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Posted on Techdirt - 30 December 2021 @ 03:29pm

Remembering Techdirt Contributors Sherwin And Elliot

It’s been a rough year for our community of tech policy advocates, with us losing two of our own, Sherwin Siy in July and then Elliot Harmon in October. We remembered Sherwin here, and the EFF wrote about Elliot over there.

But what we realized is that both of them had also written here at Techdirt, so we thought we’d use this end-of-year time of reflection to share those posts from the Techdirt archives.

Sherwin appears to have had just one post, but it was a quintessentially Sherwin post that both relished the absurdity of the world, while diligently explaining it:

Die Another Eh: What Does It Mean Now That James Bond Is In The Public Domain In Canada?

Elliot also wrote about wayward applications of intellectual property laws. His first post here was about a winner of the EFF’s stupid patent of the month “award,” which was bestowed upon Ford for having patented a windshield. He then later wrote about another stupid patent with Daniel Nazer, this time “celebrating” Elsevier’s patent on peer review.

He also wrote about copyright getting out of hand, including in this post about how current copyright policy creates dangers to research.

Of course, IP isn’t the only thing to worry about in tech policy; there’s also the chilling efforts to increase liability for platforms. He wrote about the problems with these proposals too, counseling Congress not to force platforms to censor their users, and warning about the inevitable harms of SESTA/FOSTA in several other posts:

These battles obviously continue, and somehow we’ll have to fight them without two of our closest and smartest allies. But while Sherwin and Elliot may not be here anymore, their insights will live on.

Posted on Techdirt - 1 December 2021 @ 10:53am

Senator Tillis To President Biden: How Dare You Nominate To The FCC Someone Prepared To Protect The Public

Senator Tillis penned a letter to President Biden this week that is breathtaking in its obtuseness. In it, he demanded that the President withdraw the nomination of Gigi Sohn to the FCC for having championed the longstanding ability of the public to receive over-the-air signals on public airwaves. Or, in other words, for having done exactly what we should want an FCC commissioner, tasked with the stewardship of the nation’s spectrum, to do.

In his outrage at how fit for purpose her career has been for this role, Tillis betrays how badly his own office has abandoned the same public interest she has long protected. In particular, by overstating the upshot of a single court’s never-reviewed decision, and making other unfounded, scurrilous accusations against her, Tillis falsely suggests it was she who has somehow done wrong in supporting Locast. And by taking the side of the plaintiffs he gladly turns a blind eye to the actual wrong that has been committed against the public by the broadcasters who, in suing Locast, have succeeded in robbing the public of the benefit of its own broadcast spectrum.

It’s a serious deprivation that Senator Tillis seems all too eager to condone, because what he conveniently ignores is that spectrum licenses aren’t supposed to be gifts to licensees for them to monopolize for their own self-interest. Rather, the quid-pro-quo behind the licensing of this public resource is to make sure that, by letting broadcasters use the spectrum for their programming, the public will then get the benefit of that programming. If there’s no benefit to be had, then there’s no point in the public ever licensing the spectrum to broadcasters in the first place.

Yet that’s where we are, with much of the public now cut off from their own public airwaves and the programming they are supposed to be able to receive. Because for the many people who live in areas with poor reception, or who don’t have rabbit ears (when’s the last time you saw a tv sold with a set?), or who can’t afford (or are not interested in affording) the hefty monthly charge needed for a cable subscription in order to get access to the over-the-air stations they should otherwise be able to watch, it was only with the antenna-renting services like Locast that they could finally enjoy the programming to which they are entitled. But now, thanks to certain broadcasters misusing copyright law and their privileged position as incumbent public spectrum licensees to shut these services down, they can’t.

If these broadcasters are no longer interested in providing over-the-air programming to the public, that’s a choice they can make. In finding it so offensive that services like Locast would help their over-the-air programming actually reach public audiences it would appear that’s a decision they have indeed made. But then they should have to relinquish the spectrum so that it can be reallocated to someone who does want to make use of the spectrum license to provide over-the-air programming to the public. In any case they should NOT be able to cut the public off from ALL broadcast programming just because they don’t want to reach the public that way anymore themselves. Yet that’s what they have done, because with no more Locast, and no more Aereo, it’s not just their programming that the public has lost access to but the programming of every other broadcaster, including those who depend on over-the-air reception for their stations to survive, since now the public has no way of receiving their channels either.

It’s a deplorable state of affairs out of step with the spirit, if not also letter, of public spectrum licensing, as well as the constitutional purpose of copyright law to promote the progress of knowledge and culture, which has now been physically obstructed by the loss of these antenna-renting services. And it’s about time we had someone in Washington ready, willing, and able to stand up for the public and do something about it. It shouldn’t just be Gigi Sohn of course – Congress itself needs to be a better steward of the public interest in situations like these where it has been so conspicuously subordinated – but she’s a great start.

Posted on Techdirt - 17 November 2021 @ 10:50am

Wherein The Copia Institute Tells The Eleventh Circuit That Florida's SB 7072 Law Violates Our Rights

We’ve talked a lot about the Florida law SB 7072 that attempts to regulate social media platforms. In broad strokes, it tries to constrain how at least certain Internet platforms moderate their platforms by imposing specific requirements on them about how they must or may not do so. That law is now being challenged in court. The district court enjoined it, and Florida has now appealed to the Eleventh Circuit to have the injunction overturned. This week the Copia Institute joined others in filing amicus briefs in support of maintaining the injunction.

As we told the told the court, the Copia Institute wears two hats: One hat we wear is as commentators on the issues raised by the intersection of technology and civil liberties, which laws like Florida’s impact. Meanwhile, the other hat is the one we wear by sitting at this crossroads ourselves, particularly with respect to free speech.

To operate Techdirt, the Copia Institute needs robust First Amendment protection, and also Section 230 protection, to both convey our own expression and to engage with our readers, including in our comments section. Unfortunately the Florida law impermissibly targets both sets of rights. And this constitutional and statutory incursion affects every Internet platform, and all the user speech they facilitate, including us and ours, even if we don’t all fall directly into its crosshairs.

The Florida law’s enforcement crosshairs are especially arbitrary, ostensibly targeting companies with very high revenue, or very large audiences, unless, of course, they happen to also own a theme park… But one thing we told the court is that the specific details don’t really bear on the law’s overall constitutional and statutory defects. Part of the reason is because if Florida could pick these arbitrary criteria, which might not apply to certain platforms, another state could pass a law with different criteria that would reach more, and then these platforms would still be left having to cope with a fundamentally impermissible law.

Also, it’s not clear that even small entities like ours might not be able to attract the larger audiences the Florida law describes since that’s at the very heart of what we try to do as an enterprise: have reach and influence. The point of the First Amendment is to make it possible for outlets like ours to connect with readers – only thanks to laws like this, we could end up punished with onerous regulation we couldn’t possibly comply with should we succeed. And that sort of punitive deterrence to expression is not something the First Amendment, or even Section 230, permit.

But even if Techdirt could remain safe from the reach of a law like this, it would still hurt us if it hurt other platforms, because we need the help of other platforms to help our message get out too. Indeed, the whole point of the Florida law is ostensibly to help people use these other platforms to get their messages out. Only the upshot is that the law does the exact opposite by salting the regulatory earth so that no platform can safely exist to help users do that.

Posted on Techdirt - 8 November 2021 @ 01:33pm

Congress Tries To Ram The Ill-informed INFORM Bill Into The Must-pass NDAA

Congress is at it again, trying to legislate without bothering to understand the problems they are ostensibly trying to fix. This time it’s with the INFORM Consumers Act, S.B. 936, which, instead of debating further, some of its sponsors are trying to ram through as an amendment to the must-pass NDAA. Which itself is a clue that there’s something wrong with this bill, because if the only way to become law is to avoid further scrutiny, then that’s exactly when such scrutiny is needed.

At least this time the proposed bill doesn’t take direct aim at Section 230 or antitrust, and unlike some other bills this one is at least trying to target something resembling an actual policy problem. But as is so often the case with these “let’s make Internet platforms responsible for everything wrong with the world” bills, it still doesn’t actually fix the problem it’s trying to solve.

The problem that this bill is supposedly tackling is that sometimes the products people buy online can be defective or dangerous, but then sometimes consumers can have difficulty finding the seller responsible to try to hold liable for any resulting harm. The apparent goal of the INFORM Consumers Act is to make such sellers more findable and thus more accountable, but (a) it won’t really, and (b) it will create all sorts of other problems that ultimately will hurt consumers (and others) instead.

The bill is flawed both in its concept and its execution. At its core, the essential failing is that instead of directly targeting the wayward vendors concerning Congress, the bill instead aims to conscript online marketplaces into formally policing online sellers, which is itself of dubious effectiveness as a regulatory strategy, let alone of dubious doctrinal consistency regarding how tort law works or of dubious constitutionality regarding how state action works. In particular, the bill wants to obligate all online marketplaces, of every size and stripe (see the definition at Section (2)(e)(4)), to collect seller information (Section (2)(a)(1)), verify it (Section (2)(a)(2)), display it (Section (2)(b)(1)), and then terminate any seller’s account if they are out of compliance (see Section (2)(b)(4)). To the drafters these requirements may seem like small asks, but in practice they are far from it, especially as wrapped up in this overall legislative language.

For one thing, even just asking for all this seller information creates all sorts of privacy problems, particularly for sellers who are individual people, who would have to supply all sorts of personal details, including tax IDs (Section (2)(a)(1)(A)(iii)), which may well be their social security numbers. And then the marketplaces would have to somehow safely store this government-demanded honeypot of deliciously sensitive of personal information that other regulation has actively been trying to deter them from collecting at all. (The House version of the bill, H.R. 5502, at least addresses this concern, albeit with a handwavy, “Nerd harder,” sort of demand of the platforms (see Section (1)(a)(4)).)

Next, policing this information is not something that a marketplace would necessarily have either the resources or competency to do, especially not at the scale the law would demand. Being forced to terminate accounts for inadequate compliance also raises due process concerns for both the marketplace and any legitimate seller so affected. And such terminations are not without consequence, including for consumers who will now have to face higher prices, lack of supply for the products they seek as vendors are driven offline entirely, or even more risk as everyone is now forced to turn to offshore marketplaces not subject to laws like these and ultimately even less accountable to American consumers than the online marketplaces bills like this are obviously intending to target.

Meanwhile, even the part of the bill that forces platforms to display seller information creates a problem with compelled speech (Section (2)(b)(1)(A)(ii)). While commercial speech can sometimes be proscribed in certain ways without offending the First Amendment, a law drafted as broadly as this one is unlikely to be able to demonstrate the narrow tailoring required to surmount that constitutional hurdle. Especially when it acknowledges with its own exceptions how unnecessary some of its requirements are. Fortunately, it avoids an additional privacy problem by allowing vendors who only have a personal phone number or residential address to not have that information posted publicly (Section (2)(b)(2)(A)(i) and (iii)). Which is good, because if bills like these were to make it functionally impossible for entrepreneurial Americans to avail themselves of ecommerce, it wouldn’t be good for them, the economy, or consumers who would have liked to buy their products. But, then again, since, by its own terms, the bill acknowledges that there may be more pragmatic ways of addressing vendor accountability, its overly prescriptive approach, which still lumps far too many dissimilar vendors together with identical requirements, is unlikely to pass constitutional muster. And its practical effect will still amount to being a gratuitous burden on vendors and the online marketplaces they depend on to conduct their businesses, needlessly making it more difficult and expensive to do so.

Then, on top of these drafting infirmities, the House version of this bill would also give state attorney generals enforcement powers (Section (1)(d)), which is always a fraught exercise when it comes to Internet commerce, because it allows some states to exert an effective veto power over online platforms that other states might prefer to benefit from. But even the FTC enforcement power the bill proposes raises issues as well (Section (2)(c)(1)). It may be proper for the FTC to go after any vendor who dupes consumers into purchasing from them, including with the illusion of accountability. But as long as consumers are on notice that they may not be able to track down the vendor later, and not deceived into believing otherwise before making their purchase, then they are as empowered to make their purchasing decisions as the FTC has any business requiring. If consumers need more information before making their purchasing decisions, then that is a pressure they can put on the vendors or online marketplaces to deliver. We don’t need a law to force it, especially not one as blunt in its effects as this one.

In fact, everything about this bill is fatally blunt. Although it in theory only applies to “high volume” sellers, the definition of high volume can reach all sorts of casual sellers.

The term “high-volume third party seller” means a participant on an online marketplace’s platform who is a third party seller and who, in any continuous 12-month period during the previous 24 months, has entered into 200 or more discrete sales or transactions of new or unused consumer products resulting in the accumulation of an aggregate total of $5,000 or more in gross revenues. (Section (2)(e)(3)*

Also, even if some sort of law might be required to address the sales of dangerous or defective goods, there is nothing in this bill to restrict it to the sales of just these sorts of items. The requirements of the INFORM Act could just as easily reach vendors who sell books, CDs, or t-shirts, even if they only sell them periodically.

The term “consumer product” means any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes (including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed). (Section (2)(e)(2) (citing 15 USC Section 2301(1)))

Given the expressive nature of these products, the mandatory identification requirements of a seller is something that directly offends the First Amendment’s right of anonymous speech. But even less dramatically, it’s still a bill that is utterly pointless, yet no less cumbersome, for vendors who sell all sorts of non-dangerous goods.

Or for any possible platform that might enable any sort of sales. While the drafters of this bill might have had certain online marketplaces and certain products in mind when they drafted it, neither its specific details, nor its general regulatory approach of burdening platforms with all responsibility for making sure bad things never happen through the Internet, are nearly so limited.

And that itself is a bad thing.

* The House version of the bill limits disclosure requirements to “any high-volume third party seller with an aggregate total of $20,000 or more in annual gross revenues on such online marketplace,” but since the statutory definition is still the lower amount, this alternate term ends up adding in more confusion, rather than relief.

Posted on Techdirt - 28 October 2021 @ 10:44am

Why Falsely Claiming It's Illegal To Shout Fire In A Crowded Theater Distorts Any Conversation About Online Speech

It keeps coming up, the all-too-common, and all-too-erroneous, trope that “you can’t shout fire in a crowded theater.” And it shouldn’t, because, as a statement of law, it is completely wrong. It’s wrong like saying it’s legal to rob a bank. Or, perhaps more aptly, it’s wrong like saying it’s illegal to wear white after Labor Day. Of course such a thing is not illegal. It’s a completely made-up rule and not in any way a reflection of what the law on expression actually is, or ever was. And it’s not without consequence that so many people nevertheless mistakenly believe it to be the law, and in so thinking use this misapprehension as a basis to ignore, or even undermine, the otherwise robust protection for speech the First Amendment is supposed to afford.

This post therefore intends to do two things: explain in greater detail why it is an incorrect statement of law, and also how incorrectly citing it as the law inherently poisons any discussion about regulating online speech by giving the idea of such regulation the appearance of more merit than the Constitution would actually permit. Because if it were true that no one could speak this way, then a lot of the proposed regulation for online speech would tend to make more sense and also raise many fewer constitutional issues, because if it were in fact constitutional to put these sorts of limits on speech, then why not have some of these other proposed limits too.

But the “fire in a crowded theater” trope is an unsound foundation upon which to base any attempt to regulate online speech because it most certainly is NOT constitutional to put these sorts of limits on speech, and for good reason. To understand why, it may help to understand where the idea came from to end up in the public vernacular in the first place.

Its origins date back to a little over a century ago when the Supreme Court was wrestling with several cases involving defendants having said things against government policy. In particular, President Wilson wanted the United States to enter what eventually became known as World War I, and he wanted to institute the draft in order to have the military necessary to do it. He got his way and these decisions have become part of our history, but at the time they were incredibly contentious policies, and people spoke out against them. The government found this pushback extremely inconvenient for generating the public support it needed. So it sought to silence the loudest voices speaking against it by prosecuting them for their messages.

In the case of Schenck v. U.S., the defendants had been distributing flyers encouraging young men to resist being drafted. Yes, maybe sometimes you could say such things, the Court decided in upholding their convictions, but sometimes circumstances were such that such expression was no longer permissible. And the standard the Court used for deciding whether it was permissible or not was whether the speech presented a “clear and present danger.”

But this was a decision that has since been repudiated by the Court. Even Justice Oliver Wendell Holmes, who himself had written the decision, soon came to believe that the standard he articulated in Schenck for what speech could be punished reached too much speech, and he said as much in his dissent in the subsequent Abrams v. U.S. case, which was another one where the defendants were being prosecuted for ostensibly interfering with the government’s wartime policy.

Over time the rest of the Court joined him in the view that the First Amendment protected far more speech than its earlier decisions had allowed. Today the standard for what speech can be proscribed is the much narrower one articulated in Brandenburg v. Ohio, which said that speech can only be prosecuted if it is intended to incite “imminent lawless action” (read: a riot). It didn’t mean provocative speech that might inflame feelings (even the speech of a KKK member was protected) but something far more precipitous. It is still left room for some speech to be unprotected, but this more restrained standard is much less likely to prohibit too much speech, as the standard from the Schenck decision had.

In the wake of this later jurisprudence limiting what speech can be punished we can today more easily see, in hindsight, how the Schenck decision let the government suppress way too much speech, which is why the courts have moved away from it. For instance, war, and even the draft, remain controversial issues, but we now expect to be able to speak against them. Moving away from Schenck has made it easier to intuitively understand that the public has the right, and must have the right, to speak against the powerful, including the government. Even if well-intentioned in its actions the government may nonetheless be wrong to do what it wants to do, and what if those intentions are not noble? The greater the impact of the action the government wants to take, the greater the need to be able to speak against it – and often the greater the government impulse to shut that speech down.

But what’s key for this discussion here is that, despite the obvious error of the Schenck decision, people are still quoting a part of it as if it were still good law, as if it were EVER good law, and as if the part they are quoting did not itself perpetuate the same fundamental mistake of Schenck and put too much speech beyond the reach of First Amendment protection – which creates its own danger.

Because it was in the Schenck decision where Justice Holmes included the casual mention about not being able to shout fire in a crowded theater. It was a line that itself was only dicta – in other words, it was never actually a statement of law but rather a separate musing used to illustrate the point of law the decision was trying to articulate. It wasn’t what the case was about, or a statement that was in any other way given the robust consideration it should have been due if it were to truly serve as a legal benchmark. After all, what if the theater was actually on fire? Would saying so be illegal? Ironically, the people getting the law wrong by citing this line also tend to cite it incorrectly, because what is often omitted from the trope is that Holmes suggested the problem would only arise by “falsely” shouting fire. But even if this criteria were to be part of the rule, might not such a rule deter people from shouting alarm even if the theater was actually burning? Justice Holmes slipped that single line in the decision as a truth, but it was one he had only just suddenly conjured out of whole cloth. Nowhere did he address the implications of such a rule, or what it would mean when history mistook it as one.

Because it is not the rule. It never was the rule. And it never, ever should be cited today as being the rule. From almost the moment it was judicially uttered it was already out of step with our understanding of what the First Amendment protects, and it has only gotten more and more detached as our understanding of the First Amendment’s protection and purpose have gotten more precise. Modern jurisprudence has made clear that it is in only the rarest exception where freedom of speech can be impinged. It is therefore legally wrong to suggest otherwise, and even more legally ignorant to use this line to do it.

Perhaps more importantly, though, even if it were the rule, it shouldn’t be. Even back in the day of firetrap theaters stuffed with flammable celluloid it was of dubious value as a rule proscribing speech because sometimes speech really needs to be said, and thus it is important – maybe even of critical importance – that such speech not be chilled. The same is no less true today. Indeed, the more contentious public discourse is, and the higher the stakes, the more important it is that everyone be free, and FEEL free, to express themselves. We can’t have people too scared to speak against misuses of power because they might run afoul of someone deciding that certain ideas should not be said. Yet it’s that fear of recrimination that often is what silences people more than any specific sanction. And it’s that fear that deprives the public of any benefit of whatever they had to say.

Which is why our understanding of the First Amendment’s protection has come to be far more broad and permissive than such a rule about crowded theaters would ever allow, because it is the only read of the Constitution that gives the First Amendment its true protective utility. When we speak of the law regarding free speech we speak of a law that understands it’s better to have too much speech, including some that is valueless, than to risk losing the speech that has value. And it’s a rule that applies just as much to speech online as off, as the Supreme Court also announced in Reno v. ACLU. All of our discussions about online speech should therefore start there, with that principle, and not around single throwaway lines from long discredited opinions that try to pretend that speech is ever so easily unprotected.

Posted on Techdirt - 12 October 2021 @ 10:55am

Why Section 230 'Reform' Effectively Means Section 230 Repeal

Some lawmakers are candid about their desire to repeal Section 230 entirely. Others, however, express more of an interest to try to split this baby, and “reform” it in some way to somehow magically fix all the problems with the Internet, without doing away with the whole thing and therefore the whole Internet as well. This post explores several of the types of ways they propose to change the statute, ostensibly without outright repealing it.

And several of the reasons why each proposed change might as well be an outright repeal, given each one’s practical effect.

But before getting into the specifics about why each type of change is bad, it is important to recognize the big reason why just about every proposal to change Section 230, even just a little bit, undermines it to the point of uselessness: because if you have to litigate whether Section 230 applies to you, you might as well not have it on the books in the first place. Which is why there’s really no such thing as a small change, because if your change in any way puts that protection in doubt, it has the same debilitating effect on online platform services as an actual repeal would have.

This was a key point we keep coming back to, including in suggesting that Section 230 operates more as a rule of civil procedure than any sort of affirmative subsidy (as it is often mistakenly accused of being). Section 230 does not do much that the First Amendment would not itself do to protect platforms. But the crippling expense of having to assert one’s First Amendment rights in court, and potentially at an unimaginable scale given all the user-generated content Internet platforms facilitate, means that this First Amendment protection is functionally illusory if there’s not a mechanism to get platforms out of litigation early and cheaply. It is the job of Section 230 to make sure they can, and that they won’t have to worry about being bled dry in legal costs having to defend themselves even where, legally, they have a defense.

Without Section 230 their only choice would be to not engage in the activity that Section 230 explicitly encourages: intermediating third party content, and moderating it. If they don’t moderate it then their services may become a cesspool, but if the choice they face is either to moderate, or to potentially be bankrupted in litigation (or even, as in the case of FOSTA, potentially prosecuted), then they won’t. And as for intermediating content, if they can get into legal trouble for allowing the wrong content, then they will either host less user-generated content, or not be in the business of hosting any user content at all. Because if they don’t make these choices, they set themselves up to be crushed by litigation.

Which is why it is not even the issue of ultimate liability that makes lawsuits such an existential threat to an Internet platform. It’s just as bad if the lawsuit that crushes them is over whether they were entitled to the statutory liability protection needed to avoid the lawsuit entirely. And we know lawsuits can have that annihilating effect when platforms are forced to litigate these questions. One conspicuous example is Veoh Networks, a video-hosting service who today should still be a competitor to YouTube. But it isn’t a competitor because it is no longer a going concern. It was obliterated by the costs of defending its entitlement to assert the more conditional DMCA safe harbor defense, even though it won! The Ninth Circuit found the platform should have been protected. But by then it was too late; the company had been run out of business, and YouTube lost a competitor that, today, the marketplace still misses.

It would therefore be foolhardy and antithetical to lawmakers’ professed interest in having a diverse ecosystem of Internet services were they to do anything to make Section 230 similarly conditional, thereby risking even further market consolidation than we already have. But that’s the terrible future that all these proposals tempt.

More specifically, here’s why each type of proposal is so infirm:

Liability carve-outs. One way lawmakers propose to change Section 230 is to deny its protection to specific forms of liability that may arise in user content. A variety of these liability carve-outs have been proposed, and all require further scrutiny. For instance, one popular carve-out with lawmakers is trying to make Section 230 useless against claims of liability for posts that allegedly violate anti-discrimination laws. But while on first glace such a carve-out may seem innocuous, we know that it’s not. And one way it’s not is because people eager to discriminate themselves have shown themselves keen to try to force platforms to help them do it, including by claiming that anti-discrimination laws serve to protect their own efforts to discriminate. So far they have largely been unable to conscript platforms into enabling their hate, but if Section 230 no longer protects platforms from these forms of liability, then racists will finally be able to succeed by exploiting that gap.

These carve-outs also run the risk of making it harder for people who have been discriminated against from finding a place to speak out about it, since it will force platforms to be less willing to offer space to speech that they might find themselves forced to defend, because even if the speech were defensible just having to answer for it can be ruinous for the platform. We know that they will feel forced to turn away all sorts of worthy and lawful speech if that’s what they need to do to protect themselves, because we’ve seen this dynamic play out as a result of the few carve-outs Section 230 has had from the start. For example, if the thing wrong with the user expression was that it implicated an intellectual property right, then Section 230 didn’t protect the platform from liability in their users’ content. Now, it turns out that platforms have some liability protection via the DMCA, but this protection is weaker and more conditional than Section 230, which is why we see all the swiss cheese online with videos and other content so often removed ? even in cases when they were not actually infringing ? because taking it down is the only way platforms can avoid trouble and not run the risk of going the way of Veoh Networks themselves.

Such an outcome is not good for encouraging free expression online, which was a main driver behind passing Section 230 originally, and it isn’t even good for the people these carve outs were ostensibly intended to help, which we saw with FOSTA, which was an additional liability carve-out more recently added. With FOSTA, instead of protecting people from sexual exploitation, it led to platforms taking away their platform access, which drove them into the streets, where they got hurt or killed. And, of course, it also led to other perfectly lawful content disappearing from the Internet, like online dating and massage therapy ads, since FOSTA had made it impossibly risky for the platforms to continue to facilitate it.

It’s already a big problem that there are even just these liability carve-outs. If Section 230 were to be changed in any way, it should be changed to remove them. But in any case, we certainly shouldn’t be making any more if Section 230 is still to maintain any utility in protecting the platforms we need to facilitate online user expression.

Transactional speech carve-outs. As described above, one way lawmakers are proposing to change Section 230 is to carve out certain types of liability that might attach to user-generated content. Another way is to try to carve out certain types of user expression itself. And one specific type of user expression in lawmakers’ crosshairs (and also some courts’) is transactional speech.

The problem with this invented exception to Section 230 is that transactional speech is still speech. “I have a home to rent” is speech, regardless of whether it appears on a specialized platform that only hosts such offers, or more general purpose platforms like Craigslist or even Twitter where such posts are just some of the kinds of user expression enabled.

Lawmakers seem to be getting befuddled by the fact that some of the more specialized platforms may earn their money through a share of any consummated transaction their user expression might lead to, as if this form of monetization were somehow meaningfully distinct from any other monetization model, or otherwise somehow waived their First Amendment right to do what basically amounts to moderating speech to the point where it is the only type of user content they allow. And it is this apparent befuddlement that has led to attempts by lawmakers to tie Section 230 protection to certain monetization models and go so far as to eliminate it for certain ones.

Even these proposals were carefully drafted such proposals they would only end up chilling e-commerce by forcing platforms to use less-viable monetization models. But what’s worse is that the current proposals are not being carefully drafted, and so we end up seeing bills end up threatening the Section 230 protection of any platform with any sort of profit model. Which, naturally, they all need to have in some way. After all, even non-profit platforms need some sort of income stream to keep the lights on, but proposals like these threaten to make it all but impossible to have the money needed for any platform to operate.

Mandatory transparency report demands. As we’ve discussed before, it’s good for platforms to try to be candid about their moderation decisions and especially about what pressures forced them to make these decisions, like subpoenas and takedown demands, because it helps highlight when these instruments are being abused. Such reports are therefore a good thing to encourage.

But encouragement is one thing; requiring them is another, but that’s what certain proposals try to do in conditioning Section 230 protection to the publication of these reports. And they are all a problem. Making transparency reports mandatory is an unconstitutional form of compelled speech. Platforms have the First Amendment right to be arbitrary in their moderation practices. We may prefer them to make more reasoned and principled decisions, but it is their right not to. But they can’t enjoy that right if they are forced to explain every decision they’ve made. Even if they wanted to, it may be impossible, because content moderation is happening at scale, which inherently means it will never be perfect, and it also may be ill-advised to be fully transparent because it teaches bad actors how to game their systems.

Obviously a platform could still refuse to produce the reports as these bills would prescribe. But if that decision risks the statutory protection the platform depends on to survive, then it is not really much of a decision. It finds itself compelled to speak in the way that the government requires, which is not constitutional. And it also would end up impinging on that freedom to moderate, which both the First Amendment and Section 230 itself protect.

Mandatory moderation demands. But it isn’t just transparency in moderation decisions that lawmakers want. Some legislators are running straight into the heart of the First Amendment and demanding that they get to dictate how platforms get to do any of their moderation by conditioning Section 230 protection to the platforms making these decisions the way the government insists.

These proposals tend to come in two political flavors. While they are generally utterly irreconcilable ? it would be impossible for any platform to simultaneously satisfy both of them at the same time ? they each boil down to the same unconstitutional demand.

Some of these proposals reflect legislative outrage at platforms for some of the moderation decisions they’ve made. Usually they condemn platforms for having removed certain speech or even banned certain speakers, regardless of how poor their behavior or how harmful the things those speakers said. This condemnation leads lawmakers who favor these speakers and their speech to want to take away the platforms’ right to make these sorts of moderation decisions by, again, conditioning Section 230 on their continuing to leave these speakers and speech up on these systems. The goal with these proposals is to set up the situation where it is impossible for platforms to continue to exercise their First Amendment discretion in moderation and possibly take them down, lest they lose the protection they depend on to exist. Which is not only unconstitutional compulsion, but also itself ultimately voids the part of Section 230 that expressly protects that discretion, since it’s discretion that platforms can no longer exercise.

On the flip side, instead of conditioning Section 230 on not removing speakers or speech, other lawmakers would like to condition Section 230 on requiring platforms to kick off certain speakers and speech (and sometimes even the same ones that the other proposals are trying to keep up). Which is just as bad as the other set of proposals, for all the same reasons. Platforms have the constitutional right to make these moderation choices however they choose, and the government does not have the right, per the First Amendment, to force them to make them in any particular way. But if their critical Section 230 protection can be taken away if they don’t moderate however the sitting political power demands at the moment, then that right has been impinged and Section 230 rendered a nullity.

Algorithmic display carve-outs. Algorithmic display has become a target for many lawmakers eager to take a run at Section 230. But as with every other proposed reform, changing Section 230 so that it no longer applies to platforms using algorithmic display would end up obliterating the statute for just about everyone. And it’s not quite clear that lawmakers proposing these sorts of changes quite realize this inevitable impact.

And part of the problem seems to be that they don’t really understand what an algorithm is, or how commonly they are used. They seem to regard it as something nefarious, but there’s nothing about an algorithm that inherently is. The reality is that nearly every platform uses software in some way to handle the display of user-provided content, and algorithms are just the programming logic coded into the software giving it the instructions for how to display that content. Moreover, these instructions can even be as simple as telling the software to display the content chronologically, alphabetically, or some other relevant way the platform has decided to render content, which the First Amendment protects. After all, a bookstore can decide to shelve books however it wants, including in whatever order or with whatever prominence it wants. What these algorithms do is implement these sorts of shelving decisions, just as applied to the online content a platform displays.

If algorithms were to end up banned by making the Section 230 protection platforms need to host user-generated content contingent on not using them, it would make it impossible for platforms to actually render any of that content. They either couldn’t do it technically, if they were to abide by this rule withholding their Section 230 protection, or legally if that protection were to be withheld because they used this display. Such a rule would also represent a fairly significant change to Section 230 itself by gutting the protection for moderation decisions, since those decisions are often implemented by an algorithm. In any case, conditioning Section 230 on not using algorithms is not a small change but one that would radically upend the statutory protection and all the online services it enables.

Terms of Service carve-outs. One idea (which is, oddly, backed by Facebook, even though it needs Section 230 to remain robust in order to defeat litigation like this) is that Section 230 protection should be contingent on platforms upholding their terms of service. As with these other proposals, this one is also a bad idea.

First of all, it negates the utility of Section 230 protection by making its applicability the subject of litigation. In other words, instead of being protected from litigation, platforms will now have to litigate whether they are protected from litigation, which means they aren’t really protected at all.

It also fails to understand what terms of service are for. Platforms have them in order to limit their liability exposure. There’s no way that they are going to write them in a way that has the effect of increasing their liability exposure.

The way they are generally written now is to put potentially wayward users on notice that if they don’t act consistently with these terms of service, the service may be denied them. They aren’t written to be affirmative promises to do anything because they can’t be affirmative promises ? content moderation at scale is impossible to do perfectly, so it would be foolish for platforms to obligate themselves to do the impossible. But that’s what changing Section 230 in this way would do, create this obligation if platforms are to retain their needed protection.

This pipe dream that some seem to have, that if only platforms did more moderation in accordance with their terms of service as currently written, everything would be perfect and wonderful is hopelessly na?ve. After all, nothing about how the Internet works is nearly that simple. Nevertheless, it is fine to want platforms to do as much as they can to meet the aspirational goals they’ve articulated in their terms of service. But changing Section 230 in this way won’t lead them to. Instead it will make it legally unsafe for platforms to even articulate any such aspirations and thus less likely to meet any of them. Which means that regulators won’t get more of what they seek with this sort of proposal, but less.

Pre-emption elimination. One of the key clauses that makes Section 230 useful is its pre-emption provision. This is the provision that tells states that they cannot rejigger their own state laws in ways that would interfere with the operation of Section 230. The reason it is so important is because it gives the platforms the certainty they need to be able to benefit from the statute’s protection. For it to be useful they need to know that it applies to them and that states have no ability to mess with it.

Unfortunately we are already seeing increasing problems with state and local jurisdictions attempting to ignore this pre-emption provision, and courts even sometimes letting them. But on top of that there are proposals in Congress to deliberately undermine it. In fact, with FOSTA, it already has been undermined, with individual state governments now able to impose liability directly on platforms for their user activity, no matter how arbitrarily.

We see with the moderation bills an illustration of what is wrong with states getting to mess with Section 230 and make its protection suddenly conditional ? and therefore effectively useless. Given our current political polarity, the problem should be obvious: how is any platform going to reconcile the moderation demands of a Red State with the moderation demands of a Blue State? What is an inherently interstate Internet platform to do? Whose rules should they follow? What happens to them if they don’t?

Congress put in the pre-emption provision because it knew that platforms could not possibly comply with all the myriad rules and regulations that every state, county, city, town, and locality might develop to impose liability on platforms. So it told them all to butt out. It’s a mistake to now gut that provision if Section 230 is going to still have any value in making it safe for platforms to continue to do their job enabling the Internet.

Posted on Techdirt - 8 October 2021 @ 10:44am

Locast Shuts Down, As Yet Again A Bad Interpretation Of Copyright Law Makes The World Worse

A few weeks ago I woke up one day to find the Lake Tahoe region on fire and the New York region underwater. Meanwhile the Supreme Court had just upended decades if not centuries of Constitutional law. But I could learn about none of it from watching local news because Locast had shut down overnight following a dreadful decision by a district court a few days before.

Locast was a service similar to the now-extinct Aereo, although with a few critical legal distinctions necessary for it to avoid Aereo’s litigation-obliterated fate. But the gist was the same: it was another rent-an-antenna service that “captures over-the-air (‘OTA’) broadcast signals and retransmits them over the internet, enabling viewers to stream live television on their preferred internet-connected viewing device” [p. 1-2 of the ruling]. And, like Aereo, it is yet another useful innovation now on the scrapheap of human history.

Absolutely nothing about this situation makes any sense. First, and least importantly, I’m not sure that Locast shutting down wasn’t an overreaction to a decision so precariously balanced on such illusory support. Then again, no one wants to be staring down the barrel of potentially ruinous copyright lawsuit under the best of circumstances, but especially not when the judge has arbitrarily torn up all your high cards. Getting out of the game at least helps limit what the damage will be if the tide doesn’t eventually turn.

More saliently, it makes absolutely no sense that the plaintiffs, who were mostly some of the largest television networks, would even bring this lawsuit. Services like Locast are doing them a favor by helping ensure that their channels actually get watched. As I’ve pointed out before, the only reason I ever watch their affiliates is thanks to Locast. Like many others, I don’t have my own cable subscription, nor my own antenna. So I need a service like Locast to essentially rent me one so that I can watch the over-the-air programming on the public airwaves I’d otherwise be entitled to see. Suing Locast for having rented me that antenna basically says that they don’t actually want viewers. And that declaration should come as a shock to their advertisers, because the bottom line is that without services like Locast I?m not watching their ads.

It also makes no sense for copyright law to want to discourage services like these. Not only are these public airwaves that people should be able to receive using whatever tools they choose, but cutting people off from this programming doesn’t advance any of the ideals that copyright law exists to advance. Or, more practically, it deprives people of shared mass media sources and drives everyone instead towards more balkanized media we must find for ourselves online. With lawmakers increasingly concerned about people having to fend for themselves in building their media diets, it seems weird for law to effectively force them to. Especially after decades of policymaking deliberately designed to make sure that broadcast television could be a source of common culture, it would be a fairly radical shift for policy to suddenly obstruct that goal.

As it turns out, though, Congress has not wanted to completely abandon bringing broadcast television to the public. Not even through copyright law, where there’s actually a provision, at 17 U.S.C. Section 111(a)(5) (“Certain Secondary Transmissions Exempted”), that recognizes rebroadcasting services as something worth having and articulates the dimensions that such a service would have to meet to not run afoul of the rest of the copyright statute. The salient language:

The secondary transmission of a performance or display of a work embodied in a primary transmission is not an infringement of copyright if […] the secondary transmission is not made by a cable system but is made by a governmental body, or other nonprofit organization, without any purpose of direct or indirect commercial advantage, and without charge to the recipients of the secondary transmission other than assessments necessary to defray the actual and reasonable costs of maintaining and operating the secondary transmission service.

The Locast service, as provided by its non-profit parent Sports Fans Coalition NY, threaded that regulatory needle. Unfortunately, however, the district court disagreed. But the problem wasn’t just that the court disagreed, but that it disagreed by reading into the statute language that wasn’t there, and also that wouldn’t make any sense to actually be in there for the provision to have any practical utility.

The crux of the decision hinged on how Locast made the money needed to support itself. The service was underwritten in two ways. One way ? worth noting for the potential implications of the decision causing Locast to shut down but that was not particularly critical to the holding on its own ? is from some other service providers.

SFCNY also generates income through donations from MVPDs, such as AT&T, Promotion and Advancement of Local Opportunities (“PALO”) and Liberty Cable vision of Puerto Rico LLC. Some MVPDS integrate the Locast application in their own smart – TV platforms , and in the event of a channel blackout (which may result from a breakdown in retransmission consent negotiations between an MVPD and broadcast owner), those MVPDS can direct their customers to the Locast app so that there is no disruption in their live TV service. [p. 3]

The other was from user donations, and this source of income is what the court took issue with, even though the statute allowed it. Of course, the way the decision reads, the court seemed to be looking for reasons to find Locast outside of the statutory exemption. For example, it took issue with the fact that users could use the service without paying. It didn’t like the fact that the service was ostensibly hobbled by periodic interruptions of ads requesting that users pay instead.

To avoid that interruption in service, users can pay $5 a month for “preferred” (i.e., uninterrupted) access to the service, or can request that the service stop displaying the donation requests based on their financial circumstances. Users who choose to pay receive the uninterrupted service for time correlating to the amount of the payment. For example, if the user pays the minimum $5 amount, she receives uninterrupted service for the entire month. […] The obvious economic fact is that these “donations” are really a scale of fees for uninterrupted service, and it works. At present, Locast is almost fully funded by payments from users. [p. 3]

But as I’ve noted elsewhere, that concern doesn’t make any sense. The statute doesn’t obligate a rebroadcasting service to provide its service for free, and it certainly doesn’t create any condition for how the service might be offered for free should the service choose to provide such an option. Unfortunately, however, the court seemed to infer there was one, and, moreover, that collecting any money in exchange for the better version of the service somehow amounted to a disallowed commercialized perk it was selling.

The payments defendants elicit from users are charges assessed on users to avoid constant service interruptions, regardless of whether defendants euphemistically call them publicly “recommended donations”. Locast users pay the minimum $5 monthly fee in exchange for month- long, uninterrupted service . It is not merely a recurring gift to a charitable cause. It is of no consequence that a number of users employ the service without paying. SFCNY still solicits, and receives, substantial amounts in charges from recipients for its uninterrupted service. [p. 5-6]

On the contrary, the statute expressly says that the service can charge. Yet somehow the court construed the statutory language to prevent the service from actually asking for the money. In the wake of this decision, and before Locast opted to just shut down, the service first considered just not asking for the donations anymore, at least not as persuasively as it had been with the programming interruptions. But it may have opted for a more drastic response because it’s questionable whether making this specific adjustment would have actually made the court happy, since the court seemed to have been going out of its way to find the service outside the statute in any way it could.

Including by finding that apparently Locast had made too much money:

In 2020, Locast’s total costs (including depreciation) were $2.436 million. According to defendants , those costs “represent what it costs to operate the Locast service in 2020, when the Locast service began operating in 16 markets and gradually expanded to 25 markets.” Locast’s total revenue in 2020 was $4.519 million, comprised of $4.372 million from users and $147,161 from other sources. On those undisputed facts, in 2020 Locast made far more money from user charges than was necessary to defray its costs of maintaining and operating its service. [p. 6]

But the upshot of the court’s reasoning is that service providers could never charge users enough to “defray the costs” of the service unless they used some sort of dynamic pricing, where the service adjusted its monthly charges on the fly to match its current budgetary requirements as divided across the current number of paying users it had in order to make sure it never accidentally collected too much money. The statute, of course, says no such thing. It says service providers can charge users. It is solely the court that has read in these extra requirements, and in a way that effectively nullifies the language Congress included by depriving the “it’s ok to charge” language of any meaningful effect. In which case the only way such a service could potentially exist is with a single wealthy benefactor willing and able to underwrite the entire cost indefinitely. And if that were to be the case it would make the existence of such services so unlikely as to be illusory, rather than real things that copyright law enabled.

The court also didn’t like what Locast did with its money, having dared to reinvest it in expanding its services to other regions.

Defendants aver that contributions from users are essential to the expansion of the Locast service. They argue that disallowing use of the assessments for that purpose would prevent expansion , which they say was not intended by Congress when granting the exemptions. But under the statute, income made from charges to recipients can only be used to defray the actual and reasonable costs of maintaining and operating the service, not of expanding it into new markets. The argument that Section lll(a)(5) should not “prevent” a natural process of expansion misconceives the statutory structure. Retransmissions (i.e., secondary performances of copyrighted matter) are already penalized (“prevented”) by the Copyright Law in its main section. See 17 U.S.C. ? 501 (“Anyone who violates any of the exclusive rights of the copyright owner . . is an infringer of the copyright or right of the author, as the case may be.”). Nothing in Section 111 specifies that an expansion of the number of infringing transmissions is exempt from that law, and it is not for a court to infer that Congress really meant to allow them. It would have been simple for Congress to add one word to paragraph (5) to make it read “. . costs of maintaining, expanding, and operating the secondary transmission service.” But expansion is nowhere mentioned, and it is therefore excluded from the short, tightly-crafted grant of exemptions.” [p. 6]

It takes an incredibly limited read of the statute to interpret it this way, with this manufactured focus on “markets.” The court seemed to assume that the service was simply born one day with infrastructure that would remain at that exact size forever and ever, regardless of whether it ever made sense to make further capital improvements. But the statute itself is not so prescriptive. It doesn’t say that antennas can’t be added, nor does it articulate any limitation as to where they can be added, because the rebroadcasting the service is still doing its allowed rebroadcasting regardless of whether its antennas are spaced two inches, two feet, or two thousand miles apart. In holding geographic expansion against the service to find it outside the statute, the court invented a requirement out of whole cloth, in conflict with the rebroadcasting Congress obviously intended to enable in codifying this provision in the first place.

All in all, it is a depressingly bad decision all around. Locast lost, but so did everyone else. Including channels that might have actually liked to have been rebroadcast, which have now lost the viewers who depended on Locast. And including channels that themselves depend on public support to exist, which are now dark to that very public that they need to support them, and whom they are supposed to serve. The plaintiffs have ruined it for everyone, and it prompts the question: if they are so offended by the idea of people being able to tune into their broadcasting, then why don’t they give the spectrum back to the public so it that it can be allocated to someone who does want to make sure the public can benefit from broadcasting over its own airwaves? Because with this lawsuit these plaintiffs have ensured that no one can make use of this resource in a way that the public can reliably benefit from. And, sadly, with the court’s blessing.

It’s hard to say what will happen. There were some rumblings that Locast will appeal, but it might not have to. It finds itself in a terrible litigation position and could quite reasonably try to abandon the fight if it can extract an expedient settlement. That would leave this terrible decision on the books, chilling any other service that might like to avail itself of the rebroadcasting provision of the statute. And what could fix the situation then? Often, when courts get decisions wrong, Congress can go back and write a statute to implement the better policy. But here Congress already wrote that statute, and it just didn’t matter.

Posted on Techdirt - 29 September 2021 @ 03:18am

The Rule Of Fences, And Why Congress Needs To Temper Its Appetite To Undermine Internet Service Provider Liability Protection

As Congress takes up yet another ill-considered bill to deliberately create more risk of liability for Internet services, it is worth remembering something President Kennedy once said:

“Don?t ever take a fence down until you know the reason why it was put up.”

He was paraphrasing G.K. Chesterton:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, ?I don?t see the use of this; let us clear it away.? To which the more intelligent type of reformer will do well to answer: ?If you don?t see the use of it, I certainly won?t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.

Imagine a real fence to understand why. You may come across one and not be able to tell why it’s there. But just because you can’t easily see its purpose does not mean it doesn’t have one. And if you tear it down, you risk unleashing everything that, unbeknownst to you, the fence was keeping at bay.

It is therefore irresponsible to go around tearing down fences without understanding the job they were doing. And it reflects an arrogant conceit to presume that the answer was nothing, without properly inquiring why they were built in the first place, and what depends on them remaining.


The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, or that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.

In speaking about fences Kennedy and Chesterton were of course speaking about law, because the basic principle is the same. Just as we may not see the stalking lion hiding in the weeds, who now has a clear path to attack once the fence separating him has been removed, we can’t always readily see what our existing legal constructs are protecting us from. But just because their utility may not be obvious does not mean they have none. Or that we don’t tear them down at our peril. The rule of fences teaches lawmakers that care is needed to assess what might depend on the thing they are hoping to do away with before they do, so that they can anticipate what will happen if they do. After all, we may not be able to see the lion, but if we figure out why the fence was there, we’ll be able to infer the lion’s presence and take care not to inadvertently release it.

The rule applies no less to Internet law. But every time Congress tries to weaken Section 230, or otherwise ratchet up liability for the service providers enabling the Internet, it’s the legal equivalent of tearing down fences, and just as wantonly as Kennedy and Chesterton cautioned against. Liability protection for platforms serves an important purpose to make the good things the Internet delivers possible by holding back pressures that would make such delivery impossible. But when Congress proposes to break down this protection, without understanding the consequences it invites by doing so, it opens the door to all the harm this protection had previously contained.

Naturally, not every fence is necessarily still useful. Nor are we so beholden to our legal ancestors that we are obligated to maintain their institutions even when changes are called for. So if, on examining a fully-developed record, Congress can truly say that the liability protection at issue is no longer fulfilling a worthwhile purpose, then the policy can of course be changed.

But without adequate inquiry into what the existing law and policy are doing, presumptively ripping it up is just reckless. And, despite all the fanfare surrounding these bills, Congress is not actually making that inquiry. It simply encounters various legal constraints, presumes they are but pointless obstructions, and sets about dismantling them, without ever bothering to ensure that doing so won’t jeopardize anything Congress would want to preserve. Perhaps it mistakenly thinks its proposed changes are merely minor. But a fence post removed here, maybe another foundation removed there, and it really may not take much at all before everything we needed has collapsed.

Posted on Techdirt - 22 September 2021 @ 10:57am

The Night The United States Supreme Court Cancelled Law

Last week’s news about Justice Barrett fretting about the Supreme Court being seen as partisan calls to mind the old joke about a defendant on trial for murdering his parents and begging the court for mercy because he’s an orphan. If you’ve created the mess you find yourself in, you have no one to blame but yourself.

Nevertheless, there is credence to her protest (which other justices have since echoed) that the way the Court has acted recently is not actually “partisan.” After all, Republican-appointed Justice Roberts has been frequently joining the Democrat-appointed justices of late, which we wouldn’t expect if political loyalties were all that were at the root of all Supreme Court actions. As Justice Barrett herself suggests, to understand what the Court has been doing of late, we need to look deeper:

?To say the court?s reasoning is flawed is different from saying the court is acting in a partisan manner,? said Barrett[.] ?I think we need to evaluate what the court is doing on its own terms.?

So let’s do what she suggests and evaluate the Court’s actions on its own terms. Because what we’ll find is even worse than partisanship.

Justice Barrett argues that what the public is seeing is merely a difference in “judicial philosophies,” as if the prevalent splits among justices are but two sides of the same coin. But what we are seeing from this Court is hardly a case of the justices simply calling balls and strikes differently according to their respective vantagepoints. Instead we are seeing the majority deploy a “judicial philosophy” willing if not eager to erode the previously stalwart foundations upon which American law has historically depended. It is a philosophy of little more than legal nihilism. And it represents a profound change in the nature of the Court of enormous if not cataclysmic consequence.

Trouble has been brewing for some time now, with the majority’s increasing use of its “shadow docket” to wield a heavy hand on legal questions without any meaningful opportunity for briefing or substantive argument by anyone affected. Instead of carefully weighing the pros and cons of the particular issue raised by the case before them in an open and transparent way, as the Court traditionally has on matters of such significance, they are instead making ad hoc and inconsistent procedural decisions behind the scenes, despite the fact that these sorts of decisions are having huge practical effect and impacting people’s rights just as much they would in any case brought before them for their full and reasoned review.

This problematic practice culminated a few weeks ago with its rushed, unsigned, barely two-page, late-night order in Whole Women’s Health v. Jackson, when the majority declined to exercise its procedural powers to stop Texas’s SB8, a facially unconstitutional law that offended the Constitution in almost every way a law possibly could, from coming into force. As a result, rather than upholding the Constitution, or protecting the public from a wayward state actor, or even acting consistently with its own principles of jurisprudence, that slim majority, with only a few, ill-supported sentences, casually abdicated the Court’s role as a protector of liberty and ruled instead as arbitrary, unaccountable autocrats.

There are at least two key reasons why the majority’s behavior here is so deserving of such excoriation. The first relates to the specious way the majority misapplied procedural rules as convenient cover for producing substantively consequential outcomes, apparently deliberately, although even if it had been unintentionally it would still be a problem. Procedural rules exist to help ensure that justice can be meted out timely and fairly. While it’s true that in this case the Supreme Court found itself in the position of having to clean up the mess caused by the Fifth Circuit’s own procedural hijinks ? which had abruptly, and dubiously, snatched the Texas statute away from the district court’s established review process and thus made it practically impossible for it to act before the law was supposed to go into effect ? the Supreme Court’s astonishing refusal to take corrective action is what made this review ultimately impossible. And it did it by turning those very same procedural rules designed to help administer justice into outright obstacles obstructing it, opting instead to hide behind them with nothing more than a brief prevarication explaining why these rules somehow, and suddenly, had made it, the most powerful court in the land, unusually powerless to prevent a clearly unconstitutional law from going into effect.

In failing to act the Court also unilaterally overruled the long-standing judicial preference in American courts for preserving the status quo when there is a reasonable chance of a law potentially causing an improper injury before the matter has been able to receive appropriate review. And not only did the Court ignore that concern, but it all but invited those injuries to occur. The statute in question had basically walked up to several areas of settled precedent protecting constitutional rights and proverbially punched them all in the nose, openly daring the Supreme Court to come after it. Yet, shockingly, the majority declined to.

This refusal to defend the Court’s own precedents was yet another way the majority’s behavior was aberrant and destructive. Precedent is what gives the law stability, because once the Court has spoken we can all know where we stand. Sure, new cases will come up and be litigated, but the questions then will be about if and how precedent applies to the new situation. Sometimes this inquiry may result in the narrowing or limiting a precedent’s reach, but precedent has historically been outright nullified only on the rarest of occasions and only when there has been a material change in the circumstances upon which the Court’s reasoning had rested, like a new statute, a new Constitutional amendment (rare), or some other fundamental shift in society prompting a second look by the Court.

And even then the Court’s practice has not been to simply ignore or overturn its previous rulings; rather, it would generally issue decisions to explain what holdings were being revisited, and why, so that the new decisions could take on the same weight of recognized authority the previous precedent once had. But that standard went out the window on that Thursday night when it issued the Whole Women’s Health order. With this order it signaled that it is happy to cavalierly trash the Court’s previous rulings, and, worse, with no explanation. While reasonable minds may disagree about the wisdom of a particular Court decision, everyone should be able to read its analysis to understand how the Court arrived at its conclusion. But there is nothing here in this order to legitimize the Court’s sudden and drastic rejection of all the past precedent the statute implicated. Worse, in so rejecting it, it has told the world that we can never know what the law is, because it can change instantly, depending entirely on the majority’s mood of that moment.

Such a reality is untenable. No matter what you think of the Texas statute, even if you believe in or support its policy goals, what the Supreme Court did on this Thursday night should still strike fear in your heart. Because the impact of what it did transcends any particular law or policy. Not only did it undermine its own esteem as an institution, but it made America unsustainable, a hollowed-out Potemkin Village of abandoned constitutional principle, and Americans no better off than the wretched citizens of the ancient feudal empire that inspired the story.

What happened on that Thursday night was the catastrophic undermining of not only the Court’s own legitimacy but the legitimacy of the entire American legal system. It left all our laws and freedoms, and even the very adjudication of these questions, subject only to the capricious whim of the handful of people with enough power to unilaterally decree, with no argument, consideration, or any need to justify themselves, how we must live our lives. We might as well replace their black robes with crimson ermine and sit them on thrones, so at least we can all see and acknowledge the sheer unchecked power they now rule us with.

This is not how our constitutional order has worked. It is not how our constitutional order can work. Yes, courts have always had lots of power. And the Supreme Court in particular has always had an enormous amount of power to shape our legal world. But there were always apparent rules tempering this power. Which meant that such things as reason, persuasion, equitable procedure, predictable precedent, transparency, and notions of fair play could function as guiding pillars within which advocacy took place so that, win or lose, we all could believe in the justice of the result. But not anymore. With this order all those basic tenets have now been bulldozed. Even any sort of reasonable standard for injunctive relief is out the window. As Justice Kagan noted in her dissent, the Court’s unconstrained behavior has become increasingly “unreasoned, inconsistent, and impossible to defend.” In other words: our law has itself become lawless.

Supreme Court justices are of course human beings and therefore fallible, and the Supreme Court itself is a human institution that necessarily has to evolve as the society it serves does as well. But the concern is not that the Supreme Court may be evolving, because evolution is one thing; radically altering the operation of the Court practically overnight is another. And what the majority did can hardly be explained away as mere mistake, as in, “Oops, five justices’ pens slipped and they accidentally repudiated decades if not centuries of past practice and precedent.” But when even the most generous view of what happened is incompetence it severely undermines the esteem of the institution and those who inhabit it.

Nor can we say it’s simply a matter of one bad decision. Bad decisions have happened before, and while it’s never good when they do, as long as the system still works they can eventually be overcome. But what happened here represented a fundamental shift in the way the Court exercises its power, from one of predictable certainty to one of subjective judicial impulse, and there’s no overcoming that change.

How could we? For those of us connected to the legal profession, what power would we still possess as practitioners to influence the cause of justice in this new system? What skills could we still exercise? How could we continue to play our own constitutional role in furthering justice in the courts when everything we were taught in law school about the American legal system has just suddenly been rendered moot?

Yes, life will go on for most tomorrow, and the day after, and the day after that. But for how long can we deceive ourselves that everything remains normal when the new normal is anything but? When the Supreme Court can so dramatically change our understanding of the law and the scope and dimension of our rights with little more than a snap of its fingers, how are we to live in a society predicated on the rule of law and guaranteed rights? How can we even tell ourselves that we are? We’re like the coyote that has run off the cliff, and sooner or later we’re going to notice that there is nothing supporting us anymore. And then where will we be?

Posted on Techdirt - 2 September 2021 @ 12:12pm

A Guy Walks Into A Bra

A recent and surprisingly unpleasant professional encounter found me thinking again about an experience I had in the late 90s during my earlier career as a web developer before I went to law school. I’d gotten involved with a group that put on monthly meetings on topics of interest to the local community of Internet professionals. After the meetings a bunch of us would typically go out for dinner to chat and catch up. I did know some women from the organization, but I think most of the time the friends I went out with afterwards were men. It has never really bothered me to be in situations where I am outnumbered by men, so long as I’m treated with the respect of an equal. And I had no quarrel with my male friends on that front. But that evening drove home a reason why it was not good for women not to be better represented in technology in general.

Out at dinner we began “talking shop” almost immediately, discussing, in those early days of the Web, the importance of e-commerce to businesses and what sort of web presences companies needed to have in order to be able to profit from the Internet. We started listing stories of successes and failures, but the conversation ground to a halt once I offered my example:

“I have a bra I really like, and I’d like to buy another, but I can’t seem to find a web site for the brand that would allow me to order one.”

(Men, I am assuming that you will keep reading the rest of this post, so that I can make my point. But based on my friends’ reaction I wouldn’t be surprised if you’ve already slammed down the lid of your laptop, or tossed aside your phone, and run away. In which case, if that’s your inclination, it’s even more important that you keep reading.)

The example I raised was a perfectly reasonable one. I was sharing an example of a significant e-commerce opportunity being left untapped for no good reason. The essential facts were indisputable: many women wear bras, bras don’t last forever, women would probably like to replace their worn-out bras with ones they know they like, and women will pay money to a bra manufacturer to get the bra they want. Therefore, any bra manufacturer not using the Internet to facilitate this purchase was leaving money on the table.

The same would be true for plenty of other goods as well, and I’m sure if I’d swapped the word “women” for “men” and instead listed a product specific to the latter my friends would have readily agreed that it needed to be sold online. After all, at least one of them had an MBA, and they were some of the biggest Internet commerce evangelists I knew. But that the product example was something specific to women’s bodies completely shut them down. They practically squirmed out of their seats, desperate for the subject to be changed.

It was an uncomfortable moment for me, too, realizing that an ordinary reality of the female existence could be so unwelcome in a professional conversation. Was it too immodest to discuss undergarments with work colleagues? In an era when Viagra commercials were already running on broadcast television it would hardly seem so. If there was no compunction against discussing the commercialization of such intimate matters for men, why could that same clinical detachment not be afforded to similar topics important to women? After all, this wasn’t second grade; no one was going to catch cooties talking about a specific form of underwear common to many women. The bottom line is that women are people and peers and professionals and deserve not to be regarded with the adolescent squeamishness that all too often keeps us apart from the world.

And as far as our discussion was concerned, the subject of selling bras online was a perfectly salient example to cite, just as any male-specific product would have been. In fact, from the larger perspective of e-commerce, it had to get raised by someone. But it seems to take someone with experience with these ideas to bring them to the fore, which means that without having women involved in the decision making they are going to be forever overlooked by the men in charge, who all too easily can regard such topics as icky and esoteric, or outright ignorable, rather than worthwhile business problems to solve.

In the twenty-odd years since that dinner bra manufacturers did eventually discover the web. Yet two decades later, we are still talking about women in technology ? including the relative lack thereof. And it’s an absence that hasn’t stopped mattering.

I’ve never been one who wanted to believe it might matter. As I said earlier, I’ve never generally been bothered by being one of the few or only women in a situation, because I didn’t think it should matter. To me, true equality means that men and women should essentially be interchangeable, with all of us passing through life based on our merit as people. And I’ve always worried that if we focused too much on gender issues it might overly dwell on our differences, end up being divisive, and thus keep us from ever getting there.

But the reality is that we aren’t there, at least not yet. While there are lots of women in technology, albeit more in some sectors than others, we’re not a point where we exist in numbers on par with our male counterparts. And as with any other demographic where inclusion doesn’t come easily or equivalently, that lack of representation has consequences.

First, as the bra example illustrates, it leaves out of the technology conversation the insights and additions that women can bring. Although in every way that matters women are equal to men, the reality is that there can be some differences in our physical construction and, moreover, in our lived experiences. These differences shape our perspectives, awareness of issues others might overlook, and perhaps also our acuities. As a result, as with all people from the diverse fabric of humanity, they give us something extra to contribute that is valuable, and that should be valued.

But also, sometimes it is our absence itself that is what makes our lives different, and not in a good way. Because when women are not at the table it teaches everyone that women do not belong at the table. Which makes it really hard to then come along as a woman and try to sit at the table and be treated as the equal that we are.

About a year before the dinner described above I had a different job developing websites at a start-up. It was not a great job for a number of reasons, including that my boss didn’t actually know how to make websites. So he tended to give me instructions that were, at best, infeasible. One day I explained that we couldn’t do what he asked because we had to use the web-safe color palette or else the page would not render well. Back then, limitations in computer monitor technology meant that web sites were effectively limited to 216 colors in order to render predictably, and I was correct to point out the need to adhere to this common web design practice. But I was a woman dropping this knowledge on a man. He didn’t believe it until he looked across at my male colleague who confirmed it.

It was such a stark wake-up call that it didn’t necessarily matter how good I was at my job. For some men I would never be good enough simply because I wasn’t one of them. And it is among those sorts of attitudes that I am supposed to somehow carve out my career.

On the other hand, ever watch re-runs from earlier decades? In many important ways things are significantly better for women than they used to be. Including that there are plenty of men who welcome us as full equals at the table. But that doesn’t mean that things are totally fine ? in fact, far from it. Many challenges remain, and one of those challenges is implicit (and sometimes explicit) sex bias, which, even if it only comes up in a minority of situations, still ends up being an issue in quite a few situations. And part of why we need to contend with it is because it can be subtle. While it should hopefully be clear to everyone by now that no one should ever have to deal with the sort of verbal and physical harassment that prompted the #metoo movement, too many men seem to think that simply not outright abusing their female colleagues somehow absolves them of being sexist. But that’s hardly the benchmark.

Instead, as that recent unpleasant experience reminded me, there are other questions that need to be asked. Such as: are women as welcome to contribute to the best of our capacity as our male counterparts are? Or is our presence just merely tolerated because at this point it might have to be? When we speak, are we heard like our male colleagues are heard? Or are we tuned out like my friends did to me when I shared a perspective they didn’t want to hear or, worse, like my former boss did when I tried to speak with authority and expertise?

Obviously no woman is going to be right on everything, just as no man would be. We’re not even going to always agree among ourselves. But if we’re not generally regarded as having equivalent ethos as an equally-positioned man, and therefore denied the opportunities to be in an equal position, then that’s a problem. It’s a problem for women, it’s even a problem for men, and it’s a problem for any industry that drives our contributions away.

More posts from Cathy Gellis >>