Texas Legislature Has Another Ridiculous And Unconstitutional Content Moderation Bill; Say Goodbye To Email Filters

from the it-does-what-now? dept

You may recall last month we wrote about how the Texas legislature -- even after seeing a similar Florida bill go down in the flames of Constitutional fire -- decided to launch a special legislative session solely to focus on passing culture war legislation that plays well with ignorant voters. The bill we saw last month was in the Senate and was SB5. Now there's another bill in the House called HB20, and it's really, really dumb.

First, it tries to just outright declare social media websites common carriers, despite them possessing basically none of the characteristics of a traditional common carrier. As a side note, I find it funny how Republicans these days are obsessed with this idea of randomly declaring companies "common carriers," as they spent decades fighting against any attempt to call broadband companies common carriers, and insisting that common carrier concepts were the root of socialism or something. But, apparently, when it comes to culture wars, things like principles, consistency, and just basic common logic go out the window in favor of nonsense.

Incredibly, this bill doesn't just talk about social media -- but sweeps up email services as well. Hope you enjoyed having email filters, because Texans, you can kiss those goodbye. The legislature thinks that not forcing junk you don't want into your account violates the spammer's rights apparently. I only wish I were joking, but an actual person in a legislature put this nonsense in a bill:

IMPEDING ELECTRONIC MAIL MESSAGES PROHIBITED. An electronic mail service provider may not intentionally impede the transmission of another person ’s electronic mail message unless:

(1) the provider is authorized to block the transmission under Section 321.114; or

(2) the message contains a computer virus, as defined by Section 33.01, Penal Code, obscene material, material depicting sexual conduct, or material that violates other law.

Now, 321.114 is Texas's anti-spam law, so there's a weird contradiction here. You can't block messages... except if you think it's spam. That'll be fun to sort out in court. Of course, there are all sorts of reasons for filters that have nothing to do with spam. I get a ton of email, so I use a special filtering service that routes my mail to different boxes -- including sending certain PR emails straight into the trash. As I read this bill, that would no longer be allowed in Texas.

And this includes monetary fines. So the PR folks who are mad that I never read their emails could sue for $10 for each message "unlawfully impeded" and $25,000 for each day that their emails are so impeded as well.

I mean, seriously, what the fuck does the Texas legislature think its doing here, trying to effectively ban email filtering?

Anyway, the rest of the bill is the usual garbage -- demanding a bunch of busywork about clearer explanations of terms of service and transparency reports, while making it possible for the Texas Attorney General to sue a website if it moderates in a way the Attorney General believes is unfair (hey, that's unconstitutional!).

The whole thing is garbage that is better off used for kindling in the next Texas ice storm, not as an actual bill. It would be an absolute nightmare for social media and email providers. And for what? Because some ignorant fools think they're being targeted for their edgy ideas, when the reality is that some websites just don't want to deal with assholes? Texans, stop being babies, and grow up.

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Filed Under: 1st amendment, content moderation, email, section 230, social media, texas


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  • icon
    That One Guy (profile), 13 Aug 2021 @ 1:03pm

    Oh this'll be good

    If the various 'alternative' social media platforms have shown anything it's that the people pushing for these laws really don't think about what happens when someone they don't like is granted access to their platform of choice, so I look forward to the screeching as everyone in texas finds out what's it's like to have effectively no spam filter because the email services aren't allowed to block anything but a very specific category of content.

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

    • icon
      sumgai (profile), 13 Aug 2021 @ 2:15pm

      Re: Oh this'll be good

      I look forward to the screeching as everyone in texas ...

      Wrong party(ies). The screaming will be done by the legislators that vote Yea for this. You just know that furry porn wants to be free, right?

      Or perhaps most of the legisators actually do want to see how to enlarge their dicks. Seems logical to me, given how penis-size correlates to mental agility.... at least when it comes to not wasting tax-payer's money.

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

      • identicon
        Annonymouse, 13 Aug 2021 @ 5:58pm

        Re: Re: Oh this'll be good

        Well they do wrap them in $5,000 suits, put a stetson on top and a tie just under the head.

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

      • icon
        Thad (profile), 13 Aug 2021 @ 9:49pm

        Re: Re: Oh this'll be good

        Seems logical to me, given how penis-size correlates to mental agility.... at least when it comes to not wasting tax-payer's money.

        I'm not sure about mental agility, but that sentence sure went through some mental gymnastics.

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

      • icon
        Bergman (profile), 16 Aug 2021 @ 9:47am

        Re: Re: Oh this'll be good

        Religious missionary work isn’t considered spam in Texas, right? So bombard those legislators who vote yea on this monstrosity with solicitations to join non-Christian religious organizations - with read receipts.

        If they don’t read it, then by definition they are filtering it.

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

      • identicon
        Anonymous Coward, 16 Aug 2021 @ 9:53pm

        Re: Re: Oh this'll be good

        You just know that furry porn wants to be free, right?

        Go on...

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

  • icon
    Blake C. Stacey (profile), 13 Aug 2021 @ 1:54pm

    They can pry my spam filters from my cold dead hands.

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

  • icon
    Thad (profile), 13 Aug 2021 @ 1:58pm

    No blocking spear-phishing e-mails, then, as they're neither spam nor virus.

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

  • icon
    Stephen T. Stone (profile), 13 Aug 2021 @ 2:00pm

    I’m sure the usual 230-hating suspects will be along shortly to defend the forcing of spam into our inboxes.

    Any minute now…

    🕰️

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

  • identicon
    Anonymous Coward, 13 Aug 2021 @ 2:04pm

    Not to really defend this, but I'm not sure I read this as a problem with filters on the end-user side, but on the "Provider" side. So like, if Time Warner blocks an email on its way to your AOL account, that'd be bad, but you having stuff set up to say "when I get a message like this, do that with it" would be okay.

    More cynically, it's probably so their fundraising emails stop getting caught up in mass-emailing spam filters...

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

    • icon
      sumgai (profile), 13 Aug 2021 @ 2:23pm

      Re:

      You're correct, they're actually aiming at Mail Armory, Span Assassin, etc. But this comes awful close to a tortious interference with a well accepted business mode. I predict that since they can't come up with a rational basis for this "law", it'll get shot down in court... no matter how high up it has to go before they accept the clue.

      As noted err now, Texas has no state income tax. (One of only nine states in that category.) Ergo, Texas residents don't feel the immediate pinch in their wallets when money is frivously frittered away like this. I have a hunch that if they did feel it more keenly, the current crop of idiots would not be in power past the next election.

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

      • icon
        MightyMetricBatman (profile), 13 Aug 2021 @ 4:26pm

        Re: Re:

        There is a Texas sales tax. Which, much like Texas, is more regressive than an income tax.

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

        • icon
          sumgai (profile), 14 Aug 2021 @ 7:34am

          Re: Re: Re:

          Yes, there is. But the problem is, you "got something" for your money, right straight across the counter. An income tax doesn't give anything in the way of warm fuzzies when you see your money go out the window. It's only later, when you see activies like this that you remember your wallet getting raped, and your teeth start grinding.

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

          • icon
            CypherDragon (profile), 16 Aug 2021 @ 11:31am

            Re: Re: Re: Re:

            Don't forget about our lovely property taxes, which are among the highest in the nation (3rd highest, according to tax-rates.org/taxtables/property-tax-by-state)

            The funniest thing about living here is watching all the "conservative" Texans get all frothy-mouthed and "Don't California my Texas!!!" about taxes....without realizing that TX overall taxes aren't really that far off from CA already; they're just paid via a different means. It's also why my property taxes go up by the absolute maximum amount allowed by law, every. single. year.

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

  • identicon
    Anonymous Coward, 13 Aug 2021 @ 2:27pm

    I would presume there is a difference between the recipient choosing to filter out messages they don't want and an intermediary making the decision for them.

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

  • icon
    MikeT (profile), 13 Aug 2021 @ 2:32pm

    Just curious

    Living through rolling blackouts here in Texas last winter, does no electricity count as impeding email delivery?

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

  • identicon
    Anonymous Coward, 13 Aug 2021 @ 3:33pm

    I smell kickbacks and brown envelopes stuffed full of moolah.

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

  • icon
    Bill Silverstein (profile), 13 Aug 2021 @ 4:06pm

    Prempted

    15 USC 7707(c)"No effect on policies of providers of Internet access service
    Nothing in this chapter shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages."

    This preempts Texas law.

    The CDA also allows for the blocking of offensive content. The CDA will supersede state laws.

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

    • icon
      Tanner Andrews (profile), 15 Aug 2021 @ 11:37pm

      Re: Prempted

      This [15 USC 7707(c)] preempts Texas law.

      How? It expressly says that it has no effect on lawfulness or unlawfulness of an e-mail provider declining to handle certain traffic. So if blocking spam is illegal in your state, it is still illegal. Or, if it is allowed in your state, it is still allowed.

      Other portions of the CAN-SPAM act, particularly 15 USC 7707(b), do appear to preempt some state regulation, but what you have pulled up expressly fails to preempt state law. Assuming that Texas limits the application to things deemed unfair and deceptive, the Federal preemption provisions should not apply. This may not be a reasonable assumption, but watch it be argued anyway.

      Of course, it all falls under the `\my living room'' rule: in my living room or mail server, I get to throw folks out who insult or bother my guests. And, I get to decide when to do this. If unhappy, get your own living room.

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

  • identicon
    Anonymous Coward, 13 Aug 2021 @ 4:41pm

    IMPEDING ELECTRONIC MAIL MESSAGES PROHIBITED

    You know what else is missing from that prohibition? Provision for the emailbox holder to ask the provider to block email (barring the email violating specific laws).

    Representative Briscoe Cain, have you met the activist population of the United States? Don't worry, you will. In all their millions of unstoppable political-communication email.

    But that's okay, right? I mean, your bill asks that email be unstoppable, right?

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

    • icon
      Toom1275 (profile), 13 Aug 2021 @ 8:12pm

      Re: IMPEDING ELECTRONIC MAIL MESSAGES PROHIBITED

      Spammers for Republicans once argued they had a first-Amebnment right to fill up victims' voicemail boxes.

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

      • icon
        urza9814 (profile), 14 Aug 2021 @ 8:43am

        Re: Re: IMPEDING ELECTRONIC MAIL MESSAGES PROHIBITED

        They do. Email also ought to be covered by the "right to petition for redress of grievances". But did they argue that the mailboxes should have infinite capacity or that it should be illegal to delete such messages or that they couldn't hire a third party service to listen to those messages?

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

        • icon
          Bergman (profile), 16 Aug 2021 @ 9:56am

          Re: Re: Re: IMPEDING ELECTRONIC MAIL MESSAGES PROHIBITED

          They only do if the recipient is a government official. The rights enumerated in the amendments also include the right to choose not to exercise the right, and to be free from being compelled to exercise the right.

          If there is truly a right to trespass on private property to convey a political message in Texas, then I would be tempted to go camp out in the Governor’s living room with a megaphone.

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

    • icon
      Bergman (profile), 16 Aug 2021 @ 9:57am

      Re: IMPEDING ELECTRONIC MAIL MESSAGES PROHIBITED

      Depending on how you define filter, just deleting an email unread might qualify as illegally blocking an email under this proposed law.

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

  • identicon
    Pixelation, 13 Aug 2021 @ 5:44pm

    Easy work around

    Adjust the software to forward different emails to different inboxes. It'll just be coincidence that I never check certain inboxes.

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

  • identicon
    Bobvious, 13 Aug 2021 @ 5:47pm

    They did Nazi that coming

    *"material that violates other law. "

    Godwin's Law
    Unintended Consequences
    Moore's law
    Coleslaw
    Murphy's Law
    Muphry's Law
    Thermodynamics
    L. A. Law
    Gravity
    Scofflaw

    Sign those legislators up to the Spammers' mailing list and set transmit mode to TURBO! Let the crapflood begin.

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

  • identicon
    Anonymous Coward, 14 Aug 2021 @ 7:30am

    Just use an Email provider in Switzerland that I use

    ProtonMail is Switzerland, so they do not have to follow that law

    They only have to obey Swiss laws

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

  • icon
    Lostinlodos (profile), 14 Aug 2021 @ 12:11pm

    @Mike Masnick

    I think your misreading the email section, Mr Masnick.

    Looks like the law would prohibit the serving company from filtering. Not the recipient.

    Which would put 100% of control back in users’ hands; no?
    I’m not sure how that would be a bad thing.

    I have (Apple) mail set up to use my filtering my way. Ignoring what the actual service flags stuff as.
    Google, for instance, has a nasty habit of tossing News and invoices in spam. Loading gmail is a hunting expedition to find stuff.
    Mail moves my gmail inbound where I want it to go. Into my own folders.
    99.9% of my yahoo mail is spam but yahoo can’t figure out I don’t want its news feeds and product updates in my in box. Mail puts them in ‘junk’.
    My CIS account, generally private, all goes to important.

    So baring automated filters prone to mistakes, sounds good.
    And as I said I see this not being an issue for end users.
    Provider can’t be construed as end user very easily.

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

  • identicon
    Anonymous Coward, 14 Aug 2021 @ 6:07pm

    Spammers are people too. It's time to stop oppressing them. Lol.

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

  • identicon
    Anonymous Coward, 14 Aug 2021 @ 9:29pm

    COVID cares about Texans at this point more then Texas government officials do.

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

  • icon
    Blake C. Stacey (profile), 25 Aug 2021 @ 11:13am

    According to a local CBS affiliate reporter this morning:

    Chairman Ashby brings back up HB 20 - the social media bill Cain presented this morning - and the committee approves the bill by a strict party line vote of 9-5. This bill, too, heads to the full floor.

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

  • icon
    David Sanger (profile), 2 Sep 2021 @ 5:29pm

    Like they are really going to disclose all this? Google's search ranking? Right...

    Sec. 120.051. PUBLIC DISCLOSURES. (a) A social media
    platform shall, in accordance with this subchapter, publicly
    disclose accurate information regarding its content management,
    data management, and business practices, including specific
    information regarding the manner in which the social media
    platform:
    (1) curates and targets content to users;
    (2) places and promotes content, services, and
    products, including its own content, services, and products;
    (3) moderates content;
    (4) uses search, ranking, or other algorithms or
    procedures that determine results on the platform; and
    (5) provides users' performance data on the use of the
    platform and its products and services.
    (b) The disclosure required by Subsection (a) must be
    sufficient to enable users to make an informed choice regarding the
    purchase of or use of access to or services from the platform.

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


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