Re: Josh Hawley Of Missouri, Ted Cruz Of Texas, and Greg Abbott Of Texas are Dirty Commies That Belong Supermax Prison

[Michael Zimmerman]

https://en.wikipedia.org/wiki/Sedition_Caucus

On 12/12/2023 8:10 PM, Michael Zimmerman wrote:
> December 11, 2023
> The Honorable Charles E. Schumer
> Majority Leader
> United States Senate
> 322 Hart Senate Office Building
> Washington, D.C. 20510
> The Honorable Mitch McConnell
> Minority Leader
> United States Senate
> 317 Russell Senate Office Building
> Washington, D.C. 20510
> Re: S. 1993, “No Section 230 Immunity for AI Act”
> Dear Majority Leader Schumer and Minority Leader McConnell:
> We, the undersigned organizations and individuals, write to express
> serious concerns about
> the “No Section 230 Immunity for AI Act” (S. 1993). S. 1993 would
> threaten freedom of
> expression, content moderation, and innovation. Far from targeting any
> clear problem, the
> bill takes a sweeping, overly broad approach, preempting an important
> public policy debate
> without sufficient consideration of the complexities at hand.
> Section 230 makes it possible for online services to host user-generated
> content, by ensuring
> that only users are liable for what they post—not the apps and websites
> that host the speech.
> S. 1993 would undo this critical protection, exposing online services to
> lawsuits for content
> whenever the service offers or uses any AI tool that is technically
> capable of generating any
> kind of new material. The now widespread deployment of AI for content
> composition,
> recommendation, and moderation would effectively render any website or
> app liable for
> virtually all content posted to them.
> S. 1993 would preempt an important and necessary policy debate. As a
> threshold
> matter, even proponents of Section 230 disagree on whether and to what
> extent the law
> immunizes GenAI providers from treatment as the publisher of their
> tools’ outputs. While
> some argue that Section 230’s protections logically extend to the output
> of GenAI tools,1
> others—including Section 230’s authors—take the position that GenAI
> tools create new
> 1 Jess Miers, Yes, Section 230 Should Protect ChatGPT And Other
> Generative AI Tools, TECHDIRT (Mar. 17, 2023,
> 11:59 AM),
> https://www.techdirt.com/2023/03/17/yes-section-230-should-protect-chatgpt-and-others generative-ai-tools/ (“ChatGPT (and similarly situated generative AI products) are functionally akin to
> ‘ordinary search engines’ and predictive technology like autocomplete.”).
> 2
> content that the tools’ purveyors are responsible for “developing,” at
> least “in part.”2 Still
> others would argue that the question of whether Section 230 extends to
> GenAI output
> depends on the context in which it was used. The courts have not yet
> ruled on these
> questions. S.1993 would cut off this critical debate with overbroad
> language that could cause
> more problems than it fixes.
> Carving out state law will lead to censorship. Section 230 was written
> to establish a
> consistent nationwide body of law for liability for content on the
> Internet. S. 1993 would
> effectively undo this benefit by carving out of Section 230 any civil
> claim or criminal charge
> brought under state law for conduct involving “the use or provision” of
> GenAI. This would
> enable politically motivated actors to censor online content they dislike.
> Recent history illustrates the stakes: In March 2023, a bill was
> introduced in the Texas House
> of Representatives to criminalize providing “information on how to
> obtain an abortion inducing drug,” and create civil liability for any
> interactive computer service that “allows
> residents of [Texas] to access information or material that assists or
> facilitates efforts to
> obtain elective abortions or abortion-inducing drugs.”3
> Had this bill been enacted into law, Section 230 would have precluded
> its enforcement. But
> under S. 1993, it would be enforceable if the offending content was
> posted by anyone on any
> service that provides GenAI tools to its users—or even deploys GenAI for
> content
> moderation, as discussed below. S. 1993 would undoubtedly lead a wave of
> similar
> legislation targeting disfavored expression, from LGBTQ content to hate
> speech.4 At best, the
> result would be chaos and endless litigation. At worst, government
> officials will have been
> handed a ready-made tool to successfully fracture and censor the Internet.
> 2 Cristiano Lima, AI chatbots won’t enjoy tech’s legal shield, Section
> 230 authors say, WASH. POST (Mar. 17, 2023,
> 9:03 AM),
> https://www.washingtonpost.com/politics/2023/03/17/ai-chatbots-wont-enjoy-techs-legal shield-section-230-authors-say/. See also Matt Perault, Section 230 Won’t Protect ChatGPT, LAWFARE (Feb. 22,
> 2023, 1:11 PM),
> https://www.lawfaremedia.org/article/section-230-wont-protect-chatgpt. 3
> See Jennifer Pinsof, This Texas Bill Would Systematically Silence Anyone
> Who Dares to Talk About Abortion
> Pills, EFF (Mar. 13, 2023),
> https://www.eff.org/deeplinks/2023/03/texas-bill-would-systematically-silence anyone-who-dares-talk-about-abortion-pills. 4 States are already targeting politically disfavored content. See, e.g., New York can’t target protected online
> speech by calling it ‘hateful conduct’, FIRE (Dec. 1, 2022),
> https://www.thefire.org/news/lawsuit-new-york cant-target-protected-online-speech-calling-it-hateful-conduct (“The law forces internet platforms of all
> stripes to publish a policy explaining how they will respond to online
> expression that could ‘vilify, humiliate,
> or incite violence’ based on a protected class, like religion, gender,
> or race.”). And some states plan to use
> proposed federal laws to shut down LGBTQ speech. See, e.g., Mike
> Masnick, Heritage Foundation Says That Of
> Course GOP Will Use KOSA To Censor LGBTQ Content, TECHDIRT (May 24,
> 2023, 12:26 PM),
> https://www.techdirt.com/2023/05/24/heritage-foundation-says-that-of-course-gop-will-use-kosa-to censor-lgbtq-content/; Jared Eckert & Mary McCloskey, How Big Tech Turns Kids Trans, THE HERITAGE
> FOUNDATION (Sept. 15, 2022),
> https://www.heritage.org/gender/commentary/how-big-tech-turns-kids-trans
> (“[W]e must guard against the harms of sexual and transgender content.”).
> 3
> S. 1993 will benefit vexatious litigants. The bill’s definition of GenAI
> (“an artificial
> intelligence system that is capable of generating novel [content] based
> on prompts or other
> forms of data provided by a person”) is broad enough to encompass tools
> as basic and
> commonplace as predictive text (autocomplete), autocorrect, and
> potentially even search
> autocomplete suggestions or grammar and spellchecking features, as well
> as any other AI generated content.
> A core function of Section 230 is to provide for the early dismissal of
> claims and avoid the
> “death by ten thousand duck-bites” of costly, endless litigation.5 This
> bill provides an easy
> end-run around that function: simply by plausibly alleging that GenAI
> was somehow
> involved with the content at issue, plaintiffs could force services into
> protracted litigation in
> hopes of extracting a settlement for even meritless claims.
> The bill misallocates liability and rewards malicious actors. S. 1993
> would, inexplicably,
> reverse Section 230’s sensible allocation of legal liability to the
> party ultimately responsible
> for the wrongfulness of content. Again, under S. 1993, the provision or
> use of any AI tool
> technically capable of generating some form of content, from predictive
> text to content
> moderation tools, would effectively expose platforms and online services
> to liability for any
> content it hosts or enables the creation of.
> Consider a musician who utilizes a platform offering a GenAI production
> tool to compose a
> song including synthesized vocals with lyrics expressing legally harmful
> lies (libel) about a
> person. Even if the lyrics were provided wholly by the musician, the
> conduct underlying the
> ensuing libel lawsuit would undoubtedly “involve the use or provision”
> of GenAI—exposing
> the tool’s provider to litigation. In fact, the tool’s provider could
> lose immunity even if it did
> not synthesize the vocals, simply because the tool is capable of doing so.6
> Like any tool, GenAI can be misused by malicious actors, and there is no
> sure way to prevent
> such uses—every safeguard is ultimately circumventable. Stripping
> immunity from services
> that offer those tools irrespective of their relation to the content
> does not just ignore this
> reality, it incentivizes it. The ill-intentioned, knowing that the
> typically deep pockets of GenAI
> providers are a more attractive target to the plaintiffs’ bar, will only
> be further encouraged
> to find ways to misuse GenAI.
> Still more perversely, malicious actors may find themselves immunized by
> the same
> protection that S. 1993 strips from GenAI providers. Section 230(c)(1)
> protects both
> providers of interactive computer services and users from being treated
> as the publisher of
> third-party content. But S. 1993 only excludes the former from Section
> 230 protection. If
> Section 230 does indeed protect GenAI output to at least some degree as
> the proponents of
> 5 Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521
> F.3d 1157, 1174 (9th Cir. 2008).
> 6 S. 1993, 118 Cong. (2023),
> https://www.congress.gov/bill/118th-congress/senate-bill/1993/text.
> 4
> this bill fear, the malicious user who manipulates ChatGPT into
> providing a defamatory
> response 7 would be immunized for re-posting that content, while OpenAI
> would face
> liability.
> S. 1993 will make content moderation harder, worse—and more biased.
> AI-powered
> content moderation tools are now ubiquitous; they have the potential to
> increase
> consistency, decrease bias, and provide a measure of relief to
> beleaguered human
> moderators who sift through the worst content imaginable at great cost
> to their well-being.8
> But because most lawsuits regarding content moderation decisions are
> dismissed under
> Section 230(c)(1), this bill threatens the viability of the development
> and use of such tools.
> OpenAI, as just one example, has deployed GPT-4 to assist in revising
> its content policies by
> prompting it with a policy and feeding it sample content, examining the
> labels and reasoning
> assigned by GPT-4 to that content, and then clarifying the policy until
> the AI achieves
> satisfactory results. 9 This process itself may preclude OpenAI from
> invoking Section
> 230(c)(1) in a lawsuit over its content moderation decisions: the
> creation of the policy
> applied to moderated content would appear to be part and parcel of the
> “conduct underlying
> the claim.”
> AI tools are also increasingly used by a variety of platforms and
> services to perform day-to day content moderation functions, which would
> similarly strip moderation decisions of their
> Section 230(c)(1) immunity. An AI-generated content flag, accompanied by
> a generated
> explanation of the relevant policy’s application, is surely a “use” of
> GenAI. But even if the
> moderation tool did not provide a generated explanation (“novel text”),
> it would still lose
> immunity; the GenAI need not actually generate anything—the mere fact
> that it is capable of
> doing so (which GPT-4 plainly is) would bring it under S. 1993’s exclusion.
> 7 See Adam Thierer & Shoshana Weissmann, Without Section 230
> Protections, Generative AI Innovation Will Be
> Decimated, R STREET INSTITUTE (Dec. 6, 2023),
> https://www.rstreet.org/commentary/without-section-230-
> protections-generative-ai-innovation-will-be-decimated/ (“The person
> typing in the request was the one
> intending to create libel, but the AI company would be liable too.”).
> 8 See, e.g., Andrew Arsht & Daniel Etcovitch, The Human Cost of Online
> Content Moderation, JOLT DIGEST (Mar.
> 2, 2018),
> https://jolt.law.harvard.edu/digest/the-human-cost-of-online-content-moderation (“Some
> journalists, scholars, and analysts have noted PTSD-like symptoms and
> other mental health issues arising
> among moderators.”); Jaspreet Singh, OpenAI says AI tools can be
> effective in content moderation, REUTERS
> (Aug. 15, 2023),
> https://www.reuters.com/technology/openai-says-ai-tools-can-be-effective-content moderation-2023-08-15/; Aditya Jain, Impact of Generative AI on Content Moderation, AVASANT (July 2023),
> https://avasant.com/report/impact-of-generative-ai-on-content moderation/#:~:text=AI%20Content%20vs.-
> ,Traditional%20Content,cultural%20references%2C%20and%20subtle%20nuances. 9 See Lilian Weng et al., Using GPT-4 for content moderation, OPENAI (Aug. 15, 2023),
> https://openai.com/blog/using-gpt-4-for-content-moderation. See also
> Kyle Wiggers, OpenAI proposes a new
> way to use GPT-4 for content moderation, TECHCRUNCH (Aug. 15, 2023, 2:15
> PM),
> https://techcrunch.com/2023/08/15/openai-proposes-a-new-way-to-use-gpt-4-for-content-moderation/.
> 5
> This unfortunate result may indeed be the intended one. S. 1993 leaves
> untouched Section
> 230(c)(2)(A), which Section 230 critics argue should be the sole
> protection for content
> moderation decisions. Under Section 230(c)(2)(A), defendants must show
> that they
> “voluntarily” removed objectionable content “in good faith.” This
> standard is highly fact dependent; as such, defendants would no longer
> be able to resolve lawsuits on motion to
> dismiss. This, in turn, would allow plaintiffs to exact heavy discovery
> costs on any platform
> attempting to defend its moderation decisions. Indeed, it is unclear how
> the “good faith” of
> AI could ever be established. What is clear is that the development and
> use of valuable AI based content moderation tools will be
> disincentivized by the high costs imposed by S. 1993.
> S. 1993’s breadth disincentivizes all GenAI tools. As noted above, the
> bill’s definition of
> GenAI (“an artificial intelligence system that is capable of generating
> novel [content] based
> on prompts or other forms of data provided by a person”) would encompass
> commonplace
> tools like predictive text (autocomplete), autocorrect, and potentially
> even grammar and
> spellchecking features.
> This extensive definition is particularly troubling because S. 1993 is
> not limited to instances
> where GenAI contributed to the tortious or illegal nature of content.
> Rather, S. 1993 excludes
> from Section 230(c)(1)’s protection any claim based on conduct that
> “involves the use or
> provision of [GenAI].” Thus, a social media platform could find itself
> facing liability for all its
> users’ posts simply because it provided predictive text or grammar
> suggestions (both forms
> of GenAI) to aid users in expressing their own ideas—or even because it
> utilizes GenAI for
> content recommendation and moderation.
> Moreover, while S. 1993 would only exclude GenAI use or provision “by
> the interactive
> computer service,” in practice, a social media platform has no reliable
> way to discern
> whether a piece of content posted to it was created using one of their
> own GenAI tools; users
> might have saved or copied GenAI output for later use. In this way, too,
> platforms would have
> to choose between not offering any GenAI tools or risking liability for
> every piece of content
> posted on their service. The latter result would effectively be
> tantamount to a full repeal of
> Section 230.
> GenAI has become increasingly important in the creation of online
> content, and it promises
> to make our communications more effective, inexpensive, and accessible.
> Congress should
> not inhibit these exciting advancements by forcing online services to
> choose between
> foregoing use of GenAI technology or exposing themselves to crushing
> liability.
> —
> Generative Artificial Intelligence is a complex issue that deserves
> careful thought and
> nuanced, precise legislation—not a rigid, heavy-handed overreaction that
> threatens to
> 6
> undermine free speech, user safety, and American competitiveness in the
> AI marketplace.
> We urge Congress to consider a more thoughtful approach.
> If you have any questions or would like to discuss the issues in this
> letter further, please
> contact Ari Cohn at ac...@techfreedom.org.
> Sincerely,
> Organizations
> American Civil Liberties Union
> American Library Association
> Americans for Prosperity
> Association of Research Libraries
> Center for Democracy and Technology
> Chamber of Progress
> Competitive Enterprise Institute
> Computer & Communications Industry Association
> Consumer Technology Association
> Copia Institute
> Electronic Frontier Foundation
> Engine
> Foundation for Individual Rights and Expression
> Internet Infrastructure Coalition
> R Street Institute
> Software & Information Industry Association
> Taxpayers Protection Alliance
> TechFreedom
> Individuals
> Joshua Levine, American Action Forum*
> *Affiliation listed for identification purposes only