paul gosar – Techdirt (original) (raw)

As A Parting Shot, Tulsi Gabbard Teams Up With Paul Gosar To Introduce Yet Another Unconstitutional Attack On Section 230

from the tis-the-season dept

Back in October, Reps. Tulsi Gabbard (who is leaving Congress in a few weeks) and Paul Gosar (whose had six of his own siblings tell voters that their brother should not be in Congress), teamed up to introduce an incredibly stupid anti-Section 230 bill, which would take 230’s liability protections away from any site that does basic data tracking or has an algorithmically generated feed.

Apparently that wasn’t enough, because they’ve now teamed up to introduce a second anti-230 bill that is (would you believe it?) even more ridiculous. They’re calling it the “Break Up Big Tech Act.”

The Breakup Big Tech Act of 2020 would take away legal immunity from interactive computer service providers that engage in certain manipulative activities, including social media companies who act as publishers by moderating and censoring content. Specifically, the Breakup Big Tech Act of 2020 would remove legal immunity for providers that engage in the following activities:

* Selling and displaying personalized as well as contextual advertising without user?s consent * Collecting data for commercial purposes other than the direct sale of the interactive computer service, i.e. turning the user into a commodity or otherwise monetizing the transmission of content * Acting as a marketplace in the digital space by facilitating the placement of items into the stream of commerce * Employing digital products and designs intended to engage and addict users to the service * Acting as a publisher by using algorithms to moderate or censor content without opt-in from users

Now there are certainly plenty of legitimate questions to be had about that list of activities, and whether or not they should be allowed, or how and if they should be regulated. Those should all be subject to some level of debate and discussion. But to say “just wipe out 230’s liability protections” for any company that does any of those things… is legitimately crazy.

This bill is going nowhere, because this Congress is basically over, so I won’t go point by point on how stupid a bill this is, but I’ll just note that last point is punishing a company for making editorial choices, and the 1st Amendment would probably like to explain to Gabbard and Gosar just how incredibly unconstitutional that would be.

Gabbard still really seems to be smarting from the fact that her dumb lawsuit against Google was easily dismissed. But here’s the key: the lawsuit was dismissed on 1st Amendment grounds, not because of 230. And changing 230 doesn’t change the 1st Amendment (which she swore to protect and uphold, but apparently doesn’t care about).

Filed Under: 1st amendment, break up big tech act, paul gosar, section 230, tulsi gabbard

Reps. Gabbard And Gosar Introduce Ridiculous House Companion To Ridiculous Anti-230 Senate Bill From Senator Kennedy

from the push-my-buttons dept

You may recall that, last year, Rep. Tulsi Gabbard decided to file a ridiculously silly lawsuit against Google, claiming that the company had “violated her First Amendment rights” because it temporarily shut down her advertising account, and also because it filtered some of her campaign emails to spam. In a lawsuit that read remarkably similar to the various people arguing that “anti-conservative bias” was the basis for a lawsuit, it made a whole bunch of silly claims that any good lawyer would recognize as frivolous (hold that thought).

The lawsuit was easily tossed out on 1st Amendment grounds. And when I say “1st Amendment grounds,” I mean the court had to explain to Gabbard — a sitting Congressional Representative — that the 1st Amendment only applies to the government and Google is not the government. This is really embarrassing:

Google is not now, nor (to the Court?s knowledge) has it ever been, an arm of the United States government….

[….]

To support its contention that a private actor can regulate elections, Plaintiff directs the Court to Terry v. Adams, 345 U.S. 461, 463 (1953). However, Terry is utterly inapposite to Plaintiff?s contention. In 1954, the Supreme Court held that the Fifteenth Amendment was implicated when a political party effectively prevented black citizens from voting. Terry, 345 U.S. at 463. The Court held: ?The evil here is that the State, through the action and abdication of those whom it has clothed with authority, has permitted white voters to go through a procedure which predetermines the legally devised primary.? Id. at 477. But Terry bears no relation to the current dispute, where Google, an undisputedly private company, temporarily suspended Plaintiff?s Google advertising account for a matter of hours, allegedly based on viewpoint bias.

What Plaintiff fails to establish is how Google?s regulation of its own platform is in any way equivalent to a governmental regulation of an election. Google does not hold primaries, it does not select candidates, and it does not prevent anyone from running for office or voting in elections. To the extent Google ?regulates? anything, it regulates its own private speech and platform. Plaintiff?s ?national security? argument similarly fails. Google protects itself from foreign interference; it does not act as an agent of the United States. Nearly every media or technology company has some form of cybersecurity procedure. Under Plaintiff?s theory, every media organization that took steps to prevent foreign cybercrimes could potentially implicate the First Amendment. Google?s self-regulation, even of topics that may be of public concern, does not implicate the First Amendment.

Pretty embarrassing for a court to need to explain how the 1st Amendment works to someone in Congress, but hey, it’s 2020.

The court jumped straight to the 1st Amendment issue, though it could have easily tossed out the case on Section 230 grounds as well, and it appears that Tulsi has now joined the “destroy Section 230” crowd, teaming up with Rep. Paul Gosar to introduce yet another anti-Section 230 bill in the House. If Gosar’s name rings a bell, he’s the representative from Arizona whose politics are so Trumpian and ridiculous that six of his own siblings took out an ad that told people not to vote for their brother.

So these two have now teamed up to introduce the Don’t Push My Buttons Act. If that sounds familiar, it’s because Senator John Kennedy introduced the same thing in the Senate last week. When that was introduced, we explained just how awful the bill was and that analysis stands. It would take Section 230 immunity away from sites that do some fairly basic data tracking, or if they use an algorithmically generated feed. It makes no sense and seems to serve only one purpose: to frustrate social media companies with annoying nuisance regulation.

The bill seems unlikely to go anywhere, and Gabbard is not running for re-election, so this again seems more for show than anything else, but what a terrible bill to go out on. Gabbard failed in her wacky legal attack on social media, and so as a parting gift she tries to remove their Section 230 protections. Disgusting.

Oh, as a side note: in Gabbard’s original lawsuit she was represented by the lawyers at Pierce Bainbridge. While the specific lawyers working on her case appear to have jumped ship from that firm during the collapse of that firm, the founder of the firm John Pierce, was a “high profile” addition to the defense team of Kyle Rittenhouse, the teenager facing murder charges in Wisconsin. This seemed weird, given that Pierce’s experience is in civil litigation, not criminal, and had to resign from the board of the foundation that he and Lin Wood (another lawyer with quite the recent reputation) had set up to seek funds for Rittenhouse’s defense, after questions were raised about how Pierce presided over the mess that was his disgraced law firm. The full article is worth reading, but just a snippet:

The firm?s financial woes have involved Pierce himself. In March 2020, John Pierce and Pierce Bainbridge were sued by a payday-lender-style financial business called Karish Kapital, which offers emergency cash for businesses. Karish Kapital alleged that Pierce had personally taken out a loan worth nearly $4 million from them and signed over the firm?s assets as collateral.

In a statement to The American Lawyer, a Pierce Bainbridge spokesperson said Pierce was on an ?indefinite leave of absence? and had ?accepted money from Karish Kapital LLC for his personal use.? In May, Pierce told Law360 that he had gone to rehab for unspecified issues.

Pierce?s loan from Karish Kapital marked the start of a cascade of bad news for the firm. On April 9, three named partners left the firm. James Bainbridge, the last remaining named partner aside from Pierce, set up his own separate firm in July, although he remains a partner at Pierce Bainbridge. As of May, Law360 reported, more than 60 lawyers had left the firm in the last six months.

So beyond an embarrassing legal loss, the fact that this was the firm Gabbard chose to file her ridiculous lawsuit against Google seems to raise significant questions about her own judgment in understanding not just the law she’s now seeking to change, but also the people she chose as her lawyers. Perhaps she really should sit out questions regarding internet law.

Filed Under: don't push my buttons act, john kennedy, john pierce, paul gosar, section 230, tulsi gabbard

from the it's-open-season dept

It’s open season on Section 230 of the Communications Decency Act and everyone’s got ideas. Not good ones, mind you. But ideas. The latest comes from Rep. Paul Gosar whose claim to fame is that six of his own siblings took out an ad to his constituents, telling them not to re-elect their brother. Gosar also has a bit of a checkered history of his own in terms of tolerating “free speech” online. Last year, he was sued for blocking constituents on social media — leading him to agree to stop the practice in order to settle the lawsuit.

He’s now introduced HR 4027, which is entitled the “Stop Censorship Act” (as opposed to Josh Hawley’s Stop Internet Censorship Act). The full text of the bill is not yet up, but Gosar has put up a press release and Twitter thread about the bill, saying that it will revoke what he (incorrectly) says is the “unprecedented and unwarranted immunities given to Big Tech” and replacing it with an immunity only to remove “unlawful activity” and some sort of mandate to provide end users their own filter tools.

Rep. Gosar?s legislation would revoke the unprecedented and unwarranted immunities given to Big Tech for the censorship of ?objectionable? content but retains immunities when acting in good faith to remove unlawful material or when providing users the option to filter: i.e, Google SafeSearch, Twitter Quality Filter or YouTube Restricted Mode.

Big Tech has been given blanket immunity by section 230 of the Communications Decency Act. They claim ?platform?s discretion for removing content but claim ?publishers? aren?t liable when they monetize their users? content. Despite their claims, Big Tech does not always foreclose on violent or obscene behavior; in fact, they often monetize it- but they do police political speech. Therefore, Big Tech?s immunity should strictly be for good faith efforts to remove actual unlawful content.

First off, the description of Section 230 and what it does is simply wrong. It is neither unprecedented, nor is it unique to “Big Tech.” Section 230 applies to everyone who hosts third party content. Second, the 1st Amendment would almost certainly bar Gosar’s bill, as it appears to force companies to host content they might find objectionable (again, I find it incredible that the same party that insists bakers shouldn’t be made to bake cakes for people they don’t like is now insisting that internet companies must host speech that they disagree with).

While I actually like (and have repeatedly advocated for!) internet platforms to provide end users with tools to moderate their own content experience, to add that as a condition of granting immunity is ludicrous for a number of reasons — not the least of which is most platforms (especially smaller ones) are unlikely to be able to afford such tools.

Either way, as with Hawley’s bill, it’s difficult to see this bill going anywhere or, if it does, passing even the most basic of Constitutional scrutiny. It’s also hilarious, given that the original point of Section 230, written by Republican Rep. Chris Cox, was to encourage more platforms to choose to moderate their platforms to create “family friendly” spaces online. Now that same party is actively saying that platforms should never be able to moderate at all. Odd.

Filed Under: cda 230, paul gosar, section 230, social media, user tools