Mark Warner is a terrorist

[Go deface and purge CityxGuide.com, Backpage.com, and 1backpage.com. Because they waste of electricity]

Now It's The Democrats Turn To Destroy The Open Internet: Mark Warner's 230
Reform Bill Is A Dumpster Fire Of Cluelessness
Legal Issues

from the what-the-fuck-is-this-I-don't-even... dept
Fri, Feb 5th 2021 10:55am — Mike Masnick
For the past few months we've been seeing a ton of
terrible/ridiculous/awful/unconstitutional bills coming from mostly
Republicans to try to wipe out or undermine Section 230. Most of those were
focused on trying to force websites to do less content moderation. Now that
the Democrats are back in power, it appears we're going to be getting the
opposite. Senator Mark Warner has introduced his new Section 230 reform
bill, called the SAFE TECH Act ("Safeguarding Against Fraud, Exploitation,
Threats, Extremism, and Consumer Harms Act" co-sponsored by Senators Mazie
Hirono and Amy Klobuchar), and it is one of the worst Section 230 bills I've
seen. It is difficult to explain just how bad this bill is concisely,
because it has so many bad ideas crammed into one single bill. It's as if
none of these three Senators or their staff spoke to anyone who actually
understands how the internet works, or how content moderation/trust and
safety works. It's stunning in the ignorance it displays.

About the only good thing I'll say about it, is that (unlike most bills) at
least Warner released a redline version to show how it would actually
(massively) change Section 230. He also put out an incredibly disingenuous
FAQ that flat out lies about... nearly everything. We'll go through that in
a bit.

Basically, this bill takes nearly every single idea that people who want
there to be less speech online have had, and dumped it all into one bill.
There's a lot in there, and nearly all of it is bad. Last week I wrote about
a draft bill in the House that suggested carving out civil rights law from
Section 230. In my analysis of that bill, I noted that it appeared to come
from a well meaning place, but was simply misguided. This bill, which also
includes a carveout for civil rights law, does not come from a well meaning
place. The drafters of the bill are either malicious or ignorant. It's not a
good look for Senators Warner, Hirono, and Klobuchar.

A key thing to recognize is that it's obvious that the drafters of this bill
believe the myth that 230 protects "big" tech companies. The bill is written
as if it is only talking about Facebook, YouTube, and Twitter. Warner
handwaves away the idea that the bill would destroy smaller companies in his
announcement by ridiculously (and against all evidence to the contrary)
saying that startups are too small to sue, so it would only be used against
larger companies.

The most devious and nefarious part of this is that the bill effectively
wipes out Section 230 protections for the entire internet while pretending
it's just a minor change. This bill is about as close to a full repeal of
Section 230 as you can get realistically. In the press release about the
bill, Warner claims that it's just a tweak to 230 because "these changes to
Section 230 do not guarantee that platforms will be held liable in all, or
even most, cases," but that would also be true with repeal. Because most
things that people want to blame on internet websites are not actually
violations of the law. And, assuming a form of distributor liability is what
the courts decide on, that would mean websites wouldn't be liable for most
things on their site anyway -- but would result in long and costly legal
battles before they could prove that.

And this bill guarantees the same exact thing. The biggest, most
consequential change, is that it takes the famous "26 words," which are
Section (c)(1) of the current law, removes the protections entirely if money
exchanges hands, and then changes it from an immunity to merely "an
affirmative defense." That may not seem like much, but it basically wipes
out all of the actual benefits of 230.

Saying that you don't get (c)(1) if money exchanges hands, basically wipes
out Section 230 for many, many services. All web hosting would no longer be
protected by Section 230. If, as many people have been demanding, social
media offers up paid options (say, to remove ads), doing so would remove
their 230 protections. Incredibly, this bill is coming from the same people
who have been saying that Facebook and Twitter should offer a "paid version"
without ads or tracking -- but, under this bill, if they do that, they'd
lose 230! Incredibly, under this bill, the two cases that inspired Section
230 -- the CompuServe case and the Prodigy case -- would not be eligible for
230 protections, because both were paid services!

The switch from (c)(1) being an immunity to being "an affirmative defense"
in which the website "has a burden of proving by a preponderance of the
evidence" basically erases the key procedural benefits of Section 230 --
which is that it gets cases tossed right up front. This gets somewhat deep
in the weeds of civil procedure, but having (c)(1) as an immunity allows
companies to file a relatively straightforward motion to dismiss upfront,
without having to do a lot of expensive legal work, and argue that, because
of 230, there is no legitimate claim in the complaint, even if everything in
that complaint is accurate. This is the key benefit of 230 in protecting
websites.

But by making it an affirmative defense, which the website has to prove by a
preponderance of evidence, you've just made everything a lot more expensive
and it will take a lot longer to deal with. Not only are you going to have
to pay a lot of expensive lawyers a lot more money to make a preponderance
of the evidence claim, many courts find that such determinations are issues
of fact, not law, meaning that they need to go to a jury. If a case goes to
trial and has a jury, you're talking about it costing at least a million
dollars for any company, and probably a lot more.

This wipes out the entire benefit of Section 230 by itself. Most companies,
of course, will then try to avoid just having to face this by quickly taking
down anything even remotely questionable or anything that people complain
about. And they'll still get sued. This bill would absolutely destroy most
of the open web.

The second massive change, is that it would exclude Section 230 entirely
from "injunctive relief" claims for failing to remove "harmful" content. In
other words, this would allow a bevy of lawsuits from people who just want
something taken offline (and aren't asking for monetary damages), that they
will claim creates "harm" to them, and the websites can no longer respond
with 230. While supporters of this bill might argue that filing such a
lawsuit alone would be expensive, so this wouldn't be abused, that ignores
how frequently we've seen especially the rich and powerful try to use any
legal means possible to remove content they dislike from the internet. This
clause is like a free shot for the rich and powerful to silence criticism.
It's like a pro-SLAPP clause!

The bill then adds a bunch of other carveouts from 230: civil rights law,
antitrust, harassment, stalking, human rights law and wrongful death. As we
already discussed, while it may sound good to say this can't be used to
block civil rights cases, in actual practice a bunch of recent "civil
rights" cases have involved white supremacists, out-and-out misogynists, and
other terrible people claiming that their civil rights were violated by
being kicked off of platforms. Enabling such lawsuits seems incredibly short
sighted.

This bill is dangerous.

And what's truly obnoxious about it is that in the FAQ about it, Mark Warner
pretends otherwise.

Q: Won’t removing Section 230 immunity bring back the perverse incentive
structure Section 230 was meant to address and actually lead to less content
moderation?

A: No. Section 230 effectively cut off the development of case law for the
past 25 years based on the flawed reasoning of a single state court judge.
By peeling back Section 230 immunity for particularly serious harms—such as
civil rights violations, stalking, and harassment—internet platforms will be
incentivized to ramp up their address problems in these areas, problems that
have otherwise been allowed to fester and grow without exposure to potential
liability. These reforms do not render ICS providers liable for all – or
even most – third-party content, including where they engage in moderation
activity. Nor do these reforms alter the already-steep hill plaintiffs must
already climb. Rather, these reforms allow victims an opportunity to seek
redress where they can potentially show that a platform has directly
contributed to their injury.

This is magic wand thinking. Oh, if we just make websites potentially liable
for what people do on them, won't the websites magically fix these societal
level problems? No, that's not what happens. Instead, smaller websites
decide it's not worth the hassle at all and stop accepting 3rd party
content, and larger companies just get more aggressive in policing all sorts
of protected speech. Would a "#MeToo" situation ever be allowed to happen if
this law was in place? No fucking way. Harvey Weinstein and all sorts of
powerful rich men would sue the shit out of Facebook and Twitter to stop
that.

The final sentence above is the most pernicious of all. Section 230 already
does not apply if the platform contributed to the injury. It already doesn't
apply if the platform helped to create the injurious content. What this bill
does is not allow for that which is already allowed. It completely wipes
most 230 protections off the map.

Q: Will making internet platforms liable for third-party content lead
internet platforms to overreach in their content moderation efforts thereby
chilling speech from the very groups you’re looking to protect?

A: No. The SAFE TECH Act was developed in partnership with, and has the
strong support of, a wide array of civil rights groups. We need to recognize
that threats, harassment, and targeted intimidation silence the voices of
far too many racial minorities, women, and other marginalized groups by
driving them from social media and other online platforms. Under the status
quo, platforms have been able to ignore these harms – even where their
continued inaction, and even their product design, contributes to these
injustices. As these online harms spread to the real world—in places like
Charlottesville, Kenosha, and at the U.S. Capitol—their negative impact has
only become more unmistakable. The SAFE TECH Act simply allows victims an
opportunity to hold platforms accountable when their deliberate inaction or
product design decisions produce real-world harm, making the online world a
more open and welcoming environment for all to participate.

What?!? Note that they don't say that the bill was developed with actual
content moderation experts. To say that this wouldn't be used to stifle and
chill speech from vulnerable groups and people is ludicrous. Of course it
will. Everything about the bill is designed in a way that opens it up to
abuse by the rich, powerful and privileged. Everything about the bill allows
them to file costly lawsuits (or threaten to do so) and pressure websites to
pull down all sorts of criticism.

That Warner and his co-sponsors deny this suggests that they have absolutely
no understanding about how any of this works.

Q: Will exposing small tech companies and startups to liability and
increased litigation costs drive them out of business and simply entrench
the dominant player (e.g., Google, Facebook)?

A: This concern is gravely exaggerated. As an initial matter, smaller
players do not have the reach of the Googles and Facebooks of the world and,
as a result, are less likely to cause significant harm. Moreover, potential
plaintiffs are unlikely to bring an action against a small tech company or
startups out of fear being able to collect sufficient damages to make the
effort and cost of litigation worthwhile. Indeed, in many cases plaintiffs’
attorneys would not even take these cases given the low likelihood of
meaningful damages. In addition, a string of judicial decisions on standing
requirements over the last 10 years, along with a range of tort reforms
enacted by state legislatures (including anti-SLAPP laws to penalize
frivolous or bad faith lawsuits), have significantly altered the legal
landscape since Section 230 was enacted in 1996.

More importantly, things like protecting civil rights and preventing
harassment should be built into internet platforms by design. Today’s online
giants claim that their massive scale makes it too difficult to effectively
moderate content – a social cost borne by users and vulnerable communities.
Had these companies been exposed to potential liability from their
inception, in many cases they would have designed their platforms

This is... again... completely disconnected from reality. There are so many
stories of smaller platforms being sued for 3rd party speech. Hell, I was
sued for third party speech and protected by 230. Under this bill, that case
would have been a lot more expensive and almost certainly would have
bankrupted us. Many of these lawsuits are not about "collecting sufficient
damages" but about forcing the small tech company or startup to have to
waste all their money on the lawsuit. How disconnected from reality are
these Senators?

And, sure, it might not be as bad if there were strong anti-SLAPP laws in
every state and a strong federal anti-SLAPP law, but we don't have that. In
fact, many courts won't even apply state anti-SLAPP laws in federal court.
At best, I'd say maybe 20% of cases that should be protected by anti-SLAPP
laws have access to them. So to say "oh, no big deal, anti-SLAPP will cover
it" is again nonsense.

That final paragraph is also completely disconnected from reality. This
country has spent decades trying to solve for systemic racism and civil
rights violations, and we're still failing. The government has failed in so
many ways on this, and now Warner's saying "oh, tech companies can magically
solve this if only they could be sued." This is fantasy land thinking.

Q: What is the scope of the carve-out for paid content? Does it cover
anything beyond paid advertisements?

A: The SAFE TECH Act makes clear that Section 230 immunity does not apply to
any paid content. This would include advertisements as well as things like
marketplace listings.

Uh, no. From the language of the bill itself, it says:

"... except to the extent the provider or user has accepted payment to make
the speech available..."

That certainly looks like it applies to all paid content. And, even worse,
to things like web hosting. Or if Facebook or Twitter ever offered accounts
where you pay to remove ads. Or, hell, to us on Techdirt, where some of our
community have paid to support us, and we provide them extra features. Based
on this, if any of our financial supporters (a key source of revenue for us)
says anything that we get sued over, we can no longer claim 230 protections
against it. That's ludicrous. Not only would we have to shut down our
comments, we'd likely be unable to let people support us directly any more
(meaning we'd likely shut down entirely).

Q: Will the SAFE TECH Act break the internet?

A: No! The internet was a far different place when Section 230 was passed.
The scope, influence, and impact of modern internet platforms were
unimaginable in 1996. Like all regulation, Section 230 must be updated to
address the current state of affairs – including the unintended consequences
of the law. The SAFE TECH Act brings Section 230 into the modern age by
addressing those areas in which the law has been abused by platforms—such as
civil rights, stalking, and harassment—in a targeted way. It is also
important to remember, that even with the changes proposed in the SAFE TECH
Act, Section 230 does not impose liability on anyone. There must still be a
violation of some law and plaintiffs must still prove causation, harm, and
damages. And the application of that law to an internet platform still
cannot run afoul of the First Amendment.

To say this after misunderstanding (1) how content moderation works, (2) how
civil liability works, and (3) the nature of vexatious lawsuits works... is
just astounding. This bill would absolutely gut much of the internet.
Smaller websites would likely have to shut down key services (and may have
to shut down entirely). A massive wave of ambulance chasing, SLAPP suits
would come next. Trolls and racists would flip the law on its head to sue
companies. This would be an utter disaster.

And tragically, reporters are falling for Warner's framing. The Washington
Post's article on this claims that the bill "preserves the thrust of Section
230." It absolutely does no such thing. It guts every bit of 230 to its
core.