No, Internet Companies Do Not Get A 'Free Pass' Thanks To CDA 230

from the it's-just-not-true dept

There are many critics of CDA 230 these days, and there's a pretty wide range in the quality of their arguments. Law professor Danielle Citron is, for good reason, considered one of the more thoughtful critics of the law. And, to her credit, she actually does understand the law, what it enables, and what the wider impacts of the law might be. Her scholarship tends to be thoughtful and careful as well, and, just recently, she was awarded a MacArthur "genius grant." And that's why I find it frustrating that her presentations before Congress recently seem to miss the mark by a fairly wide margin. Earlier this year, we called out her testimony on "deep fakes" because she falsely suggested that internet platforms have "no incentive to address destructive deepfake content."

As we explained at the time, nothing could be further from the truth. The companies have been facing tremendous pressure from the media, the public, politicians, and (importantly) advertisers to clean up junk on their networks, or they risk losing users and revenue. The incentive is the desire not to have their platforms turn into complete garbage dumps.

Unfortunately, Citron is continuing to spread this misleading idea to Congress, as she did last week, when the House held a hearing on Section 230. Citron's opening statement has also been posted to Slate with the title: Tech Companies Get a Free Pass on Moderating Content, and the subtitle: "It's time to change that." Once again the premise is simply false. What is accurate is that platforms do have a legal free pass to decide what level of moderation is appropriate, but that level of appropriateness is very much driven by the concerns of all of the stakeholders mentioned above, with users and advertisers topping the list (for fairly obvious reasons).

It is misleading in the extreme to suggest that a lack of legal incentive somehow means no incentive at all. It is a kind of faith in legal systems (and an ignorance of markets) that is disconnected from reality. Citron's piece does mention market power, but only to brush it away with a blind insistence that it couldn't possibly work:

The market is unlikely to turn this tide. Content that attracts likes, clicks, and shares generates advertising income or a cut of the profits in the case of online firearm marketplaces. Salacious, negative, and novel content is far more likely to attract eyeballs than vanilla, accurate stories. Market pressure is not enough, and it should not have to be.

We need legal reform to ensure that platforms wield their power responsibly.

Again, I do appreciate that Citron -- unlike many other 230 critics -- recognizes the benefits of 230 and that there are inevitable tradeoffs to modifying it. We just disagree on the scope of the downsides to the modifications she suggests. For example:

Another approach would be to adopt the proposal that Benjamin Wittes and I have suggested: to condition the immunity on reasonable content moderation practices rather than the free pass that exists today. If adopted, when the courts consider a motion to dismiss on Section 230 grounds, the question would not be whether a platform acted reasonably with regard to a specific use of the service. For instance, if Grindr is sued for negligently enabling criminal impersonation on its dating app, the legal shield would not depend upon whether the company did the right thing in the plaintiff’s case. Instead, the court would ask whether the provider or user of a service engaged in reasonable content moderation practices writ large with regard to unlawful uses that clearly create serious harm to others. Thus, in the hypothetical case of Grindr, the court would assess whether the dating app had reasonable processes in place to deal with obvious misuses of its service, including criminal impersonation. If Grindr could point to such reasonable practices, like having a functioning reporting system and the ability to ban IP addresses, then the lawsuit should be dismissed even if that system fell short in the plaintiff’s case.

This is the kind of idea that sounds good in theory, but would inevitably be a disaster in practice. A "reasonable" standard is extremely ambiguous until after a whole bunch of expensive case law is established, and would certainly create massive costs, especially for platforms that try to be creative or different in how they approach content moderation. And, then, once the case law is established, it will effectively "lock in" certain approaches, even if they are not the best or don't apply appropriately to other forms of content. If you're a smaller or up-and-coming platform and you want to avoid potentially company-destroying litigation, you are simply going to mimic the models of other companies that have already gone through the litigation gauntlet.

Indeed, such an approach inevitably favors the largest platforms -- the Googles, the Facebooks, etc -- in multiple ways. First off, they can afford to fight the expensive court battles, but that also means that they're the ones to effectively set the standards that the rest of the internet has to use -- and they can set those standards in a manner that only they can afford.

This is not theory. We already have real world examples of this, most obviously in the copyright space. Given all of the litigation around copyright, YouTube spent over $100 million developing ContentID to help it identify potentially infringing material. And now, at least in Europe (and, if industry lobbyists get their way, elsewhere as well), other companies are effectively being told that they need to implement such a filtering solution, with people pointing to Google's setup as evidence that it can be done. Except almost no one else can afford to spend $100 million to build their own system, and while there may be a market for third party services, they tend to be expensive and limiting. At the very least, they shut off all alternative paths to innovation, and lock in the large company's choice.

What's funny is that Citron concludes her testimony by advocating for variety:

There is no one size fits all approach to responsible content moderation. Unlawful activity changes and morphs quickly online, and the strategies for addressing unlawful activity clearly causing serious harm should change as well. A reasonableness standard would adapt and evolve to address those changes.

Except that her own proposal would lead to the exact opposite of that. "Reasonableness" is a vague and unworkable policy that will lead to a one size fits all approach, dominated and controlled by the largest players in the field. It's the wrong approach, driven by the false belief that there is some sort of "free ride" provided by CDA 230, which ignores the reality of public and market pressure, which has shown -- time and time again -- to be quite effective in creating change on these platforms.

Filed Under: cda 230, content moderation, danielle citron, free speech, market power, market pressure, reasonableness, section 230
Companies: facebook, google


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  • icon
    crade (profile), 24 Oct 2019 @ 9:53am

    This really sounds like just an excuse for selective enforcement.

    I'm envisioning what a politicized justice department could do with this sort of law. But we never have to worry about that right?

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  • icon
    Toom1275 (profile), 24 Oct 2019 @ 9:57am

    It semlems setion 230 is the same as net neutrality, in that "You can't say it's a bad thing without lying" is an inviolate rule.

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  • identicon
    Anonymous Coward, 24 Oct 2019 @ 9:57am

    Propaganda

    Really at this point it is apparent that the misunderstanding of CDA 230 isn't mere ignorance or even density but concerted propaganda trying to repeat the "big lie" as much as possible to get people to believe it.

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  • identicon
    Anonymous Coward, 24 Oct 2019 @ 10:02am

    such an approach inevitably favors the largest platforms

    If the changes would favor the largest platforms, then why not just exempt small platforms from moderation requirements? That seems to fit with Citron's comment about avoiding one-size-fits-all approaches. Frankly it's the big platforms that are responsible for most of the problems that have lead to people asking for section 230 changes.

    We just disagree on the scope of the downsides to the modifications she suggests.

    One way to answer that question would be to make the changes she suggests but have them expire after a short time (maybe 10 years). At that point we should know for sure if the benefits were worth the costs.

    Mike - how would loss of CDA 230 protections hurt Techdirt?

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    • icon
      James Burkhardt (profile), 24 Oct 2019 @ 10:12am

      Re:

      Loss of 230 protections for Techdirt would be both minor and significant. The content Techdirt provides is not affected by CDA 230 in any way, as CDA 230 only applies to User Generated Content.

      However, they have been clear that without CDA 230 comments would be almost certainly nixed. Under the Prodigy ruling, any level of moderation puts Techdirt on the hook for everything posted. And recent laws also hold websites responsible if they fail to moderate certain content (FOSTA in the US as a good example). The only way to avoid responsibility for User content is to not have any, and Techdirt has made clear that is the likely response to the repeal of CDA 230.

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    • identicon
      Anonymous Coward, 24 Oct 2019 @ 10:15am

      Re:

      how would loss of CDA 230 protections hurt Techdirt?

      Either you don't moderate at all, and your comments section becomes a cesspool of spam (if you don't remove it entirely), or you moderate, but are then legally liable for any potentially illegal comment that you missed.

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    • identicon
      Anonymous Coward, 24 Oct 2019 @ 10:22am

      Re:

      "why not just exempt small platforms from moderation requirements?"
      If the moderation requirements are not well accepted then simply promise to not enforce them on some people?

      "make the changes she suggests but have them expire after a short time "
      We have no idea what we are doing, but lets try it anyways, signed the JackAss Commitee.

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    • icon
      Mike Masnick (profile), 24 Oct 2019 @ 10:28am

      Re:

      If the changes would favor the largest platforms, then why not just exempt small platforms from moderation requirements? That seems to fit with Citron's comment about avoiding one-size-fits-all approaches. Frankly it's the big platforms that are responsible for most of the problems that have lead to people asking for section 230 changes.

      This has been suggested but I don't think it makes much sense. For one, it would likely lead to some weird gaming, in which companies did stupid stuff to try to stay within the protections.

      Second, it's wrong to say that the "big platforms" are the problem. Indeed, under a reasonableness standard, Google, Facebook, Twitter, etc could easily flood the courts with evidence of their large and growing content moderation/trust & safety teams, their investments in AI, their detailed and evolving policies, to show that they were "reasonable." And, giving existing precedent, I think courts would likely defer to them on that.

      It's the smaller and mid-size companies that is who Citron and others are usually referring to when you try to pin them down. So exempting them wouldn't get at the "problem" she sees.

      One way to answer that question would be to make the changes she suggests but have them expire after a short time (maybe 10 years). At that point we should know for sure if the benefits were worth the costs.

      A lot can change on the internet in 10 years. If you want to cede the future of the internet to other countries for 10 years and then think we could magically catch up... I'm not sure that's a risk I'd want to take.

      Along those lines, we've seen other bills try a sunset provision, and they almost always flop. There are always special interests who benefit from the law, and who lobby with fearmongering to extent the sunset to make it permanent.

      Mike - how would loss of CDA 230 protections hurt Techdirt?

      We'd almost certainly shut down comments, which are a huge part of the site and a key reason why we have the site. I'm not sure that we'd even keep the site open without the comments.

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      • identicon
        Anonymous Coward, 24 Oct 2019 @ 11:21am

        Re: Re:

        The defenders of the internet constantly crying wolf have made it so that I have a hard time taking any of their cries seriously anymore. The last big issue that I remember is the passage of GDPR and so far that feels like a mild success. European consumers have more rights and tech companies have mostly adapted.

        Same goes for countries that passed right-to-be-forgotten laws.

        So that's why I say try it and have the changes expire. Your claim that it would be ceding the future of internet really feels like another wolf cry. Frankly, the internet feels like it's ossifying and this might be a good way to shake things and spur some innovation again. And yeah - some of that innovation might happen in other countries but that isn't necessarily a bad thing.

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        • identicon
          Anonymous Coward, 24 Oct 2019 @ 11:29am

          Re: Re: Re:

          I say don't try it.
          Look before you leap seems to be appropriate in this case. I do not see anyone looking, only those saying Leap! like in those jackass movies.
          If it aint broke, don't fix it also comes to mind. And stop calling them improvements, ok?
          Who is crying wolf anyway? It seems to be those calling for the changes - no? OMG, the terrorists will win if we do not surveil everything and everyone. If'n yo not wit us, yo agin us.
          All in the name of innovation - LOL

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          • identicon
            Anonymous Coward, 24 Oct 2019 @ 11:39am

            Re: Re: Re: Re:

            “Who is crying wolf anyway?”

            People like him who hate having to find out who is actually liable for a comment.

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        • identicon
          Anonymous Coward, 24 Oct 2019 @ 11:44am

          No innovation will come from making platforms legally liable for all third-party content. Nothing good will come from making sure platforms for third-party speech either become cesspools of spam and bigotry and bullshit or cease to exist. CDA 230 is what allows Twitter, Facebook, Techdirt, YouTube, DeviantArt, and a whole bunch of other sites to keep on keepin' on. Get rid of 230, and you get rid of all those sites. How eager are you to return to an Internet before such platforms existed?

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        • icon
          Mike Masnick (profile), 24 Oct 2019 @ 11:56am

          Re: Re: Re:

          The defenders of the internet constantly crying wolf have made it so that I have a hard time taking any of their cries seriously anymore.

          I have seen little to no evidence to support any claim of "crying wolf." Nearly all of the concerns people have raised have been supported by what has followed. So I'm beginning to question your analysis.

          The last big issue that I remember is the passage of GDPR and so far that feels like a mild success.

          We've been documenting many, many problems with the GDPR (and, for what it's worth, many of the usual "defenders of the internet" have supported the GDPR and still do so, so even that bit of your narrative makes no sense). I've seen no indication that it's a "success." I have seen that it has harmed free speech (as we predicted), that it has made things worse on the privacy front (as we predicted) and that it has locked in Google and Facebook (as we predicted).

          In other words, we saw the wolf approaching and he came. No crying about it.

          Same goes for countries that passed right-to-be-forgotten laws.

          Now I really question how much attention you've been paying. They've been a disaster.

          So that's why I say try it and have the changes expire

          Why? Based on what rationale? The laws will literally cede internet power away from the US and I already explained why bills that sunset never work. This is not a serious proposal. This is someone who is apparently ignorant of the law, history and technology saying "hey, let's try it." Sorry, but you are not serious.

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            identicon
            Anonymous Coward, 24 Oct 2019 @ 12:56pm

            Re: Re: Re: Re:

            Sorry, but you are not serious.

            I'm definitely serious. And while I'm not a single-issue voter, any candidate that talks about the issue like Citron does could very well get my support.

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        • identicon
          Anonymous Coward, 24 Oct 2019 @ 1:15pm

          Re: Re: Re: experts

          “Defenders of the internet”

          Yes the people who know how the internet works.

          Oh wait you don’t listen to them. That’s why the only export Besides corn and cheap Guns America has is warfare lol

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          • identicon
            Anonymous Coward, 24 Oct 2019 @ 2:17pm

            what happens to your own personal Internet?

            It's a series of tubes, I heard that from an expert on the subject when he worked in Congress or something.

            "I just the other day got... an Internet was sent by my staff at 10 o'clock in the morning on Friday. I got it yesterday [Tuesday]. Why? Because it got tangled up with all these things going on the Internet commercially."

            • This is an example of the people assigned to direct the national technology and science funding.

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            • identicon
              Anonymous Coward, 25 Oct 2019 @ 11:52am

              Re: one step ahewd

              Oh a series of tubes.
              No wonder you need apple to unlock your phones for you.
              Don’t worry everyone we aren’t dealing with people who know how to code. We are dealing with your aunt who still uses internet explorer and thinks that that makes her good at computers.

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              • identicon
                Anonymous Coward, 27 Oct 2019 @ 9:09am

                Re: Re: one step ahewd

                idk, but from a first look at your comment I assume that are unfamiliar with our late great esteemed senator from Alaska in addition to not understanding sarcasm.

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          • identicon
            Anonymous Coward, 25 Oct 2019 @ 6:54pm

            Re: Re: Re: Re:

            Yes the people who know how the internet works.

            I work in IT. Absolutely ZERO of the people I support on a daily basis (which is around 350) understand or could tell me how the internet works. Half of them don't even know what a 'browser' is. They just know the blue 'e' is the internet button.

            Even some of my colleagues in the IT department don't understand how it works. (which creates massive headaches for me when I have to come in afterward and clean up their mess)

            So no, "the people" do NOT understand how the internet works. And I'm beginning to suspect you are one of them.

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            • identicon
              Anonymous Coward, 27 Oct 2019 @ 9:11am

              Re: Re: Re: Re: Re:

              "Absolutely ZERO of the people I support on a daily basis (which is around 350) understand or could tell me how the internet works."

              Did you ask every one of them?
              Why would someone do that?

              Please, do tell - how does the internet work?

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              • identicon
                Anonymous Coward, 27 Oct 2019 @ 11:33pm

                Re: Re: Re: Re: Re: Re:

                Did you ask every one of them?

                No, but I don't need to when, as stated above, half or more of them don't even know what a browser is, and the other half couldn't tell me what an IP or MAC address is. Why would they know how the internet works?

                Why would someone do that?

                Survey for information? You know, like those things that research groups put out online ALL the time?

                Please, do tell - how does the internet work?

                Very short, dumbed down, version: A bunch of computers are connected by wires/glass/EMF/etc... and agree on a common language that they all speak and understand. This language and their connection allows them to communicate with each other and pass data to and from each other. This data is a series of bits (or zeros and ones) that the computers then convert into something meaningful to their end users.

                Any questions?

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            • icon
              bhull242 (profile), 28 Oct 2019 @ 8:44am

              Re: Re: Re: Re: Re:

              I work in IT. Absolutely ZERO of the people I support on a daily basis (which is around 350) understand or could tell me how the internet works.

              So no, "the people" do NOT understand how the internet works.

              I think you’re misunderstanding who the other AC is referring to. They’re referring specifically to those people who yet another AC referred to as “defenders of the internet”, not “the people” in general. Those people who are “defending the internet” may well indeed have knowledge of how the internet works above what the average person may know.

              Furthermore, this goes beyond the technological aspect of the internet (though that also is a part of it); it also includes the culture and economics of the internet. Even if a person doesn’t know what a browser is beyond the fact that clicking this little blue “e” icon will let them view web pages, they may still have an understanding of internet culture and how the internet affects and is affected by economics.

              As mentioned earlier, we’re talking about the internet knowledge of those who are “defending the internet” vs. their opponents. As such, the fact that no one you do IT work for understands the internet may support, detract from, or have no bearing on the other AC’s argument that “defenders of the internet” are “the people who know how the internet works.” It all depends on what their opinions are on the argument at hand.

              And I'm beginning to suspect you are one of them.

              Based on what, exactly? What have they said that suggests anything about their knowledge of the internet?

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              • identicon
                Anonymous Coward, 28 Oct 2019 @ 7:10pm

                Re: Re: Re: Re: Re: Re:

                I think you’re misunderstanding who the other AC is referring to.

                *Goes back and re-reads comment thread.

                Ah. You are correct. I did misunderstand the context and what he was referring to. I retract my statement as applied to his meaning and context.

                Furthermore, this goes beyond the technological aspect of the internet (though that also is a part of it); it also includes the culture and economics of the internet.

                I would agree as well.

                Even if a person doesn’t know what a browser is beyond the fact that clicking this little blue “e” icon will let them view web pages, they may still have an understanding of internet culture and how the internet affects and is affected by economics.

                On this I would have to disagree. To clarify, if you don't understand, for instance, the difference between linking to content and actually hosting it on your site (both of which are part of how the internet works, and yes, there are a lot of people who don't understand the difference), it makes it very hard to correctly understand internet culture and the relationship with economics and other areas. This is why we now have things like link taxes in the EU.

                As such, the fact that no one you do IT work for understands the internet may support, detract from, or have no bearing on the other AC’s argument that “defenders of the internet” are “the people who know how the internet works.”

                Agreed. I misunderstood the context and exactly who he was referring to with that statement and I retract it as it relates to his context. In general though, I would make the argument that a very large portion of people do not understand how the internet works. Enough to say "people in general".

                Based on what, exactly? What have they said that suggests anything about their knowledge of the internet?

                That was based on misunderstood context and I retract that as well.

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          • identicon
            Anonymous Coward, 28 Oct 2019 @ 7:12pm

            Re: Re: Re: Re:

            My apologies, good sir, as someone pointed out, it appears I have misunderstood to whom you were referring and the context of your comment. I retract my original reply to your comment. Please accept my apologies.

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        • identicon
          Anonymous Coward, 24 Oct 2019 @ 1:37pm

          Re: Re: Re:

          The whole, "OMG Section 230 makes Internet companies superman, kills babies, and eats your shorts for lunch" crowd is the real source of your "Wolf Cries"...

          Fail harder next time

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        • icon
          blademan9999 (profile), 25 Oct 2019 @ 9:46am

          Re: Re: Re:

          There are STILL a number of sites which Geoblock the ENTIRE EU rather then have to comply with GDPR, that seems like a negative consequence to me.

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    • identicon
      Anonymous Coward, 24 Oct 2019 @ 10:35am

      Re:

      Frankly it's the big platforms that are responsible for most of the problems that have lead to people asking for section 230 changes.

      It's some of the people using those platforms, not the platforms that are the problem, and reducing section 230 protections forces those companies to exercise more control over peoples speech. Also, because those platforms are popular, more people see and complain about speech that they do not like, and not being to say what they want to say.

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      • icon
        ECA (profile), 24 Oct 2019 @ 4:29pm

        Re: Re:

        Allot of this is..

        WHAT 1 group wishes to say, and NOT let the other side criticize, correct, Miss-interpret, take out of context, Explain what HE SAID in such a way that the REAL reasoning come apparent..

        That 1 person, with 1 opinion is a TROLL, and someone gets upset and CANT find that idiot, so they need someone to take the Wrap..
        Which also could be that person Bitching, then taking offense to his OWN comment, only to SUE the big corp..

        Anyone get the idea that this is only a way to create Jobs for the Lawyers??
        REALLY??

        If this type of thing can pass, can we PASS it against out Congress?? I WOULD LOVE TO..

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    • identicon
      Anonymous Coward, 24 Oct 2019 @ 11:33am

      Re:

      "the problems that have lead to people asking for section 230 changes."

      Ok - I gotta ask.
      . What, specifically, are the problems you are talking about?
      . Who, specifically, is asking for the above changes?
      Now, care to speculate upon the reason(s) for their request(s)?

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      • identicon
        Anonymous Coward, 24 Oct 2019 @ 1:19pm

        Re: Re: Re: the problem is YOU

        “What specifically are the problems you talk about”

        The ones that cause your rather interesting views on things such as race to get moderated out of existence Becuase You just gave techdirt Facebook and all the others more power not less and now since that “free pass” is gone they don’t want to get sued so the moment they get a complaint you are gone thats what.

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        • identicon
          Anonymous Coward, 24 Oct 2019 @ 2:23pm

          Re: Re: Re: Re: the problem is YOU

          Well, that certainly did not answer any of my questions but thanks anyways.
          My "interesting views on things such as race" .... wtf are you going on about.

          "You just gave techdirt Facebook and all the others "
          I gave what to whom?
          What is a free pass anyway ... given that many out there are not subjected to the same level of scrutiny that everyone else is - is that a free pass also? Your sense of justice is a tad off plumb isn't it?

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

          • identicon
            Anonymous Coward, 25 Oct 2019 @ 9:12am

            Re: Re: Re: Re: Re: thanks for proving

            “I gave it to whom?”
            God you would be so easy to sue because of the things you say on the internet because you are so oblivious lol thanks for mikes point.

            If you don’t even know what a free pass is Your not smart enough to attack something as a free pass lol

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            • identicon
              Anonymous Coward, 25 Oct 2019 @ 6:59pm

              Re: Re: Re: Re: Re: Re:

              God you would be so easy to sue because of the things you say on the internet

              Good thing then that we have the First Amendment that protects people from said lawsuits for the things they say on the internet then, isn't it?

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            • identicon
              Anonymous Coward, 27 Oct 2019 @ 9:24am

              Re: Re: Re: Re: Re: Re: thanks for proving

              The word nebulous comes to mind when attempting to define the phrase "free pass". Arguably, the phrase could mean just about anything you want.

              On a side note, I imagine that your buddies are given "consideration" whilst your enemies are given a "free pass". You see, in this usage the term free pass contains a bit of negative connotation now doesn't it? Maybe it even becomes a dog whistle. Or maybe it doesn't mean a damn thing .... get it?

              But, yes - you definitely have me pegged as being not smart and oblivious.

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            • icon
              bhull242 (profile), 28 Oct 2019 @ 8:53am

              Re: Re: Re: Re: Re: Re: thanks for proving

              I’m pretty sure that they were asking what you meant by a “free pass”, not the actual definition. They are questioning its applicability to the topic at hand.

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

        • identicon
          Anonymous Coward, 25 Oct 2019 @ 7:04pm

          Re: Re: Re: Re:

          The ones that cause your rather interesting views on things such as race to get moderated out of existence

          You mean the views advocating for denigrating certain people and advocating for treating them as less than human beings? Those views? Yeah, that's called being a jerk of a human being and you SHOULD be moderated for saying that crap. Also, newsflash, the First Amendment gives anyone the right to moderate anything someone else says on their platform. Section 230 just reiterates it because people are stupid and apparently they needed it spelled out.

          Becuase You just gave techdirt Facebook and all the others more power not less

          Well, yes, and no. It's their platform, they get to dictate the rules. If you don't like it, tough. Move to a country that has fewer freedoms.

          and now since that “free pass” is gone

          Last I checked there was no free pass. Oh you're talking about Section 230. Last I checked that was still in the law books.

          they don’t want to get sued so the moment they get a complaint you are gone thats what.

          I'm guessing they would ban you first.

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  • icon
    aerinai (profile), 24 Oct 2019 @ 10:09am

    "reasonable" is only applicable in hindsight

    The biggest issue with the 'reasonable' standard is, you can't TRY NEW THINGS! If it isn't one of the 3 'approved' (by caselaw) ways, then you are sticking your head out. Because the 'new' thing MIGHT FAIL, you can't even attempt it because it is too legally risky. You kill it before it even has a chance to succeed, or God forbid, you have to replace it because your first attempt failed (think of the juicy troll lawsuits over that one...)

    Plus, I dislike the idea that we enshrine 3rd party liability into our laws... That just seems like a terrible idea...

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    • identicon
      Annonymouse, 24 Oct 2019 @ 10:15am

      Re: "reasonable" is only applicable in hindsight

      Solution?

      Find out what she is thid party to and hammer her with it till she is red white and blue.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Slam the Sham 'peachers, 24 Oct 2019 @ 10:13am

    You're off again with "platforms" nonsense not in THE LAW.

    Just last week you wrote:

    the nonsense about "platform v. publisher" -- a distinction that is not found in the law, but is often played up by online trolls and cranks.

    So, now show me "platforms" or "publishers" in the law, college boy:

    "No provider or user of an interactive computer service shall be held liable on account of-

    (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected..."

    You could be legalistically right about "platforms" because it's an undefined term you picked out of the blue! It's just NOT in the law and has NO meaning in court.


    By the way, for Masnick's corporate-favoring view of law: He simply DELETES the "in good faith" requirement! -- And then blows it off as not important:

    https://www.techdirt.com/articles/20190201/00025041506/us-newspapers-now-salivating-over- bringing-google-snippet-tax-stateside.shtml#c530

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

    • icon
      Mike Masnick (profile), 24 Oct 2019 @ 10:34am

      Re: You're off again with "platforms" nonsense not in THE LAW.

      You're off again with "platforms" nonsense not in THE LAW.

      You seem to be repeating my point and pretending as if I said something different?

      It's your friends who keep insisting the law distinguishes platforms and publishers. I'm the one pointing out it's not in the law.

      It's just NOT in the law and has NO meaning in court.

      Right. That's my point. The law protects all internet communication services and users from being held liable for actions done by third parties. There is no distinction between platforms and publishers.

      If your complaint is that I use the term platforms in the post above to discuss the requirements of 230, that... doesn't make any sense either. I'm not using it as defined in the law. I'm talking about a segment of the companies impacted by 230 protections. That's all.

      Your nitpicking doesn't prove whatever it is that you think you're proving other than that I do know what I'm talking about and, as per usual, you don't.

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

    • identicon
      Anonymous Coward, 24 Oct 2019 @ 1:21pm

      Re: Re: Re: the problem is YOU

      “It’s just not in the law and has no meaning in court”

      Well Katy perry thought they same until her ass got sued didn’t it?

      Oops lol

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

    • identicon
      Anonymous Coward, 25 Oct 2019 @ 7:09pm

      Re:

      Dude, you just owned yourself by quoting that piece of the law. It's right there in what you quoted, "no provider", that's all inclusive of all social media platforms.

      By the way, for Masnick's corporate-favoring view of law: He simply DELETES the "in good faith" requirement! -- And then blows it off as not important:

      How many times do we have to go over this? He didn't delete anything. He quoted A DIFFERENT PARAGRAPH THAN YOU DID. You own yourself again for not understanding how to read English.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Slam the Sham 'peachers, 24 Oct 2019 @ 10:14am

    "PROVIDERS" are NOT "publishers".

    The text of 230 doesn't confer immunity to "publishers"!

    The key trick YOU try to pull is make providers into publishers with immunity such as no print publisher has ever had, while gaining full control over what's supposed to be a new kind of mechanism that allows everyone to be a publisher.

    The law is that "electronic printers", NEUTRAL PROVIDERS, GET IMMUNITY -- up to a point which Backpage exceeded.

    And again, the phrase "constitutionally protected" is UN-constitutional on its face. NO statute can over-ride the Constitution. If could, then exactly none of the Constitution stands.

    Now, this piece is simply your usual nit-picking gainsaying, and what you say doesn't matter since it's not aligned with the rest of law.

    You've often claimed Section 230 is all settled law, nailed down in court cases, and so obviously good that must not be changed, but keep running pieces worrying that it's NOT.

    Just the Backpage case shows that my view of law over-arching Section 230 is correct, didn't even require FOSTA to take Backpage down, proving that it's NOT total immunity as you claim above.

    Get your view rights with The Law, Maz, at least to THE TEXT of it! You will however, keep panicking that corporations might be out some easy money and have to be neutral, the highest two items on your fascist agenda!

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Slam the Sham 'peachers, 24 Oct 2019 @ 10:18am

      Re: "PROVIDERS" are NOT "publishers".

      BTW: if UN-Constitutional is too strong for you, then try to grasp that MOST of the Communications Decency Act has been thrown out!

      Masnick is just clinging to the part in which the gov't confers power on corporations, by which he / they hope to control The Public's speech outlets so that there's simply no opposition.

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

    • icon
      Mike Masnick (profile), 24 Oct 2019 @ 10:39am

      Re: "PROVIDERS" are NOT "publishers".

      The text of 230 doesn't confer immunity to "publishers"!

      I believe you're misreading the law. 230 just establishes which party is responsible -- the party who created the content or the party who hosts the content. This is fairly basic stuff.

      The key trick YOU try to pull is make providers into publishers with immunity such as no print publisher has ever had, while gaining full control over what's supposed to be a new kind of mechanism that allows everyone to be a publisher.

      What?

      The law is that "electronic printers", NEUTRAL PROVIDERS, GET IMMUNITY -- up to a point which Backpage exceeded.

      This is false. It has been stated repeatedly, including by the authors of the bill, that there was never a neutrality requirement, nor would they have wanted one, because their whole argument for creating the law was to encourage platforms to moderate and not be neutral. So, you're wrong. Again.

      And again, the phrase "constitutionally protected" is UN-constitutional on its face. NO statute can over-ride the Constitution. If could, then exactly none of the Constitution stands.

      This is word salad. The phrase constitutionally protected within the context of the law is not unconstitutional, since it's referring to the actions of private companies who are not restrained by the Constitution (it only restrains Congress/government).

      You've often claimed Section 230 is all settled law, nailed down in court cases, and so obviously good that must not be changed, but keep running pieces worrying that it's NOT.

      There are elements that are settled and there are elements that are not. What is hilarious is how you focus in on the settled parts of the law... and pretend they're settled in the way they very much are not.

      Look, I get it. You're a troll with no life who has to come and spew nonsense on every fucking Techdirt post just to make it clear to everyone that you're a complete and utter fool. But, geeze, give it a fucking rest already. It's gotta be tired being this stupid and this wrong for so long.

      I know you're not really this dumb. Those few times when you actually comment normally and add to the conversation have been nice. What horrible thing made you want to go around trolling websites and acting like a fool? It's really sad. If I thought you were a kid before, it's gone on so long that you're clearly an adult now. At some point, don't you want to grow up?

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

      • identicon
        Anonymous Coward, 24 Oct 2019 @ 11:50am

        Re: Re: "PROVIDERS" are NOT "publishers".

        "What horrible thing made you want to go around trolling websites and acting like a fool?"

        A ten-year-old offhand insult. Seriously, dude's had a thorn up his ass for a decade because someone here mildly insulted him.

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

        • identicon
          Anonymous Coward, 24 Oct 2019 @ 9:19pm

          Re: Re: Re:

          blue's had a multitude of sticks up his rectal cavity before the 2011 meltdown, mind you. He has an obsession with copyright and its enforcement to the extreme, despite his supposed anti-corporate inclinations.

          The link to Dark Helmet's one throwaway comment also wasn't a thing he regularly spammed until recent times. Why he thinks now is a good time to spam a single comment nobody reads or cares about from 8 years ago is anyone's guess. The same for who he thinks is going to be convinced of anything because he showed one instance of Dark Helmet being slightly rude. Seriously, compared to some of DH's stronger takedowns one line of "motherfucker" is almost kindergarten baby-talk.

          And adding onto what another commenter has indicated, blue makes it a proud point to spam the Devin Nunes memo website, so I don't know where the hell Masnick is getting the idea that blue has contributed to any conversation, ever.

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

      • identicon
        Anonymous Coward, 24 Oct 2019 @ 5:58pm

        Re: Re:

        Those few times when you actually comment normally and add to the conversation have been nice.

        Okay, I gotta ask, when the hell was that? I think blue commenting normally and adding to a conversation is harder to find than the backdoored encryption Barr wants so much.

        Examples, or it didn't happen!

        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, 25 Oct 2019 @ 7:46am

        Re: Re: "PROVIDERS" are NOT "publishers".

        I love it when you whine like the little bitch you are. "I know you're not really this dumb". Spoken from a left-wing idiot that embarrasses and humiliates himself in public every single day. You know nothing, obviously. At least now you have grown enough pubic hair to sign under your own name. That's fun to watch.

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

    • identicon
      Anonymous Coward, 24 Oct 2019 @ 11:41am

      Re: "ignorant motherfuckerz are NOT "publishers".

      Hey bro. Just admit you lied about leaving forever.

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

    • identicon
      Anonymous Coward, 25 Oct 2019 @ 7:21pm

      Re:

      "PROVIDERS" are NOT "publishers".

      So why do you keep wanting to treat them as such?

      The text of 230 doesn't confer immunity to "publishers"!

      Exactly. It confers immunity to providers. Like Facebook and Google. What's your problem?

      The key trick YOU try to pull is make providers into publishers with immunity such as no print publisher has ever had

      That's actually your trick. No one here is saying online platforms are publishers or should be treated as such. That's just you.

      while gaining full control over what's supposed to be a new kind of mechanism that allows everyone to be a publisher.

      Why do you keep owning yourself? If all users are their own publishers, then platforms aren't.

      The law is that "electronic printers",

      There is no such thing in the law. Stop making stuff up.

      NEUTRAL PROVIDERS, GET IMMUNITY -- up to a point which Backpage exceeded.

      No, Backpage violated federal sex trafficking laws (allegedly). Not a made up "neutral immunity" clause that exists only in your head.

      And again, the phrase "constitutionally protected" is UN-constitutional on its face.

      Pfffft. HAHAHAHA!! So now you don't like the first amendment either? Go move to North Korea if you hate America's freedoms so much.

      NO statute can over-ride the Constitution.

      Exactly. So why are you advocating for passing a new one that would?

      Now, this piece is simply your usual nit-picking gainsaying, and what you say doesn't matter since it's not aligned with the rest of law.

      You are not aligned with the rest of reality so why should I listen to you?

      You've often claimed Section 230 is all settled law, nailed down in court cases, and so obviously good that must not be changed

      It is.

      but keep running pieces worrying that it's NOT.

      Because people like you, who don't understand it, keep spreading nonsense about it and are actively trying to get it repealed. It's called calling out the idiot in the room.

      Just the Backpage case shows that my view of law over-arching Section 230 is correct,

      No, it doesn't because Backpage was shut down for violating sex trafficking laws. It had nothing to do with Section 230.

      didn't even require FOSTA to take Backpage down,

      So then why do we need to get rid of 230? Obviously it's not preventing law enforcement from taking down a company that breaks federal sex trafficking laws.

      proving that it's NOT total immunity as you claim above.

      No one said it was total immunity from all other laws. That's not even what anyone is saying (except idiots like you). All Section 230 does and says is you can't hold an innocent party responsible for the speech and actions of somebody else. How do you not understand this?

      Get your view rights with The Law

      You first.

      at least to THE TEXT of it!

      Again, you first, since you can't even comprehend the parts of it you quote.

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

  • identicon
    Anonymous Coward, 24 Oct 2019 @ 10:20am

    So, given yhe lack of knowledge some people (including her and numerous blow-hard politicians!) have concerning what cda230 can and cant do etc, why is it that the likes of you, Mike and those who actually crafted the law never get asked to speak on it's merits and on it's behalf? Is it that those of you who know the law are deliberately stopped from putting the misconceptions right so that, just as with everything concerning the entertainment industries and telecoms industries, things are left looking bad so that those who want it changed can achieve it? I have to wonder, yet sgain, who is being paid to do thid because it sure as hell wont be done for free! There must be names listed who back the changes. That list would make interesting reading! Mind you, given the ridiculous new law enabling bankrupting ordinary folks for sharing photos, expecting congress to do anything for the people is a bridge too far! Talk about following the EU in protecting copyright above all things!

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

  • This comment has been flagged by the community. Click here to show it
    icon
    Zof (profile), 24 Oct 2019 @ 10:33am

    So to be clear,

    They quite clearly have a free pass, and are treating it like one. Just, we should be mindful that they are also sensitive about being called out on their nonsense, and would rather we pretend they have ethics. So we'll just call their free pass something, and pretend we can trust them.

    Got it.

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

    • icon
      Toom1275 (profile), 24 Oct 2019 @ 10:45am

      Re: So to be clear,

      [Zof the liar offers no facts in his Complaint to support this proposition.]

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

    • icon
      Gary (profile), 24 Oct 2019 @ 10:51am

      Re: So to be clear,

      Stormfront get offended when it doesn't get a free pass and that upsets you. What does that have to do with this article again?

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

    • identicon
      Anonymous Coward, 24 Oct 2019 @ 11:38am

      Re: So to be clear,

      What is a free pass?
      Is that sorta like when someone says they are above the law?
      Is qualified immunity considered to be a free pass?

      Who is sensitive about being called out ... on anything? - LOL

      Ethics ... there's that double think again.

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

      • identicon
        Anonymous Coward, 24 Oct 2019 @ 1:24pm

        Re: Re: Re: the problem is YOU

        at this point blue or whoever a free pass is given to what you like and not to what you don’t because your such an obvious manipulator and would lie to a child for his money.

        What I’m saying is: you would make a great congressman.

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

    • identicon
      Anonymous Coward, 24 Oct 2019 @ 11:40am

      Re: So to be clear,

      Zof is a lying piece of shit.

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

    • identicon
      Anonymous Coward, 24 Oct 2019 @ 11:49am

      Re: So to be clear,

      Hey, so, if 230 is nullified, will you be upset when the owners of Gab, Stormfront, 8chan and other such outlets stop accepting third-party speech? Because they will -- and the legal liabilities those outlets would face will justify the move. They're not gonna put their asses on the line for something they didn’t post.

      And yes, a lack of 230 will affect "conservative" sites exactly as much as it'll affect "liberal" sites. Legal liability doesn't split along political ideologies.

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

      • identicon
        Anonymous Coward, 24 Oct 2019 @ 12:16pm

        Re: Re: So to be clear,

        I can't wait to sue the hell out of breitbart for the outright violent threats made by its commenters. You will never find a more wretched hive of scum and villainy.

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

    • identicon
      Anonymous Coward, 24 Oct 2019 @ 2:35pm

      Re: So to be clear,

      “They quite clearly have a free pass”

      You misspelled press bro

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

    • identicon
      Anonymous Coward, 25 Oct 2019 @ 7:25pm

      Re:

      So to be clear, you're a liar and a moron who doesn't understand anything about this or many other issues and continually lies about leaving this site and never coming back.

      Got it.

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

  • icon
    ECA (profile), 24 Oct 2019 @ 12:23pm

    "do have a legal free pass to decide what level of moderation is appropriate, "

    " shares generates advertising income or a cut of the profits in the case of online firearm marketplaces."

    ". For instance, if Grindr is sued for negligently enabling criminal impersonation on its dating app, the legal shield would not depend upon whether the company did the right thing in the plaintiff’s case. Instead, the court would ask whether the provider or user of a service engaged in reasonable content moderation practices "

    Ok..
    How much of this is silly to stupid.
    Talk about adverts, and who is responsible then goto a 3rd party NOT using a real name?? Criminal impersonation???
    And yes there is something happening about that, where an EX-partner Faked his partners name and info to get PERSONS to call him..
    But that has nothing to do with adverts/politics/..anything, except to Go after the person WHO DID IT...not the internet site.. The Internet site SHOULD help locate that person.

    SOME of this sounds very interesting.. I think we have a few Different things happening here..
    STAR ID, Proof of being a USA cit. and being able to Fly..(finally getting Current pictures of everyone for Facial ID, thru the DMV, to use by the Feds)

    ITs for the Children Concept which is stupid..

    Truth in adverts?? Which has been shot down before, and forcing the NET to do it First(again).. Rather then a WIDE based law that covers Every advert from TV to the internet..(love fact finding?? this is a job for you, and almost impossible the way things are.)
    Those responsible for an ADVERT MUST be held accountable, NOT the internet sites.. because the problem is WHO is complaining.
    Morals police??

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

  • icon
    That One Guy (profile), 24 Oct 2019 @ 3:21pm

    It's not a priviledge, it's equality

    A big part of the problem I'd say is how 230 protections are constantly talked about as some extra protection that online platforms get, a special shield against liability that those poor offline platforms don't enjoy, when in actuality all they are are making clear that the same protections that offline platforms get apply to online ones as well.

    You don't get to sue a newspaper because someone scribbled defamatory words in a copy.

    You don't get to sue a bookseller/publisher because someone slipped an illegal picture in one of their books.

    You don't get to sue a record label because someone used one of their CD cases to ship drugs.

    230 was simply an unfortunately required law pointing out that much like offline companies online ones are liable for what they do, not what those that use their platforms do, and making clear that they can moderate to remove what the find objectionable without suddenly becoming responsible for all of it.

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

    • icon
      Samuel Abram (profile), 24 Oct 2019 @ 4:54pm

      Re: It's not a priviledge, it's equality

      Exactly.

      Removing Section 230 protections would be like shutting down a restaurant because somebody scribbled something objectionable on one of the bathroom stalls.

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

      • identicon
        Anonymous Coward, 27 Oct 2019 @ 9:33am

        Re: Re: It's not a priviledge, it's equality

        "Removing Section 230 protections would be like shutting down a restaurant because somebody scribbled something objectionable on one of the bathroom stalls."

        LOL - I would not be surprised to read that someone actually attempted to declare their restroom doodles were protected speech and that the proprietor was therefore not allowed to remove same.

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

        • identicon
          Anonymous Coward, 27 Oct 2019 @ 11:24pm

          Re: Re: Re:

          Exactly.

          And in the same manner, social media platforms are allowed to remove whatever they don't care for as long as it is not discriminatory against a protected class.

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


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