Don’t think this headline is hyperbole; as this post will explain, it is not.
But what follows here isn’t just about books, Amazon, or even Paxton himself. What the headline captures is but one example of the catastrophic upshot to the long-concerning INFORM Act bill, should it get passed, as may now happen, what with it having been shoved into the politically popular (and ridiculously enormous) United States Innovation and Competition Act that awaits passage [skip to Section 20213 in the linked document to find the bits on INFORM], despite the INFORM Act having nothing to do with helping America compete in the global economy (except insofar that a law like it tends to make it more difficult).
In short, it is a law with minimal merit but great potential for mischief given how it is currently drafted. And in an age where government officials and others are openly eager to go after people for things they have said, it seems a certainty that, if enacted with this language, these concerns will be realized and result in serious expressive harm.
To understand why, it is important to recognize what the INFORM Act is for: to identify marketplace sellers. To an extent, such a policy might seem to make sense because it helps sellers be held accountable. As we regularly argue, it is better to hold sellers liable for things that go wrong with their sales than hold marketplaces liable for their sellers. When law tries to do things the other way around and make marketplaces liable for their sellers, it creates an unmanageable risk of liability, which makes it hard for them to offer their marketplace services to any sellers (including those of perfectly safe products). And that’s bad for smaller, independent sellers, who need marketplaces to get their products to consumers, as well as consumers who benefit from having more choices of sellers to buy from, which online marketplaces allow them to have.
So if you are going to hold sellers liable, having some way to know whom to hold accountable in the event that liability needs to be pursued could make some logical sense. On the other hand, it is not clear that such a rule mandating the identification of sellers is necessary, because consumers could use their ability to identify a seller as a factor in their purchasing decisions. Consumers could choose to buy from a seller who voluntarily provided their identifying information over one who didn’t but who may be selling the product more cheaply, and consumers could make that make that purchasing decision based on whether it is worth it to them to pay a little more for more accountability, or to pay less and take the chance that there may be no recourse if something goes wrong.
It is a paternalistic Congress who would insist on taking away that choice entirely, and it effectively reintroduces marketplace liability to have a regulation that puts legal pressure on marketplaces to force sellers to identify themselves, if marketplace platforms are going to be able to support any sellers at all. Even if requiring seller identification might sometimes be a best practice for marketplaces to choose to require (and a basis upon which consumers could choose to shop from marketplaces on that basis), it is something else entirely for law to demand it. There are often chilling consequences when platforms are forced to make their users do something – in general, but especially here, as this bill is currently drafted.
The fundamental problem with a rule that requires all sellers to identify themselves is that it will take away the ability to have anonymous sellers at all. And even if you think removing seller anonymity is a good outcome for when it comes to selling potentially dangerous products, destroying the right to sell things anonymously is an absolutely terrible outcome for myriad products where product safety is never an issue. Especially when these products are expressive. Think books. T-shirts. CDs. Is Congress worried that consumers will have no one to sue if they get a papercut, a rash, or a headache? This bill requires even sellers of those sorts of expressive goods to identify themselves, and such a law is simply not constitutional.
As we’ve discussed many, many times before, there is a right to speak anonymously baked into the First Amendment. And that right isn’t constrained by the medium used. People speak through physical media all the time, which is why they produce expressive things like books, t-shirts, and CDs, which consumers like to buy in order to enjoy that expression. But this law inherently requires anyone who would want to monetize their expression – again, a perfectly legal thing to do, and something that other law, like copyright, even exists to encourage – to identify themselves. And that requirement will be chilling to any of the many speakers eager to spread their message, who simply can’t pay that sort of price to do it.
There is some language in the bill that does sort of narrow the intended law’s applicability, but not adequately. (Or clearly: while it limits it to “high volume sellers,” there is one provision that defines “high volume” as $5000k in annual sales or 200 transactions [§ (f)(3)(A)] and another that defines it as $20,000 [§ (b)(1)(A)(i)], but neither is very high if you are in the business of selling expressive products to make your living, or have any expressive product that happens to achieve significant popularity). There is also a tiny bit of mitigation for sellers that sell out of the home or via personal phone numbers [§ (b)(2)(A)], but it still puts an onus on them to regularly “certify” to the platform that this criteria is applicable and, still, information about them, including name and general location, will be disclosed to the world. In other words, these sellers will have to be identified, and for when they sell any sort of good, because the law’s definition of applicable goods is so broad [§ (f)(2)] and reaches even expressive goods for which there is no valid consumer safety interest for a law like this to vindicate that could survive the constitutional scrutiny needed to overcome the harm to the right of anonymous speech it will cause.
And the concern is hardly hypothetical, which returns us to the headline. The INFORM Act opens the door to state attorney general enforcement against marketplace platforms, with the ability to impose significant sanctions, potentially even if only a few of a marketplace platform’s users fail to identify themselves properly, because it will be easy for them to claim that an online marketplace is out of compliance with this law (there’s no real limiting language in it that might describe what non-compliance would look like) and in a way that “affects one or more residents of that State,” as every online marketplace inevitably does. [§ (d)(1)]. Of course, even as applied to non-expressive products this provision is a problem in how it gives states undue power over interstate commerce, which should be the exclusive domain of Congress. In fact, it’s a significant problem that individual states have already tried to impose their own versions of INFORM. These efforts provide the one legitimate reason for Congress to try to regulate here at all, in order to pre-empt that resulting mess. Yet this bill, as drafted, manages to only double-down on it.
But the concern for the threat to expressive freedom becomes especially palpable when you think about who can enforce it against whom, and for what, and Texas state attorney general Ken Paxton serves as a salient Exhibit A for what a nightmare this law would unleash. Would you like to write a book about any of the subjects states like Texas have tried to ban? If so, good luck with self-publishing it anonymously. How about selling a t-shirt expressing your outrage at any of the policies states like Texas have tried to promote? Better hope your shirt isn’t so popular that you have to identify yourself! Same with CDs: your ability to make money from your music is conditional on you identifying yourself to the world, so you’d better be completely ok with that. Of course, the problem is not just that certain state attorney generals with a tendency to use their powers against people they don’t like can find you, but that, thanks to this law, anyone else who doesn’t like what you’ve said will be able to as well.
Again, even at best this law remains of dubious value as an enforceable policy and unduly burdensome on sellers and marketplaces in a way that is likely to be costly. But if supporting it is the Faustian bargain Congress wants to basically blackmail affected constituencies into making in order to avoid something even worse (like SHOP SAFE, which has also been shoved into the same enormous competition bill and which would wreck e-commerce for everyone except maybe Amazon), then so be it. But not as currently drafted. Especially not with the attorney-general provision (which, even with a less-hairpin trigger and less super-charged enforcement powers, is still a bad idea in how it invites any and every state to mess with online interstate commerce as their own personal whims would dictate), and certainly not with such broad applicability to essentially every seller of every sort of good.
To be constitutional this bill absolutely must, at minimum, exempt any seller of any expressive good from having to identify themselves, and no platform should be forced by this law to require otherwise. When the First Amendment says that Congress shall “make no law” that abridges on free expression it means any law, including Internet marketplace law. Congress needs to abide by that prohibition and not so carelessly do such abridging here.
Back to the future
It is not a decision that is an artifact of its time, which is why they still teach this case when teaching torts even in the 21st century, because the principle is applicable. It's also not clear the court (or anyone) back then knew it was a problem with bone sepsis. That was speculation made by a friend with medical knowledge when I recounted the case to him.
Several points
It's not insulting. It's the upshot of what you point out. I can't tell you how many Europeans speak of "balancing" speech. And I don't think it's unfair to think that any approach that allows speech to ever be subordinated like that is an approach that reflects limits in how much it is valued. Also, re: WWII, I disagree, mostly. There was some tech investment that came from the military and went through schools that then affected what tech businesses were spawned (ex: HP). But there are also differences in corporate laws, employment law, and other ancillary law that bear on how easy it is to launch a start-up in the US and EU. (But the liability protection differences also matter a lot.)
Europe v US
That's a common view but I don't think I quite buy it. I think a bigger reason for no 230 in, say, Europe, is that, at least in Europe, there was the ecommerce directive, which swallowed up all the oxygen, just good enough that there could be nothing better. I also don't think that culturally the EU has taken speech protection as seriously as in the US overall. It pays lip service to the idea, but is perfectly willing to throw it under the bus culturally and legally whenever the issues get sticky. (In the US we also sometimes do culturally, but the law is more hardened in favor of speech protection.) You may have a point about lawsuit frequency, but then again there are also conspicuously fewer European start-ups in Europe (although there several reasons for that).
Re: Re:
230 protects platforms for liability arising from user-generated content. But the point the brief makes is that we need that protection both for when we're the platform, hosting others' user-generated content (such as in the comments), and also when we're the user spreading our message via other platforms, or even hosting user communities on other platforms, which all need Section 230 in order to be available to us.
Re: Bit rot happens.
ACTUALLY... While I appreciate the defense, the reality is that I have had training in print media. Then later became a blogger. THEN later became a lawyer... Should NDAA have been spelled out? Maybe. But not necessarily. The article isn't about the NDAA, and I didn't want to down out the technical details I did want to explain about INFORM with additional technical details that weren't necessary to understanding what's wrong with this bill. Plus when people do refer to the NDAA they often do by acronym, rather than by its full name. The only reason to mention it here is so people recognize it as one of these must-pass bills once news about it comes to the fore. But otherwise the NDAA is of little importance to this post.
Re: Re: Re: Re: Why should triggering a panic be legal?
No, I'm sorry, but you'd have to leap over a lot of precedential language to find it illegal. For instance, it presumes too much to even complain the cry was false. You'd need more than that, like an indifference to the falsity, a la NY Times v. Sullivan.
Re: Re: Laugh Out Loud Out Loud
https://www.youtube.com/watch?v=ohDB5gbtaEQ
Re: Re: Why should triggering a panic be legal?
The issue is that even if it should be illegal, that question was never adjudicated. Holmes just made it up. And it's important to litigate it, before making it the rule, because as I and others have pointed out, you don't want a rule that will deter people from crying out when there really is a fire. In any case, you can argue that it should be the rule all you want. But the main point of the post is that it is absolutely wrong to suggest that it's what the rule IS.
Re: This argument tends to remind me
I get your point but don't agree that it's just a pedantic distinction. I don't think people cite the trope out of a general sense that perhaps certain speech SHOULD trigger some sort of consequence; I think they cite it because they think it DOES. And because they think it does, they can't understand why we can't just have some more regulation to punish other bad speech they think is similar. And so the regulatory conversation is not one about whether that should be that rule, but a more ignorant tug-of-war between those who think such regulation is absolutely already legally on the table and those who better understand the actual reality that it's not. Which means we can never have a useful conversation about what the regulation should be since we're not all on the same page about how much would need to change to get there (and also why that much change would likely be bad).
Re:
Thanks, fixed.
Re:
I meant literally "non-profit" organizations like Wikimedia, as opposed to for-profit commercial enterprises like Twitter.
Re:
Following the law is asking for a lawsuit? The problem here isn't actually with the law; it's that the court ignored it and replaced it with its own different law instead.
Re: why would nbc,cbs, not want more people to view their advert
That may be a consideration, but the explanation may instead be that they are trying to extract more money from cable retransmission agreements, and if there's a free alternative, then those deals will be less lucrative for them. In other words, it weakens their monopoly. Which is what this statutory provision expressly was going to do.
Re: 'I'm sure those leopards will only go after my opponents...'
Interesting, but not sure it's necessarily correct. Sometimes I think it might be: https://www.techdirt.com/articles/20210109/13053746025/dear-section-230-critics-when-senators-hawley-cruz-are-your-biggest-allies-time-to-rethink.shtml But often I think Congress just doesn't understand what they are about to break: https://www.techdirt.com/articles/20210723/09303347230/senator-klobuchar-proposes-unconstitutional-law-that-would-kill-legions-people-if-trump-were-still-president.shtml https://www.techdirt.com/articles/20210205/12142446194/senators-warner-hirono-klobuchar-demand-end-internet-economy.shtml https://www.techdirt.com/articles/20210625/09355347057/congressman-nadler-throws-worlds-worst-slumber-party-order-to-destroy-internet.shtml And the problem is that they don't care to learn.
Re: Re: Re: Discomfort, Bras, Men, Etc.
I used the word "clinical detachment" in the post for a reason.
Re:
One of these days I need to write a post about this too... Because FWIW my mom was a COBOL programmer and in tech since the 60s.
Re: Discomfort, Bras, Men, Etc.
This was the 90s, and just a small group of friends, so I don't think fear of a harassment charge was operative here. Also, there was nothing comedic about it; I wanted to discuss it with the clinical detachment we were using to discuss other e-commerce success stories. But they couldn't, and my sense was that they just thought it was too icky a topic and couldn't get past that reflex. As a result, it felt to me like there was an almost impenetrable brick wall that I couldn't get past. It was weird, and unpleasant. I felt almost physically trapped because there was nothing I could say, or intellectually explain, to unstick the conversation without abandoning the topic altogether. Like tires spinning in mud, I couldn't get any traction to move the conversation forward. It left me with a weird sense of powerlessness that I can still remember vividly today.
Re:
Thanks, BF! Of course, you should always agree with me :-p I liked the Stargate TV shows because Samantha was a smart, capable woman who didn't die and didn't have to have love affairs with her colleagues to be an equal protagonist. Also later MASH episodes, particularly with the arrival of Potter, BJ, and Charles, and the increasing creative influence of Alda, were much better. The one where Lt. Kelley stands up to Hawkeye stands out in particular. And Swit didn't sell Hoolihan short, especially after the character divorced. The frustrations she experienced being a career woman in that age were well-told.
Re: Re: Re: bar exam test
No. You still have to issue-spot and know where to look for the rules, which won't work out well with a ticking clock if you don't have enough of a mastery of the subject to quickly know where to look. And you also still need to be able to write a cogent analysis, which open notes won't help you with there either.
Re: Re: Re: Re: Not such a good idea now is it?
It's not really a question of whether the government v. corporation distinction rings true for you. They ARE different, as a matter of law and also practical reality.