Senators Warner, Hirono, And Klobuchar Demand The End Of The Internet Economy

from the daft-drafting dept

Just because Senators Warner, Hirono, and Klobuchar are apparently oblivious to how their SAFE TECH bill would destroy the Internet doesn't mean everyone else should ignore how it does. These are Senators drafting legislation, and they should understand the effect the words they employ will have.

Mike has already summarized much of the awfulness they propose, and why it is so awful, but it's worth taking a closer look at some of the individually odious provisions. This post focuses in particular on how their bill obliterates the entire Internet economy.

In sum, and without exaggeration: this bill would require every Internet service be a self-funded, charitable venture always offered for free.

The offending language is here:

(iii) by inserting before the period at the end [subsection (c)(1)] the following: ‘‘, unless the provider or user has accepted payment to make the speech available or, in whole or in part, created or funded the creation of the speech…’’

Subsection (c)(1), for reference, is the "twenty-six words that created the Internet." It's the clause that does nearly all the heavy lifting to give Section 230 its meaning and value. And what these Senators propose is that any value that it could still somehow manage to provide, after all the other changes they propose turn it into swiss cheese, now be conditional. And that condition: that the site never, ever make any money.

It's the first part of that bill text that is most absurd, but even the second part is plenty destructive too. To the extent that the latter part is even necessary – because if a platform did create the offending content then Section 230 wouldn't apply anyway – it would still have a huge impact. For instance, could Patreon be liable for helping fund someone's expression? If these Senators have their way, quite possibly.

But it's the first part that nukes the entire Internet from orbit because it prohibits any site from in any way acquiring any money in any way to subsidize their existence as a platform others can use. That's what "accepted payment to make the speech available" means. It doesn't care if the platform actually earns a profit, or runs at a loss. It doesn't care if it's even a commercial venture out to make money in the first place. It doesn't care how big or small it is. It doesn't even care how the site acquired money so that it could exist to enable others' expression. Wikipedia, for instance, is subsidized by donors, who provide "payment" so that Wikipedia can exist to make its users' speech available. But if this bill should pass, then no more Section 230 protection for that site, or any other site that didn't have an infinite pot of money at the outset to fund it forever. Any site that wants to be economically sustainable, or even simply recoup even some of the costs of operation – let alone actually profit – would have to do so without the benefit of Section 230 if this bill were to pass.

It's possible, of course, that some of this effect is just the result of bad drafting, and the Senators really mean to tie payment to the specific speech in question that may be unlawful. But (A) if they can't even draft this part correctly to not have these enormously destructive collateral effects, then there's little reason to believe their other provisions won't be equally ruinous, carelessly if not deliberately.

And (B), it would still be a problem constitutionally because it would make platforms' own First Amendment rights contingent on financial arrangement, which has never before been the case. It is, after all, the First Amendment that allows a platform to choose to carry or refuse any particular content, and not actually Section 230. Section 230 only helps make that First Amendment protection meaningful.

That money might influence a platform's decision does not obviate its constitutional protection. Editorial discretion is editorial discretion, regardless of whether it is affected by financial interest. Because of course editorial discretion always is affected by it, and always has been: newspapers run articles they think people will read because it will sell more papers, and media outlets refuse ads they think will offend. The First Amendment has never been contingent on charitable altruism, and any bill that would try to now make it so deeply offends it.

The sad irony is that it was Trump who declared that he wanted to "open up" First Amendment law and weaken its protections. But with bills like these it's the Democrats who actually are.

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Filed Under: amy klobuchar, business models, free speech, mark warner, mazie hirono, payments, safe tech, section 230, speech

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  1. icon
    Stephen T. Stone (profile), 7 Feb 2021 @ 8:19am

    Which is why 230 needs to go.

    “Twitter couldn’t afford to handle lawsuits when it was a startup, which is why we need to kill 230 now: To make sure Twitter can’t be replaced by a new startup!” That’s you. That’s you right now.

    The problem was liability for user created content. A true correction of that problem would have stopped at merely holding users accountable for their own actions.

    That…that’s what 230 does. It helps make sure liability for third party speech goes where it belongs: on the shoulders of the third-party user.

    Now instead of speech being allowed by default, as was the law's intent

    Per the on-the-Congressional-record words of Chris Cox, who helped craft 47 U.S.C. § 230: “[O]ur amendment will do two basic things: First, it will protect computer Good Samaritans, online service providers, anyone who provides a front end to the Internet, let us say, who takes steps to screen indecency and offensive material for their customers. It will protect them from taking on liability such as occurred in the Prodigy case in New York that they should not face for helping us and for helping us solve this problem. Second, it will establish as the policy of the United States that we do not wish to have content regulation by the Federal Government of what is on the Internet, that we do not wish to have a Federal Computer Commission with an army of bureaucrats regulating the Internet because frankly the Internet has grown up to be what it is without that kind of help from the Government.”

    it's only OK to speak if the owners (and their owners, and their owners's owners, etc.) are willing to protect you.

    Well…yeah. You don’t have the right to make a soapbox out of private property that you don’t own. Play by the rules or get kicked out — it’s your choice.

    You and others like you gleefully cite that the law doesn't mandate a place for people to go and demand that it shouldn't.

    Yes, we do. Like I’ve said before: Nobody is entitled to use Twitter, Facebook, etc. If you don’t like those sites — or you’re banned from those sites — you can find another one to use. The government has no business in ensuring you a spot on those services.

    While those who's concerns you dismiss were talking about amending the law to require such places

    We have such places. They’re called “actual public property”. Requiring any privately owned service such as Twitter to host speech it doesn’t want to host is communism. The reasoning for that requirement is irrelevant.

    If people call you out on this fact you immediately jump into red-herring tactics and breakout every last strawman argument you possibly can. "BuT wHaT AbOuT tHe WhItE sUpReMaCiStS oN 4cHaN!?!?!?!"

    I’ve explained this approach before. You obviously didn’t get it, so I’ll explain it again.

    I use those extreme examples because they’re examples of the extreme speech that a good number of services already prohibit. (Twitter once suspended me for saying an anti-queer slur in the context of mocking someone else’s view of queer people.) To say Twitter must become a “public square” and allow all speech “or else” is to say Twitter must host that extreme speech.

    Whenever I ask a question that mentions this speech, it is intentionally provocative. Talking about generalized “bad speech” is one thing. Drilling “bad speech” down to a more specific example (e.g., racial slurs) makes people confront the actual speech and, by proxy, defend the forcing of that speech upon others. That you can’t deal with such a confrontation isn’t my fault. I’m not the one running from the question.

    It's going on right now, and YOU'RE an avid cheerleader for it.

    People turning social media services into 4chan clones is not happening en masse right now, and I’m not cheerleading it regardless of whether it is.

    You already have major networks being shuttered because of social outcries and moral panics.

    Parler isn’t a “major network”. And last I checked, it’s back up and running again.

    Why do you think that Facebook, Twitter, Google, et. al, are all supporters of "reforming 230"? They know that if reform passes, their businesses will be the only game left in town.

    Why do you think I am a supporter of keeping 230 as-is? I know that if reform/repeal passes, Facebook, Twitter, Google, etc. will be the only games left in town.

    Your doomsday scenario for the loss of 230 is playing out in front of your eyes. You're just too absorbed in ensuring your side "wins" to notice it.

    Keeping 230 in place isn’t about “sides”. (Don’t you think I’d be supporting Democrats and their efforts to reform 230 if it were?) It’s about ensuring that websites aren’t forced to host speech they don’t want to host and aren’t sued to oblivion for their moderation efforts. It’s about making sure “the next Twitter” can become the next Twitter instead of a flash-in-the-pan service that dies only because it couldn’t handle a lawsuit that 230 should’ve stopped.

    Speech being protected from the government is worthless if others with just as much power are free to silence it.

    I’ll leave this here and hope you get the point without my having to explain it to you like you’re a five-year-old:

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