Big Tech's Chickens Coming Home to Roost

Episode 424 of the Cyberlaw Podcast

We open today's episode with early news of the Supreme Court's decision to review whether section 230 protects platforms from liability for materially assisting terror groups whose speech they distribute (or even recommend). I predict that this is the beginning of the end of the house of cards that aggressive lawyering and good press have built for the platforms on the back of section 230. Why?  Because Big Tech stayed out of the Supreme Court too long. Now, when section 230 finally gets to the Court, everyone hates Silicon Valley and its entitled content moderators. Jane Bambauer, Gus Hurwitz, and Mark MacCarthy weigh in admirably, despite the unfairness of having to comment on a cert grant that is less than two hours old.

Just to remind us why everyone hates Big Tech's content practices, we do a quick review of the week's news in content suppression.

• A couple of conservative provocateurs prepared  a video consisting of Democrats embracing "election denial." The purpose was to highlight the hypocrisy of those who criticize the GOP for a trope that belonged mainly to Dems until two years ago. And it worked all too well: YouTube did a manual review of the video before it was even released and demonetized it because, well, who knows? An outcry led to reinstatement, but too late for YouTube's reputation. Jane has the story.
• YouTube also steps in the same mess by first suppressing then restoring a video by Giorgia Meloni, the big winner of Italy's recent election. She's on the right, but you already knew that from how YouTube dealt with her.
• Mark covers an even more troubling story, in which government officials flag online posts about election security that they don't like for NGOs that the government will soon be funding, the NGOs take those complaints to the platforms, and the platforms take a lot of the posts down. Really, what could possibly go wrong?
  • Note: After the podcast went live, I heard from the head of one of the NGOs in question, excoriating the source (JustTheNews.com) as unreliable in general and in connection with this story. The project's detailed critique of the story is here.
• Jane asks why Facebook is "moderating" private messages sent by the wife of an FBI whistleblower.  I suspect that this is not so much content moderation as part of the government and big tech's hyperaggressive joint pursuit of anything related to January 6. But it definitely deserves investigation.
• Across the Atlantic,  Jane notes, the Brits are hating Facebook for the content it let 14-year-old Molly Russell read before her suicide. Exactly what was wrong with the content is a little obscure, but we agree that material served to minors is ripe for more regulation, especially outside the US.

For a change of pace, Mark has some largely unalloyed good news.  The ITU will not be run by a Russian; instead it has elected an American, Doreen Bodan-Martin to lead it.

Mark tells us that all the Sturm und Drang over tougher antitrust laws for Silicon Valley has wound down to a few modestly tougher provisions that have now passed the House. That is all that will be passed this year, and perhaps in this Administration.

Gus gives us a few highlights from FTCland:

• The FTC is likely to strengthen enforcement tools for its consent decrees, mainly by identifying individuals it can fine for violations. Gus doubts this will work out well in practice.
• The FTC is also end-running a recent Supreme Court decision that denied it the authority to impose certain financial penalties. Now the Commission will bring cases jointly with state agencies who have that authority.

Jane unpacks a California law prohibiting cooperation with subpoenas from other states without an assurance that the subpoenas aren't enforcing laws against abortions that would be legal in California. California is playing the role in twenty-first century federalism that South Carolina played in the nineteenth and twentieth centuries; I predict that some enterprising red state attorney general is likely to challenge the validity of California's law – and win.

Gus notes that private antitrust cases remain hard to win, especially without evidence, as Amazon and major book publishers gain the dismissal of antitrust lawsuits over book pricing.

Finally, in quick hits and updates:

• Gus previews an upcoming executive order intended to cool off the fight over data transfers across the Atlantic
• I cover two US espionage arrests, one of them best summarized by the Babylon Bee
• I also note a large privacy flap Down Under, where the exposure of lots of personal data from a telco database seems likely to cost the carrier, and its parent dearly.

Download the 424th Episode (mp3)

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Updated to reflect a response to the story about NGOs influencing content moderation. More to come.