The challenge of a 24+ hour legislative session covering multiple bills is that it’s hard to keep track of everything that happens. In my last post I wrote about a few impressions and examples that I happened to catch. This post is about another.
Plenty of people on both sides of the aisle have been plenty wrong about content moderation on the Internet. Many Democrats get it very wrong, and so do many Republicans. In the case of people like Reps. Jim Jordan and Matt Gaetz, their particular flavor of wrongness has been to rant and rave about the private editorial decisions platforms have made to remove the speech they think they should have the right to make on these services, no matter what. They complain that what these platforms are doing to their posts must somehow be violating their First Amendment rights?and they are completely and utterly wrong on that point. Platforms are private actors with their own First Amendment rights to choose what speech to associate with. Making those decisions, even in ways some people (including these Congressmen) don’t like, is entirely legal and THEIR constitutional right to exercise. It in no way impinges on the First Amendment rights of any would-be user of their service to refuse their expression.
But these Congressmen and some of their similarly-minded colleagues have noticed that if these antitrust bills should become law in anything close to their current form their speech will continue to be denied access to these services. And this time that denial may well represent an unconstitutional incursion on their speech rights. Because it’s one thing if the platforms make their own independent editorial decisions on whether to facilitate or deny certain user speech, including these Congressmen’s speech. But it’s another when government pressure forces platforms’ hand to make those decisions in any particular way. And that’s what these bills threaten to do.
One such way that they flagged is through the bills’ demands for interoperability. Interoperability sounds like a nice idea in theory, but in practice there are significant issues with privacy, security, and even potentially content moderation, especially when it is demanded. Because one of the problems with an interoperability mandate is that it’s hard to tell if, in being interoperable, one platform needs to adopt the same moderation policies of another platform they are trying to interoperate with. If the answer is yes, then suddenly platforms are no longer getting to make their own editorial decisions; now they are making editorial decisions the government is forcing them to make. Which means that when they impose them against certain user speech it now is at the behest of the state and therefore likely a violation of those users speech rights, which are rights that protect their speech against state action.
But even if a platform opts not to conform its moderation policies, the constitutional problem would remain. Because if these bills were to become law in their current form, the decision not to conform moderation policies might still be seen to flout the law’s requirement for interoperability. And, at least initially, it would be up to the FTC to decide whether it does and thus warrants taking an enforcement action against the platform. But that means that the FTC could easily be in the position of making content-based decisions in order to decide whether the platform’s content moderation decision (in this case not to conform) looks like an antitrust violation or not. This situation deeply concerned these Congressmen, who also happen to be of the belief that the FTC is a captured agency prone to making content decisions that conflict with their own preferred viewpoints. While their concerns generally seem overwrought, bills like these start to give them an air of legitimacy. Because regardless of whether the FTC actually is captured by any particular point of view or not, if it is going to make ANY enforcement decision predicated on any expressive decisions, that’s a huge Constitutional problem, irrespective of which point of view may suffer or benefit from such government action.
So while it is very difficult to credit the particular outrage of these Congressmen, their alarm illustrates the fundamental problem with these bills and other similar legislative efforts (including some anti-Section 230 bills that these Congressmen favor): these targeted businesses are not ordinary companies selling ordinary products and services where market forces act in traditional market-driven ways. These are platforms and services handling SPEECH. And when companies are in the speech-handling business we can’t treat them like non-speech businesses without impinging on those speech interests themselves in an unconstitutional “make no law” sort of way.
But that is exactly what Congress is deliberately trying to do. It is the government’s displeasure with how these companies have been intermediating speech that is at the root of these regulatory efforts. It’s not a case of, “These companies are big, maybe that’s bad, and oops! Our regulatory efforts have accidentally implicated a speech interest.” The whole acknowledged point of these regulatory efforts is to target companies that are “different,” and the way they are different is because they are companies in the online speech business. Congress is deliberately trying to make a law that will shape how companies do that business. And the fact that its efforts are running headlong into some of the most provocative political speech interests of the day is Exhibit A for why the whole endeavor is an unconstitutional one.
How was your Wednesday? I spent 5 and a half hours of mine watching the most inane and stupid hearing put on by Rep. David Cicilline, and the House Judiciary Committee’s Subcommittee on Antitrust, Commercial & Administrative Law. The hearing was billed as a big antitrust showdown, in which the CEOs of Google, Facebook, Apple and Amazon would all answer questions regarding an antitrust investigation into those four companies. If you are also a glutton for punishment, you can now watch the whole thing yourself too (though, at least you can watch it at 2x speed). I’ll save you a bit of time though: there was very little discussion of actual antitrust. There was plenty of airing of grievances, however, frequently with little to no basis in reality.
If you want to read my realtime reactions to the nonsense, there’s a fairly long Twitter thread. If you want a short summary, it’s this: everyone who spoke is angry about some aspect of these companies but (and this is kind of important) there is no consensus about why and the reasons for their anger is often contradictory. The most obvious example of this played out in regards to discussions that were raised about the decision earlier this week by YouTube and Facebook (and Twitter) to take down an incredibly ridiculous Breitbart video showing a group of “doctors” spewing dangerous nonsense regarding COVID-19 and how to treat it (and how not to treat it). The video went viral, and a whole bunch of people were sharing it, even though one of the main stars apparently believes in Alien DNA and Demon Sperm. Also, when Facebook took down the video, she suggested that God would punish Facebook by crashing its servers.
However, during the hearing, there were multiple Republican lawmakers who were furious at Facebook and YouTube for removing such content, and tried to extract promises that the platforms would no longer “interfere.” Amusingly (or, not really), at one point, Jim Sensenbrenner even demanded that Mark Zuckerberg answer why Donald Trump Jr.’s account had been suspended for sharing such a video — which is kind of embarrassing since it was Twitter, not Facebook, that temporarily suspended Junior’s account (and it was for spreading disinfo about COVID, which that video absolutely was). Meanwhile, on the other side of the aisle, Rep. Cicilline was positively livid that 20 million people still saw that video, and couldn’t believe that it took Facebook five full hours to decide to delete the video.
So, you had Republicans demanding these companies keep those videos up, and Democrats demanding they take the videos down faster. What exactly are these companies supposed to do?
Similarly, Rep. Jim Jordan made some conspiracy theory claims saying that Google tried to help Hillary Clinton win in 2016 (the fact that she did not might raise questions about how Jordan could then argue they have too much power, but…) and demanded that they promise not to “help Biden.” On the other side of the aisle, Rep. Jamie Raskin complained about how Facebook allowed Russians and others to swing the election to Trump, and demanded to know how Facebook would prevent that in the future.
So… basically both sides were saying that if their tools are used to influence elections, bad things might happen. It just depends on which side wins to see which side will want to do the punishing.
Nearly all of the Representatives spent most of their time grandstanding — rarely about issues related to antitrust — and frequently demonstrating their own technological incompetence. Rep. Greg Steube whined that his campaign emails were being filtered to spam, and argued that it was Gmail unfairly handicapping conservatives. His “evidence” for this was that it didn’t happen before he joined Congress last year, and that he’d never heard of it happening to Democrats (a few Democrats noted later that it does happen to them). Also, he said his own father found his campaign ads in spam, and so clearly it wasn’t because his father marked them as spam. Sundar Pichai had to explain to Rep. Steube that (1) they don’t spy on emails so they have no way of knowing that emails were between a father and son, and (2) that emails go to spam based on a variety of factors, including how other users rate them. In other words, Steube’s own campaign is (1) bad at email and (2) his constituents are probably trashing the emails. It’s not anti-conservative bias.
Rep. Ken Buck went on an unhinged rant, claiming that Google was in cahoots with communist China and against the US government.
On that front, Rep. Jim Jordan put on quite a show, repeatedly misrepresenting various content moderation decisions as “proof” of anti-conservative bias. Nearly every one of those examples he misrepresented. And then when a few other Reps. pointed out that he was resorting to fringe conspiracy theories he started shouting and had to be told repeatedly to stop interrupting (and to put on his mask). Later, at the end of the hearing, he went on a bizarre rant about “cancel culture” and demanded each of the four CEOs to state whether or not they thought cancel culture was good or bad. What that has to do with their companies, I do not know. What that has to do with antitrust, I have even less of an idea.
A general pattern, on both sides of the aisle was that a Representative would describe a news story or scenario regarding one of the platforms in a way that misrepresented what actually happened, and painted the companies in the worst possible light, and then would ask a “and have you stopped beating your wife?” type of question. Each of the four CEOs, when put on the spot like that, would say something along the lines of “I must respectfully disagree with the premise…” or “I don’t think that’s an accurate representation…” at which point (like clockwork) they were cut off by the Representative, with a stern look, and something along the lines of “so you won’t answer the question?!?” or “I don’t want to hear about that — I just want a yes or no!”
It was… ridiculous — in a totally bipartisan manner. Cicilline was just as bad as Jordan in completely misrepresenting things and pretending he’d “caught” these companies in some bad behavior that was not even remotely accurate. This is not to say the companies haven’t done questionable things, but neither Cicilline nor Jordan demonstrated any knowledge of what those things were, preferring to push out fringe conspiracy theories. Others pushing fringe wacko theories included Rep. Matt Gaetz on the Republican side (who was all over the map with just wrong things, including demanding that the platforms would support law enforcement) and Rep. Lucy McBath on the Democratic side, who seemed very, very confused about the nature of cookies on the internet. She also completely misrepresented a situation regarding how Apple handled a privacy situation, suggesting that protecting user’s privacy by blocking certain apps that had privacy issues was anti-competitive.
There were a few Representatives who weren’t totally crazy. On the Republican side, Rep. Kelly Armstrong asked some thoughtful questions about reverse warrants (not an antitrust issue, but an important 4th Amendment one) and about Amazon’s use of competitive data (but… he also used the debunked claim that Google tried to “defund” The Federalist, and used the story about bunches of DMCA notices going to Twitch to say that Twitch should be forced to pre-license all music, a la the EU Copyright Directive — which, of course, would harm competition, since only a few companies could actually afford to do that). On the Democratic side, Rep. Raskin rightly pointed out the hypocrisy of Republicans who support Citizens United, but were mad that companies might politically support candidates they don’t like (what that has to do with antitrust is beyond me, but it was a worthwhile point). Rep. Joe Neguse asked some good questions that were actually about competition, but for which there weren’t very clear answers.
All in all, some will say it was just another typical Congressional hearing in which Congress displays its technological ignorance. And that may be true. But it is disappointing. What could have been a useful and productive discussion with these four important CEOs was anything but. What could have been an actual exploration of questions around market power and consumer welfare… was not. It was all just a big performance. And that’s disappointing on multiple levels. It was a waste of time, and will be used to reinforce various narratives.
But, from this end, the only narrative it reinforced was that Congress is woefully ignorant about technology and how these companies operate. And they showed few signs of actually being curious in understanding the truth.
So… remember a couple weeks ago when I wrote about a House Judiciary Committee in which the supposedly “free market / free speech” supporting Republicans on the Committee were grilling private companies about how they need to be regulated as utilities to stifle free speech? Well, not surprisingly, the whole situation has gotten much worse and much, much stupider. It started, of course, with a bit of pretty bad reporting by a Vice reporter named Alex Thompson, who wrote an article incorrectly claiming that Twitter was “shadowbanning” Republicans.
Shadowbanning, of course, is the well known moderation technique in which certain sites allow certain users to think they’re participating, but really making it so that no one else can see their contributions. It’s been shown to be fairly effective against trolls. Either way, Thompson’s report was wrong on multiple levels — which was disappointing. Vice has a whole separate site called Motherboard, which has some of the best tech reporters in the business, who likely could have set Thompson straight and prevented the company from running such a misleading story, but that did not happen. First of all, Twitter was not shadowbanning anyone. The issue at hand was that for some users, if you searched on their names, those accounts did not show up in the autocomplete. That’s it. If you clicked return at the end of your search, the accounts still showed up. If you followed the users, you still saw their tweets. It was not shadowbanning by any stretch of the imagination.
Also, the issue was not partisan, even in the slightest, contrary to Thompson’s reporting. As others showed, the failure to show certain users in autocomplete was impacting a bunch of people and not just Republicans. Indeed, Twitter admitted that there was a bug in its autocomplete feature which impacted hundreds of thousands of accounts including plenty of people in both major political parties. Twitter fixed this relatively quickly. Thompson’s article at Vice is still not corrected. Instead, it has a note claiming that Twitter is “no longer limit[ing] the visibility of some prominent Republicans,” which implies, completely falsely, that it was targeting Republicans.
But, alas, partisan stupidity is like no other stupidity, and this bad and incorrect story first got picked up by the President, who tweeted (of course) that Twitter was shadowbanning prominent Republicans — even though it was not.
Twitter ?SHADOW BANNING? prominent Republicans. Not good. We will look into this discriminatory and illegal practice at once! Many complaints.
And, from there we were off to the races. Rep. Devin Nunes, picked up the story and claimed that he was considering taking legal action against Twitter. This is stupid on so many levels. First of all, if Twitter were actually moderating its platform in this manner, it has every legal right to do so. And, as we noted about that hearing earlier this month, it’s very bizarre to see supposedly “free speech / free market” Republicans suddenly arguing for heavy regulation of both speech and industry. Second, there is absolutely no legal basis for any kind of legal action. It would get laughed out of court. Third, and again, this is kind of important, Twitter wasn’t discriminating against Republicans and wasn’t shadowbanning them. You would think that a Congressional Representative, preparing to take legal action against a company, would at least take the time to understand what happened.
And, he wasn’t the only one. Rep. Matt Gaetz, who was the star of our post about the Judiciary Committee hearing for being beyond wrong in claiming that Section 230 and the First Amendment are in conflict — and also flat out misrepresenting what Twitter’s representative said on the panel concerning Twitter’s First Amendment rights — has apparently filed a complaint with the Federal Election Commission about Twitter. The details are scarce, but when appearing on Fox News late last week, Gaetz said the following:
I?m certain there were only four members of Congress who had their voices suppressed on Twitter: Matt Gaetz, Jim Jordan Mark Meadows, and Devin Nunes. That would be one hell of a coincidence. My suspicion is that if people were effectively communicating a conservative message, they got caught in Twitter?s troll trap. The reason that I think that is illegal is because it gives advantages to our political opponents. It gives them access to the platform that we don?t have.
If Twitter was a billboard company and they gave Democrats access to their billboards and not Republicans, that would be an illegal corporate donation to the campaigns of Democrats. Here, instead of the billboard, it?s the auto fill-in function that?s a part of Twitter?s search feature that wasn?t available to me, Devin Nunes, Mark Meadows or Jim Jorden. And it?s available to Democrats.
Except, again, that’s not at all what happened. There was no suppression. There was no shadowbanning. There was no targeting of Republicans. There was no targeting conservative messaging. There was no “illegal corporate donation.” This is all grandstanding nonsense, that may play well to a certain set of very angry people, but has no basis in reality.
In the end, everyone comes out of this looking bad. Vice and Alex Thompson should post a correction to their article and apologize for what misleading crap it was. Trump should never have tweeted the nonsense, but you know that’s not going to stop him. But Nunes and Gaetz certainly don’t need to enable and further this nonsense, though, again, that appears to be well within their character. However, for politicians bleating on about fake news, it seems notable that they seem to be contributing to the spread of it. Of course, the real end game here is an attempt to effectively block Twitter, Facebook and Google from trying to improve the nature of discourse on their platforms. In short, this is a trollish effort to force platforms to allow trolling. It’s phony outrage that should be ignored, but it won’t be, because so much effort has been put into a totally fake claim that conservatives are somehow being targeted that platforms have to bend over backwards to make sure that anything they do to improve their platforms doesn’t accidentally impact someone in conservative circles.
In the end, don’t trust everything that you read online, and, for once, try to elect people who aren’t ignorant, grandstanding morons.
So, yesterday the House Judiciary Committee did what the House Judiciary Committee seems to do best: hold a stupid, nonsensical, nearly fact-free “hearing” that serves as nothing more than an opportunity for elected members of Congress to demonstrate their ignorance of an important topic, while attempting to play to their base. This time, the topic was on the content filtering practices of Facebook, Twitter and Google. Back in May there was actually a whole one day conference in Washington DC on this topic. The Judiciary Committee would have been a lot better served attending that than holding this hearing. I’d recommend not wasting three hours of your life watching this thing, but if you must:
The shortest summary would be that some Republican members of Congress think that these websites censor too much conservative speech, and some Democratic members of Congress think that they don’t censor enough other speech (including hoaxes and conspiracy theories)… and almost no one wants to admit that this is not even remotely an issue that Congress should be concerned about. There’s a narrative that has been picked up by many that insist that social media platforms are unfairly censoring “conservatives.” There is basically zero evidence to support this. Indeed, a thorough analysis of the data back in March by Nieman Labs and Newswhip found that conservative-leaning sites get much, much, much more engagement on Facebook than liberal-leaning sites.
But, never let facts get in the way of a narrative. Since that seems to be the way many hyperpartisan sites (at either end of the spectrum) deal with these things, Congress is helping out. The only bit of sanity, perhaps bizarrely, came from Rep. Ted Lieu, who reminded everyone of the importance of free markets, free speech and the fact that private platforms get to decide how they manage their own services. Considering that Republicans often like to claim the mantle of being the “small, limited government” party who wants the government’s hands out of business regulation, the fact that most of the hearing involved Republicans screaming for regulating internet platforms and a Democrat reminding everyone about the importance of a free market, capitalism and free speech, it really was quite a hearing. Lieu’s remarks were some of the rare moments of sanity during the hearing — including defending Facebook leaving Alex Jones’ conspiracy theories on its site. Let’s start with that high point before we dive into the awfulness. His comments come at about 2 hours and 10 minutes into the video:
… we’re having this ridiculous hearing on the content of speech of private sector companies. It’s stupid because there’s this thing called the First Amendment. We can’t regulate content! The only thing worse than an Alex Jones video is the government trying to tell Google… to prevent people from watching the Alex Jones video. We can’t even do it if we tried. We can’t even do any legislation out of this committee. And we’re having this ridiculous second installment hearing after the first hearing about Diamond and Silk not getting enough likes on Facebook.
He then went on to ask questions “so the American public understands what a dumb hearing this is.” And those questions — again — seemed like the kinds more expected from supposedly “free market” conservatives. Specifically he asked the companies if they were private companies aiming to maximize profits for shareholders. And he wasn’t doing that to show that companies were evil, he was doing that to show that that’s how the free market works. He followed up with this:
I noticed all of you talked about your own internal rules. Because that’s what this should be about. You all get to come up with your own rules. But not because government tells you what to do. Or because government says you have to rule this way or that way. And the whole notion that somehow we should be interfering with these platforms from a legislative, governmental point of view is an anathema to the First Amendment. And really it’s about the marketplace of ideas.
Kudos to Rep. Lieu. This is the kind of speech that you’d normally expect to hear from a “small government” conservative who talks about respecting the Constitution. But, in this case, it’s a Democrat. And it’s shameful that others (on both sides of the aisle) weren’t making the same point. Instead, there was a ton of pure nonsense spewed from the Republicans at the hearing. It’s hard to fathom that the following statements were made by people we’ve actually elected to our legislative body. There were so many dumb statements made that it’s difficult to pick out just a few.
It’s a matter of Congressional record that Gateway Pundit, Mr. Jim Hoft, has introduced information into the record that in the span of time between 2016 and 2018, he saw his Facebook traffic cut by 54%. Could you render an explanation to that?
Um… what? How the hell is it of any concern to Congress whatsoever the traffic a single site gets? And, as we were just discussing recently, traffic to lots of news sites from Facebook has dropped massively as Facebook has de-prioritized news. In that post, we pointed out that Slate was self-reporting a drop in Facebook traffic over that same period of time of 87%. Based on that, why isn’t King asking about Slate’s traffic dropping? Perhaps because Gateway Pundit publishes the kind of nonsense King supports and Slate points out that King is a bigot?
And… isn’t that, again, kind of the point of the First Amendment? To protect news sites from having Congress play favorites?
Incredibly, King then concludes his time by first claiming he’s all for free speech and free enterprise, but wonders about turning social media sites into regulated utilities.
I’m all for freedom of speech and free enterprise and for competition and finding a way that we can have competition itself that does its own regulation, so government doesn’t have to, but if this gets further out of hand, it appears to me that Section 230 needs to be reviewed, and one of the discussions that I’m hearing is ‘what about converting the large behemoth organizations that we’re talking about here into public utilities.’
Are we living in an upside down world? A Democrat is praising the free market, profits and free speech, and a Republican is advocating for limiting free speech and in favor of turning some of the most successful US companies into public utilities? What is even going on here?
Around an hour and 18 minutes, we get our old friend Rep. Louis Gohmert, who has a fairly long and extensive history of making the dumbest statements possible concerning technology issues. And he lived down to his usual reputation in this hearing as well. It starts off by him trying to play down the issue of Russian interference in elections, by claiming (?!?) that the Russians helped Truman get elected, and then claiming that Russians had helped basically every Democratic President get elected in the past 70 years. And then spent a long time trying to complain that the platforms wouldn’t tell him if Chinese or North Korean intelligence services had also used their platforms. Remember, these companies were asked to come and testify specifically about Russian use of their platforms to interfere with the election and Gohmert stepped in with this insane “what about other countries, huh?” argument:
Gohmert: I need to ask each of you. You’ve been asked specifically about Russian use of your platforms. But did you ever find any indication of use of your platform, utilized by the Chinese, North Korea, or any other foreign country intelligence or agency of that country. First, Ms. Bickert?
Bickert/Facebook: I would note, Congressman, that we’re not in North Korea or China. In terms of whether we’ve seen attacks on our services, we do have — we are, of course, a big target — we do have a robust security team that works…
Gohmert: Well, but that’s not my question. It’s just a very direct question. Have you found… You don’t have to be in North Korea to be North Korean Intelligence and use… We have foreign government intelligence agencies IN THIS COUNTRY. So have… It seems to me you were each a little bit vague about “oh yes, we found hundreds” or whatever. I’m asking specifically, were any of those other countries besides Russia that were using your platform inappropriately? It should be a yes or no.
Actually, no, it shouldn’t be a yes or no. That’s a dumb and misleading question for a whole long list of reasons. Of course, lots of other intelligence agencies are using Facebook, because of course they are. But, the entire point of this line of questioning seems to be Gohmert trying to play down Russian use of the platform, which is… odd. Especially after he started out by praising the fact that maybe the Russians might help “our side” get elected going forward.
Bickert: I don’t have the details. I know we work to detect and repel attacks…
Gohmert: I know that. But were any of them foreign entities other than Russia?
Bickert: I can certainly follow up with you on that.
Gohmert: SO YOU DON’T KNOW?!? You sure seemed anxious to answer the Democrats questions about RUSSIA’s influence. And you don’t really know of all the groups that inappropriately used your platform? You don’t know which were Russians and which were other foreign entities?
No, that’s not what she’s saying at all. She’s pretty clearly saying that this hearing was specifically about Russian influence and that’s what she was prepared to testify on. She didn’t say that Facebook can’t tell Russians from other entities, just that the other entities aren’t the ones accused of messing with the election and thus there isn’t that much relevant right now. But that’s quite a deflection attempt by Gohmert.
Let’s move on to Rep. Tom Marino at about an hour and a half into the video. Marino seems to have a fairly bizarre understanding of the law as it concerns defamation. He focuses on the guy from Twitter, Nick Pickles, and starts out by reading a definition of “libel.” Then he asks
Have any of you considered libel? Or do you think you are immune from it?
This is an incredibly stupid question. Twitter is clearly not immune from libel. Marino’s line of questioning is an attempt to attack CDA 230, which provides immunity to Twitter from liability for defamatory statements made by its users. This is an important distinction that Marino conveniently ignores as he continues to bug Pickles.
Pickles: We have clear rules that governs what happens on Twitter. Some of those behaviors are deplorable and we want to remove them immediately… So, terrorist content is one example, where we now detect 95% of the terrorist accounts we remove…
Marino: Okay, I understand that sir. But how about… we in Congress, we put up with it all the time. I know we’re public officials, same with people in the movies… but do you specifically look for and address… republication can be used in a defamation case. Do you look at libel and defamation content?
I don’t even know what that means. Do you look at libel content? What? How does Twitter know if something is libelous? Especially against public officials? How is Twitter supposed to make that judgment when that’s what courts are there to figure out? And, for what it’s worth, Twitter has been known to abide by court rulings on defamatory speech in deciding to take down that content, but Marino seems to be asking if they make an independent judgment outside of the courts of what’s libelous. Which is both crazy and impossible. Pickles makes a valiant effort in response, noting how Twitter focuses on its rules — which is all that it’s required to do — but Marino clearly seems to want to attack CDA 230 and magically make Twitter liable for libelous content on its platform. After Pickles again explains that it focuses on its rules, rather than making judicial rulings that it cannot make, Marino puts on a dumb smirk and makes another dumb statement:
With all due respect, I’ve heard you focus on your rules about 32 times. DO. YOU. LOOK. FOR. LIBEL. OR. DEFAMATION. IN. YOUR. COMPANY’S. OPINION?
You can’t “look for libel or defamation” like that. That’s not how it works. Marino is a lawyer. He should know this. The Facebook and YouTube representatives neatly sidestep Marino’s silly line of questioning by pointing out that when informed of legal rulings determining “illegal” speech, they take it down. Marino doesn’t even seem to notice this very specific distinction and asks “where do you draw the line?”
At an hour and forty minutes, we have everyone’s favorite, Rep. Lamar Smith, author of SOPA back in the day. He spews more utter nonsense claiming conservatives have been more negatively impacted by the moves of these social media companies, and then (bizarrely) argues that Google employees forcing the company not to help surveillance activity is somehow an attack on conservatives. Excuse me? Conservatives don’t support the 4th Amendment any more? Say what? But the real craziness is this line:
Google has also deleted or blocked references to Jesus, Chick-Fil-A and the Catholic religion.
I’m going to call time out here and note  on that one, Smith. Google pretty clearly shows me results on all three of those things. I’ve been trying to figure out what the hell he’s referring to, and I’m guessing that Smith — in his usual Smithian nonsensical way — is confusing Google for Facebook, and Facebook’s bad filter that initially blocked a page about “Chick-fil-Appreciation Day,” and some Catholic church pages. The “Jesus” blocking is also Facebook and was in reference to an ad for a Catholic university.
All of these examples were not, as Smith implies, evidence of “liberal bias” on behalf of Facebook, but rather evidence of why it’s so problematic that governments are putting so much pressure on Facebook to magically filter out all of the bad stuff. That’s not possible without making mistakes. And what happens is that you set up guidelines and those guidelines are then handed to people who don’t have nearly enough time to understand the context, and sometimes they make mistakes. It’s not bias. It’s the nature of trying to moderate millions of pieces of content every damn day, because if they don’t, these same idiots in Congress would be screaming at them about how they’re letting the bad content live on. I mean, it’s doubly ridiculous for Smith to use the Jesus example as even the guy who bought the ad, the university’s web communications director, specifically said that he didn’t believe it had anything to do with bias, but was just a bad decision by an algorithm or a low level staffer.
Finally (and there are more, but damn, this post is getting way too long) we get to Rep. Matt Gaetz. At around an hour and 55 minutes into the hearing, he suddenly decides to weigh in that the First Amendment and CDA 230 are somehow in conflict, in another bizarre exchange between Gaetz and Twitter’s Pickles.
Gaetz: Is it your testimony or is it your viewpoint today that Twitter is an interactive computer service pursuant to Section 230 sub c(1).
Pickles: I’m not a lawyer, so I won’t want to speak to that. But as I understand, under Section 230, we are protected by that, yes.
Gaetz: So Section 230 covers you, and that section says “no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another”… is it your contention that Twitter enjoys a First Amendment right under speech, while at the same time enjoying Section 230 rights?
Pickles: Well, I think we’ve discussed the way the First Amendment interacts with our companies. As private companies we enforce our rules, and our rules prohibit a range of activities.
Gaetz: I’m not asking about your rules. I’m asking about whether or not you believe you have First Amendment rights. You either do or you do not.
Pickles: I’d like to follow up on that, as someone who is not a lawyer… I think it’s very important…
Gaetz: Well, you’re the senior public policy official for Twitter before us and you will not answer the question whether or not you believe your company enjoys rights under the First Amendment?
Pickles: Well, I believe we do, but I would like to confirm with colleagues…
Gaetz: So what I want to understand is, if you say “I enjoy rights under the First Amendment” and “I’m covered by Section 230” and Section 230 itself says “no provider shall be considered the speaker” do you see the tension that creates?
There is no tension there. The only tension is between the molecules in Gaetz’s brain that seemed to think this line of nonsensical argument makes any sense at all. There is no conflict. First, yes, it’s obvious that Twitter is clearly protected by both the First Amendment and CDA 230. That’s been established by dozens of court rulings with not a single ruling ever holding otherwise. Second, the “tension” that Gaetz sees is purely a figment of his own misreading of the law. The “no provider shall be considered a speaker” part, read in actual context (as Gaetz did earlier) does not say that platforms are not speakers. It says that they are not considered a speaker of other people’s speech. In fact, this helps protect free speech by enabling internet platforms the ability to host any speech without facing liability for that speech.
That helps protect the First Amendment by ensuring that any liability is on the speaker and not on the tool they use to distribute that speech. But Twitter has its own First Amendment rights to determine what speech it decides to keep on its site — and which speech it decides not to allow. Gaetz then, ridiculous, tries to claim that Pickle’s response to that nonsensical response is somehow in conflict with what Twitter’s lawyers have said in the silly Jared Taylor lawsuit. Gaetz asks Pickles if Twitter could kick someone off the platform “for being a woman or being gay.” Pickles points out that that is not against Twitter’s rules… and Gaetz points out that in the Taylor case, when asked the same question, Twitter’s lawyers stated (1) that Twitter has the right to do so but (2) never would.
Again, both Pickles and Twitter’s lawyers are correct. They do have that right (assuming it’s not a violation of discrimination laws) but of course they wouldn’t do that. Pickles wasn’t denying that. He was pointing out that the hypothetical is silly because that’s not something Twitter would do. Twitter’s lawyers in the case were, correctly, pointing out that it would have the right to do such a nonsensical thing if it chose to do so, while also making it clear it would never do that. Again, that’s not in conflict, but Gaetz acts as if he’s “caught” Twitter in some big admission.
Gaetz falsely then claims that Pickles is misrepresenting Twitter’s position:
Right but it is not in service of transparency if Twitter sends executives to Congress to say one thing — that you would not have the right to engage in that conduct — and then your lawyers in litigation say precisely the opposite.
Except that’s not what happened at all. Pickles and the lawyers agreed. At no point did Pickles say that Twitter did not have “the right” to kick people off its platform for any reason. He just noted that it was not a part of their policy to do so, nor would it ever be. That’s entirely consistent with what Twitter’s lawyers said in the Taylor case. This is Gaetz making a complete ass out of himself in completely misrepresenting the law, the constitution and what Twitter said both in the hearing and in the courthouse.
Seriously, people, we need to elect better Representatives to Congress. This is embarrassing.
The FBI continues its push for a solution to its “going dark” problem. Joined by the DOJ, agency head Christopher Wray has suggested the only way forward is a legislative or judicial fix, gesturing vaguely to the thousands of locked phones the FBI has gathered. It’s a disingenuous push, considering the tools available to the agency to crack locked devices and obtain the apparently juicy evidence hidden inside.
The FBI hasn’t been honest in its efforts or its portrayal of the problem. Questions put to the FBI about its internal efforts to crack locked devices are still unanswered. The only “new” development isn’t all that new: Ray Ozzie’s “key escrow” proposal may tweak a few details but it’s not that far removed in intent from the Clipper Chip that kicked off the first Crypto War. It’s nothing more than another way to make device security worse, with the only beneficiary being the government.
The FBI’s disingenuousness has not gone unnoticed. Efforts have been made over the last half-decade to push legislators towards mandating government access, but no one has been willing to give the FBI what it wants if it means making encryption less useful. A new bill [PDF], introduced by Zoe Lofgren, Thomas Massie, Ted Poe, Jerry Nadler, Ted Lieu, and Matt Gaetz would codify this resistance to government-mandated backdoors.
The two-page bill has sweeping safeguards that uphold security both for developers and users. As the bill says, “no agency may mandate or request that a manufacturer, developer, or seller of covered products design or alter the security functions in its product or service to allow the surveillance of any user of such product or service, or to allow the physical search of such product, by any agency.”
This bill would protect companies that make encrypted mobile phones, tablets, desktop and laptop computers, as well as developers of popular software for sending end-to-end encrypted messages, including Signal and WhatsApp, from being forced to alter their products in a way that would weaken the encryption. The bill also forbids the government from seeking a court order that would mandate such alterations. The lone exception is for wiretapping standards required under the 1994 Communications for Law Enforcement Act (CALEA), which itself specifically permits providers to offer end-to-end encryption of their services.
The Secure Data Act shouldn’t be needed but the FBI and DOJ have forced the hand of legislators. Rather than take multiple hints dropped by the previous administration, the agencies have only increased the volume of their anti-encryption rhetoric in recent months. Maybe the agencies felt they’d have the ear of the current administration and Congressional majority, but investigations involving the president and his staff have pretty much killed any “law and order” leanings the party normally retains. This bill may see widespread bipartisan support simply because it appears to be sticking it to the Deep State. Whatever. We’ll take it. Hopefully, this makes a short and direct trip to the Oval Office for a signature.