are spreading this misconception instead of dispelling it.

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 13 Aug 2019 @ 8:40pm

    Gray Lady makes the news - news at eleven

    Looks like the Gray Lady has decided to come down on the side of the anti-230 crowd. (But the fourth estate never creates the news, oh no, never.)

    Section 230 was great when it protected companies, well, most agreed. I think what has changed is the conservative censorship row. Specifically, section 230 must go, so conservatives can properly punish these (non-)censorious mega-techs by taking all the mega-techs' money and putting it in their own pockets..

    European style (non-)automated-(non-)mandatory-(non-)censorship coming right up...

    reply to this | link to this | view in chronology ]

  • icon
    frank87 (profile), 14 Aug 2019 @ 12:26am

    I believe we can all agree that mass murder, faked videos and pornography should not be broadcast — not by cable news providers, and certainly not by Facebook and YouTube

    Unless it's made in Hollywood of course.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Aug 2019 @ 10:10am

    gotta fill the swamp, amirite

    reply to this | link to this | view in chronology ]

  • icon
    Vermont IP Lawyer (profile), 14 Aug 2019 @ 1:09pm

    Safe Harbor

    I agree with almost everything Mike has to say in this well-reasoned article. I just want to pick a very small nit. Mike includes the key wording from 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 information content provider.” and then observes that Taplin is wrong when he calls it a safe harbor provision. I agree that, as a formal matter, Taplin is wrong and Mike is right--to have a safe harbor, you need to have an ambiguous standard (Wikipedia gives the example "don't drive recklessly") and then a limiting rule that, in some cases, eliminates the ambiguity ("speeds under 25 mph will not be deemed reckless"). In that formal sense, which any lawyer should understand, Section 230 is not a safe harbor. However, this NYT piece is written for a more general audience. Certainly there is some ambiguous underlying standard that would apply with Section 230--e.g., is the material complained of defamatory/obscense/etc.--and certainly Section 230 protects certain platforms from being subject to that ambiguous standard. Does it make much difference if we let Taplin call that a "safe harbor"? The real issue, as eloquently explained by Mike, is whether the defendant in court ought to be just the speaker or ought to include the platform too. I'd put my emphasis on this aspect in debating for a public audience who might not care too much about the formal definition of "safe harbor."

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 15 Aug 2019 @ 7:26am

      Re: Safe Harbor

      Certainly there is some ambiguous underlying standard that would apply with Section 230--e.g., is the material complained of defamatory/obscense/etc.--and certainly Section 230 protects certain platforms from being subject to that ambiguous standard.

      Yes, but it's not about the conduct being protected. The conduct is still completely subject to the ambiguous standard. The law just specifies that the platform can't be blamed for actions of the user. I think it's meaningfully different. Any cries of "this should be illegal" fall flat because section 230 has no effect on the legality of any speech. Instead, anyone attacking it (legitimately anyway) has to make a case that third parties should be held liable for what other people say.

      reply to this | link to this | view in chronology ]

  • icon
    Vermont IP Lawyer (profile), 14 Aug 2019 @ 1:16pm

    Correction re Safe Harbor

    Part way through my comment, I said:

    Certainly there is some ambiguous underlying standard that would apply with Section 230--e.g., ....

    I meant to say:

    Certainly there is some ambiguous underlying standard that would apply WITHOUT Section 230--e.g., ... .

    reply to this | link to this | view in chronology ]

  • icon
    nasch (profile), 15 Aug 2019 @ 7:32am

    Really?

    I believe we can all agree that mass murder, faked videos and pornography should not be broadcast

    Oh yes, Jonathan, everyone agrees that there shouldn't be porn on the internet. That's why there are thousands of searches per second for porn.

    (estimates are 10-15% of internet searches are for porn, and Google gets 60,000+ searches per second)

    reply to this | link to this | view in chronology ]


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