I attended an Internet Archive event (virtually, of course) yesterday, and afterwards one of the attendees alerted me to yet another nefarious attack on Section 230 based on out-and-out lies. Apparently the League of California Cities has been going around getting various California cities to vote on a completely misleading and bogus motion pushing for Congress to reform Section 230 of the Communications Decency Act. It was apparently put up first by the city of Cerritos, which is part of Los Angeles County (almost surprised it wasn’t started in Hollywood, but it wouldn’t surprise me to find out that the impetus behind it was Hollywood people…). Basically, cities are voting on whether or not the League of California Cities should officially call on Congress to amend Section 230 in drastic ways… all because of some violence at recent protests about police brutality. The process, apparently, is that one city (in this case Cerritos) makes the proposal, and gets a bunch of other cities to first sign on, and then various other cities take a vote as to whether it becomes official League policy (after which they’d send a letter to Congress, which Congress would probably ignore).
And, if you just read the nonsense that the originating proposal put out there, and had no idea how Section 230, the internet, the 1st Amendment or the 4th Amendment works, it might sound like a good idea. Except that what the proposal says is utter nonsense, disconnected from reality.
This resolution states that the League of California Cities should urge Congress to amend Section 230 of the federal Communications Decency Act of 1996 (CDA) to limit the immunity provided to online platforms where their forums enable criminal activity to be promoted.
Ultimately, the policy objectives proposed under this resolution, if enacted, would incentivize social media companies to establish and implement a reasonable program to identify and remove content that solicits criminal activity.
Except that Section 230 already says there’s no immunity for platforms if they enable federal criminal activity. So this is a made up concern. Second, if you changed 230 in the manner they want, they’re simply wrong that it “would incentivize social media companies to establish and implement a reasonable program to identify and remove content that solicits criminal activity.” Because every major social media platform already has such a program. The problem is not that they don’t have incentives. The problem is that not everyone will ever agree on what the “right” moderation is.
Incredibly, the proposal handwaves away the idea that putting more liability on internet websites might lead to more censorship:
While there is certainly an argument to substantiate concerns around censorship, the use of social media as a tool for organizing violence is equally disturbing.
Also, the proposal seems to blame violence that broke out at various protests this summer… on social media, claiming that’s why 230 must change.
Although the majority of protests were peaceful, some demonstrations in cities escalated into riots, looting, and street skirmishes with police. While much of the nation’s focus has been on addressing police misconduct, police brutality, and systemic racism, some have used demonstrators’ peaceful protests on these topics as opportunities to loot and/or vandalize businesses, almost exclusively under the guise of the “Black Lives Matter” movement. It has been uncovered that these “flash robs” were coordinated through the use of social media. The spontaneity and speed of the attacks enabled by social media make it challenging for the police to stop these criminal events as they are occurring, let alone prevent them from commencing altogether.
As these events started occurring across the country, investigators quickly began combing through Facebook, Twitter, and Instagram seeking to identify potentially violent extremists, looters, and vandals and finding ways to charge them after — and in some cases before — they sow chaos. While this technique has alarmed civil liberties advocates, who argue the strategy could negatively impact online speech, law enforcement officials claim it aligns with investigation strategies employed in the past.
So, let me get this straight. First, we should blame social media — and not police brutality and militarization — for the cases where violence has broken out at a few protests. And the way to deal with violence organized on social media is to… hold the social media platforms liable rather than those that engaged in or encouraged the violence? Are these people for real?
Also, the full proposal goes way beyond what is described regarding violence at protests. This is what it says:
- Online platforms must establish and implement a reasonable program to identify and take down content which solicits criminal activity; and
- Online platforms must provide to law enforcement information which will assist in the identification and apprehension of persons who use the services of the platform to solicit and to engage in criminal activity; and
- An online platform that willfully or negligently fails in either of these duties is not immune from enforcement of state and local laws which impose criminal or civil liability for such failure.
That would be a massive and problematic change to Section 230. First, as it stands, websites already have tremendous incentive to identify and take down content which solicits criminal activity — and many of them try to do exactly that. Changing 230 will not change that — but will lead to fewer places for people to communicate and put tremendous limits on the ability to speak freely online.
The second prong has nothing to do with Section 230 and raises significant 4th Amendment concerns about when a website should have to hand over private information on someone without any warrant or judicial review. That should be frightening to everyone.
This entire proposal is horrifically authoritarian, and is questionable on both 1st and 4th Amendment grounds, but a bunch of cities are signing onto it because the proposal is extremely misleading about how the internet works, how Section 230 works, and what this all means. While I’m not sure that Congress really gives a shit what the League of California Cities has to say about Section 230, it’s yet another way in which people from all over the place are attacking the law that made the internet, because they’re mad that people they don’t like are doing stuff they don’t like.
Thankfully, at least one California city has rejected the proposal. Last night the city of Hayward rejected the proposal, despite it getting support from the local police chief and the city attorney who, I’m told, used the totally bogus “fire in a crowded theater” line, suggesting that was the law of the land (it’s not) and other wrong and misleading cliches, including “freedom of speech isn’t free.” Thankfully, some on the city council (and the mayor) seemed to recognize that this was a dangerous, half-baked proposal and voted it down. I hope other cities do the same.