At the request of the Trump Anti-Section 230 Executive Order in May, NTIA filed a 57-page petition with the FCC asking the FCC to establish rules for the interpretation of Section 230. The FCC has again published the petition for public comment (Docket RM-11862), whereby the first period for submitting comments ends September 2nd.
I previously described NTIA's petition as follows:
We normally expect a government agency like NTIA to provide an intellectually honest assessment of the pros and cons of its actions and not to engage in brazen partisan representation. No longer. This petition reads like an appeal notice that would get a C- on a 1L legal writing course. It showed a poor understanding of the facts, law, and political considerations; and it ignored obvious counter-arguments. The petition is not intended to advance America's interests. It was designed to burn everything down. I hope the FCC will oppose this, but even then, malefactors will cite NTIA's petition in support of their deliberate misrepresentation of Section 230.
I am not making a more typical sweeping abolition of the petition as this is not a serious attempt at making policy. Instead, I decided to correct just a few of the worst parts of the petition.
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NTIA: "A handful of major social media platforms serving various types of content over the high-speed Internet have replaced the vast world of dial-up Internet service providers (ISPs) and countless bulletin boards that host static postings."
My corrections: This statement implicitly assumes that Google and Facebook have become the Internet. However, compared to the 1990s, today's Internet has much higher quality online content sources. It's easier to find different publishers. and the lock-in effects of Google and Facebook are trivial to the lock-in effects we have faced while using isolated BBSs and commercial online services for walled gardens.
NTIA: “With artificial intelligence and automated text analysis methods to flag harmful content now available, unlike Stratton Oakmont, Inc., platforms no longer have to manually review every single post, but can review millions of posts at a much lower cost. Therefore, the basic assumptions that lead to an early interpretation of Section 230 are out of date and ineffective, requiring recalibration of Section 230 protections to accommodate modern platforms and technologies. "
My corrections: Nobody uses "artificial intelligence" to moderate content these days. Large services may use machine learning for content moderation purposes. However, these systems are expensive to build and maintain, making them unusual or non-existent for smaller services. Additionally, machine learning systems often prioritize the queue of items for human review rather than cutting the human out of the loop. The factual suggestion in the passage that machines magically solve problems in moderating content is therefore fictional.
From the outset, Section 230 had three interrelated objectives: (1) preventing the moderator's dilemma, (2) lowering the barriers to entry, which encourages both short and long-term competition, and (3) preserving the freedom to innovate for technology and business practices that could develop develop. It's popular to say that times have changed since 1996, but the truth is that all three of these rationalizations are fully valid to this day. In particular, section 230 "Recalibrations", like the NTIA proposal, would freeze the current industry configuration and prevent new UGC innovations from emerging. I oppose this because I believe that we are nearing the start of the UGC innovation cycle rather than the end.
NTIA: "The Commission itself has previously recognized the importance of enabling the broadest possible dissemination of information from different and antagonistic sources."
My corrections: Different and antagonistic sources need not all be on the same service. Section 230 facilitates the diversity of publishers in the internet ecosystem. However, they can exist on separate services that often target niche / specialist audiences, which would be undermined if they were forced to publish "diverse and antagonistic" content that is not appropriate for their audience.
NTIA: "Large online platforms seem to engage in selective censorship that harms our national discourse."
My corrections: Private publishers do not operate censorship. You have editorial discretion. This freedom of the press is expressly protected by the first amendment. In contrast, the government can and will all too often operate “selective censorship” – as Trump has personally assumed repeatedly as President (see also the EOs TikTok and WeChat) – which is obviously unconstitutional. If NTIA is really concerned about "selective censorship that is damaging our national discourse," it has many high value goals that need to be addressed in other law enforcement agencies.
NTIA: "Unfortunately, there are few academic empirical studies on the phenomenon of social media bias."
My corrections: So … in other words … there is no credible evidence that the major social media services like Facebook are biased against conservatives ??? This is technically true, although there is plenty of evidence that Conservatives edited the umpires and skewed Facebook in favor of the Conservatives. Ordinarily I would suggest that if there is an important void in the academic literature, tax money should be used to fill that void. But what government agency might be producing or funding credible research right now? Not NTIA, that's for sure.
NTIA: "Nothing in the history, purpose or text of the law suggests that Internet platforms should avoid any responsibility for their own decisions about editing and moderating content."
My correction: A straw man argument. The claim "everything" is obviously wrong. In section 230 there are several legal exceptions that allow responsibility for the processing and content-related moderation decisions of a service. Additionally, no one claims that section 230 isolates * all * editing and content moderation decisions. As Roommates.com pointed out, section 230 would not apply when a UGC site edits a user post that reads "John is not a thief" which reads "John is a thief".
NTIA: "By extending protection beyond defamation, these platforms are extending the privilege of ignoring laws that every other communication medium and company must follow and that are no more expensive or difficult for Internet platforms to follow than any other company."
My corrections: § 230 is an extraordinary law. THAT IS THE POINT. Section 230 facilitates the creation of socially useful content and activities that never existed offline, such as: B. social media, customer reviews, online marketplaces, instructions and cat videos on YouTube and a crowdsourcing encyclopedia. So the cost / difficulty comparison is a false equivalency that is only useful if you are trying to destroy the extraordinary benefits we are getting.
NTIA: "The Commission should issue an ordinance to clarify the relationship between the two provisions so that Section 230 (c) (1) does not make Section 230 (c) (1) superfluous."
My corrections: Did you spot the painful typo? The second reference 230 (c) (1) should be 230 (c) (2). Oops. (More mocking typos are coming).
The case law has already clarified the interaction between Section 230 (c) (1) and Section 230 (c) (2) and has explained why a broad interpretation of Section 230 (c) (1) Section 230 (c) (2) fails results. superfluous. See Barnes v Yahoo (9th Cir. 2009):
It is crucial that the persons who can claim liability according to (230 (c) (2) (A)) are not only those whom subsection (c) (1) already protects, but every provider of an interactive computer service . See § 230 (c) (2). Even those who cannot use subsection (c) (1), perhaps because they have partially developed the content in question, see Roommate, 521 F.3d, 1162-63, can use subsection (c) (2) if they have the Restrict access to the content because they consider this obscene or otherwise objectionable. In addition, subsection (c) (2) protects Internet service providers from liability not for posting or speaking, but for measures to restrict access to obscene or otherwise offensive content.
The Ninth Circuit repeated this conclusion 2 months ago in Fyk v. Facebook. If NTIA were to pursue an intellectually rigorous analysis, it would have adopted the interpretation of that longstanding and recently used Ninth Circuit.
NTIA: “The FCC should clarify that Section 230 (c) (1) applies to liability arising directly from information provided by third party users. Section 230 (c) (1) does not immunize a platform's own speech, its own editorial decisions or comments, or its decisions to restrict access to content or their bar users from a platform. Second, section 230 (c) (2) covers decisions to restrict content or remove users. "
My corrections: This is a slippery advocacy because it mixes true and false statements:
- Claim: 230 (c) (1) applies to “liability arising directly from information provided by third party users”. Answer: This will amend the law. Section 230 (c) (1) specifically states that it does not apply to "Information Provided by Another Informational Content Provider".
- Claim: "Section 230 (c) (1) does not immunize a platform's own language." Answer: This also corresponds to the law. The "platform's own speech" is not about information provided by another information content provider.
- Claim: "Section 230 (c) (1) does not immunize … a platform's own editorial decisions or comments." Answer: The reference to "own comments" confirms the law again. However, referring to a platform's “own editorial decisions” is breaking new ground. Posting / not posting any third party content is always an editorial decision so it appears that an attempt is being made to eliminate section 230 (c) (1) entirely.
- Claim: "Section 230 (c) (1) does not immunize a platform's … decisions to restrict access to content or its bar users from a platform." Answer: Another typo ("his bar user"). This is yet another attempt to ignore Barnes precedent, which gives section 230 (c) (1) precedence over section 230 (c) (2) (A).
Even if the last point were the prevailing interpretation of Section 230 (c) (1), NTIA does not recognize that the substantive results are unlikely to change. In Langdon v Google, the plaintiff sued search engines for rejecting its ads. The court dismissed its action under both Section 230 (c) (2) (A) and the reasons for the first amendment. Indeed, the first change categorically protects an online publisher's choices to restrict access to content or deny third parties the use of his publishing tools. Trimming back section 230 (c) (1) would not change this setback for the first change. it would only add to the cost of everyone's decision. (Note: the NTIA petition completely ignored the first amendment, another indicator that it was not seriously considering the law.)
NTIA: "If" otherwise objectionable "means material that is deemed" objectionable "by a platform, Section 230 (b) (2) provides de facto immunity from any content censorship decisions."
My corrections: FFS, the reference “230 (b) (2)” is another typo. It should be "230 (c) (2)". The petition makes the same erroneous substitution on page 28, so it wasn't just a fingerprint. I have never seen this typo from someone who really understands section 230. It's so frustrating when our tax dollars are used to fund a B-Team's work on this petition (sorry for the pun).
This is another abuse of the term "censorship content". Matt Schruers also argues why “otherwise objectionable” is broad but not unlimited.
NTIA: "Good faith requires transparency about disputes about the moderation of content."
My corrections: This alleged requirement is complete fiction. See Holomaxx Technologies v Microsoft Corp., 783 F. Supp. 2d 1097 (N.D. Cal. 2011):
Nor does Holomaxx cite any legal authority for its assertion that Microsoft is required to fully discuss or remedy the reasons for blocking communications from Holomaxx. Indeed, the introduction of such a requirement would be inconsistent with the intention of Congress to "remove negative incentives for the development and use of blocking and filtering technologies".
NTIA: “Interactive computer services that edit certain user comments by adding specific replies or warnings appear to develop and create content with any normal use of the words. Similarly, the district courts have found that the employees of Interactive Computer Services. . authored comments, “interactive computer services would become content providers. Furthermore, prioritizing content among a variety of techniques, especially if it reflects a particular (yes, a different typo …) point of view, could turn an entire platform into a means of expression and thus an information content provider. "
My corrections: More straw man arguments. All agree that “special responses or warnings” and “employee-generated content” are first party content that is not protected by Section 230. If Twitter verifies Trump's lies, Twitter assumes responsibility for the wording of its fact-checking statement and any support first-party content.
It is difficult to mix this discussion with “content prioritization,” which is an editorial assessment of third party content that is clearly addressed in Section 230 and has been done from the start. The jurisprudence strongly rejects the claim that prioritizing third party content transforms the UGC website into an “information content provider” for that content. Instead, such a standard would necessarily eliminate Section 230 for most or all UGC sites.
The verb "editorial" is also slippery. What exactly does that mean? Does that mean adding first-party content commenting on third-party content? Or how does a website characterize third-party content? Or the general exercise of editorial discretion? The verb reduces these activities to try to place all activities outside of section 230.
NTIA: "For the purposes of 47 U.S.C. Section 230 (f) (3), "Responsible in whole or in part for the creation or development of information," includes a material contribution to a change, change, presentation or prioritization with a reasonably recognizable point of view, commenting or editing of content by a provided to other information content providers. "
My corrections: This is the payload of the petition. This position is designed to detrimentally overturn approximately 1,000 court rulings interpreting Section 230. Plaintiffs can always claim that a UGC site was involved in one or more of these activities. This at least ensures that a case will survive a motion to dismiss (thereby forcing websites to endure expensive discoveries and possibly a trial – or just settling bogus cases because it's cheaper);; More likely, however, that legal standard would delete Section 230 for any UGC site that currently relies on it. If NTIA had attempted to fairly incorporate jurisprudence or provide adequate legal interpretation, it would be impossible to reach that conclusion.
NTIA: "One of the enlivening concerns for Section 230 was court rulings that made online platforms liable as publishers for speeches made by third parties when they were merely passive bulletin boards."
My corrections: The reality is 100% opposite to this claim. In the 1995 Stratton Oakmont v Prodigy case, the court fined Prodigy for wanting to be more than just a "passive" bulletin board. Legislative history explains how Section 230 has attempted to correct this decision:
One of the specific purposes of this section is to override Stratton-Oakmont against Prodigy and other similar decisions treating such providers and users as editors or speakers of content that is not their own because they have limited access to it have objectionable material
Jeff Kosseff has further corrected the record on this point.
NTIA: "If a platform is moderated outside of Section 230 (c) (2) (A), Section 230 (c) (1) does not provide any additional, broader immunity that protects content removal more generally. Such positive actions do not fall within the scope of (c) (1). Second, the platform will not receive Section 230 (c) (1) if a platform reviews and vouches for third-party content already displayed on the Internet, edits, recommends, or promotes that content based on the content or the message of the content) immunity . "
My corrections: I have previously discussed Barnes' characterization of Section 230 (c) (1) as the primary operative determination of Section 230. NTIA seeks to reverse this and make section 230 (c) (2) (A) the primary operational protection for UGC sites by making section 230 (c) (1) the gap filler. It ignores hundreds of cases that lead to an opposite conclusion.
The verbs in the third sentence are more slippery, including:
- "Confirmed for": what does that mean? The verb “voucher” does not exist in the case law of § 230. It doesn't make any sense either. Publishing content and providing context around it necessarily "vouches" for it.
- "Editorializes": I have already explained how this verb incoherently combines discrete functions into one.
- "Recommends" and "encourages": These verbs are also ambiguous. Any publication of content necessarily recommends and promotes the content. and of course, UGC websites provide navigational aids that consumers can use to find relevant content.
NTIA: "Information about an interactive computer service provider's content moderation policy would help organizations develop filtering products that could improve providers 'implementation of these policies or help consumers fill in any gaps they may see in providers' policies . "
My corrections: My PACT Act post explains some of the problems caused by government enforced transparency about the operation of UGC sites.
The advantages given here are incoherent. What does it mean to "help companies develop filter products that could improve vendor implementation of these guidelines"? UGC services can and do transactions with third party providers to aid moderation of content. However, this is regulated by contract and not through mandatory transparency. Perhaps NTIA believes third-party software would perform client-side filtering of UGC site content? No popular program does that today.
And what does it mean to "help consumers fill in the loopholes they may see in vendors' policies"? How can consumers “close” the gaps? Through litigation? Consumer representation? Technological? I have no idea what that language provides.
NTIA: “Consumers today have a one-sided relationship with the transparency of social media. Platforms know everything about consumers, but consumers know very little about how or why platforms have influence or direct control over consumer language. "
My corrections: That sounds like a gotcha, but actually describes pretty much every content publisher. Readers / consumers have little insight into how a content publisher makes editorial decisions. While publishers know more about their customers as part of their market research or selling reader demographics to advertisers.
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The petition begins with this quote:
As Ben Franklin said, “Anyone who overturns a nation's freedom must first suppress freedom of speech.
Like most of the Trump administration's rhetoric, this is pure projection. The US government is working hard to suppress the freedom of our speech through efforts like the NTIA petition (and the anti-Section 230 EO; and the anti-TikTok EO; and …). and the current government would be thrilled to overthrow our nation's freedom. The fact that government employees at NTIA – whose salaries I pay with my taxpayers' money – are zealously promoting censorship authoritarianism shows how much work we must do to "make America great again."
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Personnel / procedural note: A majority of the FCC commissioners must vote to approve a Notice of Proposed Rules Setting (NPRM). This is the next step in the process to respond to the NTIA petition. President Trump had appointed Commissioner O'Rielly for a second term. After O’Rielly publicly criticized Trump Anti-Section 230 EO, Trump withdrew his renomination. If O’Rielly resigns or declines from the commission before the end of his term of office at the beginning of the year (which he must do effectively in finding another job) the FCC will only have four voting commissioners. Two of these commissioners, Starks and Rosenworcel, have clearly expressed their skepticism about the NTIA petition, making it seem impossible to get three positive votes in favor of the NPRM's approval. There's no chance a new FCC commissioner to replace O'Rielly will be approved before Trump's current term ends. By torpedoing O'Rielly, Trump apparently ensured that the NTIA petition could not be resumed before the end of his term in office.
On the surface, this appears to be an own goal: Trump's retaliation against O'Rielly prevents Trump from pushing his anti-Section 230 EO. However, this assumes that Trump actually cares about whether the FCC continues with the rule-making. Why accept that? The EO has always been about promoting its base, and O’Rielly's dismissal was a simple act of punishing infidelity. This is how far the federal government has gone: Trump is taking political steps to manifest his vanity, not to build our country.