amy klobuchar – Techdirt (original) (raw)

Once Again, Ron Wyden Had To Stop Bad “Protect The Children” Internet Bills From Moving Forward

from the saving-the-internet dept

Senator Ron Wyden is a one-man defense for preventing horrible bills from moving forward in the Senate. Last month, he stopped Josh Hawley from moving a very problematic STOP CSAM bill from moving forward, and now he’s had to do it again.

A (bipartisan) group of senators traipsed to the Senate floor Wednesday evening. They tried to skip the line and quickly move some bad bills forward by asking for unanimous consent. Unless someone’s there to object, it effectively moves the bill forward, ending committee debate about it. Traditionally, this process is used for moving non-controversial bills, but lately it’s been used to grandstand about stupid bills.

Senator Lindsey Graham announced his intention to pull this kind of stunt on bills that he pretends are about “protecting the children” but which do no such thing in reality. Instead of it being just him, he rounded up a bunch of senators and they all pulled out the usual moral panic lines about two terrible bills: EARN IT and STOP CSAM. Both bills are designed to make it sound like good ideas and about protecting children, but the devil is very much in the detail, as both bills undermine end-to-end encryption while assuming that if you just put liability on websites, they’ll magically make child predators disappear.

And while both bills pretend not to attack encryption — and include some language about how they’re not intended to do so — both of them leave open the possibility that the use of end-to-end encryption will be used as evidence against websites for bad things done on those websites.

But, of course, as is the standard for the group of grandstanding senators, they present these bills as (1) perfect and (2) necessary to “protect the children.” The problem is that the bills are actually (1) ridiculously problematic and (2) will actually help bad people online in making end-to-end encryption a liability.

The bit of political theater kicked off with Graham having Senators Grassley, Cornyn, Durbin, Klobuchar, and Hawley talk on and on about the poor kids online. Notably, none of them really talked about how their bills worked (because that would reveal how the bills don’t really do what they pretend they do). Durbin whined about Section 230, misleadingly and mistakenly blaming it for the fact that bad people exist. Hawley did the thing that he loves doing, in which he does his mock “I’m a big bad Senator taking on those evil tech companies” schtick, while flat out lying about reality.

But Graham closed it out with the most misleading bit of all:

In 2024, here’s the state of play: the largest companies in America — social media outlets that make hundreds of billions of dollars a year — you can’t sue if they do damage to your family by using their product because of Section 230

This is a lie. It’s a flat out lie and Senator Graham and his staffers know this. All Section 230 says is that if there is content on these sites that violate the law, the liability goes after whoever created the content. If the features of the site itself “do damage,” then you can absolutely sue the company. But no one is actually complaining about the features. They’re complaining about content. And the liability on the content has to go to who created it.

The problem here is that Graham and all the other senators want to hold companies liable for the speech of users. And that is a very, very bad idea.

Now these platforms enrich our lives, but they destroy our lives.

These platforms are being used to bully children to death.

They’re being used to take sexual images and voluntarily and voluntarily obtain and sending them to the entire world. And there’s not a damn thing you can do about it. We had a lady come before the committee, a mother saying that her daughter was on a social media site that had an anti-bullying provisions. They complained three times about what was happening to her daughter. She killed herself. They went to court. They got kicked out by section 230.

I don’t know the details of this particular case, but first off, the platforms didn’t bully anyone. Other people did. Put the blame on the people actually causing the harm. Separately, and importantly, you can’t blame someone’s suicide on someone else when no one knows the real reasons. Otherwise, you actually encourage increased suicides, as it gives people an ultimate way to “get back” at someone.

Senator Wyden got up and, as he did last month, made it quite clear that we need to stop child sexual abuse and predators. He talked about his bill, which would actually help on these issues by giving law enforcement the resources it needs to go after the criminals, rather than the idea of the bills being pushed that simply blame social media companies for not magically making bad people disappear.

We’re talking about criminal issues, and Senator Wyden is looking to handle it by empowering law enforcement to deal with the criminals. Senators Graham, Durbin, Grassley, Cornyn, Klobuchar, and Hawley are looking to sue tech companies for not magically stopping criminals. One of those approaches makes sense for dealing with criminal activity. And yet it’s the other one that a bunch of senators have lined up behind.

And, of course, beyond the dangerous approach of EARN IT, it inherently undermines encryption, which makes kids (and everyone) less safe, as Wyden also pointed out.

Now, the specific reason I oppose EARN It is it will weaken the single strongest technology that protects children and families online. Something known as strong encryption.

It’s going to make it easier to punish sites that use encryption to secure private conversations and personal devices. This bill is designed to pressure communications and technology companies to scan users messages.

I, for one, don’t find that a particularly comforting idea.

Now, the sponsors of the bill have argued — and Senator Graham’s right, we’ve been talking about this a while — that their bills don’t harm encryption. And yet the bills allow courts to punish companies that offer strong encryption.

In fact, while it includes some they language about protecting encryption, it explicitly allows encryption to be used as evidence for various forms of liability. Prosecutors are going to be quick to argue that deploying encryption was evidence of a company’s negligence preventing the distribution of CSAM, for example.

The bill is also designed to encourage scanning of content on users phones or computers before information is sent over the Internet which has the same consequences as breaking encryption. That’s why a hundred civil society groups including the American Library Association — people then I think all of us have worked for — Human Rights Campaign, the list goes… Restore the Fourth. All of them oppose this bill because of its impact on essential security.

Weakening encryption is the single biggest gift you can give to these predators and these god-awful people who want to stalk and spy on kids. Sexual predators are gonna have a far easier time stealing photographs of kids, tracking their phones, and spying on their private messages once encryption is breached. It is very ironic that a bill that’s supposed to make kids safer would have the effect of threatening the privacy and security of all law-abiding Americans.

My alternative — and I want to be clear about this because I think Senator Graham has been sincere about saying that this is a horrible problem involving kids. We have a disagreement on the remedy. That’s what is at issue.

And what I want us to do is to focus our energy on giving law enforcement officials the tools they need to find and prosecute these monstrous criminals responsible for exploiting kids and spreading vile abuse materials online.

That can help prevent kids from becoming victims in the first place. So I have introduced to do this: the Invest in Child Safety Act to direct five billion dollars to do three specific things to deal with this very urgent problem.

Graham then gets up to respond and lies through his teeth:

There’s nothing in this bill about encryption. We say that this is not an encryption bill. The bill as written explicitly prohibits courts from treating encryption as an independent basis for liability.

We’re agnostic about that.

That’s not true. As Wyden said, the bill has some hand-wavey language about not treating encryption as an independent basis for liability, but it does explicitly allow for encryption to be one of the factors that can be used to show negligence by a platform, as long as you combine it with other factors.

Section (7)(A) is the hand-wavey bit saying you can’t use encryption as “an independent basis” to determine liability, but (7)(B) effectively wipes that out by saying nothing in that section about encryption “shall be construed to prohibit a court from considering evidence of actions or circumstances described in that subparagraph.” In other words, you just have to add a bit more, and then can say “and also, look, they use encryption!”

And another author of the bill, Senator Blumenthal, has flat out said that EARN IT is deliberately written to target encryption. He falsely claims that companies would “use encryption… as a ‘get out of jail free’ card.” So, Graham is lying when he says encryption isn’t a target of the bill. One of his co-authors on the bill admits otherwise.

Graham went on:

What we’re trying to do is hold these companies accountable by making sure they engage in best business practices. The EARN IT acts simply says for you to have liability protections, you have to prove that you’ve tried to protect children. You have to earn it. You’re just not given to you. You have to have the best business practices in place that voluntary commissions that lay out what would be the best way to harden these sites against sexually exploitation. If you do those things you get liability, it’s just not given to you forever. So this is not about encryption.

As to your idea. I’d love to talk to you about it. Let’s vote on both, but the bottom line here is there’s always a reason not to do anything that holds these people liable. That’s the bottom line. They’ll never agree to any bill that allows you to get them in court ever. If you’re waiting on these companies to give this body permission for the average person to sue you. It ain’t never going to happen.

So… all of that is wrong. First of all, the very original version of the EARN IT Act did have provisions to make company’s “earn” 230 protections by following best practices, but that’s been out of the bill for ages. The current version has no such thing.

The bill does set up a commission to create best practices, but (unlike the earlier versions of the bill) those best practice recommendations have no legal force or requirements. And there’s nothing in the bill that says if you follow them you get 230 protections, and if you don’t, you don’t.

Does Senator Graham even know which version of the bill he’s talking about?

Instead, the bill outright modifies Section 230 (before the Commission even researches best practices) and says that people can sue tech companies for the distribution of CSAM. This includes using the offering of encryption as evidence to support the claims that CSAM distribution was done because of “reckless” behavior by a platform.

Either Senator Graham doesn’t know what bill he’s talking about (even though it’s his own bill) or he doesn’t remember that he changed the bill to do something different than it used to try to do.

It’s ridiculous that Senator Wyden remains the only senator who sees this issue clearly and is willing to stand up and say so. He’s the only one who seems willing to block the bad bills while at the same time offering a bill that actually targets the criminals.

Filed Under: amy klobuchar, chuck grassley, csam, dick durbin, earn it, encryption, invest in child safety, john cornyn, josh hawley, lindsey graham, ron wyden, shield act, stop csam, unanimous consent

Klobuchar’s Link Tax Is Back… And Somehow Even Worse? Helps Trumpist Grifters Get Free Money & No Moderation From Google

from the who-are-you-trying-to-help-here dept

So, we’ve talked quite a bit about the Journalism Competition and Preservation Act (JCPA), Senator Amy Klobuchar’s attempt to do Rupert Murdoch’s bidding and force successful internet companies to send cash to media companies for… linking to them. Yes, not only do the news orgs want the traffic from Google, but they also want to get paid for it. This whole scheme was dreamed up by Rupert Murdoch, who after decades of pretending to be about free markets, started demanding the government force internet companies to subsidize him for his own failures to innovate.

The nature of the JCPA is that it allows news organizations to band together into a cartel to “negotiate” with big internet companies to force them to “pay” for “access” where access really means “linking to us and sending us the traffic we crave, and already use search engine optimization tactics to try to increase.” If the big internet companies don’t agree to pay for this thing that does not require payment (on the internet, linking is and must remain fundamentally free), then the cartel can submit an amount they think they should get paid to an arbitrator. The internet company can submit their own alternative, but the arbitrator has to chose, baseball-style, between one of the two submissions, and can’t pick anything else.

Two weeks ago there was a “markup” in which Klobuchar seemed to think she had a deal to push the bill out of committee and onto the floor (despite no real hearings addressing the many, many issues with the bill). However, Ted Cruz blew up the bill by attaching an amendment about content moderation.

Apparently, Klobuchar and Cruz spent the last two weeks negotiating, and now the bill is back up for markup after they came to an agreement… that appears to give Cruz and Trumpist grifter disinfo peddlers exactly what they want. As pointed out by Adam Kovacevich, the new language in the manager’s amendment says that in the “negotiation” internet companies basically can’t even raise content moderation issues.

The mgrs amendment adds this ⬇️ language in several places, which seems to be Cruz's way of preventing platforms from engaging in content moderation against right-wing news:

In other words, Klobuchar folded on Cruz's anti-content moderation amdmt. 2/ pic.twitter.com/HZ4KGRDREW

— Adam Kovacevich (@adamkovac) September 21, 2022

Again, this gives much more power to Trumpist grifter sites who can band together, demand free cash from Google, and Google is prohibited from saying anything about content moderation issues. It’s… a weird thing for Klobuchar to be on board with, but she’s made it clear in this and other bills that she has no problem helping out Trumpist websites if it means attacking Google and/or the open internet. Seems like strange priorities to me, but what do I know?

Indeed, the Daily Caller, one of many Trumpist grifter sites is already celebrating how the deal “protects conservative media.” When Tucker Carlson’s publication is cheering on a Democrat’s bill for how it will “protect conservative media,” a sensible Democrat might reconsider what they’ve done.

But not Amy Klobuchar! If it’s bad for Google, who cares if it helps out Breitbart and the Daily Caller to spread more nonsense. Great work, Senator.

The co-sponsor of the bill, Senator Kennedy, is now saying out loud that the bill bars content moderation of conservatives:

“We have reached an agreement that clarifies what the bill was designed to do: give local news outlets a real seat at the negotiating table and bar the tech firms from throttling, filtering, suppressing or curating content,” Kennedy’s office told the DCNF. “The only reason I can see for parties to oppose this bill is that they have a problem either with healthy market competition or free speech.”

Kennedy’s final sentence is particularly ridiculous. Free speech includes (outside of the 5th Circuit) editorial discretion. And this bill is a huge attack on editorial discretion in multiple ways. It limits the ability of websites to remove content they find problematic. It forces companies to pay for content that is literally free to link to, it effectively rewrites copyright law. It also does not create “healthy market competition,” when businesses are not even allowed to freely associate or not. There are so, so many reasons to oppose this bill.

As Kovacevich notes, the other big change is that the bill is even more explicit that they are negotiating over “pricing terms” rather than just terms. That’s just doubling down on the fact that this is a tax, even as Klobuchar and fans of this bill (the news industry who will get free money out of it) pretend it’s not a tax.

In my original post about the bill, I had noted that there was no definition of “access” (the bill requires big tech companies to pay for “access”) which made no sense since that was the whole crux of the bill: that you were paying for “access” by linking to sites. In a proposed manager’s amendment that got passed around last week, there was a definition of access included, saying “the term ‘access’ means acquiring, crawling, or indexing content.”

That… would have been really bad, because it’s saying that crawling and indexing might require a fee. That can’t be how anything works.

Oddly, this new manager’s amendment no longer appears to have a definition included for access.

So, again, this bill seems like the worst of all worlds. It forces companies to pay grifters for “access” to sites they might not even want to link to. And, because of the bizarre baseball style arbitration here, we’re fundamentally setting up a system where big companies need to pay to do something that is fundamentally free on the open internet.

This is a horrifically dangerous bill. It takes a sledge hammer to a fundamental principle of the open internet… all to aid Trumpist media grifters. Why is this bill coming from a Democratic Senator?

Filed Under: amy klobuchar, crawling tax, indexing tax, jcpa, journalism, link tax, linking, news, ted cruz

from the ancillary-bad-ideas dept

It should not be this hard to stamp out a bad idea, but here we are, with the JCPA continuing to haunt the country like a zombie that simply refuses to die. The JCPA, for those just tuning in, is a bill designed to create a link tax. Its supporters sometimes blanch at that description, but it is an apt one, rooted in the perversely censorial notion that no one should be able to link to material available on the Internet (or facilitate others linking to material available on the Internet) without paying for the privilege.

There was a glimmer of hope last week that Senator Cruz may have accidentally driven a stake through its heart with his surprise amendment that upended Senator Klobuchar’s cursed legislative apple cart, but her steadfast refusal to acknowledge any legitimate concerns about her bills has led her to keep trying to ram this one down America’s throat.

But, notably, she is doing it without the support of the Copyright Office, which earlier this year considered whether the sort of monopoly power the JCPA creates was the sort of monopoly power copyright law either does, or should, create. Sensibly, it decided that it was not.

As it lays out in the Executive Summary, the Copyright Office noted that US copyright law already granted media outlets substantial protection.

Press publishers have significant protections under U.S. copyright law. They generally own a copyright in the compilation of materials that they publish. In addition, they often own the copyright in individual articles through the work-made-for-hire doctrine and may also own rights in accompanying photographs.

At the same time, copyright law also currently contains limits on the reach of its exclusionary power, sometimes for constitutional reasons and often for the benefit of the public, which a link tax scheme would conflict with, to the inevitable detriment of the public.

Copyright law does, however, permit certain unlicensed uses of news content, by news aggregators or others. Facts and ideas are not protectable by copyright. The merger doctrine allows the use of original expression where there are limited ways of expressing a particular fact or idea, and individual words, titles, and short phrases are generally not protectable. Even where an aggregator reuses protectable expression, the fair use doctrine may apply. As a result, press publishers’ ability to rely on copyright to prevent third-party aggregators from using their content depends on the specific circumstances, including the nature and amount of the content used.

To nevertheless constrain public use of links via the use of this ancillary, or copyright-like, scheme, would require advancing new legal theories that are “untested.” And thus the Copyright Office could not recommend the exercise.

Given all of these variables, the Copyright Office does not recommend adopting new copyright protections for press publishers. Any change to U.S. copyright law that would meaningfully improve press publishers’ ability to block or seek remuneration for news aggregators’ use of their works would necessarily avoid or narrow limitations on copyright that have critical policy and Constitutional dimensions.

It further noted that the record simply didn’t support the extreme regulatory approach of expanding copyright law to create this new monopoly power to forbid links. To the extent that the funding models for journalism stood to be improved, it was not copyright law, or something so much akin to it, that stood to appropriately improve them.

The Office recognizes that adequate funding for journalism may currently be at risk, and that there are implications for the press’s essential role in our system of government. But the challenges for press publishers do not appear to be copyright-specific. It has not been established that any shortcomings in copyright law pose an obstacle to incentivizing journalism or that new copyright-like protections would solve the problems that press publishers face.

Indeed, even the Copyright Office’s report referenced how self-defeating this sort of proposal seemed to be for journalism by making it harder for media outlets to connect with the audiences that are their lifeblood. (See, for instance, footnote 57 of the report.)

As we (and many others) have said many times, both on these pages and in comments for these regulatory studies, link tax proposals like those now pushed by the JCPA are no solution for journalism. Indeed, they will HURT journalism, especially the journalism by smaller media outlets who can no longer count on people being able to freely share links to their material, and thus no longer be able to count on having untaxed connections to audiences.

It is therefore an odd thing for any regulator to want, especially if they are genuinely sincere about making journalism a more economically viable endeavor, and not simply pushing laws like these in an effort to punish those who foster Internet use they simply don’t like.

Filed Under: amy klobuchar, copyright, copyright office, jcpa, journalism, news, ted cruz

Behind Washington’s Antitrust Gambit

from the big-is-bad? dept

Summer is nearly over, but, for many politicians, destructive tech regulations are always in season. Congress is back from recess, and the American Innovation and Choice Online Act (AICOA) is once more under consideration.

Senator Amy Klobuchar’s “antitrust” pet project would crack down on the five biggest tech giants — Amazon, Apple, Facebook, Google, and Microsoft — for business practices alleged to be “anticompetitive.” The bipartisan support that propelled the bill through the Judiciary Committee and into the Senate is easy to explain: The stench of grievance politics is so thick one can practically taste it.

The AICOA, however, is quite bad policy. It is founded on questionable economic theories and obtuse moral assumptions. If passed, it will raise prices for shoppers and erect barriers to entry for up-and-comers in the digital space. It will make the online world more confusing and less safe. It will squash innovation.

The AICOA is also a masterclass in bad governance: The bill is filled with shoddy writing that will delegate vast, arbitrary powers to the administrative state.

First off, the AICOA’s language is incredibly vague. As noted by the American Bar Association, the bill’s drafters eschewed the typical legalese of antitrust — terms whose meanings and limitations have become scrutable through years of use and litigation — for nebulous new phrases such as “materially harm” and “materially restrict or impede.” The legal parameters of this new terminology can be known only to God and the FTC.

Moreover, while a previous draft bans conduct that would cause “harm to the competitive process,” the current bill forbids conduct that would “result in harm to competition.” This semantic slide step suggests that Klobuchar et al. are more interested in picking individual winners and losers than protecting the systemic integrity of online commerce.

To fill in these intentionally cavernous ambiguities, the bill would empower the Federal Trade Commision and the Department of Justice to draft and publish guidelines to clarify which business practices are and are not to be considered anti-competitive. This is clearly too much legislative power delegated to unelected Article II folks. But it gets worse: The published guidelines won’t be binding, and the FTC and DOJ would be given further latitude to designate which eligible platforms would actually be subject to law. There would be no telling what behavior would violate the AICOA and which platforms would be subject to scrutiny in the first place. Given the record of current FTC Chair Lina Khan, however, you’d have to assume the worst. Giving bureaucrats the latitude to capriciously choose who is and isn’t affected by congressional statute and to apply laws on a discretionary basis is arbitrary power in its purest, most noxious form.

So how has this bill found bipartisan support? The answer lies in a pair of half-baked moral propositions.

Senator Klobuchar and many other Democrats have adopted the neo-Brandeisian view of antitrust: that corporate bigness is inherently evil. Barack Obama’s infamous “You didn’t build that” has morphed into “You must have stolen that.” The notion that big tech firms enjoy huge market share primarily because they have innovated and deployed economies of scale that enrich consumers and business users alike is inconceivable to the neo-Brandeisians. They can’t grasp the fact that market consolidation is often due to the quality and convenience of goods and services provided by market incumbents. In the case of the AICOA, as in most of their efforts, protecting consumer welfare plays second fiddle to an idiosyncratic need to claw at our society’s most successful entrepreneurs. If the AICOA’s drafters were actually concerned with preventing anticompetitive behavior, its restrictions would apply to all online businesses as well as brick-and-mortar retailers — instead of exclusively targeting a small cadre of currently disfavored tech giants.

AICOA’s Republican proponents — senators of no less stature than Ted Cruz and Josh Hawley — have another, more cynical justification for their “yea” votes: They see Klobachar’s antitrust blunderings as a convenient weapon with which they can fire away at their political foes. In order to score a largely symbolic victory over the presumed censorial instincts of big tech, Cruz and Hawley are happy to balloon federal power, hamper innovation, impose costs on their constituents, and blow up the market’s existing data-privacy safeguards. And after cleaning, polishing, and loading this regulatory gun, they are handing it directly to Khan’s radical FTC. Such efforts are cynical and profoundly un-American.

Friedrich Hayek famously argued that would-be regulators have a knowledge problem: that the information necessary to plan an economy is not and cannot be possessed by a philosopher king or an executive agency. These difficulties are surely compounded in a sector as dynamic and generally misunderstood as tech. The situation only worsens when politicians attempt to manifest their various culture war revenge fantasies.

Although the neo-Brandeisian Democrats and burn-it-down Republicans may never realize it, their constituents have already endorsed big tech with dollars and downloads. Once again, Hayek is vindicated: The uncoerced actions of individual actors will indeed create far more prosperity than the self-important machinations of their elected technocrats.

David B. McGarry is a Consumer Choice Fellow with Young Voices. He writes extensively on tech policy issues, appearing in such publications as RealClearPolicy and National Review. Follow him on Twitter @davidbmcgarry.

Filed Under: aicoa, amy klobuchar, antitrust, josh hawley, ted cruz

from the good-riddance dept

Earlier today, there was a Senate Judiciary Committee markup on the JCPA — the Journalism Competition and Preservation Act — put forth by Senator Amy Klobuchar. Last week I wrote a long post about just how broken the bill is. It does almost everything it seeks to do badly, in ways that are genuinely dangerous. That post has the details, but in short: it tries to force big internet companies to pay news organizations for linking to them, which fundamentally changes how the internet works (you should never have to pay to link). While it pretends not to, it fundamentally messes with copyright law, because while it talks about “licensing,” it never explains what these sites need to actually license. That’s because the reality is that they’re trying to license links, news snippets, and headlines. All of those are fair use and require no license. Yet under this bill, they’ll need to be licensed.

It also has a bunch of other problems, including the 1500 employee cap that will encourage vultures like Alden Capital to buy larger news orgs and fire people. There are weak pretend incentives to suggest that the owners of news orgs will take whatever money the can squeeze out of the companies and pay journalists, but seeing as how folks like Alden Capital have specialized in buying up news orgs to fire journalists and squeeze cash directly into their own bank accounts, that seems like the most likely outcome here.

There are also weird provisions saying that if news orgs officially join one of the “joint negotiating entities” under the bill, the platforms are not allowed to retaliate against them by no longer indexing them. This is a kind of “must carry” concept that (1) seems likely unconstitutional and (2) will be exploited by disinformation peddlers to keep internet companies from doing moderation.

There are more problems, but you can read the longer post to get the idea. Supporters of the bill basically hit back with “But big tech bad, journalism good.” But… that’s not a response. Senator Klobuchar kept insisting that this is necessary to bring journalism orgs to the negotiating table with internet companies. But this is not how a negotiating table works. At a real negotiation, both sides are free to walk away if there’s no deal to be had. And, indeed, there’s no deal to be had here because news orgs are demanding payment for links (something they could just as easily block if they don’t think they’re valuable now that they’re getting them without getting paid).

So, the “negotiation” is that the internet providers are not just required to come to the table (and are forced to index and link to sites at the table), but then they are also forced to pay, no matter what. The main mechanism of the bill is that both sides have to submit a proposal for payment, and an arbitrator picks one proposal (they can’t split the difference or anything). Supporters claim this will lead to more reasonable offers on both sides, but again, this is not a normal negotiation. This is a gun to the head “you must pay for something that is fundamentally free.”

It’s all based on Rupert Murdoch’s plan in Australia to shift wealth from companies that were successful in innovating (internet companies) to ones that had a century-long monopoly on local ads, convinced themselves that they never needed to change or innovate, and are now demanding free money for their own failures.

Anyway, I won’t go through all of the nonsense that went on at the markup. You can watch it if you need higher blood pressure or something. It was definitely a strange bedfellows kind of thing where some of the worst people in the world were against the bill for reasons that don’t actually make any sense. A lot of Republicans were mad about… content moderation. Because they’re always mad about content moderation, even though the only content moderation aspect of this bill is that it might limit the ability of internet companies to moderate disinfo providers.

Either way, somehow, Ted Cruz, who ranted nonsensically for way too long about “big tech censorship”, got his own amendment to the bill approved by the committee. And… once that happened, Klobuchar insisted that it ruined the bill and basically took her ball and went home, refusing to allow the bill to go for a vote. Of course, it’s unclear how Cruz’s amendment actually does anything here, because he’s (yet again) confused about how the 1st Amendment works, and how it’s the 1st Amendment that allows websites to moderate as they wish.

His Amendment appears like it’s trying to somehow… stop content moderation? Maybe? It’s not clear. Here is the text of his amendment:

LIMITATION REGARDING CONTENT MODERATION POLICIES, PRACTICES, AND PROCEDURES. — The exemption from the application of the antitrust laws under this section shall not apply with respect to an eligible digital journalism provider, joint negotiation entity, or covered platform if, on or after the date on which the applicable negotiations under section 3 commence, the eligible digital journalism provider, joint negotiation entity, or covered platform, respectively, engages in any discussion of the content moderation policies, practices, or procedures of the eligible digital journalism provider, joint negotiation entity, or covered platform, respectively, with any eligible digital journalism provider, joint negotiation entity, or covered platform.

I mean, what? I think what it’s trying to say is that none of the negotiation can be contingent on the content moderation practices of the others at the table. But… huh? I guess Cruz’s fear is that Google will come to a negotiation with, who knows, Breitbart, and say “part of this negotiation is that you have to clean up your comments.” And Cruz doesn’t want that.

But… that creates all sorts of 1st Amendment problems for a bill that already had 1st Amendment problems.

And it’s not clear why Klobuchar thinks this kills the bill. Was she actually intending for this bill to have websites pressure each other over their content moderation decisions? Because that’s also weird.

It’s also just kind of weird that things went down this way. Most of these markup hearings are theater, with everyone more or less knowing what’s coming. Klobuchar seemed legitimately surprised about Cruz’s amendment, and that it passed.

Anyway, for now the JCPA seems dead. Though for stupid, stupid reasons.

On to the next bit of nonsense…

Filed Under: 1st amendment, amy klobuchar, antitrust, content moderation, jcpa, ted cruz

from the this-is-a-bad,-bad-idea dept

Look, I’m a small journalism outfit. A very small one. So, in theory, a law that effectively lets me demand free cash from Google and Facebook should be a good thing for me. But, it would actually be a disaster. That’s why I spoke out against the idea last year when Senator Amy Klobuchar and Rep. David Cicilline first floated the Journalism Competition and Preservation Act (JCPA). Earlier this year, we had a guest post from Library Futures explaining why the JCPA would be lose-lose legislation. In short, it’s a link tax bill, similar to the one written in Australia to appease (and enrich) Rupert Murdoch. It basically says that publishers can band together, with an antitrust exemption, to demand fees from bigger, more successful internet companies.

And, of course, Klobuchar (as is her usual method of operation when pushing bills that fundamentally break the internet) has decided to move forward with it anyway. She recently introduced a new version of the JCPA, with the one major change being that it only applies to smaller news orgs — those with under 1,500 employees. This would leave out the Fox Newses of the world, along with the NY Times, Washington Post, etc. At best, you can say that Klobuchar realized the original bill was just about wealth transfers from big internet companies to big media companies, and carved them out of the deal.

Of course, that also seems like a weird way to set up this bill with potentially catastrophic consequences. We’re at a time when hedge funds — most notably Alden Capital — have been buying up newspapers and laying off tons of people while trying to squeeze cash out of the remaining husks. And, this bill basically says “buy up large newspapers and cut them to under 1,500 employees.” Indeed, remember, the head of Alden not that long ago was writing opeds saying that Google and Facebook should just pay him money. And here’s Amy Klobuchar saying “sure, you get free money **just as long as you fire enough people first.**“

That’s crazy. It’s so crazy that even the Newsguild, which has been supportive of this general concept, is like “hey wait a second, this is going to lead to journalists getting fired.”

On top of that, as soon as you get into declaring which organizations are “journalism” organizations, and which ones get this special benefit from the US government, you’ve entered dangerous 1st Amendment territory. We’ve had this issue in the past with other laws that try to carve out “covered” journalism entities. Part of the 1st Amendment is that the government cannot declare who is and who is not a journalist (otherwise it would be way too tempting to carve out journalists most critical of the government). Yet, this bill spends pages declaring who gets to be considered a journalism organization for the purposes of the law. That’s the first big problem.

But, the much bigger problem is that the bill is trying to break the internet and establish the ability to tax links.

The main function of the bill is to allow news orgs to team up, force internet companies that link to them into mandatory arbitration, and force them to pay the journalism organizations for linking to them. For linking to them. Literally for sending them traffic. The bill says that each side submits their proposal for how much the internet companies should pay the news companies, and then the arbitrator picks one side’s proposal.

But, again, let’s go back to what this is — what the internet companies are being forced to pay for. They are being forced to pay to send other websites traffic. This is ludicrous.

News orgs beg these sites for traffic. They hire SEO people to try to get more traffic. Now they’re also getting to FORCE the internet companies to PAY them for that traffic too?

Some of this may feel hidden within the bill, so let me walk you through the key parts. First, it defines a covered “online platform” as any website, mobile app, or internet services that aggregates or directs users to news articles. That is, any online tool that sends traffic to news sites.

ONLINE PLATFORM.—The term ‘‘online platform’’ means a website, online or mobile application, operating system, digital assistant, or online service that aggregates, displays, provides, distributes, or directs users to news articles, works of journalism, or other content, or portions thereof, generated, created, produced, or owned by eligible digital journalism providers.

To be subject to the mandatory arbitration, such an online platform has to have at least 50 million monthly active users and a market cap over 550billion(hilariously,currentlythiswouldexcludeMeta/Facebook,sinceitsmarketcaphasdroppedatoninthelastfewmonthsandnowsitswellbelow550 billion (hilariously, currently this would exclude Meta/Facebook, since its market cap has dropped a ton in the last few months and now sits well below 550billion(hilariously,currentlythiswouldexcludeMeta/Facebook,sinceitsmarketcaphasdroppedatoninthelastfewmonthsandnowsitswellbelow500 billion). So, at this point, it basically applies to Apple, Microsoft, Google, and Amazon properties.

Those are the companies that will be forced to pay up under this scheme. Then, it allows media orgs (which meet certain definitions included in the bill, including having fewer than 1,500 employees) to team up with one another to form a “joint negotiation entity.”

IN GENERAL.—An eligible digital journalism provider shall provide public notice to announce the opportunity for other eligible digital journalism providers to join a joint negotiation entity for the purpose of engaging in joint negotiations with a covered platform under this section, regarding the terms and conditions by which the covered platform may access the content of the eligible digital journalism providers that are members of the joint negotiation entity.

Okay, so now you’ve got a joint negotiation entity that can negotiate with the four companies listed above. But what the fuck are you negotiating for? The “terms and conditions by which the covered platform may access the content of the eligible digital journalism providers.” Access? What the hell does “access” mean under this law?

¯\_(ツ)_/¯

I mean, it’s not defined anywhere, because why define the most critical part of this bill? The answer is that the drafters know that it’s ridiculous to come out and say that what they really mean is you need to negotiate over how much these companies will pay to link to digital journalism outfits.

But, linking is a fundamental feature and right on the open internet. Setting up any sort of scheme where websites are being forced to pay to link is fundamentally against the nature of the open web. It sets us off down a very dangerous and very slippery slope.

Anyway, once you have this joint negotiation entity, you literally get to demand payment for links (euphemistically called “access”). And if Google or whoever is like “fuck you, it’s a link, we’re sending you traffic already, why should we pay you for already helping you out?” the joint negotiating entity can force the companies into arbitration where each side submits how much they should pay, and the arbitrator has to pick one side (and not anywhere in the middle).

Also, not agreeing to negotiate — again, to pay for something that no one should ever pay for — under this law is deemed as “not conducting negotiations in good faith.”

And how much are the companies supposed to pay for sending you free traffic? The “fair market value” based on “the investment of the digital publisher.” Really.

This whole thing is based on a fundamental lie that you need a license to link. But that’s just not true. Copyright does not cover links. There is no license to link. And yet the bill pretends there is one:

At any point after a notice is sent to the covered platform to initiate joint negotiations under subsection (a)(2), the eligible digital journalism providers that are members of the joint negotiation entity may jointly deny the covered platform access to content licensed or produced by such eligible digital journalism providers.

Deny access? What? That means… deny them the ability to send you traffic? I mean, look, if digital publications don’t want traffic from Google, they can just set that up technically on their site with robots.txt blocking indexing, and then sending any referral traffic from Google into a black hole. But, fundamentally, this bill is just confused about linking. You don’t need a license to link. You don’t need a license for snippets and the headline. That’s fair use.

The really funny thing about this bill is it refuses to admit it’s a copyright bill in disguise. Platforms have fair use rights to post a snippet of news content along with a link, and the link is just a fundamental way in which the internet works. One that this bill is attempting to break.

Also, that section above where, somewhat hilariously, digital publications can magically tell the big online platforms they are denying them “access,” the bill says that the platforms CANNOT JUST REFUSE TO LINK. I only wish I were joking.

No covered platform may retaliate against an eligible digital journalism provider for participating in a negotiation conducted under section 3, or an arbitration conducted under section 4, including by refusing to index content or changing the ranking, identification, modification, branding, or placement of the content of the eligible digital journalism provider on the covered platform.

Congrats, Senator Klobuchar, you’ve just created a must-carry provision for news aggregators. And here’s the best part: the misinfo providers out there can now effectively force their way into Google News by forming one of these joint negotiating entities, and then pointing to this section and saying “Google refuses to index my content.”

Who knew that Amy Klobuchar wanted to force disinfo peddlers into Google News?

Everything — and I do mean everything — about this bill is ridiculous. It’s a bizarre attempt to do an end-run around antitrust law, copyright law, and common carrier law… to force Google, Apple, Amazon, and Microsoft to pay for linking and sending traffic to digital publishers who are too incompetent to figure out how to properly monetize incoming traffic.

I can’t see how anyone thinks this is a good idea. And, again, I run one of the companies that in theory would “benefit” from this nonsense by getting free money.

I used to just think that Senator Klobuchar was ignorant about how the internet worked. But considering how frequently she releases absolutely ridiculous and dangerous bills about the internet, I’m beginning to realize that she is deliberately seeking to destroy it.

Filed Under: aggregators, amy klobuchar, antitrust, common carrier, copyright, jcpa, jouranlism, link tax, must carry, news

Without The Votes To Pass, Antitrust Bill Gets Delayed

from the it's-a-bad-bill dept

For the last few months we’ve been writing a lot about AICOA, the American Innovation and Choice Online Act, being pushed for by Senator Amy Klobuchar. It’s an antitrust bill, but not an antitrust bill designed to fix the whole host of problems we have today with industrial consolidation and anticompetitive practices. No, it’s just a bill to target a few specific practices of a narrow slice of the tech industry. And, it only has bipartisan support (barely) for one reason, and one reason only: because Republicans believe that the vaguely worded law will be a tool they can use to batter companies for content moderation decisions they disagree with. This isn’t some conspiracy theory. This is literally what the Republicans themselves are saying. Out loud. Over and over again.

Klobuchar has had multiple chances to clarify the language in her bill to prevent this abuse. But she chose not to. The only changes she included were to make sure the bill really only targeted tech, by explicitly carving telcos and financial companies out of the bill.

For the last few months, cringe-inducingly called “hot antitrust summer” by supporters of this bill, we were told the bill needed to get a vote this summer. Chuck Schumer apparently promised a vote this summer. And, even John Oliver was coaxed into an unfortunately confused piece about the law encouraging his fans to urge Schumer to bring the law to a vote.

But, as Schumer himself has been explaining to party insiders, the bill doesn’t have the votes to pass. It appears that there are enough Senators who are reasonably concerned about the vague language of the bill being open to abuse that they won’t vote for it. And fixing that language would lose votes on the Republican side.

All summer long, Klobuchar has been insisting, without proof, that they did have the votes to pass it, and urging Schumer to bring it to the floor. However, she’s finally admitted that’s not going to happen, and that there will be no vote before the recess. She still appears hopeful that it will happen in the fall, but that may be an even harder lift with the midterms rapidly approaching.

There are plenty of good reasons to be concerned about the power of some of the largest tech companies. But this is not the bill to fix it. Just the fact that Republicans are openly and eagerly explaining how they’ll abuse this law should have made that clear to everyone who has good faith reasons for supporting this bill. It’s been frustrating how quickly some folks have decided they can bend on their overall principles just because they believe this bill has a chance of passing. There are some good things in this bill, but the bill has serious problems and not just the potential for abuse — rather it has a bunch of supporters gleefully telling you how they’re going to abuse it.

If the law won’t pass without the ability to abuse it, the law shouldn’t pass. Go back and write a better bill.

Filed Under: aicoa, amy klobuchar, antitrust, chuck schumer, content moderation, preferencing

The Journalism Competition Preservation Act Is Lose-Lose Legislation

How many times have you shared a link today? How many times have you used a search engine to look for information? We use links and snippets to gain and share information so often that we don’t even think about it. It’s an essential component of the internet, so intrinsic that an internet without links simply doesn’t work. For this reason, it’s alarming that certain members of Congress are pushing “link tax” proposals, like the Journalism Competition Preservation Act (JCPA), that will monetize links in a way that changes how this essential internet infrastructure works.

The JCPA would permit news sites to band together and “negotiate” with platforms like Google and Facebook — presumably to withhold their content via link and snippets (also known as the short previews of the articles) until the platforms have paid up. Presumably, the intent of this proposal is to shift the balance of power away from big tech platforms and back to news publishers. This goal is laudable because, with the rise of Big Tech, the loss of sources for local news and information is certainly concerning. However, the JCPA is irredeemably flawed legislation that will destroy public access to information and create loopholes to alter how copyright works in our country – all while failing to achieve its stated goal of “saving” the news industry and only making problems worse for small publishers and libraries, whose goals of access to information are sometimes in conflict with large media conglomerates.

Libraries have been one of the primary victims of the ever-expansion of copyright, since copyright law limits the ability of patrons to interact with intellectual property as they wish. The increasing scope of copyright, combined with the ease with which something falls under copyright protection, has resulted in a decrease in the availability of free information. Expansive copyright nearly always equals closed intellectual property systems, which in turn limits libraries’ ability to provide equitable access to information for all. In this case, a link tax would specifically harm libraries because links cannot be copyrighted. A link and snippet tax would be the equivalent of adding a tax to every book you check out from a library.

Research shows that access to accurate, high-quality local news is important to community health, and libraries have long-standing systems in place that increase the public’s access to information. Costly and restrictive “link taxes” like the JCPA will break these systems and penalize the public institutions that should be focused on providing high quality information resources to their communities. As trained information professionals, librarians are uniquely suited to provide access to and evaluation of the news for their communities – this proposal would take that discretion out of the hands of libraries and public institutions and place it in the hands of corporations and media conglomerates.

The relationship between libraries and publishers, including news organizations, has a long historical precedent, and libraries and publishers should work together to create a more equitable and profitable news landscape. Even so, we recognize that publishers are well within their rights to place content behind subscriptions and passwords – a route that at least 69% of media outlets have taken with great success. However, paywalls and licenses should not be not the only route for publishers moving forward, and libraries can help pave that future. A recent collaboration between Library Futures, New York’s Albany Public Library, and Hearken proved that it is indeed possible to support communities through citizen participation in the news process. In coordination with news partners and libraries, we demonstrated an increase in subscriptions and reporting power as well as built invaluable connections. With the majority of consumers accessing news through their smartphones or social media, the link to content is inviolable—as well as critical—for the publishers to reach consumers, for consumers to access the information, and for libraries to provide access to consumers.

Small and medium publishers raised concerns about how a link tax would disproportionately hurt smaller news publishers and local news outlets who can’t afford to lose any more traffic. There are also many news sites, like ProPublica, Global Voices, The Conversation, El Diario and Al Jazeera, that purposely use Creative Commons licensing to make their articles more available to the public. These news outlets want to be readily accessible to the public and to other news outlets. As organizations and institutions committed to open access to information, libraries are invested in the future of nonprofit, openly licensed and public news sources. A link tax would jeopardize these sources, which provide crucial reporting and opinion for patrons.

American policymakers should not export bad ideas from foreign countries at the expense of publishers’ and libraries’ ability to provide high-quality news and information to American readers.They should instead carefully consider how legislation like the JCPA could open up a new loophole that allows news publishers to stop links to their materials which will only restrict access to information. For libraries and other public institutions dedicated to knowledge and education, this issue is of grave concern to our patrons, to the public, and to the continued free flow of information.

Jennie Rose Halperin is the Executive Director of Library Futures, and Juliya Ziskina is a policy fellow with Library Futures.

Filed Under: amy klobuchar, antitrust, creative commons, jcpa, journalism competition preservation act, link taxes, monopoly, negotiations

Senators Klobuchar And Warren Are Mad That Meta Is Taking Down Abortion Posts; If They Were Serious, They’d Protect Section 230

from the i-mean,-come-on dept

Almost exactly a year ago, Senator Amy Klobuchar (with Senator Ben Ray Lujan) introduced a bill to create a giant hole in Section 230 for “medical misinformation.” The bill would make social media sites like Facebook and Instagram potentially liable for any “health misinformation” found on their platforms. Of course, as we explained at the time, this is a horrifically dangerous idea on multiple levels. First, since there is no set definition of “medical misinformation” (and, in times of rapidly changing information, like a pandemic, accurate information may initially be labeled misinformation), it means that websites will be much more aggressive in taking down content. Second, it opens the door to widespread abuse because whoever is in power gets to determine what is, and what is not “medical misinformation” (the bill gave that role to whoever was the Secretary of Health and Human Services).

Given all that, it seems wildly ironic, that Senator Klobuchar (now with Senator Elizabeth Warren) have sent Mark Zuckerberg (and Instagram CEO Adam Mosseri) an angry demand letter over the news that Facebook has been banning people for simply mentioning that abortion pills exist following the Supreme Court’s Dobbs decision overturning Roe v. Wade.

If Klobuchar got her way and her medical misinformation bill became law, it’s guaranteed that Facebook and Instagram would be taking down way more posts about abortion. Because they’d be sued left and right if they didn’t.

I am honestly perplexed at who the hell works in Klobuchar’s office that handles internet policy, because they seem to have less than no clue about how any of this works. For fuck’s sake, talk to someone who understands this stuff.

But, first, let’s look at the letter.

We write to express our concern about reports that Facebook and Instagram are censoring posts containing accurate information about abortion in the wake of the Supreme Court’s decision in Dobbs v. Jackson. As a result of the Court’s decision, it is more important than ever that social media platforms not censor truthful posts about abortion, particularly as people across the country turn to online communities to discuss and find information about reproductive rights.

Yeah, sure, that makes sense (though, I again question the use of “censor” here when we’re talking about a private platform making moderation choices). And I’ll note that both Warren and Klobuchar have been aggressive over the last few years in suggesting that Facebook does far too little moderation — so it comes off a bit rich for them to now be complaining that the company does too much. It just reinforces the notion that everyone thinks that the “right” way to do moderation is however they, themselves, would do moderation.

Last month the Supreme Court overruled Roe v. Wade, stripping away constitutional protections for abortion. In the aftermath of the decision, many took to social media to share stories about the impact of the decision, let others know how to legally obtain abortion services, and to discuss their personal experiences. Posts about abortion spiked across social media in the days following the decision

That’s right. And how does Amy Klobuchar think that would have played out if she had successfully removed “medical misinformation” from being protected by Section 230? Under such a world, where Facebook would be liable for medical misinformation, the only smart move would be to rapidly try to take down anything medical related entirely, to avoid the risk of liability.

And this would be especially true over a hot topic like abortion.

This is why Senators like Ron Wyden have pointed out that we need Section 230 now more than ever because Republicans are pushing very real bills that would try to try to make social media websites liable for allowing users to post information about abortion. Section 230 preempts such laws. Or, at least it does for now. But if Klobuchar succeeds in removing medical information from Section 230, then… perhaps not.

And, even if you argue that a HHS Secretary under Biden wouldn’t classify information about abortion as misinformation, must I remind you that at some point soon, it’s likely that a Republican will return to the Presidency, perhaps as soon as 2025, and they could easily appoint someone to HHS who will declare any information about abortion or abortion pills to be medical misinformation.

So, hey, Senator Klobuchar, maybe stop trying to undermine that part if you actually want Facebook and Instagram to help people “share stories about the impact of the decision, let others know how to legally obtain abortion services.”

As people across the country took to the internet to discuss the Dobbs decision, both Facebook and Instagram removed posts about abortion. Reports indicate that multiple posts providing accurate information about how to legally access abortion services were removed, often within minutes after the information was posted. Others reported that posts mentioning abortion were taken down or were tagged with “sensitivity screens” and warnings, including a post promoting an abortion documentary, a posting entitled “Abortion in America How You Can Help,”5 and a post from a healthcare worker describing how people were already being harmed by laws banning abortion. One organization dedicated to informing people in the United States about their abortion rights temporarily had its account suspended. Users reported similar issues last fall when Texas’s law banning abortions after six weeks went into effect.

Last week, Meta spokesperson Andy Stone pointed to Facebook’s policy banning attempts to buy, sell, trade, gift, or request pharmaceuticals on its platform as the reason for the posts being removed. Stone acknowledged, however, that Facebook and Instagram have had problems applying the policy to posts about abortion.

Yeah, because determining what is legal information regarding pharmaceuticals is already hellishly difficult… and if (as Senator Klobuchar wants) it also because legally risky, then Facebook is going to be even more aggressive in trying to take down that information.

So, if this is really as big a concern as Klobuchar makes it out to be she should pull her own medical misinformation bill and admit that it would make the problem worse, not better.

Instead of recognizing that she’s a part of the problem, the letter instead demands all sorts of information about Facebook and Instagram’s content moderation practices and policies. I hope that Meta tells them to pound sand. Those are editorial decisions, and it’s none of Congress’ business. The demands are no different from Senators demanding that a news organization reveal their editorial policies, why they rejected certain articles, or why they lead with a certain story.

Everyone would freak out if Congress demanded such information, as they should here.

I mean, this is, yet again, the flip side of Republicans and their nonsense populist freakouts about “anti-conservative bias.” If Klobuchar and Warren are demanding this kind of information, and get it, then that just opens the door to Senators Ted Cruz and Josh Hawley demanding the exact same info, but not about policies on abortion, but rather whatever new moral panic they have today.

So, Senators stop meddling in the 1st Amendment protected editorial decision making of media organizations and (more importantly) stop trying to pass laws, like the medical misinformation bill, that would effectively serve to silence more of the conversation about abortion that you (correctly) deem so valuable.

Filed Under: 1st amendment, abortion, amy klobuchar, content moderation, editorial decisions, elizabeth warren, mark zuckerberg, medical misinformation
Companies: facebook, instagram, meta

Do Not Expect Section 230 And The 1st Amendment To Save Antitrust Bills From Abuse

from the fix-the-damn-bill dept

Over the last few weeks, we’ve written quite a bit about the American Innovation and Choice Online Act (AICOA), which has become the central push by a bunch of folks in Congress to create a special antitrust bill for “big tech.” There are some good ideas in the bill, but, as we’ve been highlighting, a major problem is that the language in the bill is such that it could be abused by politically motivated politicians and law enforcement to go after perfectly reasonable content moderation decisions.

Indeed, Republicans have made it clear that they very much believe this bill will enable them to go after tech companies over content moderation decisions they dislike. Most recently, they’ve said that if the bill is clarified to say that it should not impact content moderation, that they will walk away from supporting the bill. That should, at the very least, give pause to everyone who keeps insisting that the bill can’t be abused to go after content moderation decisions.

We recently wrote about four Senators, led by Brian Schatz (with Ron Wyden, Tammy Baldwin, and Ben Ray Lujan), suggesting a very, very slight amendment to the bill, which would just make it explicit that the law shouldn’t be read to impact regular content moderation decisions.

In response to that Schatz letter, Rep. David Cicilline (who is spearheading the House version of the bill, while Senator Amy Klobuchar is handling the Senate side), sent back a letter insisting that Section 230 and the 1st Amendment already would prevent AICOA from being abused this way. Here’s a snippet of his letter.

Moreover, even if a covered platform’s discriminatory application of its terms of service materially harmed competition, the Act preserves platforms’ content-moderation-related defenses under current law. Section 5 of S. 2992 states expressly that “[n]othing in this Act may be construed to limit . . . the application of any law.”

One such law is Section 230(c) of the Communications Decency Act. Under that provision, social-media platforms may not “be treated as the publisher or speaker of any information provided by another information content provider.” They also may not be held civilly liable on account of “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Accordingly, as with other liability statutes enacted since the passage of Section 230, Section 230 provides “an affirmative defense to liability under [the Act] for . . . the narrow set of defendants and conduct to which Section 230 applies.” Another still applicable law is the First Amendment to the U.S. Constitution, which the Act does not—and indeed, cannot—abrogate.

He then goes on in more detail as to why he believes the bill really cannot be abused. And while he does note that that he remains “committed to doing what is necessary to strengthen and improve the bill” and that he is happy to keep working with these Senators on it, the very clear message from his letter is that he’s pretty sure the bill is just fine as is, and that Section 230 and the 1st Amendment already protect against abuse.

Finally, your proposed language for the Act—although well intentioned—is already reflected in the base text of the bill. As detailed above, among other things, section 5 of S. 2992 preserves the continued applicability of current laws, including 47 U.S.C. § 230(c), that protect social-media platforms from liability for good-faith content moderation. Although I agree that legislation is necessary to address concerns with misinformation and content-moderation practices by dominant social-media platforms, I have consistently said that this legislation is not the avenue for doing so. As such, this legislation is narrowly tailored to address specific anticompetitive practices by dominant technology firms online. And as the Department of Justice has noted, it is a complement to and clarification of the antitrust laws as they apply to digital markets. As such, it does not supersede other laws.

Except… Cicilline is wrong. Very wrong. We at the Copia Institute this week signed onto a letter from TechFreedom and Free Press (two organizations that rarely agree with each other on policy issues) along with some expert academics explaining why.

The letter explains why Cicilline’s faith in Section 230 and the 1st Amendment is misplaced. It walks through, step by step, ways in which motivated state AGs (or even the DOJ) might get around those concerns, by claiming that moderation decisions were not actually content-based decisions, but business conduct, focused on anti-competitive behavior.

We don’t have to look far to see how that played out: the Malwarebytes case was an example of that in action. That was a case where a company was able to avoid Section 230 by claiming that a moderation decision (calling an app malware), was actually done for anti-competitive reasons. But with AICOA, we could get that on steroids. As the letter notes:

There is a substantial risk that courts will extend the Malwarebytes reasoning to exclude AICOA claims from Section 230 protection—including politically motivated claims aimed at content moderation. Specifically, courts may try to harmonize the two statutes—i.e., “strive to give effect to both”—by accepting some showing of anticompetitive results as sufficient to circumvent Section 230(c)(2)(A) in non-discrimination claims.

Anticompetitive animus is not required by the plain text of AICOA § 3(a)(3). Allowing only AICOA claims that allege (and, ultimately, prove) anticompetitive motivation to bypass Section 230’s protection would infer an intent requirement where Congress chose not to include one. While courts do sometimes infer intent requirements, they may reasonably conclude that doing so here would effectively read Section 3(a)(3) out of the statute. How could a platform with no direct stake in the market where competitive harm is alleged ever have an anticompetitive intent? Thus, how could any plaintiff ever bring a Section 3(a)(3) claim regarding “harm to competition” between downstream business users that would survive Section 230(c)(2)(A)? For Rep. Cicilline’s presumptions about Section 230 to be correct, courts would have to effectively render Section 3(a)(3) a nullity by holding that only claims of self-preferencing—but not discrimination between other business users—are actionable. This is an implausible reading that clearly contradicts what the present draft of AICOA says.

The Malwarebytes court relied heavily on Section 230’s “history and purpose” as evincing Congressional intent to “protect competition.” Here, there is explicit statutory language and legislative history from which a court could conclude that AICOA’s purpose is to prohibit anticompetitive results, regardless of motive—and thus to carve those claims out from Section 230. This result would apparently be statutorily required if another bill co-sponsored by Sen. Klobuchar becomes law: The SAFE TECH Act (S. 299) would amend Section 230 to exempt “any action brought under Federal or State antitrust law.”

There’s a lot more in the letter, but the point is clear. The idea that 230 will magically stop the abuse of this bill seems contradicted by the way the law is currently drafted, and actual cases on the books.

Filed Under: 1st amendment, aicoa, amy klobuchar, ben ray lujan, brian schatz, content moderation, david cicilline, ron wyden, section 230, tammy baldwin