Ted Cruz Demands A Return Of The Fairness Doctrine, Which He Has Mocked In The Past, Due To Misunderstanding CDA 230
from the grandstanding-idiocy dept
Remember the Fairness Doctrine? It was an incredibly silly policy of the FCC from 1949 to 1987 requiring some form of “equal time” to “the other side” of controversial matters of public interest. It’s a dumb idea because most issues have a lot more than two sides, and simply pitting two arguments against one another tends to do little to elucidate actual truth — but does tend to get people to dig in more. However, despite the fact that the fairness doctrine was killed more than 30 years ago, Republicans* regularly claim that it’s about to be brought back.
* Our general policy is not to focus on political parties, unless it’s a necessary part of the story, and in this case it is. If you look at people freaking out about the supposed return of the fairness doctrine (which is not returning) it is always coming from Republicans, stirring up their base and claiming that Democrats are trying to bring back the fairness doctrine to silence the Rush Limbaughs and Sean Hannitys of the world.
But that’s why it’s so bizarre that Ted Cruz has taken to the pages of Fox News… to incorrectly claim that the fairness doctrine applies to the internet based on his own tortured (i.e. dead wrong) reading of Section 230 of the Communications Decency Act. We already discussed how wrong Cruz was about CDA 230 in his questions to Mark Zuckerberg (while simultaneously noting how ridiculous Zuck’s responses were).
In his Fox News op-ed, Cruz argues that if a platform is “non-neutral” it somehow loses CDA 230 protections:
Section 230 of the Communications Decency Act (CDA) states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
This is a good provision. It means that, for example, if you run a blogging platform and someone posts a terrorist threat in the comments section, you?re not treated as the person making the threat. Without Section 230, many social media networks could be functionally unable to operate.
In order to be protected by Section 230, companies like Facebook should be ?neutral public forums.? On the flip side, they should be considered to be a ?publisher or speaker? of user content if they pick and choose what gets published or spoken.
This is Cruz only reading Section (c)(1) of CDA 230, and totally ignoring the part right after it that says:
No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected
There’s plenty of case law that has made it clear that moderating content on your platform doesn’t make you liable under CDA 230. The very point of this section was to encourage exactly this kind of moderation. Indeed, this part of the CDA was added directly in response to the infamous Stratton Oakmont v. Prodigy case, where Prodigy was found liable for certain posts in part because it moderated other messages.
Now, you could claim that Cruz is not misreading the law — but rather he’s advocating a return to the days of that Stratton Oakmont ruling being law. After all he says “Facebook should be ‘neutral public forums.'” But, that’s both an impossible standard (what the hell is “neutral” in this context anyway?) and basically calling for a return to the fairness doctrone.
Republicans, who have spent years freaking out about the fairness doctrine should be really pissed off at Cruz for basically demanding not just a return of the fairness doctrine, but demanding it for all online platforms and setting it at an impossible standard.
And, of course, this is the same Cruz who has railed against the fairness doctrine itself in the past.
“You know, the Obama FCC has invoked the Fairness Doctrine a number of times with sort of wistful glances to the past. Nostalgia,” he said. “You know if I had suggested years ago that the Obama administration would send government observers into the newsrooms of major media organizations, that claim would have been ridiculed. And yet that is exactly what the FCC did.”
Amusingly, this was right after he railed against the Obama FCC for pushing for net neutrality.
So… to sum up Ted Cruz’s views on the internet, net neutrality is evil and attack on free speech, but platform “neutrality” is necessary. How does that work? Oh, and the fairness doctrine is censorship, but Facebook needs to engage in a form of the fairness doctrine or face stifling civil liability.
It’s almost as if Ted Cruz has no idea what the fuck he’s talking about concerning internet regulations, free speech, neutrality and fairness — but does know that if he hits on certain buzzwords, he’s sure to fire up his base.
Filed Under: cda, fairness doctrine, section 230, ted cruz
Companies: facebook
Comments on “Ted Cruz Demands A Return Of The Fairness Doctrine, Which He Has Mocked In The Past, Due To Misunderstanding CDA 230”
Nostalgia
As a Texan, I miss the days when the village idiot we sent to Washington was George W. Bush…
Re: Nostalgia
I someone who lives in the DC area I wish we could mark them all return to sender.
Re: "Mark Harrill": Be one comment this year, like last year?
Account dates to 18 August 2009. Another phenomenal memory for name / password, yet surely only vaguely recalls to read the site. HMM, huh?
And this isn’t even on-topic! After a year of nothing, moved to make an off-topic comment!
Just two words: UN. Believable.
Re: Re: "Mark Harrill": Be one comment this year, like last year?
Your conspiracy is so boring.
Re: Re: Re: "Mark Harrill": Be one comment this year, like last year?
Re: Re: Re:2 "Mark Harrill": Be one comment this year, like last year?
It’s wrong. It’s stupid. It makes no sense.
It’s also dreadfully boring.
Re: Re: Re:2 "Mark Harrill": Be one comment this year, like last year?
He didn’t specifically deny one thing, therefor you are proven right. Welp, can’t argue with that logic. (and would rather not try…)
So what’s the adequate number of comments an account owner should be expected to make? What’s the reasonable standard you’re applying?
Re: Re: "Mark Harrill": Be one comment this year, like last year?
Question: What do you think any of this conspiracy-theorizing is accomplishing?
Re: Re: "Mark Harrill": Be one comment this year, like last year?
You have heard of password managers, right? They’re kind of a big thing right now, they let people create really long, secure passwords without having to remember them.
Re: Re: Re: "Mark Harrill": Be one comment this year, like last year?
He has apparently also never seen a “forgot password?” link.
Re: Re: Re: "Mark Harrill": Be one comment this year, like last year?
Hey, what a really good idea – I’ll put all my eggs in one basket as that would be much easier to carry.
Re: Re: Re:2 "Mark Harrill": Be one comment this year, like last year?
It actually is. The majority of security researchers and experts recommend using some kind of password manager because you can create very long, complicated passwords that are nigh impossible to crack. Secondly, the good password managers are encrypted and if you enable MFA, also nigh impossible for an attacker to get at.
Case in point, Lastpass was breached a few years ago but because their data is encrypted the attackers got a bunch of useless garbage. Further, they stated that anyone who had MFA enabled was not affected.
So, create one complex password that you have to remember, combined with encryption and MFA and you now have a solution to remember all your passwords that is more secure than keeping an offline word document or notebook of all your passwords.
And if you’re really concerned about it, you can use an offline password manager that isn’t available for someone to hack. At that point it’s basically like keeping your passwords in a word document or written down on paper somewhere, except, locked up in a safe and they are all written in code.
The only thing more secure than a password manager is if you never wrote them down and remembered them all in your head. The only people who can do that are ones with photographic memory or something similar. You’re average person can’t do it.
Re: Re: "Mark Harrill": Be one comment this year, like last year?
Well at least now we understand why this jackass comments here multiple times a day. He’s afraid if he takes a break, he’ll metamorphose into Mike Masnick!
Re: Re: "Mark Harrill": Be one comment this year, like last year?
You understand that to have the posts displayed the way you want them, you gotta stay logged in. Even if you rarely post. Also, there is a password recovery system. So you if you can still post if you’ve not logged in for years. I think you’re wasting your time on this one.
Re: Nostalgia
As a Canadian I’d like to apologize for the village idiot we sent to Texas.
Re: Re: Nostalgia
We all have village idiots! They are called voters and they are responsible for the village idiots getting elected to begin with!
Ted Cruz has declared....
“No more Mr. Nice Guy.”
I don’t see anything confusing at all about what Senator Cruz is saying.
1) He is being paid to accomplish the goals of his Oligarch sponsors.
2) To do so, he wants to dictate reality.
3) He dislikes anything that disagrees with the reality he wants to dictate.
4) He will say and do anything he can to undermine or outright destroy those things that contradict his intended version of reality.
The INTENT of Congress with CDA was NOT to empower corporations!
NO LAW in the US has ANY other valid purpose than to serve the interests of We The People. Corporations having total and arbitrary control over the now-dominant speech outlets just simply CANNOT be a valid interpretation. Indeed, read the Sandvig decision over again, Masnick, as it directly states that “natural” persons now have a vital First Amendment Right on “platforms”.
**In order to be protected by Section 230, companies like Facebook should be “neutral public forums.”** — Simply right.
But Masnick ALWAYS asserts that Corporation are to be de facto censors, and any “natural” persons can just try to find some tiny outlet on which to rant.
That’s part of why I try to often comment here: DE FACTO and DE JURE I have Right to comment here while within common law, and Masnick, a business will have to make it truly private with code if don’t want me to use it, NOT advertise it as Neutral Public Forum.
Re: The INTENT of Congress with CDA was NOT to empower corporations!
You have no idea what you’re talking about. Everything you say is literally just wrong.
Re: Re: The INTENT of Congress with CDA was NOT to empower corporations!
Re: Re: Re: The INTENT of Congress with CDA was NOT to empower corporations!
You must walk into a physical business and demand the right to yell at them, and see what happens.
Re: Re: Re: The INTENT of Congress with CDA was NOT to empower corporations!
Well, if you insist…
And the last time I checked, CDA 230 makes it possible for We The People to run and moderate websites and web-based services of all kinds without facing legal liability for anything posted by a third party to those sites/services.
Dominant or not, corporations—and the people who ultimately control them—do have total and arbitrary control over those outlets for speech. Twitter, Facebook, and their ilk are not public utilities; being booted from Twitter for breaking their rules is no different than being kicked out of someone’s home for yelling about chemtrails. The right to free expression does not guarantee you forced usage of a privately-owned platform, regardless of who owns the platform.
A person’s First Amendment rights do not extend to forcing a platform into hosting speech. The platform’s owners have every right to decide what speech it will and will not have associated with that platform. (Sidebar: The usage of SovCit lingo might be a clue that the poster is talking out of their ass.)
What Mr. SovCit fails to address here is the idea of “neutral public forum”. What does the phrase mean in this regard?
Well…yeah. Again: The First Amendment does not guarantee the access to or usage of a given platform. The government cannot block you from using a platform; the platform’s owners and administrators, on the other hand…
What you have, Mr. SovCit, is a right to speak your mind. Techdirt admins are under no legal obligation to host your speech, regardless of your assertion of “common law”. If you know of any legal statute that says you can force Techdirt to host your speech, your argument would look a lot better if you could cite it. (SovCit lingo is not a legal statute.)
Now I see the mistake: You confuse "privately-owned" with "private". A privately-owned platform can be both open to the public and capable of “censorship”/moderation that fits with the sociopolitical ideologies of that platform’s owners. A White supremacist forum owned by the Ku Klux Klan, for example, can be open to the public while still retaining its right to delete any posts that insult the concept of White supremacy, the Klan, and White people in general.
…how’s that, did I expand on the wrongness of that post well enough?
Re: Re: Re:2 The INTENT of Congress with CDA was NOT to empower corporations!
I think the bit about “neutral public forum” is probably (thought of as being) akin to the concept of the “public square”.
Something like:
* Because of its dominance and near-universality, Facebook has become the modern equivalent of the public square.
* Therefore, to exclude someone or something from Facebook is to exclude the same from the public square.
* To exclude someone from the public square – whether done by the government or by a private citizen – is a violation of that someone’s rights.
* Therefore, to exclude someone from Facebook is to violate that someone’s rights.
With an expansion from just “Facebook” into “any part of the Internet where members of the public can post comments” (which fails for, among possibly other things, the reason you address in your last paragraph).
If one accepts the idea in the very first point – that a privately-owned platform can be the de-facto public square – the logic would even seem to potentially hold.
You present what looks to me like a counter to that idea in your last paragraph, but I’m fairly sure that he rejects that counter, on the grounds that the consequences for freedom of discourse would be entirely intolerable.
Thing is, although his presentation and argumentation and overall tone (and possibly a few other things) are abhorrent, I’m not completely positive he’s entirely wrong about the basic underlying point. It may, in fact, be possible for a privately-owned platform to supplant the public square – and if (with that having happened) the privately-owned platform can then institute unrestricted controls on speech on that platform, the consequences for freedom of discourse would indeed be intolerable.
I am not at all convinced that this has happened yet, myself, or that it’s likely to soon – but I can see room for it to happen at some future point, and in the event that it does, I’d prefer not to have already outright ruled out the possibility of correcting it by declaring that the rules of the public square must apply to the private platform.
Re: Re: Re:3 Re:
Twitter or Facebook or whatever comes next may “supplant the public square” in theory, but such sites would still retain their “privately-owned platform” status and all associated rights unless and until the United States government declared such a site to be a public utility. If Twitter were required to act like a public utility, Neo-Nazis would get to stay on the platform in spite of Twitter’s rules against hate speech. (And that is to say nothing of pornography.) This idea also raises a question that nobody who pushes this “public square” idea ever seems able to answer: At what point does a service become “big enough” to “supplant the public square” and thus fall into the category of “public utility”?
Re: Re: Re:4 Re:
Well said. And in fact, it makes me realize that there is a pretty good litmus test to see if something’s even within range of supplanting the public square:
If Facebook just completely "closed its doors" tomorrow – stopped letting people into the square – would people find themselves without a place to express themselves publicly online?
Nope. They’d have countless options.
Re: Re: Re:3 The INTENT of Congress with CDA was NOT to empower corporations!
I would say that the Internet is the public square, and Facebook a very privately owned market hall off of that square. Anybody an set up their own booth on off the square, for free even with a service like blogger.
What they cannot do is complain that they can’t get a booth in the market hall, or that nearly everybody ignores their booth outside the hall in favor of the market hall, but should rather figure out how to make their booth more appealing to attract visitors, or meet the conditions for getting a booth inside the market hall.
Re: Re: Re:3 The INTENT of Congress with CDA was NOT to empower corporations!
It’s an interesting idea, but I don’t think there’s anything in existing law that would allow for that. If the situation were truly so dire, it could be addressed perhaps in some way. But there’s certainly no legal argument that says this should be the case. In the few cases where governments have declared private spaces to be public forums, it has been at the state level, such as California extending first amendment protections to people in private shopping malls – but a state action like that online would be strictly barred by 230.
But I also just don’t buy this idea of "dominance and near-universality". Oh sure, it has that in the context of social networks – but not in the context of speech in general
There are still over a hundred million people in the US who do not use Facebook. There are still millions of other websites and sources of information that get used every day online. Even just the big ones distort the picture – YouTube and Twitter are each their own separate companies, and each massive forums for speech and discussion. Yeah, Facebook has some impressive numbers – but step back for a moment, and I think it’s a bit rash to argue that it is so dominant we need to drastically alter a century-plus of first amendment jurisprudence.
Re: Re: Re:3 The INTENT of Congress with CDA was NOT to empower corporations!
Plus, I mean, let’s just remember what this whole "treat Facebook as the 1A-protected public square" idea actually means:
It means Facebook becomes 4chan, overnight.
What is the benefit we get from that, exactly?
Re: Re: The INTENT of Congress with CDA was NOT to empower corporations!
But he’s consistently wrong.
I think he has ISO 9000 certification. No doubt he’s certifiable.
Re: The INTENT of Congress with CDA was NOT to empower corporations!
Do other SovCits like you, or do they avoid you like a Republican lawmaker avoids town halls?
Re: The INTENT of Congress with CDA was NOT to empower corporations!
you know, if you don’t like a platform like Facebook’s policy, you don’t have to use it. I don’t. There is always Reddit and 4chan.
The fairness doctrine
is total bullshit! It was bullshit back then and will be bullshit now too if brought back!
But Cruz is a true poly-tickcion… he will suck any kind of blood to feed on.
Nice to see the Repukes being hypocritical about now liking the fairness doctrine when they think it can benefit them.
Incoming
§ 230 just took a hit.
From Sen. Cruz’s Fox News opinion (also quoted in the article above)—
Since Zeran was decided back in ’97, opposition has been growing to § 230.
Now, Congress has the will and the votes to amend it.
Re: Incoming
And we must make sure they dont amend it.
But Congress does not have the full will and the votes to amend it.
Re: Re: Incoming
Who’s “we” ? Someone just mentioned RSS — so Aaron Swartz and his friends?
“It’s a dumb idea because most issues have a lot more than two sides”
Or, quite often, only one.
'incredibly silly"
Incredibly silly? What a COMPLETELY ignorant thing to say. If you had been around, you would have KNOWN how effective it was. There would BE no Fox News propaganda if it were still here. This site is about to go off my RSS feed page, now that I know what a simpleton is in charge.
Re: 'incredibly silly"
Kind of ironic to call somebody ignorant when you don’t seem to realize that the Fairness Doctrine only applied to broadcast TV, not cable.
Stop, don’t, come back.
Re: Re: 'incredibly silly"
“Stop, don’t, come back.”
And you wonder why people are getting more and more antagonistic towards each other.
If tell people they are not worth talking too and to go away… they usually do, but only long enough to bring back friends to beat your shit up and “then you are going to want to talk” but they won’t care and where does that leave you?
If you are not willing to sit and help the idiots understand what they have wrong, the you are a bigger idiot because you are not helping to resolve the problem but instead facilitate vacuum chambers and mono-culture.
Re: Re: Re: 'incredibly silly"
Sure, though, to be fair, the original comment didn’t exactly seem to be inviting substantive discourse – having already declared the claim ignorant, asserted that only people alive during the fairness doctrine can properly comment on it, stated that they are now no longer interested in reading this site, and labelled the author a “simpleton”.
Re: 'incredibly silly"
I want you to think – slowly and carefully – about a modern world in which the FCC (a federal agency whose leader is appointed by the president) is in charge of deciding whether news organizations are being fair and balanced enough.
Re: Re: 'incredibly silly'
Is Facebook a “news organization”?
From the Senate joint committee hearing last Tuesday—
(Dan Sullivan is the junior United States Senator from Alaska “The Last Frontier”.)
Re: Re: Re: 'incredibly silly'
Facebook is like Google News, they don’t create any content of their own, they just link back to it. You and Sullivan obviously do not understand how the internet works.
Re: Re: Re:2 'incredibly silly'
47 USC § 230(f) Definitions As used in this section:
So tell me how the internet works. Enlighten me. What’s the difference between Facebook and Comcast?
Re: Re: Re:3 'incredibly silly'
Re: Re: Re:4 'incredibly silly'
So if Comcast is Ma Bell, then do you think that 47 USC § 202(a) should apply to Comcast?
So you want to amend § 230(f) to say—
Re: Re: Re:5 'incredibly silly'
think of it like this:
Re: Re: Re:6 'incredibly silly'
So Google and Facebook should have traditional “distributor” liability?
(“Distributor” liability is sometimes referred to as “secondary publisher” liability).
Re: Re: Re:7 'incredibly silly'
… traditional “distributor” liability?
Zeran v AOL (4th Cir. 1997)
Re: Re: Re:8 'incredibly silly'
except in that case in particular:
and a year later in Blumenthal vs Drudge:
Re: Re: Re:9 'incredibly silly'
That’s why he asked if you think they SHOULD face that liability, he didn’t claim they do.
I really think everyone is arguing at cross-purposes here. Most of the distinctions you and others are laying out are not the way things work in a CDA 230 analysis.
I’m not sure anyone in this thread actually disagrees with anyone else. But it does appear a lot of 230 supporters are not actually that clear on who 230 applies to or how that determination is made, which is slightly disheartening.
Re: Re: Re:10 'incredibly silly'
it’s kind of tricky tbh. AOL, and even sites like CNN/MSNBC, etc. at least occasionally (or in the case of more local news stations/websites, often) cite Rueters and AP as news sources. So AOL is not the primary news source. In those instances they are acting as a sort of distributor of said stories.
The other problem is with comment sections, which is why a lot of sites simply abandoned comment sections instead of interacting with them and giving context to the stories.
ALL of this stems from Congress’ penchant for making overly broad and purposely vague laws in my opinion.
Re: Re: Re:11 'incredibly silly'
A wire service article published on a news site is not content provided by “a user” of their service – that’s not a section 230 situation.
Comment sections aren’t “a problem” and liability is not why many sites have abandoned them. Section 230 very clearly and strongly protects a site – even a news publisher – from content submitted to their comments via users. That’s the whole point.
Re: Re: Re:12 To many Re's
Re: Re: Re:12 To many Re's (Take 2)
oops the other comment can be deleted, accidentally hit enter >_>
Okay so the core question is should Facebook be held liable under section 230. The answer is no. Facebook/Google is not acting as the publisher or speaker of the original article. (same goes with news wires.)
but the question is, Does linking to infringing content qualify as indirect infringement? IMO, no it does not, that would have to be taken up between the copyright holder and the infringing party.
Re: Re: Re:13 To many Re's (Take 2)
230 is irrelevant to the copyright question, as intellectual property is one of the areas of law that are explicitly exempted from it.
Re: Re: Re:13 To many Re's (Take 2)
I’ll leave the newswire question aside. You may be right that under certain circumstances, 230 would cover a newspaper republishing a newswire story, but I think that’s a bit more complicated. In any case, it’s somewhat tangential to the question of liability for user-generated content.
As for FB, I completely agree, of course, that FB is covered by section 230. But that’s why I think it’s odd that you are making these distinctions between an ISP like Comcast and a platform like Facebook, saying one “carries” and one “distributes”. That’s totally muddying the waters, and indeed implying that perhaps you don’t think Facebook should be covered by 230.
Under the 230 definition of “interactive computer service”, there is no difference between ISPs and platforms like Facebook.
Re: Re: Re:14 To many Re's (Take 2)
okay so what I meant was
Comcast carries the information between services and the end user.
Facebook connects the end user to the content providers.
In physical goods parlance, Comcast would be Carriers like UP, Werner, Con-Way, FedEx, UPS, etc.
Facebook would be Ebay or Amazon, Walmart or Target.
Providers would be Levis or Adidas or Pepsi.
Re: Re: Re:15 To many Re's (Take 2)
What purpose is this analogy supposed to serve?
Re: Re: Re:15 To many Re's (Take 2)
Again: why are you trying to draw a distinction between Facebook and Comcast in the context of a 230 analysis? (This isn’t a gotcha – I’m asking. Do you see a valid distinction between them in how they should be treated for that kind of immunity? If so, such distinction does not currently exist in the law – which is, I think, why the other AC has been asking people what sort of amendment to the law they are advocating for, since it doesn’t currently match the distinctions you are drawing).
Re: Re: Re:16 To many Re's (Take 2)
so this is why I said laws are generally over-broad and vague when it comes to the internet (and computers in general).
Re: Re: Re:17 To many Re's (Take 2)
But that’s why I asked – are you saying that either Comcast or Facebook should LOSE their 230 immunity? If so, which one?
If not, why is it bothering you that there’s no distinction under the law?
Re: Re: Re:18 To many Re's (Take 2)
okay so the original post was to draw a distinction between Comcast and Facebook. And neither should lose 230 tbh. 230 is rather specific in it’s wording.
Re: Re: Re:19 To many Re's (Take 2)
I’m so confused. Two minutes ago you said the problem with 230 is that it’s overly broad and vague – now you are saying it’s rather specific in its wording.
I honestly don’t know what anyone in this thread is advocating for anymore.
Re: Re: Re:20 no title.
ya i fucked up on that, I pulled a Ted Cruz, that is on me. I re-read 230 and relevant commentary (EFF and ACLU) in it’s entirety 3 times to make sure I understood what I read.
Re: Re: Re:19 To many Re's (Take 2)
So Comcast’s provision of “a service or system that provides access to the Internet” should remain exempted by § 230 from § 202(a)‘s prohibitions on “unjust or unreasonable discrimination” and “undue or unreasonable preference or advantage” ?
Should Comcast be allowed to block content or terminate users arbitrarily and capriciously? To discriminate unreasonably?
(Incidentally, when I say “Comcast”, note that I’m not implying that cable service is a common carrier service. It isn’t now. And “must-carry” is another question.)
Re: Re: Re:20 To many Re's (Take 2)
Section 230 immunizes against civil actions, not federal law.
Re: Re: Re:21 To many Re's (Take 2)
(not federal *criminal law)
Re: Re: Re:21 To many Re's (Take 2)
So 47 USC § 230 may ‘immunize’ against a complaint under e.g. California’s Unruh Act seeking to impose, in essence, common carrier obligations on interstate communications providers.
But beyond that, § 230(c)(2)(A) ‘immunizes’—
“Good faith” is fairly elastic.
Re: Re: Re:22 To many Re's (Take 2)
The paragraph you quote is what is immunized yes – from civil liability. You’re leaving out the line immediately prior, which makes that clear:
As for Unruh, there is a case testing that versus s230 right now. It’ll be interesting to see what happens. But if I were to guess, I’d say yes – s230 probably immunizes an ISP against many Unruh claims, though blatant discrimination probably would trigger a very rigorous examination of the good faith question. It may be elastic, but courts have rejected 230 defences for a lack of good faith before.
Re: Re: Re:20 To many Re's (Take 2)
§ 230(e)(1)
Re: Re: Re:21 To many Re's (Take 2)
Expressio unius est exclusio alterius.
§ 230 doesn’t except §§ 201 or 202 of Title 47.
Re: Re: Re:22 To many Re's (Take 2)
Um, surely you at least read to the end of the SENTENCE right? Where it says "or any other Federal criminal statute"?
I’m starting to suspect you’re just trolling…
Re: Re: Re:23 To many Re's (Take 2)
§§ 201 or 202 of Title 47 are not “criminal statutes”.
Re: Re: Re:24 To many Re's (Take 2)
Any federal law that declares something unlawful is a federal criminal statute.
Re: Re: Re:24 To many Re's (Take 2)
Besides, you don’t even need that part. Because once again, they are only immunized against civil liability – and those laws do not impose civil liability.
Re: Re: Re:25 To many Re's (Take 2)
Both §§ 206 and 207 otherwise contemplate suit by persons damaged by a common carrier’s violation of either §§ 201 or 202.
I can’t read § 230(e)(1)’s “other Federal criminal statute” to get around (c)(2)(A).
Maybe you can.
Re: Re: Re:26 To many Re's (Take 2)
Then they are immunized against the civil liability.
WTF is your end-game here, man? You are asking a million circular questions, attempting to trap people (not very successfully), citing new laws at every opportunity, and not actually making a point.
If you have a point to make, please go ahead – and we can see if it’s worth responding to. Otherwise, I’m done.
Re: Re: Re:15 To many Re's (Take 2)
As a further example, you are now comparing Facebook to retailers like Walmart or Target.
But… retailers can face liability for defective products they sell, under the right circumstances. It differs state to state (some have passed "innocent seller" laws). In most cases, they have a "duty to inspect" anything they sell. Retailers in no way have a blanket 230-like federal immunity against liability for products they sell just because other people manufactured them. Facebook does. And it has no "duty to inspect".
I just don’t think these physical world analogies are making the point you want them to make.
Re: Re: Re:14 To many Re's (Take 2)
There is a difference, an ISP only carries data from one place to another, and does not store it or make it available to other people. Therefore they are the phone company of the Internet, and they are functioning at the level of moving data packet between end points, and now most of that data is encrypted, so they cannot vet the content even if they wanted to. Section 230 is not even relevant to an ISP, because they do not publish content, or enable user publication of content.
Facebook hosts content produced by individuals, (they are at a higher functional level, which is why I use data when talking about ISPs, and content when talking about Facebook). Facebook needs the protection of section 230, or some similar arrangement as it is not reasonable to hold them responsible for content other publish on their service. If they are made responsible for what other publish on their site, they would have to take on full editorial control on what is allowed to be published, and that destroys their value for users.
In other words ISPs are not acting at the level where the data has meaning, which is implied by the term Interactive computer service.
Re: Re: Re:15 To many Re's (Take 2)
Section 230 is not even relevant to an ISP
Dude. The definition of an interactive computer service in the law includes this, verbatim:
Re: Re: Re:15 To many Re's (Take 2)
Like seriously, 230 was specifically enacted in response to lawsuits against ISPs (Prodigy and Compuserve).
You couldn’t be more wrong.
Re: Re: Re:16 To many Re's (Take 2)
(admittedly the initial lawsuits were not over them in their role as ISPs – but the congressmen behind the 230 amendment quickly recognized that it could be and thus included that explicit language making ISPs fall under the definition of "interactive computer service")
Re: Re: Re:16 To many Re's (Take 2)
Prodigy and Compuserve more than ISPs, and include things like message boards; that is they also allowed users to publish content.
Re: Re: Re:17 To many Re's (Take 2)
Again, I point you to the definition of an interactive computer service under section 230 itself:
You seem to be assuming that without that protection, common sense would automatically prevail and nobody would try to hold ISPs liable for content they deliver. Good luck with that. Thank god the law actually DOES include that protection that you’re saying it doesn’t.
Re: Re: Re:15 To many Re's (Take 2)
FAQ: What is the difference between Store‑and‑Forward switching and Cut‑Through switching?
Back in the ’90s, did you ever get an AOL CD in the mail?
Re: Re: Re:16 To many Re's (Take 2)
I think that AC means well, but this is twice now that he’s stated something that is flatly, objectively incorrect about the law. He didn’t reply when corrected the last time :/
Re: Re: Re:16 To many Re's (Take 2)
What’s weird is he clearly believes in strong, broad section 230 protections – but every time he tries to define 230, he actually drastically narrows its protections. They are better and bigger than he thinks.
Re: Re: Re:16 To many Re's (Take 2)
Re: Re: Re:17 To many Re's (Take 2)
What I want to know is how can an ISP be made responsible for the content of packets especially if they are encrypted
An interesting question, but one we don’t have to ask, because they are already explicitly immunized by section 230
Re: Re: Re:18 To many Re's (Take 2)
In reality, what would the courts say if someone brought a case against an ISP for allowing someone to post a comment they did not like on Facebook or other people to read those comments. Such a case has the same level of insanity as suing the phone company because they allowed people to talk to each other and spread rumors.
Hopefully such cases would never reach the stage where section 230 was even considered.
Re: Re: Re:11 'incredibly silly'
(The broadness of section 230, incidentally, is precisely why it works so well)
Re: Re: Re:10 'incredibly silly'
It has been made perfectly clear, if you host any form of user generated content that you do not take any editorial role in its publishing, then you are protected by section 230 with respect to that content, even if you take post publication moderation actions.
Re: Re: Re:11 'incredibly silly'
Correction on the use of the term “editorial role”. You absolutely can take an editorial role. The courts have said multiple times that “traditional editorial functions” including editing user content, or choosing which content to display and how, do not remove 230 immunity.
The only way you lose the immunity is if your actions “develop” the content – which has been interpreted very clearly by the courts to mean “materially contributing to its illegality”. Only if your editorial actions are what actually makes the content illegal (or more illegal) can you be held liable.
Re: Re: Re:12 'incredibly silly'
https://clinic.cyber.harvard.edu/2010/02/08/cda-230-and-traditional-editorial-functions/
Re: Re: Re:11 Re (times a bunch): 'incredibly silly'
(and there is no requirement under 230 that moderation actions be “post-publication”)
Re: Re: Re:9 'incredibly silly'
Yes. The court did certain things based on its understanding of the statute as it stood then. And, as the caselaw has moved forward, signifant —unignorable— opposition to the current law has emerged.
The question is, “So Google and Facebook should have traditional “distributor” liability?”
Read “should”. How should the law be amended?
Re: Re: Re:3 'incredibly silly'
Several really big ones. And also, Facebook and Comcast are neither one news producers.
Comcast provides internet access to the internet and web at large. Without internet access, you can’t get to websites like facebook, google, etc…
Facebook is a website and does not provide internet access. Users can choose to use or not use it at will and does not affect their ability to access any other part of the web or internet.
Neither company engages in writing up news articles. In the case of Facebook, they crawl the web for news and post links back to any articles they find and try to match what links they give you with what they think you will be interested in seeing.
There. You have been enlightened.
Re: Re: Re:4 'incredibly silly'
To be honest, I have no idea who’s arguing what here.
Yes there are meaningful differences between Facebook and an ISP in many contexts – but not in this context, of the legal definition of an “interactive computer service” for the purposes of Section 230 protections.
Re: Re: Re:5 'incredibly silly'
True. But the AC asked me to explain the difference between facebook and comcast. So I did. The fact that he got his initial premise wrong in choosing to compare facebook to comcast, instead of facebook to The New York Times is something I chose not to address.
Re: Re: Re:6 'incredibly silly'
Is the New York Times strictly and solely a 47 USC §230(f)(3) “information content provider” ?
Including their comments?
Should they be considered strictly a “information content provider” ? When § 230 gets amended.
Re: Re: Re:7 'incredibly silly'
Yes, their website is.
Yes, including their comments.
Their website already is.
Amended by what? SESTA? Not sure what you’re trying to say here.
Re: Re: Re:8 'incredibly silly'
Yes, including their comments.
No, their comments are precisely where they are NOT an information content provider, and instead qualify as an interactive computer service.
Re: Re: Re:8 'incredibly silly'
Well, it’s sure as hell not going to be amended with the language you proposed, in your comment ‘enlightening’ me.
Re: Re: Re:9 'incredibly silly'
You asked me to enlighten you as to how the internet works, specifically the differences between facebook and comcast. I did so. At no point was there any talk of amending section 230. You’re the one who brought up amending 230 AFTER I enlightened you.
Seriously, what the hell? I’m not even advocating for amending 230.
Providing links back to outside news sources isn’t ‘publishing’ anything. At best they’re a really overly complicated search engine that tries to serve up links to news it thinks you will like.
Facebook doesn’t publish anything, so in context of what Sullivan is saying, facebook isn’t a publisher, it is just a platform. The fact that he doesn’t understand that shows that he doesn’t understand how the internet works. And since you are getting all bent out of shape over it, apparently neither do you.
Re: Re: Re:7 'incredibly silly'
I think I understand the source of your confusion now.
A website does not have to be “strictly” one or the other. CDA 230 is not a “safe harbor” like the DMCA, where you must tick off specific boxes or lose it across the board – it is an immunity that applies to specific claims.
If a lawsuit is launched against the NYT for content on their website, and that content came from a user (for example, in a comment) then they could move to dismiss the case on Section 230 grounds. In that context, they are an interactive computer service.
If a lawsuit is launched over an article they wrote and published, then they could not make a Section 230 motion. In that context, they are an information content provider.
Re: Re: Re:3 'incredibly silly'
What’s the difference between Facebook and Comcast?
As far as 230(f)’s definition of an interactive computer service is concerned, there isn’t any difference.
Re: Re: Re: 'incredibly silly'
Is Facebook a “news organization”?
I was responding to this commenter’s defence of the FCC’s original Fairness Doctrine, and the claim that losing it ruined television news – not to proposals about creating some new version of it for Facebook.
There might not be Fox News, but instead, every channel would be presenting “the other side” of evolution, climate change, immigration, “voter fraud,” and all other forms of nonsense.
Re: Re:
Oops, should be a reply to above.
If there was one good thing that could be said about Donald Trump, it was that he kept Ted Cruz from becoming president.
Cruz's Senate Race
“Democrats’ Chances Of Winning The Senate Are Looking Stronger”, by Perry Bacon Jr. and Dhrumil Mehta, FiveThirtyEight, Apr 13, 2018
(Embedded hyperlinks omitted.)
What we have here is a failure to Communicate..
For all the political parties this is ASIF’ 1 part of 100 fold, can come to 1 single comment/truth..
AS to the internet..
OPINION is OPINION..
Iv talked to a few younger people and explained a few things of communication..
1. BIG WORDS SUCK, and dont tell people anything..
SIMPLIFY..make it straight forward.
2. Funny words people MAY NOT understand, EXPLAIN THEM..as there are Many interpretations of Certain words..
3. KNOW YOUR HISTORY..Dont let things get weird, convoluted, distorted..If something bad happened ADMIT IT..its history. KNow what worked, and WHY it might work NOW..
4. interpretation..know your words, and how to say them..And OTHER meanings of the SAME words..When others use them, you need to NOW how to re-use them AGAINST them.. no connotations, extrapolations, exaggeration..
Re: What we have here is a failure to Communicate..
The internet is a Language unto itself.
Its a place to all express what they Think they know and KNow what they DONT know..
It makes a Bunch of Monkey pounding on Typewriters, Look Comical and Probable..
EVENTUALLY, YOU MIGHT SAY SOMETHING worth UNDERSTANDING..
context is everything
“Remember the Fairness Doctrine? It was an incredibly silly policy of the FCC from 1949 to 1987 requiring some form of “equal time” to “the other side” of controversial matters of public interest.”
Actually, no, it wasn’t silly. One has to look at the historic context. In 1949, there were a hundred TV stations to serve the entire United States. The VHF TV dial had only 12 channels, after Channel 1 was lost to land-mobile radio in 1948. Anyone who broadcast UHF TV before TV manufacturers were required to include the tuners in new sets was doomed to economic failure – of the first 100 UHF stations, 80 didn’t last through the first year (1954). That left room for maybe two or three channels per major city – giving any one city more than that meant being short of available VHF TV slots elsewhere. With this limited number of stations, there was only room for two or three major networks (CBS and NBC were the majors, with weaker third network ABC an also-ran until the 1970’s). DuMont, an attempt at a fourth network, folded in its first decade; its owned-and-operated station group was used to launch Fox thirty years later… in 1986. TV with only two or three channels was vulnerable to station owners censoring, slanting or manipulating news; the revolution, indeed, will not be televised.
Even in this context, the Fairness Doctrine was only used to permanently revoke a broadcast licence once in all of US history. The offending licensee was Lamar Broadcasting, which used to own what was WLBT (NBC 3) in Montgomery AL. They were one of only two stations in that specific local market (the other was CBS 12); the station was operated by racial segregationists and ultimately lost its licence for repeatedly censoring NBC network news broadcasts to remove the national coverage of the US civil rights movement. The full history behind this one station could fill a broadcast law textbook or two; with VHF TV spectrum a very scarce resource, the only way to get uncensored news in was to boot Lamar out – and the courts ultimately forced the FCC to act.
A choice between two equal vendors is not open competition if neither of them are any good. Hence the need to regulate.
Re: context is everything
Thanks for that; this is a much better defense of the Fairness Doctrine than the last guy who took issue with the "incredibly silly" description, and puts it in its proper historical context.
I think it would be more accurate to say that the Fairness Doctrine outlived its usefulness and is no longer necessary or desirable. (Hell, we’ve got news networks drawing "both sides" false-equivalence between climate scientists and climate science deniers as it is, even without the fairness doctrine.)
Right-Wingers Got Rid Of The Fairness Doctrine ...
… assuming that their corporate cronies would now have open slather to push their viewpoints on the media.
But that’s not what seems to have happened. Instead, right-wingers now complain that “mainstream media is controlled by Liberals”. But how could that happen in a free and competitive market?
Unless, of course, the market has decided that the Liberal product is superior to the Illiberal competition.
Even when Illiberals call up Fox News to complain about “mainstream media”, they fail to notice the irony in what they are saying: don’t they themselves consider Fox News to be part of the “mainstream media”? After all, if you can’t even get respect from your own side, who can you get it from?
Coming from a guy who fried bacon on the tip of a gun…
Because the doctrine has the word “fairness” in its title then obviously the desire for its implementation has nothing to do with fairness and everything to do with non-fairness.
Is there a term that describes this title inversion syndrome?
Re: Re:
There once was an out_of_the_blue
Who hated the process of due
Each film that he’d paid
Was DMCAed
And shoved up his ass with a screw
Reminded of a quote from Babylon 5:
“Understanding is a three-edged sword. Your side, their side, and the truth.”
It’s as much apt now as it was when the writers penned it.
My views JEERED on the FRONT PAGE AGAIN! THANKS, Techdirt!
The rabid fanboy’s quote-and-contradict bit is why I rarely read comments, let alone go back-and-forth. My text stands up just fine, so long as seen. — Usually Techdirt tries to keep it hidden, though!
Anyhoo, will cite for crucial point on whether "platforms" are now Neutral Public Forums where "natural" persons have First Amendment Rights, NOT money-machines for corporations having unlimited power to stifle us:
In the Sandvig v Sessions decision, from page 7 on, "A. THE INTERNET AS PUBLIC FORUM".
The discussion is businesses verus "natural" persons.
You’ll need to read the whole. I’m sure the fanboy did best that could without bothering to read the Sandvig decision.
Key point: "the same principles are applicable." — Again, that’s applying to "natural" persons who in the instant case are accessing web-sites against TOS and corporate wishes, which of course is EXACTLY apposite to using forums and requiring them to be NEUTRAL.
Nothing in The Constitution supports the Corporatist view.
Techdirt re-writers and its fanboys are baffled by dense legal language and just assume it fits their bias: that corporations (which are fictions) have been granted mysterious Authority to control "natural" persons as if we’re pests, instead of serve The Public’s interests.
The bottom-line question: Do YOU want to be SUBJECT to Corporate Control? — If so, just follow Masnick blindly, he’ll lead you into the high-tech prison!
The only proof needed is that Techdirt can’t stand to have my "blatantly wrong" text even seen!
Re: My views JEERED on the FRONT PAGE AGAIN! THANKS, Techdirt!
Wrong again moron.
The internet is not facebook, nor is facebook the internet. You complain about TD fanboys “re-writing” things yet you can’t even get your quotes to support you without totally misinterpreting them.
Re: My views JEERED on the FRONT PAGE AGAIN! THANKS, Techdirt!
I’d just like to note that nothing in reality supports your views.