Nancy Pelosi Sells Out The Public: Agrees To Put Massive Copyright Reform In 'Must Pass' Spending Bill

from the why? dept

I know everyone is focused on Trump's attempt to take away Section 230 in the NDAA, but an equally important issue is that members of Congress have been trying to do Hollywood's bidding and sneak massive copyright reform into a must-pass government appropriations bill. The CASE Act has many problems that we've discussed, including the fact that it would unleash a wave of copyright trolling for people accidentally or innocently sharing works they don't realize are covered by copyright. There are also significant Constitutional problems with it, in that it routes around the Title III courts by handing disputes about private rights to the executive branch. That's not allowed.

But rather than actually discussing and debating those issues, and fixing the bill to make sure it is constitutional and protects the public, we've heard from three different sources that Nancy Pelosi has given the go-ahead in the House to include the CASE Act in the spending bill. As we said earlier this week, if you're trying to ram through a bill by adding them to an appropriations bill, it's because you know it has problems and will cause major issues and you just don't care because the politics of pleasing donors is too important. Hollywood has been screaming for this bill, and Pelosi has agreed to put it in.

If you're a constituent of Pelosi, I would highly recommend reaching out to her office and making it clear that you absolutely oppose any effort to attach the CASE Act to any appropriations bill. To ignore the many concerns that have been raised about the bill and what it will do to people across the country (especially in the middle of a pandemic) is a travesty. There is no need to pass this bill now, and there is certainly no need to do it in this way. Even if you're not a Pelosi constituent, it's worth reaching out to your Congressional Representatives. The good folks over at EFF have a handy dandy form under the accurate headline: "Don't let a quasi-court bankrupt internet users."

Many people have raised thoughtful critiques of the CASE Act, and there are many suggestions out there for how the bill can be fixed. To date, Congress has ignored those fixes. This is a bill that is highly controversial and should not be put into law through a sneaky, underhanded move like this. Make sure that Congress understands this.

Filed Under: appropriations, case act, christmas tree, congress, copyright, copyright office, copyright trolls, hollywood, nancy pelosi, small claims

House Democrats Have The Power To Protect Our Web Surfing From Warrantless FBI Searching; Instead, They're Pointing Fingers

from the not-a-good-look dept

You would think that House Democrat leaders like Speaker Pelosi and Reps. Adam Schiff and Jerry Nadler, who helped lead the impeachment effort against President Trump, would leap at the chance to stop Trump and the FBI from conducting warrantless searches of Americans' internet browsing habits. Instead, they seem to be supporting it and are trying to scapegoat Rep. Zoe Lofgren -- who is trying to safeguard our internet surfing -- because she's dared to push for a fix to the law. At issue is the FISA renewal bill, in which Congress has decided to take the FBI's "backdoor searches" out of the backdoor and moved them around the front: explicitly allowing the FBI to go trawling through internet/browsing/search histories collected without a warrant by the NSA.

As we've discussed, over in the Senate, Senator Ron Wyden and Steve Daines pushed for a pretty straightforward amendment to say that these searches should require a warrant (yes, the 4th Amendment alone should require that, but... ) and their amendment fell just one vote short. So even though significantly more than half of the Senate voted to require a warrant, the bill that passed out of the Senate does not require a warrant. The ball then moved to the House side, and you'd think that leadership there should just put in a similar amendment -- and, indeed, Rep. Lofgren had one ready to go. This shouldn't be a surprise. Lofgren has fought to end backdoor searches for years.

However, a story in Politico argued that Lofgren's Amendment somehow threatened to "blow up" a well-orchestrated Congressional move to make sure the FBI could keep spying without a warrant. Dell Cameron, over at Gizmodo, breaks down just how ridiculous this whole story is, and how it appears that it's actually Speaker Pelosi and Rep. Schiff who want to let the FBI warrantless searches continue, and they've strong-armed Rep. Nadler into supporting this position (Nadler, who is terrible on copyright issues, usually is pretty good on civil liberties), while trying to pin any "blame" on Lofgren.

Much of the story covers shenanigans to box out Lofgren back in February when she sought to add her version of the Wyden/Daines Amendment:

A timeline of the negotiations shared with Gizmodo, which was compiled from notes and communication logs immediately after the story ran, shows that Lofgren and her allies had been pressing the Judiciary Committee about amendments to Nadler’s bill as early as February 10.

Requests to see the text were repeatedly denied, the sources said. The same FISA reformers reportedly reached out to the committee on February 12, saying that, if adopted in the form of amendments, parts of Lofgren’s bill would ensure that Nadler’s FISA re-authorization push was even more bipartisan. The Judiciary Committee reportedly turned over a draft copy of the bill the following day, but warned that “substantial revisions” were already in the works. About a week later, the updated text was still not available.

According to this timeline, the authors of the Lofgren-Davidson amendment would not see the final text of the bill until Friday, February 21. Minus the weekend, that gave staffers roughly 24 hours to work alongside legislative counsel to draft the amendment in a way that comported with Nadler’s bill. The Lofgren-Davidson amendment was finally handed over to the Judiciary Committee that Tuesday, a full 24 hours before the markup hearing, meeting the committee’s requirements.

And when Lofgren met that deadline... Nadler cancelled the markup, effectively blocking the amendment from a vote. And this wasn't for lack of interest:

One Republican staffer, who has direct knowledge of the negotiations, told Gizmodo that Nadler had effectively burned the Democrats by cancelling the markup hearing. The appetite for reform was certainly there, they said. Not only did the Democrat’s progressive wing and the libertarian House Freedom Caucasus support it, but many other Republicans, who’ve never shown interest in privacy reform, would have campaigned on curtailing the FBI’s authority.

It would have been useful in an election year, the staffer said, if only because President Trump has so frequently and publicly accused the FBI of breaking the law.

And so now that the bill is back on the House's plate, Nadler is the official roadblock to getting this amendment in, though it sounds like Pelosi and Schiff are putting on the pressure from behind the scenes.

Two Democratic aides said that the pressure on Nadler to kill the Lofgren-Davidson amendment was coming “from all sides,” and that cancelling the February hearing was probably not his own decision. Both staffers stopped short of fingering Pelosi and Schiff, but said that “House leaders,” including “other committee chairs,” were likely involved in that effort.

Questioning what it all means for the future of the Democratic party, which has long portrayed itself as the defender of Americans’ civil liberties, one Democratic aide said: “We need to look at ourselves and say, ‘Why on earth is the Senate the body that is producing the more progressive government privacy legislation and not the House?’ Why is that? I think the answer [requires] a long look in the mirror.”

Lofgren and others are now pushing to get their amendment back on the agenda, and it sure sounds like Schiff and Pelosi are trying to stop it, with Nadler -- whose public statements seem to indicate his support, but his actions show otherwise -- the key to actually making a decision.

I still find it bizarre that this amendment is even remotely controversial. First, it's just making it clear that the 4th Amendment applies. Second, if bad shit is happening, the FBI can still get a warrant. Third, both Democrats (stop Trump from abusing his powers) and Republicans (stop the deep state from surveilling Americans) have ready-made stories to explain their votes.

So what's the damn holdup?

Filed Under: adam schiff, backdoor searches, browser history, fbi, fisa, fisa renewal, jerry nadler, nancy pelosi, nsa, patriot act, surveillance, zoe lofgren

New North American Trade Deal Keeps Useful (But Limited) Liability Protections, Dumps Bad Biologics Data Protection

from the not-bad dept

When the NAFTA replacement "USMCA" agreement was first announced last year, we noted that it included a mix of good and bad ideas. The key good idea was that the USMCA contained a bit of language establishing a requirement for strong intermediary liability protections, similar to (but not exactly the same as) Section 230's protections in the US. Among the really bad ideas was expanding the data protection term for biologics -- which, we've noted, is really dangerous for basic science and innovation for new drugs -- but was supported by big pharmaceuticals to increase their monopoly power and ability to extract monopoly rents.

So it seems like good news that the latest version of the agreement keeps the intermediary liability protections and drops the biologics piece, which has the big pharma companies screaming angrily.

The intermediary liability protections for tech also have lots of people complaining -- including from both parties, but it's all ridiculous. First of all, most of the people freaking out about this are the very same people who originally loved the idea of sneaking ideas like longer copyright terms and anti-circumvention provisions into trade deals, and are now mad that internet companies are realizing that other ideas, that are better for the internet and free speech, can be put into those deals as well.

Perhaps more importantly -- as you hear more people whining about the inclusion of intermediary liability protections in USMCA -- is that these protections aren't even that strong, and Canada is already talking about ways to put more liability on internet services, despite what it's about to agree to in the USMCA. In other words, while it's good to see this language in the agreement, which will, at the margins, help keep the internet more open for free speech, the actual impact of this provision may be limited by creative efforts to write around the agreement -- and now just becomes a stick for those pushing the whole "techlash" narrative to beat against a wall.

Filed Under: biologics, canada, free trade, intermediary liability, mexico, nafta, nancy pelosi, section 230, trade, us, usmca, ustr

The Best People: White House Emailed Talking Points Meant For Surrogates To Dems, Tried To Recall Email Afterwards

from the heads-up-everyone dept

At the time of this writing, I'll go ahead and assume that anyone reading this is now fully immersed in Ukraine-Call-Gate or whatever we're calling this potentially impeachment-inducing scandal Donald Trump has managed to build for himself. What started as a murky story surrounding the administration flatly ignoring the law in handling a mysterious whistle-blower complaint has since been clarified in the extreme. What happened essentially is that the whistle-blower raised alarms over several occurrences, one of which was a call that occurred between Trump and the recently elected Ukrainian President in which Trump reportedly pushed his counterpart to investigate Hunter Biden, the son of his potential 2020 rival. Then, for reasons that are beyond me, Trump released an unredacted "rough" transcript of the call, which demonstrates that he did that very thing. You're going to hear a great deal of obfuscation over the next days and weeks about what the transcript shows. Go read it for yourself. Trump asked Ukraine, while withholding aid money at the time, to investigate the Bidens.

In the wake of the outrage over the transcript, the White House obviously went into damage control. That's to be expected. As part of any scandal, talking points are developed for surrogates to use when talking on any of the insanely stupid 24 hour news channels. That's also to be expected. But once those talking points are in written format, it's not customary to send them out to the opposing party's Congressional members.

The White House on Wednesday sent out talking points on how to spin the release of a summary of President Trump’s phone call to his counterpart in Ukraine — but emailed them to House Democrats, apparently by mistake.

Here's the goods, should you want to see them for yourself.

Now, look, I've made this mistake in my own professional life. That said, I'm not one of the "very best people" working for a White House embroiled in a full on scandal of its own making, so there's that. When you're trying to sow confusion and intrigue around what appears for all the world to be a really simple example of abuse of Presidential power, you really have to be careful about who is in that "To:" field.

And, even when I have made this mistake, I was smart enough not to frantically send out one of those useless "recall email" requests to those very same rivals I had accidentally emailed.

Now, I know some of you are thinking that this really isn't a laughing matter. And you're right, but you're also wrong, because this is fucking hilarious. One is forced to imagine Stephen Miller himself furiously sending out recall requests to Nancy Pelosi having just realized what he's done.

Will this inadvertent transparency matter? Probably not. If you're the sort that spends any calories watching cable news, this will all probably fly right over your head. Meanwhile, partisanship has so infested Washington that one of the truest things Donald Trump has ever said is probably that he could shoot someone on 5th Avenue without consequence. So at least we can have a laugh at the very best people's use of email, instead.

Filed Under: donald trump, hunter biden, impeachment, nancy pelosi, recall, talking points, transcript, ukraine, white house

Facebook Tested With Deepfake Of Mark Zuckerberg: Company Leaves It Up

from the as-it-should dept

Over the last few weeks there's been a silly debate over whether or not Facebook made the right call in agreeing to leave up some manipulated videos of House Speaker Nancy Pelosi that were slowed down and/or edited, to make it appear like she was either confused or something less than sober. Some Pelosi-haters tried to push the video as an attack on Pelosi. Facebook (relatively quickly) recognized that the video was manipulated, and stopped it from being more widely promoted via its algorithm -- and also added some "warning" text for anyone who tried to share it. However, many were disappointed that Facebook didn't remove the video entirely, arguing that Facebook was enabling propaganda. Pelosi herself attacked Facebook's decision, and (ridiculously) called the company a "willing enabler" of foreign election meddling. However, there were strong arguments that Facebook did the right thing. Also, it seems worth noting that Fox News played one of the same video clips (without any disclaimer) and somehow Pelosi and others didn't seem to think it deserved the same level of criticism as Facebook.

Either way, Facebook defended its decision and even noted that it would do the same with a manipulated video of Mark Zuckerberg. It didn't take long to put that to the test, as some artists and an advertising agency created a deep fake of Zuckerberg saying a bunch of stuff about controlling everyone's data and secrets and whatnot, and posted it to Facebook-owned Instagram.

And... spoiler alert: Facebook left it up.

“We will treat this content the same way we treat all misinformation on Instagram," a spokesperson for Instagram told Motherboard. "If third-party fact-checkers mark it as false, we will filter it from Instagram’s recommendation surfaces like Explore and hashtag pages.”

This actually is not a surprise (nor should it be). People keep wanting to infer nefarious intent in various content moderation choices, and we keep explaining why that's almost never the real reason. Mistakes are made constantly, and some of those mistakes look bad. But these companies do have policies in place that they try to follow. Sometimes they're more difficult to follow than other times, and they often involve a lot of judgment calls. But in cases like the Pelosi and Zuckerberg manipulated videos, the policies seem fairly clear: pull them from the automated algorithmic boost, and maybe flag them as misinformation, but allow the content to remain on the site.

So, once again, we end up with a "gotcha" story that isn't.

Of course, now that Pelosi and Zuck have faced the same treatment, perhaps Pelosi could get around to returning Zuckerberg's phone call. Or would that destroy the false narrative that Pelosi and her supporters have cooked up around this story?

Oh, and later on Tuesday, CBS decided to throw a bit of a wrench into this story. You see, the fake Zuckerberg footage is made to look as though it's Zuck appearing on CBS News, and the company demanded the video be taken down as a violation of its trademark:

Perhaps complicating the situation for Facebook and Instagram a call late Tuesday from CBS for the company to remove the video. The clip of Zuckberg used to make the deepfake was taken from an online CBS News broadcast. "CBS has requested that Facebook take down this fake, unauthorized use of the CBSN trademark," a CBS spokesperson told CNN Business.

Of course, if Facebook gives in to CBS over this request, it will inevitably (stupidly) be used by some to argue that Facebook used a different standard for disinformation about its own exec, when the reality would just be a very different kind of claim (trademark infringement, rather than just propaganda). Hopefully, Facebook doesn't cave to CBS and points out to the company the rather obvious fair use arguments for why this is not infringing.

Filed Under: content moderation, deep fake, deepfake, mark zuckerberg, nancy pelosi
Companies: facebook, instagram

This is Silly: Pelosi Says Facebook Is A 'Willing Enabler' Of Russian Election Meddling. It Is Not

from the don't-be-ridiculous dept

I know that it's fun and easy to attack Facebook these days -- and the company certainly deserves all sorts of criticism. But the criticism should be within the realm of reality. And the latest, from Nancy Pelosi, is not that. As you may have heard, there's all sorts of controversy over the past week or so concerning Facebook's decisions on how to moderate purposefully doctored videos of Pelosi, that are either edited or just slowed down to make it appear (falsely) that she is stumbling over words or slurring them. As we pointed out, there are good arguments from a variety of different perspectives on how Facebook should handle this. Currently, it is limiting the ability for the video to spread algorithmically, and when people try to share it manually, it pops up a warning about how the video has issues and you might want to think twice about sharing it.

That said, it wasn't even the video that was making the rounds on Facebook that got all the attention. Instead, Fox News ran a similar video, and that's the one that President Trump himself tweeted. And yet, oddly, everyone seems to be rushing to blame Facebook. The latest to step up to the plate is Nancy Pelosi herself, who is now saying that Facebook choosing not to pull down the video means the company is a "willing enabler" of Russian election interference:

"We have said all along, poor Facebook, they were unwittingly exploited by the Russians. I think wittingly, because right now they are putting up something that they know is false. I think it's wrong," she said. "I can take it. ... But [Facebook is] lying to the public."

She added: "I think they have proven — by not taking down something they know is false — that they were willing enablers of the Russian interference in our election."

This is such nonsense on so many levels. Of course, this is the same Nancy Pelosi who recently attacked Section 230 of the CDA and misrepresented what it does, so perhaps she can team up with all the Republicans in Congress making similar attacks on CDA 230 and kill the internet.

It is totally reasonable to say that Facebook was incompetent in dealing with Russian interference on its platform (it appears it was). It's totally reasonable to argue that Facebook drastically underestimated the ability of such interference, and neglected to be concerned about it for way too long. However, the company has made a lot of changes in the last couple years, and you're simply not paying attention if you don't think the company now cares quite a bit about the issue. But it's still going to face the same problem we've been discussing for years: content moderation at scale is impossible to do well, and some people are always going to disagree with certain decisions.

I completely understand the views of many that Facebook should have pulled down this video. But it is not an easy question and it is not one where the decision not to pull the video means that the company is "willingly enabling" propaganda (Russian or otherwise). As we pointed out just recently about this, how do you write rules that would make it obvious and clear for Facebook to remove a distorted video like that, that doesn't also force it to remove satire, humor, political speech, etc. This was the point raised by the UN's expert on free expression David Kaye:

And, even more to the point, how do you write a standard for Facebook to remove "false" information, "disinformation" or even "propaganda" that doesn't also lead to the removal of religious texts and proselytizing.

Point is: this is not easy. And many of these cases involve careful judgment calls where there is a tremendous gray area, rather than "black" and "white" decisions. It's one thing to say that you disagree with Facebook's decision, and argue for why you would have come down differently. There are ways to do that that would be compelling, certainly. But that's not what Pelosi is doing,. Instead, she's smearing all of Facebook in claiming that because it came down differently on this particular issue, that it means they're in bed with Russian election meddling. That's Louis Gohmert-level crazy.

Meanwhile, it really is amazing that nearly everyone is so focused on Facebook over this video when it was the Fox News version that the President retweeted. Yesterday, we highlighted how an opinion piece in the NY Times by Kara Swisher claimed that no network would air such a thing... ignoring that Fox News did exactly that. At least now, there's another opinion piece in the NY Times by Farhad Manjoo pointing out how weird it is that everyone's focused on Facebook instead of Fox:

In going after Facebook, many observers forgot about Rupert Murdoch’s empire, whose Fox Business spinoff aired a similarly misleading Pelosi hit job on “Lou Dobbs Tonight.” This was upside down. While newfangled digital manipulations should raise some concern, they are still emerging, long-range threats, and social networks are at least experimenting with ways to mitigate their negative impact on society. But we don’t have much hope nor many good ideas for limiting the lies of old-media outlets like Fox News, which still commands the complete and slavish attention of tens of millions of Americans every night, polluting the public square with big and small lies that often ricochet across every platform, from cable to YouTube to Facebook to Google, drowning us all in a never-ending flood of fakery.

Indeed, what was remarkable about Fox’s Pelosi video was its very ordinariness. Instead of slowing down Pelosi’s speech, Fox Business misleadingly spliced together lots of small sections of a recent news conference to make it look as if Pelosi stammered worse than Porky Pig.

As Manjoo notes, it actually appears that Facebook's response to the Pelosi video was perfectly reasonable:

But what the company did do — label the clip as misinformation and limit its virality so that very few people got to see it — struck me as a reasonable effort to quash the lie, especially since I worry about Facebook’s overreach. Demanding that Facebook remove posts that cross some hard-to-define line may end up dragooning lots of legitimate political speech into its memory hole. Such a policy would also enrich Mark Zuckerberg with the last thing we should want him to have: more power over what we read, watch, listen to and think about.

Fox News, on the other hand, wasn't just a platform where any nut job troll could post a video. It's a huge media outlet, watched by millions of devoted fans who take everything on it as gospel. And its employees were literally the ones who decided to post this video.

As we noted earlier this year, a recent book from Yochai Benkler, Robert Faris, and Hal Roberts, shows (with lots and lots and lots of data to back it up) that the real "propaganda" effect during and after the 2016 election was heavily driven by Fox News, and not by Facebook. For all the fretting about Facebook, it seems that those concerns are totally mistargeted.

And yet, of course, no one (least of all Pelosi) seems willing to attack Fox News, or to call it a "willing enabler" of Russian election interference. Indeed, doing so would lead to widespread attacks, and even (somewhat questionable) claims of 1st Amendment concerns of a politician meddling with the press. Yet few seem to blink an eye when she mistargets Facebook with the same criticism.

I'll repeat it again: it is perfectly reasonable to dislike Facebook. To dislike it's practices. To dislike it's decision on the Pelosi video. But to conclude that this makes it a "willing enabler" of Russian election interference is disconnected from reality.

Filed Under: content moderation, election meddling, nancy pelosi, russian interference
Companies: facebook

Dear Kara Swisher: Don't Let Your Hatred Of Facebook Destroy Free Speech Online

from the bad-takes dept

I'll start this post off with a brief story about famed tech reporter Kara Swisher. Many, many years ago, she reached out to me and suggested we meet up for some reason or another (I honestly don't remember why). I went to her house in San Francisco and we walked to a fancy nearby coffee shop where she insisted on telling me exactly what type of coffee I should get.

Here's the thing: I don't drink coffee. I can't stand the stuff.

However, Swisher is such an incredible force of nature that I felt like I literally had no choice but to order the coffee that she recommended. I ordered it and drank (a bit of) it. And I'm not exactly a shrinking violet when it comes to expressing my own opinions on things.

That is to say, Swisher is not just strongly opinionated, she has a way of convincing lots of other people that her opinions should be theirs as well. And that's a really powerful ability, and one that Swisher has wielded well over the past few decades -- especially in calling bullshit on dumb tech ideas and policies. We need someone like Swisher holding tech companies accountable.

However, what happens when Swisher's opinion is a bad one? She recently has become so focused on attacking Facebook (in some cases for good reasons) that her thinking on the company is going to cause an awful lot of harm to not just other reporters, but to free speech and the open internet. Last month I was shocked to find Swisher proactively cheering on government censorship in Sri Lanka, after the country blocked Facebook following the terrorist attacks in that country. We pointed out how shortsighted this was, and Trevor Timm from the Freedom of the Press Foundation was even more direct in his criticism, noting how it smacked of Western paternalism, in which "we" can handle free speech, but poor people "over there" somehow can't.

Arguments like Swisher’s smack of “otherism” and paternalism — ordinary Sri Lankans aren’t sophisticated enough to deal with these problems, we know better than they do, and we must trust their political leaders. It’s akin to the tired arguments made by many in the U.S. national security community that people in the Middle East “can’t handle” democracy. It’s insulting.

Unfortunately, it appears that Swisher is continuing to argue for more and more censorship-by-Facebook -- a company that she herself admits we cannot and should not trust. Her latest opinion piece at the NY Times, bizarrely, goes beyond just attacking Facebook to mistakenly attacking Section 230 of the CDA as well.

The story involves the latest "big controversy" on Facebook, in which some trolls have been posting slightly doctored videos of House Speaker Nancy Pelosi, slowed down and (sometimes) edited, to make her appear to be slurring and stumbling over words. The videos have been getting passed around among Trump supporters -- and Trump himself retweeted one of those doctored videos when it was featured on Fox News. There are plenty of reasons to decry the whole mess, as it's a form of disiniformation and propaganda. After people called out Facebook about the video, the company proceeded to include a flag on the video, noting that it had been doctored, and downgrading the ability of the video to be spread more widely, but refusing to take it down entirely.

Many, many people (including Swisher) still disagree with this choice, arguing that since the video is being used for blatant propaganda and disinformation, it should be removed from Facebook entirely. Where you come down on this question may differ depending on where you sit. But Swisher goes beyond that, bizarrely (and ridiculously -- and incorrectly) blaming Section 230 for this situation:

Would a broadcast network air this? Never. Would a newspaper publish it? Not without serious repercussions. Would a marketing campaign like this ever pass muster? False advertising.

No other media could get away with spreading anything like this because they lack the immunity protection that Facebook and other tech companies enjoy under Section 230 of the Communications Decency Act. Section 230 was intended to spur innovation and encourage start-ups. Now it’s a shield to protect behemoths from any sensible rules.

This is wrong on so many levels that it makes me wonder where Swisher is getting her information from. Section 230 is what allows Facebook to flag and "demote" this video in the first place. Without it, the company would be held liable for any of the moderation choices it made (see: Stratton Oakmont v. Prodigy, the law that inspired CDA 230 and which CDA 230 explicitly overrules).

Without a CDA 230, platforms are incentvized to do one of two things: either look the other way and ignore basically all content, so as not to be held liable (which would make the situation Swisher is complaining about even worse), or to basically block almost everything that might possibly be controversial, meaning tons of perfectly legal and important speech would get blocked. This is not a good solution -- and certainly not one that a reporter should be advocating for.

Also, her analysis is simply incorrect. First of all, the claim that "no media could get away" with this is proven incorrect by the fact that Fox News did, in fact, spread one of these videos. And if anyone sued Fox over this, it would win on 1st Amendment grounds. And there have not been "serious repercussions." Unless you count whatever the fuck this tweet from Rudy Giuliani was supposed to say:

Second, the point of CDA 230 is that the internet does not work like a news publication. There is no "editor" who reviews what goes up, because it's a communications medium, like the telephone. We don't expect AT&T to monitor everything everyone says on the telephone (I mean, the NSA may expect it, but most people are rightfully horrified by this concept), so why should we expect the same here?

Some, including Swisher probably, would argue that they're not asking for just ditching CDA 230, but amending it to require some sort of "responsibility". But that also opens up massive questions -- ones that Swisher seems unprepared to deal with. As the UN's expert on free expression, David Kaye, suggested, just try to come up with rules that would force Facebook to remove the Pelosi video but wouldn't then end up being used against dissent, humor, satire or other forms of protected speech:

Or, to be even more to the point, the EFF's Jillian York noted that if you're going to require that Facebook face responsibility for "disinformation" -- or even disinformation that leads to harm -- how exactly is Facebook expected to deal with religious information:

For quite some time now, we've been talking about the "impossibility" of doing content moderation at scale well. There are always going to be disagreements. But Section 230 is what allows for experimentation. People can (and should) criticize Facebook when they think the company made the wrong call, but to blithely toss Section 230 under the bus as the reason for Facebook failing to meet her own exacting standards, Swisher is actually throwing the open internet and free speech under the bus instead. It's a horrifically bad take, and one that Swisher should know better about.

And, if Swisher, wants, I'm happy to discuss this with her in more detail. Perhaps over a cup of tea.

Filed Under: 1st amendment, cda 230, content moderation, free speech, gatekeepers, kara swisher, nancy pelosi, section 230, social media
Companies: facebook

Stop Saying That Section 230 Was A 'Gift To Internet Companies'

from the it's-a-gift-to-the-public dept

Saying that Section 230 of the Communications Decency Act (CDA 230) is a "gift" to internet companies that should be taken away because some people use the internet badly is like saying the interstate highway system is a "gift" to the big shipping companies, and should be destroyed because some people send illegal things via UPS or Fedex.

As Section 230 is increasingly under attack, one of the most common lines we hear about it is that it was somehow a "gift to internet companies." I heard something along those lines at least three times last week, not even counting Nancy Pelosi's misguided characterization of 230, in which she said:

“230 is a gift to them, and I don’t think they are treating it with the respect that they should,” she said. “And so I think that that could be a question mark and in jeopardy. ... For the privilege of 230, there has to be a bigger sense of responsibility on it, and it is not out of the question that that could be removed.”

Except, as we noted last week, this gets the entire story backwards. The point of Section 230 is not to benefit the big internet companies. It is to benefit the public. It has enabled them to speak freely on the internet, because Section 230 has freed up the ability of platforms to host user-generated content without fear of being held liable for it. Do some people post awful (or even illegal) things? Absolutely. But just as we don't demand smashing up the interstate highway just because some drug dealers ship drugs via Fedex, we shouldn't demand the government rip up Section 230.

The overwhelming beneficiaries of Section 230 are the public. It has -- incidentally -- helped some internet companies stay out of some misguided and often vexatious legal threats by simply stating that any legal action should be directed at those actually responsible. That's not a "gift" -- it's a protection against frivolous, misguided lawsuits.

So the next time you see people claiming that Section 230 was gift to the internet companies, please remind them it's not at all true -- but rather that Section 230 was a gift to the public, enabling more freedom of expression online, and enabling the internet to take root. Ripping up 230 because of a few examples of bad content online would be like ripping out the interstate highway system to prevent anyone from shipping drugs. It is both a massive overreaction and a totally misdirected one.

Filed Under: cda 230, free speech, intermediary liability, nancy pelosi, section 230