The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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"On the right"... That's one way to describe Giorgia Meloni.
In Reasonlandia anyone not expressly of or for the left is automatically "on the right."
Not to imply that they call leftists leftists or anything remotely as honest as that.
Meloni probably does have some views that would be considered leftist in the US. But what I meant is that, generally speaking, if she were any further to the right she'd be building death camps.
Stalin would like a word with you on deathcamps being a thing of the right. (Hint, politics is not one-dimensional).
Also, I find this kind of language really weird coming from Europeans, considering originally 'the right' referred to *Royalists* in Europe.
Martinned made a sufficiency opinion, not a necessity one.
Oh, come on, that's nonsense. There's a huge gulf between her and death camps. She's no more fascist than your average left-wing Democrat is a communist.
No less, I suppose, either, but why do communist adjacent politicians get a pass, and not fascist adjacent ones?
Because Hitler destroyed a civilized cultured country in full public view, and brought back the militarism which started the 1870 and 1914 wars.
Whereas Lenin and Stalin took over a mysterious backwards country run by a dictator, full of serfs, no culture beyond a few writers and composers, using an unreadable language; and modernized it, industrialized it, educated its freed serfs, brought in medicine, science, engineering, and defeated the Nazis single-handedly. Never mind the two years they spent helping Nazis before that, they single-handedly defeated the Nazis and saved the world!
"Whereas Lenin and Stalin took over a mysterious backwards country run by a dictator,"
No, actually they didn't. They actually took over after the dictator had been deposed, and reimposed dictatorship.
I'm talking from a PR perspective.
Sounded just like a commie. Is there a difference?
The Fratelli d'Italia aren't fascist-adjacent, they're just literally fascists. As in: honest-to-god saying that Mussolini was a good guy who should be emulated fascists.
https://www.salon.com/2022/09/29/yes-italys-new-prime-minister-is-really-a-fascist-the-old-fashioned-kind/
And do you condemn Marxist academics who openly applaud Marx, or even Mao?
Because if one doesn't shout down academics with no power or authority, you have no grounds to condemn an actual, avowed fascist head of state with power, and economy, and an army?
Also, who the fuck is openly applauding Mao? Cite needed.
You condemn Mussolini, yet remain silent on Russian dictator Carl Marks, who personally slaughtered 100 billion people. Hypocrisy!
"The Fratelli d’Italia aren’t fascist-adjacent, they’re just literally fascists. As in: honest-to-god saying that Mussolini was a good guy who should be emulated fascists."
"Her party was bad in the 40's" is a bit much, especially given that the US party Europe supports was the home of slavery and segregation.
The operative critique is not that they supported Mussolini in the 40s, its that they support him now, today.
That was an epic misreading. I hope he's okay.
Does she?
There is somewhere in the neighborhood of no proof of it.
Westboro Baptist were Democrats. I do not paint all Dems as members.
Yes, and Bill Clinton had a picture of Andrew Jackson in his office. I don't suppose he endorsed the exile of the five civilized tribes, or the appointment of Roger Taney, but presumably he would have said that Andrew Jackson did a lot of good things. That doesn't make Bill Clinton a Confederate sympathizer or an Indian hater.
She's literally a fascist, because while she has condemned fascism, someone else in the party admired something Mussolini did?
Oh! She made joke about her breasts, too - obvious fascism.
That "article" is crap, even by Salon's shitty standards.
Do you have any actual evidence, rather than a shitty op-ed at a crap-filled bottom-tier web-rag, that Meloni and her party are "just literally fascists"?
I read about half way through that before I got tired of looking for any instance of Meloni saying anything identifiably Fascist. What have you actually got?
Apologies, I tried to make allowance for the limited language skills of my American friends. Feel free to google something in Italian if that suits you better.
Unless the article says something completely different in Italian, it doesn't. In this case, either your reading skills are failing, or your honesty is failing.
Again, do you have any evidence that isn't merely a slimy-insinuation filled op-ed from a fourth-rate digital rag?
You do know that, historically speaking its been the left that built and ran death camps.
Unless you are one of those confused souls who think that national socialism and international socialism are somehow not both on the left...
If a party calls themselves "National Socialists" but runs the country based on (right-wing) fascist principles, it's fair to assume they're just using the socialist label for marketing purposes.
There is precious little difference between progressive ideology and Nazism.
Mussolini was of course a Socialist party functionary before he founded his party. You have no idea what “right wing” means outside the circles where it is a meaningless slur.
This post does a pretty good job of summing up how incoherent a lot of the opposition to Section 230 is. On the one hand, we have Baker gleeful that the tech companies might be held liable for not censoring enough, and on the other hand really mad that they're censoring people he happens to agree with. (And apparently "not putting up ads next to videos and splitting the revenue with the creators" is the new form of censorship.)
Serious question: would being pro-ISIS qualify as a viewpoint that the Texas law would prohibit the tech companies from taking down.
I agree most of the discussion of Section 230 is incoherent, perhaps especially that opposing it.
"we have Baker gleeful that the tech companies might be held liable for not censoring enough"
Would they? As I understand it, 230 was passed in response to the Stratton Oakmont v. Prodigy decision, which held that providers might be liable for content only if they exercise editorial control over that content. If 230 were repealed and this decision applied, it seems social media/communications platforms would be incentivized to exercise less editorial control, not more. Just thinking about it practically, there is obviously no way that Twitter for example or anyone else could review content to make sure it's not defamatory before they allow it to be transmitted/published. There's no scenario where service providers like this decide to assume publisher liability. Their business model would simply cease to exist, along with things like this comment section.
OTOH, they could just have an unmoderated comment section, and they'd be OK. Maybe they wouldn't be willing to have comment sections if they didn't moderate them, but that's a choice, not compelled.
I think, though, almost all the problem here is due to interpreting "or otherwise objectionable" as authorizing full editorial control, rather than treating it as meaning things of the same nature as the preceding list.
That's what I meant to say. They would sooner cease to exist than assume publisher liability for all communications on the service. Alternatively, they would not exercise editorial control and not have liability.
I agree that interpretation makes sense, as I think Prof. Volokh detailed in a post a while back. As a matter of policy, too, certainly providers should be able to exercise some control without being treated as the speaker or publisher.
They might be okay legally speaking, but they'd lose a majority of their audience. The majority of people aren't interested in engaging in a "4Chan for everyone" environment. Some sort of guard rails meant to keep things civil are required for most services.
Also left unsaid here are providers like Facebook and Twitter that artificially enhance the reach of certain voices based on their algorithm. Doing that is editorial in nature. Not doing that isn't censorship as some have claimed.
Well, certainly the argument by the plaintiffs in the cases the Court just granted cert on are that the tech companies aren't censoring enough and should be liable for nasty content that makes it through the moderation process. It definitely feels like Son of Stratton Oakmont v. Prodigy and not a particularly interesting test case for Section 230, but I admittedly haven't been following these cases that closely.
Assuming that the Court were to find in favor of the plaintiffs presumably there would be some new legal framework that none of us understands at the moment and the platforms would have to adapt to that. I agree that it would likely mean the end of most user-generated content on the Internet.
It might seem that way… if social media companies were non-commercial enterprises. But they're businesses, hoping to attract users and advertisers. Neither of whom want to hang around with Nazis, spammers, etc. "Less moderation" isn't an option under the Stratton Oakmont holding; it's any or none. And if you do no moderation, you will end up overrun with Nazis and spammers. And what advertiser wants its ad next to a post about the blacks and Jews destroying the country? And what user wants to wade through posts about those things to find the stuff he cares about?
(In the newspaper context, newspapers are very careful about ad placement next to certain stories, even though the stories themselves are obviously not pro-Nazi.)
But they market themselves as universal communications platforms. That's fraud.
I don't think fraud means what you think it means.
1) No, they do not.
2) No, it isn't.
They have well-published terms of service agreements that create clear limits on how one can use their service.
"They have well-published terms of service agreements that create clear limits on how one can use their service."
Is this a joke?
Tell it to Libs of TikTok.
" But they’re businesses, hoping to attract users and advertisers. Neither of whom want to hang around with Nazis, spammers, etc. "
Well, that's easy enough to deal with: Just give up on pushing content, and go back to the model they got big using: Helping people communicate with other people they want to communicate with.
I'm currently on MeWe, that's how it operates. A third of the members could be neo-Nazis, and a third Communists, and I'd never know, just because none of the people and groups I follow are.
That's not what social media is. That's what private messaging services provide.
It's a bit surprising that Baker didn't identify the case being discussed, although I guess it's hard to cite because the court below issued a single opinion covering three different cases.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/22/18-16700.pdf
In Twitter, Inc. v. Taamneh, the position of Taamneh appears to be that the Anti-Terrorism Act takes precedence over section 230, meaning that platforms can be liable for doing an inadequate job of censoring terrorists. If the Supreme Court agrees, the result would probably be platforms getting more aggressive about blocking content might be promoting terrorism.
In Gonzalez v. Google, the plaintiff's position appears to be that if a site makes content recommendations, it loses its section 230 protection. If the Supreme Court agrees, sites like Facebook would lose their section 230 protection, but the comment section on this blog would be unaffected.
“In Gonzalez v. Google, the plaintiff’s position appears to be that if a site makes content recommendations, it loses its section 230 protection.”
Does the plaintiff put it that in-aptly or is it just you? Section 230 prohibits Google from being considered the author of content it republishes, but holding Google responsible for making recommendations of content is not prohibited by Section 230 and doing so is accordingly not a “loss of section 230 protection”, merely a vaporization of a few of the many lower court-invented determined-misinterpretations of section 230.
Holding someone liable for "making recommendations" just straight up violates the first amendment, regardless of the existence of 230.
Here is the video referred to in the first bullet point, since it doesn't seem to be linked anywhere, even in the Taibbi substack that OP links to. Great video!
https://www.youtube.com/watch?v=uoMfIkz7v6s&ab_channel=MattOrfalea
Amazing just how much big tech suppresses factual information and how much the media misleads with selective bias, both for an overt political agenda.
We can talk about whether or not that video violates Youtube's T&Cs, but if you think it is "factual information", you're really beyond help.
If its lies were that obvious, it would be easy for you to debunk them. That you chose not to says a lot about how false it really is.
You're (also) confused. There are no lies there, because lies by definition claim to be facts. The video contains only opinions, which by definition cannot be "debunked".
You're confused by classifying everything you don't agree with as mere opinion, not false facts.
Well, I agree the video contains the opinions of Hillary Clinton, Kamala Harris, Joe Biden, a bunch of leftist media personalities and others. But that's not the factual information. The factual information is that these people said those things. It is all purely factual information.
OK, let's do the clip of Chris Hayes that appears at 3:11. The video doesn't provide a date for this clip, much less links to the transcript and the fuller video, but I was able to track it down. Here are the links:
https://www.msnbc.com/transcripts/transcript-all-chris-hayes-2-8-21-n1259852
https://www.mediaite.com/tv/chris-hayes-goes-off-on-gop-defenses-of-trump-ahead-of-trial-hiding-behind-process-arguments-is-pure-cowardice/
In the video, Chris Hayes says, “Trump cheated the 2016 election,” but the links I provided reveal that Hayes never actually said that. Chris Hayes does say, “the 2016 election,” and later says, “Trump cheated.” Matt Orfalea spliced these two phrases together in reverse order to construct a sentence that Hayes didn't say. Now, it turns out that Hayes was referring to the 2016 election when he said Trump cheated, but there is no way to know that if all you do is watch the video.
Did Chris Hayes claim that the 2016 election was stolen? Here is an excerpt from the statement:
(Hayes then talks about acts two and three of the drama: the attempt to pressure Ukraine and the attempt to overthrow the result of the 2020 election.)
This is not the same as Trump's claim that that 2020 election was stolen. First, Hayes says that the results of the 2016 elections are “colored” by cheating. That's not the same thing as saying that the results of the election shouldn't have been honored.
Second, Hayes is talking after Trump's term in office was over. This is in contrast to Trump, who was suggesting that Biden shouldn't even be allowed to begin his term in office.
In short Matt Orfalea is suggesting that Democrats, like the Republicans who line up behind Donald Trump, don't support democracy. That's false. While you can find heated rhetoric on both sides of the political divide, Trump is the only Presidential candidate to refuse to concede once it became clear that he lost the election.
This very long comment addresses about 2 seconds of the video, and I was only able to write it because I am familiar enough with Chris Hayes that I was able to determine where the clip came from. Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf claims it should be easy to debunk the video. A prerequisite for that is to identify all of the clip. If he can do that easily, perhaps he should post links for all the clips that appear in the video, like I did for the Chris Hayes clip.
The point of the video is that al the usual suspects whining about how Trump was "attacking our Democracy" by saying the results were illegitimately achieved are complete hypocrites. Your more complete quote only proves that he is exactly that.
A 'point' whch has to make with creative editing, sure.
The 'usual suspecrts' are pointing out that Trump was lying and is contintuing to lie about the election and lots of his followers claim to believe him, and lots of politcians and officials claim to believe it too, whch means that essentially actual election results are no longer relevant to them. If you ignore the difference between truth and lies, evidence and no evidence, consequences and lack of consequences, you might have a point, but I think destroying those differences is part of the Republican project.
Thanks for replying so I don't have to.
Trump did not say that "the results were illegitimately achieved" — a vague statement that can mean almost anything. Trump said that he actually won the election — that more people voted for him — and that all the other votes were fraudulent.
Which part of the video is not factual? Be specific.
"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."
Whining, bigot-hugging Republicans are among my favorite culture war casualties . . . and no problem replacement has not already begun to solve.
Carry on, clingers. So far as . . . well, you know your fate. That's why right-wingers are so disaffected, desperate, even delusional in modern America.
You're partly correct, but what you always tend to miss is that civilized and mature societies are indeed no more fond of censorious/cancel-crazy leftism than of the old extreme/rigid conservatism. The pendulum will eventually reject both.
In America, throughout my lifetime, the liberal-libertarian mainstream wins. It shapes our national progress against the preferences and efforts of conservatives.
Better Americans don't win 'em all, but the tide of modern progress is powerful, relatively predictable, steady, and intensely favorable to mainstream liberals with a libertarian bent.
Thank goodness.
"She's on the right, but you already knew that from how YouTube dealt with her."
Snide victim-signaling doesn't help the discussion if the intention is to discuss this seriously rather than perpetuate a false narrative that Youtube and other content distributors /publishers are really just censoring conservative voices they disagree with.
Liberal anti-vax content also gets demonetized (all the crazy "vaccines cause autism" B.S.) regularly as well. Maybe if the left was advocating for political violence, their content would see similar levels of suppression by publishers.
Also, most content moderation is done automatically, not by individuals. And guess what? Algorithms make lots of mistakes. They — like the Parma, Ohio, PD — can't reliably tell parody from sincerity. They can't reliably distinguish advocating something bad from revealing that someone else has advocated something bad. Etc.
Just odd that you do not see many "mistaken" takedowns of Leftist content. You'd think they would once in a while.
You don't see them because you hang out in right-wing content bubbles. If you hung out in left-wing content bubbles you'd see the exact same type of complaints talking about how the platforms are censoring, e.g., BLM or Communists.
The Matt Taibbi video linked above was demonitized by YouTube after human, not algorithmic, review. It was re-monitized after YouTube got a ton of pushback, bur most content providers cannot, of course, generate that much of a stink. And if YouTube didn’t see the next election (and maybe some SCOTUS cases) coming I’m convinced it would just have given its critics the finger anyways,
Your implicit claim that YouTube’s demonitization and censorship processes aren’t influenced by partisanship is an absurd exercise in gaslighting.
Your explicit claim that YouTube's moderation process is influenced by partisanship is delusional.
You're fucking nuts. You've huffed the gaslighting so long it's destroyed your brain.
"Also, most content moderation is done automatically, not by individuals."
That's kind of a dishonest dodge. First, the algorithms are being taught what to moderate, and what to leave alone, by humans.
Second, they have extensive systems of black and white lists modifying the results of the algorithms. Sure those lists are applied automatically, but they're manually curated.
So it's algorithmicly implementing human bias.
You mean like BLM and Antifa?
Do you know whether BLM or antifa videos that advocate violence are 'censored' or not?
How many Antifa accounts have been banned? Can you name one?
'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.'
Such a weirdly fallacious proposition. It would only be hypocrisy if they'd been talking about the same election or exactly the same conditions pertaining to an election. Defending the integrity of one election does not preclude making challenges about the integrity of other elections. What matters is the evidence brought to bear. This really sums up the current intellectual state of the US right.
Actually I just realised the funny thing about this is the claim that the video was demonetised because it's conservative, yet it's supposed Democrat 'election denial' that's being silenced.
Well, yeah, it's conservatives pointing to Democrat election denial. Which is officially memory holed, so you get silenced if you try that.
It's like Libs of Tiktok being banned for reposting publicly posted liberal content. When liberals post embarrassing stuff, conservatives get banned for exposing it.
It's effectively 'memory holed' because nobody invaded a capitol building planning to hang a vice president, and nobody insists to this day that they're really president and should be reinstated right now and because it isn't an essential part of any Democratic platform to deny any particular election result - not so much 'memory holed' as eclipsed.
When libsoftiktok posts lies it leads to bomb threats directed at children's hospitals, when liberals post embarrasing stuff it results in them getting ratioed. Trying to turn embarrasing stuff by liberals into the equivalent of bomb threats to children's hospitals involves a lot of lying, as does turning concerns about previous elections into the equivalent of Trump's Big Lie about the last one.
Name ONE lie that Libs of TikTok posted.
ONE.
In other words, "When WE do it it's NOT an 'attack on Democracy!'"
Anyway, the election in 2016 was not perverted to anything like the degree it was in 2020, so you've got it backasswards.
Well, yes, when it's done truthfully, with evidence, without violence and ultimately accepting the results, it's not a threat to democracy. When you build your entire political movement on the lie that an election was stolen, continuing to refuse to accpt the results, you are threatening democracy, because you are creating a mandate to reject election outcomes you don't like with politicans and officials in key positions and supporters willing to exercise violence all ready to back you up.
The "evidence" is cherry picked anecdotes. This is more idiot MAGA persecution complex, and the morons don't realize ending Sec. 230 will require MORE censorship of their views, not less.
But it'll be fun watching Truth Social, Gab, and other shit-brained "conservatives" finding themselves open to lawsuits.
Thanks for exhibiting your stupidity so thoroughly.
Muted.