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We Can't Have Serious Discussions About Section 230 If People Misrepresent It

32 points by hn_acker 3y ago

hn_acker 3y ago
The title was too long. The original title was: > We Can’t Have Serious Discussions About Section 230 If People Keep Misrepresenting It
AnthonyMouse 3y ago
> But the issue with these laws was whether or not it constricted the platforms’ ability to express themselves in the way in which they moderated. That is, the editorial decisions that were being made expressing “this is what type of community we enable” are a form of public expression that the Florida & Texas laws seek to stifle. This is taking the platforms' arguments as true, when it doesn't need to. Regardless of whether moderation is "speech", it's something Congress wanted them to do, because the alternative is that they don't in order to avoid liability and then everything is full of spam. And "corporate moderation is protected speech" seems like a bad precedent. Even if you like it when it's Facebook, what happens when it's Comcast?
- xKingfisher 3y ago
  We have common carrier laws to cover cases like Comcast. Which Section 230 explicitly says social media platforms are not. And the problem with Comcast is not necessarily that they will make speech decisions we don't like (an inherent part of free speech). The problem is that they're a monopoly and people don't have other options. So we should fix that problem instead of further limiting 1A rights.
  - AnthonyMouse 3y ago
    > We have common carrier laws to cover cases like Comcast. Not if you set a new precedent that corporate moderation is protected speech under the First Amendment and invalidate those laws. > The problem is that they're a monopoly and people don't have other options. But this is the same problem with large platforms. They have a dominant market position in a market with a strong network effect.
    - hn_acker 3y ago
      >> We have common carrier laws to cover cases like Comcast. > Not if you set a new precedent that corporate moderation is protected speech under the First Amendment and invalidate those laws. Why would treating a social media site's moderation as protected speech automatically make the social media site a common carrier?
      - AnthonyMouse 3y ago
        > Why would treating a social media site's moderation as protected speech automatically make the social media site a common carrier? First of all, you're asking the question backwards. If corporate moderation is protected speech then why wouldn't it be protected speech for common carriers? The only plausible answer is that they have a dominant market position, but then so do the large social media platforms, which are the only things these laws apply to.
        hn_acker 3y ago
        > The only plausible answer is that they have a dominant market position Not necessarily. If the internet were as essential to average daily life today in the US as electricity (which I am not declaring true or false in this particular sentence), then it would be reasonable to treat ISPs but not websites as common carriers no matter how competitive the internet access market is. Another answer that doesn't rely on the previous one would be that it is not reasonable to expect a social media site to deliver a user's speech as reliably as one would expect an ISP to deliver the speech. I got this idea from an excerpt on Wikipedia [1]: > Cases have also established limitations to the common carrier designation. In a case concerning a hot air balloon, Grotheer v. Escape Adventures, Inc., the court affirmed a hot air balloon was not a common carrier, holding the key inquiry in determining whether or not a transporter can be classified as a common carrier is whether passengers expect the transportation to be safe because the operator is reasonably capable of controlling the risk of injury. If you're referring to common carriers offering transport of physical goods or people (as cargo railroads and passenger railroads do) then a different answer could be that users can sometimes have priority over physical property owned by someone else, while treating websites as common carriers would mean giving users priority over physical property owned by someone else which the owner also uses (e.g. puts terms of service on and moderates) to express what kind of website the website is. In other words, outweighing property rights alone is easier than outweighing property rights and speech rights combined. Moreover, I'm guessing that whether the public associates an ISP with third-party speech depends on whether the speech is protected. Suppose that a social media site is notorious for users who speak in favor of copyright infringement (copyright infringement being unprotected speech). The public might associate the ISPs those users use with copyright infringement (anecdote: Reddit, Frontier, and copyright infringement [2]). But what about protected speech? A social media site is notorious for users who speak in favor of hate crimes. Will the public be comparably likely to associate the ISPs those users use with hate speech? But nothing I wrote above is not really an answer, since I've been speculating for the most part. I'm not very knowledgeable about the legal theory behind a common carrier designation, so here is something closer to an answer from Mike Masnick [3]: > As you look over time, you’ll notice a few important common traits in all historical common carriers: > 1. Delivering something (people, cargo, data) from point A to point B > 2. Offering a commoditized service (often involving a natural monopoly provider) > In some ways, point (2) is a function of point (1). The delivery from point A to point B is the key point here. Railroads, telegraphs, telephone systems are all in that simple business — taking people, cargo, data (voice) from point A to point B — and then having no further ongoing relationship with you. > That’s just not the case for social media. Social media, from the very beginning, was about hosting content that you put up. It’s not transient, it’s perpetual. That, alone, makes a huge difference, especially with regards to the 1st Amendment’s freedom of association. It’s one thing to say you have to transmit someone’s speech from here to there and then have no more to do with it, but it’s something else entirely to say “you must host this person’s speech forever.” > Second, social media is, in no way, a commodified service. Facebook is a very different service from Twitter, as it is from YouTube, as it is from TikTok, as it is from Reddit. They’re not interchangeable, nor are they natural monopolies, in which massive capital outlays are required upfront to build redundant architecture. New social networks can be set up without having to install massive infrastructure, and they can be extremely differentiated from every other social network. That’s not true of traditional common carriers. Getting from New York to Boston by train is getting from New York to Boston by train. [1] https://en.wikipedia.org/wiki/Common_carrier#General https://en.wikipedia.org/wiki/Common_carrier#General [2] https://arstechnica.com/tech-policy/2024/02/reddit-beats-film-industry-again-wont-have-to-reveal-pirates-ip-addresses/ https://arstechnica.com/tech-policy/2024/02/reddit-beats-fil... [3] https://www.techdirt.com/2022/02/25/why-it-makes-no-sense-to-call-websites-common-carriers/ https://www.techdirt.com/2022/02/25/why-it-makes-no-sense-to...
umvi 3y ago
I feel like a better solution is to have Congress define where speech is protected online. "Publicly available social media websites count as public spaces". Otherwise we go down this route where "Comcast's free speech is being infringed by not allowing it to censor its users"
deleted 3y ago
[deleted]
sircastor 3y ago
> The discussion was mostly about Thomas and Gorsuch’s confusion over 230 I find this distressing. If anyone should know what the law says, it should be a Supreme Court Justice. I know they have clerks and aides to help them with all that - the ability to know the whole law and all its variations and caveats is a monumental, and almost inhuman task. A Supreme Court justice shouldn’t mix up parts a law. They should know what it says, and what it does not say.
- LudwigNagasena 3y ago
  If a case has reached the Supreme Court, it means that many judges have been confused along the way. And it says more about the law than judges. It rather seems that the author has very strong convictions and bias.
  - sircastor 3y ago
    I think if a case reaches the Supreme Court it really only means that the person prosecuting it is able to bankroll appeals far enough to get there - they didn’t get the answer they wanted. Beyond that, the court can either hear it out or push it back down.
    - LudwigNagasena 3y ago
      There are restrictions on appeals, as far as I understand. You can’t just frivolously appeal anything until it reaches the Supreme Court. And if a law is straightforward, it is a waste of money and time anyway.
- AnthonyMouse 3y ago
  They know what it says, Masnick is being disingenuous. Section 230(c)(1) says that platforms aren't liable "as the publisher or speaker" for third party speech even if they moderate. The platforms are arguing that moderation is first party speech, implying that doesn't apply. Masnick is presumably referring to 230(c)(2), which protects platforms against liability for moderation decisions. But the title of that subsection is "Civil liability" and parts of these laws impose administrative/criminal penalties. Which is presumably why the platforms are trying to make a First Amendment argument to begin with instead of just relying on Section 230.
JieJie 3y ago
"The blame should always go to the party who violated the law in creating the content." This, this, a thousand times this.
- hagbard_c 3y ago
  Who is responsible for the output of generative LLMs? Is it the person running the model, the person or group or company which trained the model, the creator of the initial parameters, the person who regurgitates what the model produced?
  - orwin 3y ago
    The one who posted it?
  - JieJie 3y ago
    Precedent in the US is very much on the side of the person, not the method. Whether the Xerox photocopier, the Sony Betamax or (so far) generative AI, judges are ruling that the fault in using technology to infringe copyright doesn't lie in the technology, but the way the technology is used by a person. Generative AI isn't (yet) a person, so it is neither capable of creating copyrightable works, nor in itself infringing copyright. I wrote a research paper on it, if you're interested. https://www.zipbangwow.com/intellectual-impropriety/ https://www.zipbangwow.com/intellectual-impropriety/
hn_acker 3y ago
This comment is a modified version of a comment I made elsewhere after resolving my own previous confusion (https://news.ycombinator.com/item?id=39575873 https://news.ycombinator.com/item?id=39575873). There are two different kinds of speech at issue in the Supreme Court case. 1. The first kind of speech is the posts themselves, the contents of which were written by users. For the social media site, this first kind is third-party speech. For the users, this first kind is first-party speech. 2. The second kind of speech is what the social media website does with the post (boosts, downranks, deletes, marks with tags, bans the user of, etc.). For the company, this second kind is first-party speech. (Less relevantly, the second kind of speech is also anything a worker at the social media company writes on the site in official representation of the social media company's views.) Section 230 declares that the social media site cannot be held liable for the first kind of speech. Social media sites can still be held liable for the second kind of speech. Holding the social media company liable for boosting a harmful but First-Amendment-protected post would violate the social media company's First Amendment right to moderate. The right to moderate comes from the First Amendment, not from Section 230. My rule of thumb (not always applicable) is that harm which wouldn't have happened if the post content had been different is actually harm caused by the first kind of speech, and therefore liability should rest solely on the author of the post, even if the social media site boosted the post. Suppose that I make a post about eating disorders on social media. (Posts discussing eating disorders are protected speech.) The social media site boosts my post. Some kid sees it and later develops an eating disorder (correlation, with the question of causation to be decided in court). The kid's parent (or caretaker) sues the social media site and argues that the social media site should be liable because the social media site boosted the post. Scenario 1. If Section 230 didn't exist, then the social media company would have to go through the entire court process. The social media site argues that "First, social media websites have a First Amendment right to moderate. Second, our moderators could not be expected to foresee that a mere discussion of eating disorders would cause more harm than help. Third, the liability should fall on the user who posted the speech." (Depending on the scenario there might also be a fourth argument such as "Our algorithm made the recommendation. Since we didn't knowingly boost a harmful post then we cannot be held liable for the post." This is the "knowledge" issue that applies to just about any third-party liability case.) The social media company loses a lot of money, but the court rules that the social media company was not liable for the post. Scenario 2. Since Section 230 does exist, then the social media company can argue that "This lawsuit attempts to hold someone online liable for distributing speech made by someone else. Section 230 says that this kind of third-party liability cannot exist [except for the exceptions: federal crimes, 'intellectual property', and electronic privacy]." (In this scenario, the "knowledge" issue is irrelevant and doesn't need to be brought up in court.) The court declares that the social media company cannot be held liable for the post, and dismisses the case early. Either way, the social media company would not be liable. But Section 230 is still necessary to prevent social media companies from being overwhelmed with having to go through entire court cases, especially if either party brings up the "knowledge" issue. Regardless, the parent could sue me, since I authored the post. I would be the only appropriate party, if any, for the parent to sue. (There's no guarantee that the court would actually find meaningful harm or liability from the particular post. And obviously, there could be no third-party liability on the social media website if the court in either scenario were to find no first-party liability on me.)
Starman_Jones 3y ago
[dead]
hackeraccount 3y ago
I think the argument in favor of the Florida and Texas is the the various Social Media sites are less platforms and more common carriers. I don't buy it but it's totally crazy. When I'm DM'ing someone it's hard to say X isn't acting like a common carrier. It's the same tool used in a different way for it to be a platform. When it's a platform the moderation may or may not be legal depending upon what the Supreme Court says but honestly - everyone wants that moderation. It's a pipe dream to think that people aren't going to get it one way or the other. Common carrier traffic is moderated (see mail handler spam filters) but everyone knows the rules about what gets allowed and what doesn't. If common carrier traffic was moderated like platform traffic everyone would be horrified - and so it's not.

32 points by hn_acker 3y ago

The title was too long. The original title was: > We Can’t Have Serious Discussions About Section 230 If People Keep Misrepresenting It

AnthonyMouse 3y ago

> But the issue with these laws was whether or not it constricted the platforms’ ability to express themselves in the way in which they moderated. That is, the editorial decisions that were being made expressing “this is what type of community we enable” are a form of public expression that the Florida & Texas laws seek to stifle. This is taking the platforms' arguments as true, when it doesn't need to. Regardless of whether moderation is "speech", it's something Congress wanted them to do, because the alternative is that they don't in order to avoid liability and then everything is full of spam. And "corporate moderation is protected speech" seems like a bad precedent. Even if you like it when it's Facebook, what happens when it's Comcast?

xKingfisher 3y ago
We have common carrier laws to cover cases like Comcast. Which Section 230 explicitly says social media platforms are not. And the problem with Comcast is not necessarily that they will make speech decisions we don't like (an inherent part of free speech). The problem is that they're a monopoly and people don't have other options. So we should fix that problem instead of further limiting 1A rights.
- AnthonyMouse 3y ago
  > We have common carrier laws to cover cases like Comcast. Not if you set a new precedent that corporate moderation is protected speech under the First Amendment and invalidate those laws. > The problem is that they're a monopoly and people don't have other options. But this is the same problem with large platforms. They have a dominant market position in a market with a strong network effect.
  - hn_acker 3y ago
    >> We have common carrier laws to cover cases like Comcast. > Not if you set a new precedent that corporate moderation is protected speech under the First Amendment and invalidate those laws. Why would treating a social media site's moderation as protected speech automatically make the social media site a common carrier?
    - AnthonyMouse 3y ago
      > Why would treating a social media site's moderation as protected speech automatically make the social media site a common carrier? First of all, you're asking the question backwards. If corporate moderation is protected speech then why wouldn't it be protected speech for common carriers? The only plausible answer is that they have a dominant market position, but then so do the large social media platforms, which are the only things these laws apply to.
      - hn_acker 3y ago
        > The only plausible answer is that they have a dominant market position Not necessarily. If the internet were as essential to average daily life today in the US as electricity (which I am not declaring true or false in this particular sentence), then it would be reasonable to treat ISPs but not websites as common carriers no matter how competitive the internet access market is. Another answer that doesn't rely on the previous one would be that it is not reasonable to expect a social media site to deliver a user's speech as reliably as one would expect an ISP to deliver the speech. I got this idea from an excerpt on Wikipedia [1]: > Cases have also established limitations to the common carrier designation. In a case concerning a hot air balloon, Grotheer v. Escape Adventures, Inc., the court affirmed a hot air balloon was not a common carrier, holding the key inquiry in determining whether or not a transporter can be classified as a common carrier is whether passengers expect the transportation to be safe because the operator is reasonably capable of controlling the risk of injury. If you're referring to common carriers offering transport of physical goods or people (as cargo railroads and passenger railroads do) then a different answer could be that users can sometimes have priority over physical property owned by someone else, while treating websites as common carriers would mean giving users priority over physical property owned by someone else which the owner also uses (e.g. puts terms of service on and moderates) to express what kind of website the website is. In other words, outweighing property rights alone is easier than outweighing property rights and speech rights combined. Moreover, I'm guessing that whether the public associates an ISP with third-party speech depends on whether the speech is protected. Suppose that a social media site is notorious for users who speak in favor of copyright infringement (copyright infringement being unprotected speech). The public might associate the ISPs those users use with copyright infringement (anecdote: Reddit, Frontier, and copyright infringement [2]). But what about protected speech? A social media site is notorious for users who speak in favor of hate crimes. Will the public be comparably likely to associate the ISPs those users use with hate speech? But nothing I wrote above is not really an answer, since I've been speculating for the most part. I'm not very knowledgeable about the legal theory behind a common carrier designation, so here is something closer to an answer from Mike Masnick [3]: > As you look over time, you’ll notice a few important common traits in all historical common carriers: > 1. Delivering something (people, cargo, data) from point A to point B > 2. Offering a commoditized service (often involving a natural monopoly provider) > In some ways, point (2) is a function of point (1). The delivery from point A to point B is the key point here. Railroads, telegraphs, telephone systems are all in that simple business — taking people, cargo, data (voice) from point A to point B — and then having no further ongoing relationship with you. > That’s just not the case for social media. Social media, from the very beginning, was about hosting content that you put up. It’s not transient, it’s perpetual. That, alone, makes a huge difference, especially with regards to the 1st Amendment’s freedom of association. It’s one thing to say you have to transmit someone’s speech from here to there and then have no more to do with it, but it’s something else entirely to say “you must host this person’s speech forever.” > Second, social media is, in no way, a commodified service. Facebook is a very different service from Twitter, as it is from YouTube, as it is from TikTok, as it is from Reddit. They’re not interchangeable, nor are they natural monopolies, in which massive capital outlays are required upfront to build redundant architecture. New social networks can be set up without having to install massive infrastructure, and they can be extremely differentiated from every other social network. That’s not true of traditional common carriers. Getting from New York to Boston by train is getting from New York to Boston by train. [1] https://en.wikipedia.org/wiki/Common_carrier#General https://en.wikipedia.org/wiki/Common_carrier#General [2] https://arstechnica.com/tech-policy/2024/02/reddit-beats-film-industry-again-wont-have-to-reveal-pirates-ip-addresses/ https://arstechnica.com/tech-policy/2024/02/reddit-beats-fil... [3] https://www.techdirt.com/2022/02/25/why-it-makes-no-sense-to-call-websites-common-carriers/ https://www.techdirt.com/2022/02/25/why-it-makes-no-sense-to...

umvi 3y ago

I feel like a better solution is to have Congress define where speech is protected online. "Publicly available social media websites count as public spaces". Otherwise we go down this route where "Comcast's free speech is being infringed by not allowing it to censor its users"

deleted 3y ago

[deleted]

sircastor 3y ago

> The discussion was mostly about Thomas and Gorsuch’s confusion over 230 I find this distressing. If anyone should know what the law says, it should be a Supreme Court Justice. I know they have clerks and aides to help them with all that - the ability to know the whole law and all its variations and caveats is a monumental, and almost inhuman task. A Supreme Court justice shouldn’t mix up parts a law. They should know what it says, and what it does not say.

LudwigNagasena 3y ago
If a case has reached the Supreme Court, it means that many judges have been confused along the way. And it says more about the law than judges. It rather seems that the author has very strong convictions and bias.
- sircastor 3y ago
  I think if a case reaches the Supreme Court it really only means that the person prosecuting it is able to bankroll appeals far enough to get there - they didn’t get the answer they wanted. Beyond that, the court can either hear it out or push it back down.
  - LudwigNagasena 3y ago
    There are restrictions on appeals, as far as I understand. You can’t just frivolously appeal anything until it reaches the Supreme Court. And if a law is straightforward, it is a waste of money and time anyway.
AnthonyMouse 3y ago
They know what it says, Masnick is being disingenuous. Section 230(c)(1) says that platforms aren't liable "as the publisher or speaker" for third party speech even if they moderate. The platforms are arguing that moderation is first party speech, implying that doesn't apply. Masnick is presumably referring to 230(c)(2), which protects platforms against liability for moderation decisions. But the title of that subsection is "Civil liability" and parts of these laws impose administrative/criminal penalties. Which is presumably why the platforms are trying to make a First Amendment argument to begin with instead of just relying on Section 230.

JieJie 3y ago

"The blame should always go to the party who violated the law in creating the content." This, this, a thousand times this.

hagbard_c 3y ago
Who is responsible for the output of generative LLMs? Is it the person running the model, the person or group or company which trained the model, the creator of the initial parameters, the person who regurgitates what the model produced?
- orwin 3y ago
  The one who posted it?
- JieJie 3y ago
  Precedent in the US is very much on the side of the person, not the method. Whether the Xerox photocopier, the Sony Betamax or (so far) generative AI, judges are ruling that the fault in using technology to infringe copyright doesn't lie in the technology, but the way the technology is used by a person. Generative AI isn't (yet) a person, so it is neither capable of creating copyrightable works, nor in itself infringing copyright. I wrote a research paper on it, if you're interested. https://www.zipbangwow.com/intellectual-impropriety/ https://www.zipbangwow.com/intellectual-impropriety/

hn_acker 3y ago

This comment is a modified version of a comment I made elsewhere after resolving my own previous confusion (https://news.ycombinator.com/item?id=39575873 https://news.ycombinator.com/item?id=39575873). There are two different kinds of speech at issue in the Supreme Court case. 1. The first kind of speech is the posts themselves, the contents of which were written by users. For the social media site, this first kind is third-party speech. For the users, this first kind is first-party speech. 2. The second kind of speech is what the social media website does with the post (boosts, downranks, deletes, marks with tags, bans the user of, etc.). For the company, this second kind is first-party speech. (Less relevantly, the second kind of speech is also anything a worker at the social media company writes on the site in official representation of the social media company's views.) Section 230 declares that the social media site cannot be held liable for the first kind of speech. Social media sites can still be held liable for the second kind of speech. Holding the social media company liable for boosting a harmful but First-Amendment-protected post would violate the social media company's First Amendment right to moderate. The right to moderate comes from the First Amendment, not from Section 230. My rule of thumb (not always applicable) is that harm which wouldn't have happened if the post content had been different is actually harm caused by the first kind of speech, and therefore liability should rest solely on the author of the post, even if the social media site boosted the post. Suppose that I make a post about eating disorders on social media. (Posts discussing eating disorders are protected speech.) The social media site boosts my post. Some kid sees it and later develops an eating disorder (correlation, with the question of causation to be decided in court). The kid's parent (or caretaker) sues the social media site and argues that the social media site should be liable because the social media site boosted the post. Scenario 1. If Section 230 didn't exist, then the social media company would have to go through the entire court process. The social media site argues that "First, social media websites have a First Amendment right to moderate. Second, our moderators could not be expected to foresee that a mere discussion of eating disorders would cause more harm than help. Third, the liability should fall on the user who posted the speech." (Depending on the scenario there might also be a fourth argument such as "Our algorithm made the recommendation. Since we didn't knowingly boost a harmful post then we cannot be held liable for the post." This is the "knowledge" issue that applies to just about any third-party liability case.) The social media company loses a lot of money, but the court rules that the social media company was not liable for the post. Scenario 2. Since Section 230 does exist, then the social media company can argue that "This lawsuit attempts to hold someone online liable for distributing speech made by someone else. Section 230 says that this kind of third-party liability cannot exist [except for the exceptions: federal crimes, 'intellectual property', and electronic privacy]." (In this scenario, the "knowledge" issue is irrelevant and doesn't need to be brought up in court.) The court declares that the social media company cannot be held liable for the post, and dismisses the case early. Either way, the social media company would not be liable. But Section 230 is still necessary to prevent social media companies from being overwhelmed with having to go through entire court cases, especially if either party brings up the "knowledge" issue. Regardless, the parent could sue me, since I authored the post. I would be the only appropriate party, if any, for the parent to sue. (There's no guarantee that the court would actually find meaningful harm or liability from the particular post. And obviously, there could be no third-party liability on the social media website if the court in either scenario were to find no first-party liability on me.)

Starman_Jones 3y ago

[dead]

hackeraccount 3y ago

I think the argument in favor of the Florida and Texas is the the various Social Media sites are less platforms and more common carriers. I don't buy it but it's totally crazy. When I'm DM'ing someone it's hard to say X isn't acting like a common carrier. It's the same tool used in a different way for it to be a platform. When it's a platform the moderation may or may not be legal depending upon what the Supreme Court says but honestly - everyone wants that moderation. It's a pipe dream to think that people aren't going to get it one way or the other. Common carrier traffic is moderated (see mail handler spam filters) but everyone knows the rules about what gets allowed and what doesn't. If common carrier traffic was moderated like platform traffic everyone would be horrified - and so it's not.