[HN Gopher] NY Times gets 230 wrong again
___________________________________________________________________
NY Times gets 230 wrong again
Author : hn_acker
Score : 121 points
Date : 2024-10-28 17:28 UTC (5 hours ago)
(HTM) web link (www.techdirt.com)
(TXT) w3m dump (www.techdirt.com)
| hn_acker wrote:
| The original title of the article is:
|
| > NY Times Gets 230 Wrong Again; Misrepresenting History, Law,
| And The First Amendment
| mikestew wrote:
| Four chars too long, though.
|
| And it's "Section 230", if you were not parsing the integer
| value in the title.
| nickthegreek wrote:
| They know, they are the one who submitted the article to HN.
| I believe they were posting the comment just to denote that
| they had to change it.
|
| The following preserves all info under the title limit: NYT
| Gets 230 Wrong Again; Misrepresenting History, Law, And The
| 1st Amendment
|
| > NY Times Gets 230 Wrong Again; Misrepresenting History,
| Law, And The First Amendment
| mikestew wrote:
| I get that. It was more directed at the dork that downvoted
| the comment, to let them know _why_ OP might have
| elaborated.
| chomp wrote:
| Mike Masnick is a treasure. He posts on Bluesky here:
| https://bsky.app/profile/mmasnick.bsky.social
| Kon-Peki wrote:
| > Note that the issue of Section 230 does not come up even once
| in this history lesson.
|
| To be perfectly pedantic, the history lesson ends in 1991 and the
| CDA was passed in 1996.
|
| Also, I am not sure that this author really understands where
| things stand anymore. He calls the 3rd circuit TikTok ruling
| "batshit insane" and "deliberately ignores precedent". Well, it
| is entirely possible (likely even?) that it will get overruled.
| But that ruling is based on a Supreme Court ruling earlier this
| year (Moody vs. NetChoice). Throw your precedence out the window,
| the Supreme Court just changed things (or maybe we will find out
| that they didn't really mean it like _that_ ).
|
| The First Amendment protects you from the consequences of your
| own speech (with something like 17 categories of exceptions).
|
| Section 230 protects you from the consequences of publishing
| someone else's speech.
|
| Where we are right now is deciding if the algorithm is pumping
| out your speech or it is pumping out someone else's speech. And
| the 3rd circuit TikTok ruling spends paragraphs discussing this.
| You can read it for yourself and decide if it makes sense.
| SoftTalker wrote:
| > The First Amendment protects you from the consequences of
| your own speech
|
| It does no such thing. It protects your right to speak, but
| does not protect you from the consequences of what you say.
| ideashower wrote:
| Bingo. If you threaten, or promote harm/hate speech, you're
| not suddenly immune from the consequences of that. It's that
| the platform is (generally) immune from those same
| consequences.
| whoitwas wrote:
| "Section 230 protects you from the consequences of publishing
| someone else's speech."
|
| Right.
|
| "Where we are right now is deciding if the algorithm is pumping
| out your speech or it is pumping out someone else's speech."
|
| ????????????????????????????? Read what you wrote. It's the
| user who created it.
| Kon-Peki wrote:
| I strongly suggest reading the actual 3rd circuit TikTok
| ruling as well as the actual Moody vs NetChoice Supreme Court
| ruling, both from the year 2024.
|
| Things have changed. Hold on to your previous belief at your
| own peril.
| btown wrote:
| It's important to note that this article has its own biases; it's
| disclosed at the end that the author is on the board of Bluesky.
| But, largely, it raises very good points.
|
| > This is the part that 230 haters refuse to understand.
| Platforms rely on the immunity from liability that Section 230
| gives them to make editorial decisions on all sorts of content.
| Yet, somehow, they think that taking away Section 230 would
| magically lead to more removals of "bad" content. That's the
| opposite of true. Remove 230 and things like removing hateful
| information, putting in place spam filters, and stopping medical
| and election misinfo becomes a bigger challenge, since it will
| cost much more to defend (even if you'd win on First Amendment
| grounds years later).
|
| The general point is that Section 230 gives companies a shield
| from liability for manual curation, automated curation, and
| algorithmic recommendations alike, and that removing 230 would
| result in a wild west of we're-afraid-to-moderate-so-you'll-get-
| unmoderated-content that would be far worse than the status quo.
| But it's unfair to say that the NYT article is _completely_ wrong
| - because, in such a case, recommendation algorithms would be
| made more carefully as well.
|
| Realistically, the entire web ecosystem and thus a significant
| part of our economy rely on Section 230's protections for
| companies. IMO, regulation that provides users of large social
| networks with greater _transparency_ and _control_ into what
| their algorithms are showing to them _personally_ would be a far
| more fruitful discussion.
|
| Should every human have the right to understand that an algorithm
| has classified them in a certain way? Should we, as a society,
| have the right to understand _to what extent_ any social media
| company is classifying certain people as receptive to content
| regarding, say, specific phobias, and showing them content that
| is classified to _amplify_ those phobias? Should we have the
| right to understand, at least, exactly how a dial turned in a
| tech office impacts how children learn to see the world?
|
| We can and should iterate on ways to answer these complex
| questions _without_ throwing the ability for companies to
| moderate content out the window.
| lesuorac wrote:
| IIUC, most large ad providers allow you to see and tailor what
| they use in their algorithms (ex. [1]).
|
| I think the big problem with "Should every human have the right
| to understand that an algorithm has classified them in a
| certain way" is just that they flat out can't. You cannot
| design a trash can that every human can understand but a bear
| can't. There is a level of complexity that your average person
| won't be able to follow.
|
| [1]: https://myadcenter.google.com/controls
| jmpetroske wrote:
| Yes but it _appears_ that there are very different
| algorithms/classifications used for which ads to recommend vs
| what content to recommend. Opening up this insight/control
| for content recommendations (instead of just ads) would be a
| good start.
| lesuorac wrote:
| Have at it.
|
| https://support.google.com/youtube/answer/6342839?hl=en&co=
| G...
| Manuel_D wrote:
| > The general point is that Section 230 gives companies a
| shield from liability for manual curation, automated curation,
| and algorithmic recommendations alike, and that removing 230
| would result in a wild west of we're-afraid-to-moderate-so-
| you'll-get-unmoderated-content that would be far worse than the
| status quo. But it's unfair to say that the NYT article is
| completely wrong - because, in such a case, recommendation
| algorithms would be made more carefully as well.
|
| It's not "recommendation" that's the issue. Even removing
| offensive content resulted in liability for user generated
| content prior to Section 230. Recommendation isn't the issue
| with section 230. Moderation is.
|
| Chubby Inc. vs. CompuServe established that a non-moderated
| platform evaded liability for user generated content.
| https://en.wikipedia.org/wiki/Cubby,_Inc._v._CompuServe_Inc.
|
| Stratton Oakmont vs. Prodigy Services established that if an
| internet company did moderate content (even if it was just
| removing offensive content) it became liable for user-generated
| content. https://en.wikipedia.org/wiki/Stratton_Oakmont,_Inc._v
| ._Prod....
|
| If we just removed Section 230, we'd revert to the status quo
| before Section 230 was written into law. Companies wouldn't be
| more careful about moderation and recommendation. They straight
| up just wouldn't do any moderation. Because even the smallest
| bit of moderation results in liability for any and all user
| generated content.
|
| People advocating for removal of section 230 are imagining some
| alternate world where "bad" curation and moderation results in
| liability, but "good" moderation and curation does not. Except
| nobody can articulate a clear distinction of what these are.
| People often just say "no algorithmic curation". But even just
| sorting by time is algorithmic curation. Just sorting by
| upvotes minus downvotes is an algorithm too.
| zajio1am wrote:
| I guess most people that think section 230 is excessive are
| not advocating for its complete removal, but more like for
| adding some requirements that platforms have to adhere in
| order to claim such immunity.
| Manuel_D wrote:
| Sure, but I find that few people are able to articulate in
| any detail what those requirements are and explain how it
| will lead to a better ecosystem.
|
| A lot of people talk about a requirement to explain why
| someone was given a particular recommendation. Okay, so
| Google, Facebook, et. al. provide a mechanism that supplies
| you with a CSV of tens of thousands of entries describing
| the weights used to give you a particular recommendation.
| What problem does that solve?
|
| Conservatives often want to amend section 230 to limit
| companies' ability to down-weight and remove conservative
| content. This directly runs afoul the First Amendment; the
| government can't use the threat of liability to coerce
| companies into hosting speech they don't want to. Not to
| mention, the companies could just attribute the removal or
| down-ranking to other factors like inflammatory speech or
| negative user engagement.
| jjmarr wrote:
| I don't like Section 230 because "actual knowledge" no longer
| matters, as tech companies willfully blind themselves to the
| activities on their platforms.
|
| ~~As an example, there are subreddits like /r/therewasanattempt
| or /r/interestingasfuck that ban users that post in /r/judaism or
| /r/israel (there used to be a subreddit /r/bannedforbeingjewish
| that tracked this but that was banned by reddit admins). This
| isn't the First Amendment, since it's just a ban based on
| identity instead of posting content.
|
| According to the US legal system, discrimination based on
| religion is wrong. I should be able to fix this by complaining to
| reddit and creating actual knowledge of discrimination. In
| practice, because there is no contact mechanism for reddit, it's
| impossible for me to create actual knowledge.~~
|
| edit: I still believe the above behaviour is morally wrong, but
| it isn't an accurate example of the actual knowledge standard as
| others have pointed out. I'm leaving it here for context on the
| follow-up comments.
|
| The TechDirt article doesn't engage with this. It asserts that:
|
| >> Section 230 now has been used to shield tech from consequences
| for facilitating deadly drug sales, sexual harassment, illegal
| arms sales and human trafficking. And in the meantime, the
| companies grew to be some of the most valuable in the world.
|
| > None of those cases would have succeeded under the First
| Amendment, again because the companies had no actual knowledge of
| the underlying issues, and thus could not be held liable.
|
| However, if you try to use Facebook's defamation form[1] and list
| the United States as an option:
|
| > Facebook is not in a position to adjudicate the truth or
| falsity of statements made by third parties, and consistent with
| Section 230(c) of the Communications Decency Act, is not
| responsible for those statements. As a result, we are not liable
| to act on the content you want to report. If you believe content
| on Facebook violates our Community Standards (e.g., bullying,
| harassment, hate speech), please visit the Help Center to learn
| more about how to report it to us.
|
| [1]https://www.facebook.com/help/contact/430253071144967
| criley2 wrote:
| I'm not sure where you learned that the US legal system is
| against religious discrimination in private organizations, but
| it's not strictly true.
|
| Many religious organizations in the US openly discriminate
| against people who are not their religion, from christian
| charities and businesses requiring staff to sign contracts that
| state they agree with/are members of the religion, to catholic
| hospitals openly discriminating against non-catholics based on
| their own "religious freedom to deny care". One way they can do
| this is an exemption to discrimination called bona fide
| occupational qualification suggesting that only certain people
| can do the job.
|
| In a more broad sense, any private organization with limited
| membership (signing up vs allowing everyone) can discriminate.
| For example some country clubs discriminate based on race to
| this day. One reason for this is that the constitution
| guarantees "Freedom of Association" which includes the ability
| to have selective membership.
| jjmarr wrote:
| It's on a state-by-state basis.[1] In California in
| particular, courts have ruled online businesses that are
| public accommodations cannot discriminate:[2]
|
| > The California Supreme Court held that entering into an
| agreement with an online business is not necessary to
| establish standing under the Unruh Act. Writing for a
| unanimous court, Justice Liu emphasized that "a person
| suffers discrimination under the Act when the person presents
| himself or herself to a business with an intent to use its
| services but encounters an exclusionary policy or practice
| that prevents him or her from using those services," and that
| "visiting a website with intent to use its services is, for
| purposes of standing, equivalent to presenting oneself for
| services at a brick-and-mortar store."
|
| I'm not sure what Catholic hospitals refuse non-Catholics
| care. My understanding is they refuse to provide medical
| treatments such as abortion that go against Catholic moral
| teachings, and this refusal is applied to everyone.
|
| [1] https://lawyerscommittee.org/wp-
| content/uploads/2019/12/Onli...
|
| [2] https://harvardlawreview.org/print/vol-133/white-v-
| square/
| ideashower wrote:
| > In California in particular, courts have ruled online
| businesses that are public accommodations cannot
| discriminate.
|
| Yes.
|
| But there is a legal distinction between a business website
| that offers goods/services to the public (like an online
| store), and a social media platform's moderation decisions
| or user-created communities.
|
| Prager University v. Google LLC (2022)[1] - the court
| specifically held that YouTube's content moderation
| decisions didn't violate the Unruh Act. There's a clear
| distinction between access to services (where public
| accommodation laws may apply), and content
| moderation/curation decisions (protected by Section 230).
|
| [1] https://law.justia.com/cases/california/court-of-
| appeal/2022...
| jjmarr wrote:
| You are right, thank you for the citation.
|
| edit: there's another comment chain you might be
| interested in about whether the federal civil rights act
| is applicable.
| ideashower wrote:
| Thanks :-)
| Moto7451 wrote:
| > This isn't the First Amendment, since it's just a ban based
| on identity instead of posting content.
|
| This is not why the First Amendment does not apply. The First
| Amendment does not apply to private entities. It restricts the
| government...
|
| > Congress shall make no law respecting an establishment of
| religion, or prohibiting the free exercise thereof; or
| abridging the freedom of speech, or of the press; or the right
| of the people peaceably to assemble, and to petition the
| Government for a redress of grievances.
|
| At least from a First Amendment standpoint, Reddit can do what
| it feels like to establish a religion, ban all religious
| discussion, tell reporters to go to hell, start a news feed,
| etc. There are other laws they do need to deal with of course.
|
| More commentary on this here:
|
| https://www.cnn.com/2021/01/12/politics/first-amendment-expl...
| jjmarr wrote:
| I agreed with you. If Reddit wanted to ban certain types of
| posts, they're entitled to under the First Amendment.
|
| They're not entitled to discriminate against certain races,
| ethnicities, or religions though.
|
| https://harvardlawreview.org/print/vol-133/white-v-square/
| riskable wrote:
| They most certainly _are_ allowed to discriminate based on
| religion. The only laws on the books regarding religious
| discrimination are for employers who could potentially
| discriminate against their employees (or in hiring) based
| on their religion:
|
| https://www.eeoc.gov/religious-discrimination
|
| There's no law that says you can't say, run a website that
| only allows atheists to participate, or non-Jews, or non-
| Christians, or non-Muslims, or whatever religion or
| religious classification that you want.
|
| Discriminating based on race or ethnicity is a different
| topic entirely. You can choose your religion (it's like,
| just your opinion, man) but you can't choose your
| race/ethnicity. There's much more complicated laws in that
| area.
| pc86 wrote:
| There absolutely is such a law, the Civil Rights Act of
| 1964, specifically Title II. If you provide public
| accommodations you may not discriminate based on
| religion. You can't stick a "No Muslims allowed" sign on
| your restaurant because it's open to the public.
|
| Reddit is publicly available even if they require
| registration, and neither Reddit nor subreddit mods may
| legally discriminate based on anything covered under the
| CRA.
|
| https://www.justice.gov/crt/title-ii-civil-rights-act-
| public...
| riskable wrote:
| The CRA only covers physical spaces (places of "public
| accommodation"). Not services (like Reddit).
| Manuel_D wrote:
| My understanding is that businesses cannot deny service
| based on protected class. E.g. Reddit couldn't put
| "Catholics are barred from using Reddit" in their TOS.
|
| But subreddit bans are done by users of Reddit, not by
| Reddit itself. If someone on Xbox Live mutes the chat of
| Catholics and kicks them from the lobbies they're
| hosting, you can't go complain to Microsoft because these
| are the actions of a user not the company.
| tzs wrote:
| > The only laws on the books regarding religious
| discrimination are for employers who could potentially
| discriminate against their employees (or in hiring) based
| on their religion.
|
| You've overlooked prohibitions on religious
| discrimination in public accommodations [1].
|
| [1] https://www.law.cornell.edu/uscode/text/42/2000a
| Manuel_D wrote:
| Reddit is not a place of public accommodation. It's a
| private web company. And furthermore, Reddit isn't the
| one doing the banning. It's Reddit users that are
| blocking members from their subreddit. The rest of Reddit
| is free to be browsed by said users.
|
| If I create a Google chat group, and I only invite my
| church members to said group is Google violating anti-
| discrimination laws? No.
|
| ~~You're~~ the commenter 3 layers above is trying to
| interpret anti-discrimination laws to cover the actions
| of _users_ of a service, no the service itself.
| tzs wrote:
| > You're trying to interpret anti-discrimination laws to
| cover the actions of _users_ of a service, no the service
| itself
|
| You are failing to take into account context. My comment
| had nothing whatsoever to do with anything about Reddit.
|
| My comment is responding to a comment that asserted that
| the _only_ laws regarding religious discrimination are
| for employers potentially discriminating against
| employees.
|
| I provided an example of a law prohibiting religious
| discrimination in something other than employment.
| Moto7451 wrote:
| None of this has to do with the First Amendment including
| the legal review you linked to.
|
| The Unruh Civil Rights Act that is discussed does not
| extend the First Amendment as the First Amendment does not
| restrict the actions of businesses. The Unruh Civil Rights
| Act does not extend the First Amendment as it does not
| restrict the actions of Congress or other legislatures.
|
| Freedom of Speech in the Amendment also has specific
| meaning and does not fully extend to businesses.
|
| https://constitution.findlaw.com/amendment1/freedom-of-
| speec...
| fallingknife wrote:
| People need to understand that the only entity that can
| violate the constitution is the government. Citizens and
| companies are not restricted in their actions by the
| constitution, only the law.
| singleshot_ wrote:
| False. See generally the state actor doctrine. Courts
| have ruled extensively in the context of criminal
| investigations and FedEx; railroads and drug testing;
| NCMEC and CSAM hashes; and informant hackers and criminal
| prosecution.
| Manuel_D wrote:
| But Reddit isn't discriminating against certain races,
| ethnicities, or religions. Individual subreddit admins are
| discriminating on the basis of identity. This no different
| than creating a Discord server or IRC chat channel where
| you only let in your church friends. Reddit isn't refusing
| service on the basis of protected class. Reddit users are
| doing so.
| jjmarr wrote:
| The issue is that individual subreddit moderators each
| control hundreds of subreddits with millions of users. If
| 10% of the top subreddits ban anyone that participates in
| /r/Judaism or /r/Israel, that's a much bigger impact than
| a ban happy Discord mod.
|
| If one friend group is racist and you can't eat dinner at
| their house, that's qualitatively different than systemic
| discrimination by the restaurant industry.
|
| In this case, Reddit's platform has enough systemic
| discrimination that you have to choose between full
| participation in front-page posts or participation in
| Jewish communities.
| Manuel_D wrote:
| If you're talking about what your opinion of is morally
| right, or a healthy social media ecosystem I'm not really
| disagreeing with you - I don't think it's good for the
| subreddit mods to do this. But as per your comments, it
| does sound like you're making the claim that this
| activity is running afoul of nondiscrimination laws. This
| is incorrect.
|
| > If 10% of the top subreddits ban anyone that
| participates in /r/Judaism or /r/Israel, that's a much
| bigger impact than a ban happy Discord mod.
|
| The impact is not what matters. What matters is that the
| banning is done by users, not by the company. Non-
| discrimination laws prohibit _businesses_ from denying
| business to customers on the basis of protected class. It
| doesn 't dictate what _users_ of internet platforms do
| with their block button.
|
| > that's qualitatively different than systemic
| discrimination by the restaurant industry.
|
| Right, but a restaurant refusing a customer is a
| _business_ denying a customer. If Discord or Reddit put
| "We don't do business with X race" in their ToS that's
| direct discrimination by Reddit. If subreddit moderators
| ban people because they do or don't belong to a protected
| class, that's an action taken by users. You're free to
| create your own /r/interestingasfuckforall that doesn't
| discriminate.
|
| A bar can't turn away a customer for being Catholic. If a
| Catholic sits down at the bar, and the people next to him
| say "I don't want to sit next to a Catholic", and change
| seats to move way from a Catholic patron that's their
| prerogative. Subreddit bans are analogous to the latter.
| ideashower wrote:
| > I don't like Section 230 because "actual knowledge" no longer
| matters, as tech companies willfully blind themselves to the
| activities on their platforms.
|
| This is misleading. It seems like you're predicating your
| entire argument on the idea that there is a version of Section
| 230 that would require platforms to act on user reports of
| discrimination. But you're fundamentally misunderstanding the
| law's purpose: to protect platforms from liability for user
| content while preserving their right to moderate that content
| as they choose.
|
| Section 230 immunity doesn't depend on "actual knowledge." The
| law specifically provides immunity regardless of whether a
| platform has knowledge of illegal content. Providers can't be
| treated as publishers of third-party content, period.
|
| It's not that "'actual knowledge' no longer matters," it's that
| it never mattered. Anti-discrimination law is usually for
| things like public accommodations, not online forums.
| jjmarr wrote:
| My point is that platforms should have more of a
| responsibility when they currently have none.
|
| > But you're fundamentally misunderstanding the law's
| purpose: to protect platforms from liability for user content
| while preserving their right to moderate that content as they
| choose.
|
| I understand that this is the purpose of the law, and I
| disagree with it. Section 230 has led to large platforms
| outsourcing most of their content to users because it shields
| the platform from legal liability. A user can post illegal
| content, engage in discrimination, harassment, etc.
|
| > Anti-discrimination law is usually for things like public
| accommodations, not online forums.
|
| Anti-discrimination law should be applicable to online
| forums. The average adult spends more than 2 hours a day on
| social media. Social media is now one of our main public
| accommodations.
|
| If one of the most-used websites in the USA has an unofficial
| policy of discriminating against Jewish people that isn't
| covered by the current laws as that policy is enforced solely
| by users, that means the law isn't achieving its objectives
| of preventing discrimination.
| ideashower wrote:
| > platforms should
|
| > Anti-discrimination law should
|
| I don't disagree with you. But you must distinguish between
| what the law does, and what it should do, in your view.
| Otherwise you are misleading people.
| jjmarr wrote:
| You're correct (as you pointed out elsewhere), so I
| edited my original comment.
| fallingknife wrote:
| That's a good thing. We don't want Meta to be adjudicating
| defamation. Just look at the mess DMCA takedown notices are.
| When you tell companies to adjudicate something like copyright
| or defamation, they are just going to go with an "everybody
| accused is guilty" standard. (The only exception is large and
| well known accounts that bring in enough ad revenue to justify
| human involvement.) This will just turn into another mechanism
| to force censorship by false reporting.
| stackskipton wrote:
| I'm not sure what's going on but reading original NYT article
| does not call for 100% complete outright repeal of Section 230
| but indicating they find that Facebook can write algorithm that
| may or may not include user preferences then if it goes bonkers
| and shows illegal/toxic/fake content, hide behind Section 230 to
| be problematic.
|
| Most people against Section 230 have this viewpoint as well,
| algorithms since they are company controlled, should not be 100%
| Section 230 get out of jail free.
|
| Finally, article author drops this gem at the end: _As a board
| member of Bluesky_
|
| I'm reminded the quote: "It Is Difficult to Get a Man to
| Understand Something When His Salary Depends Upon His Not
| Understanding It"
| tedunangst wrote:
| Techdirt's coverage of section 230 has been pretty consistent
| from before bluesky existed.
| pfraze wrote:
| In fact, the causality is reversed; he's on the board due to
| his influence on us. Masnick wrote the Protocols not
| Platforms essay which inspired Dorsey to start the Bluesky
| project. Then Bluesky became the PBC, we launched, became
| independent, etc etc, and Masnick wasn't involved until the
| past year when we invited him to join our board.
|
| I hope you view his writing and POV as independent from his
| work with us. On matters like 230 you can find archives of
| very consistent writing from well before joining.
| stackskipton wrote:
| TIL. I'll admit, I'm not avid reader of TechDirt, follower
| of Mike Masnick or care that much about Bluesky since I
| don't interact a ton with social media.
|
| However, my initial feelings are correct. NYT article is
| bemoaning about Section 230, Mike seems to ignore why those
| feelings are coming up and burying there might be conflict
| of interest in caring since I guess BlueSky has algorithms
| it runs to help users? Again, admitting I know nothing
| about BlueSky. In any case, I don't think consistent PoV
| should bypass disclosure of that.
|
| His arguments about why Section 230 should be left intact
| are solid and I agree with some of them. I also think he
| misses the point that letting algorithms go insane with
| 100% Section 230 protection may not be best idea. Whether
| or not Section can be reformed without destroying the
| internet or if First Amendment gets involved here, I
| personally don't know.
| whoitwas wrote:
| The user who made the bonkers content is liable.
| stackskipton wrote:
| Sure, but with other forms of media, the publisher is liable
| as well about bonkers content with certain exceptions.
|
| This is what most of Section 230 fight is about. Some people,
| myself included, would say "No, Facebook is selecting content
| that doesn't involve user choice, they are drifting into
| publisher territory and thus should not be 100% immune to
| liability."
|
| EDIT: I forgot, Section 230 has also been used by Online Ad
| Publishers to hide their lack of moderation with scam ads.
| vundercind wrote:
| Reading the law, it _sure seems_ to be aimed at protecting
| services like ISPs, web hosts, CDNs /caches, email hosts,
| et c, not organizations _promoting and amplifying_ specific
| content they've allowed users to post. It's never seemed to
| me that applying 230 to, say, the Facebook feed or maybe
| even to Google ads is definitely required by or in the
| spirit of the law, but more like something we just
| accidentally ended up doing.
| whoitwas wrote:
| I thought safe harbor was the relevant statute here
| (section 512 of DMCA)?
| vundercind wrote:
| That's narrowly concerned with copyright infringement,
| no?
| whoitwas wrote:
| Yeah. It's been a while. This is interesting
| blackeyeblitzar wrote:
| It isn't surprising that they get details wrong. It's the same NY
| Times that called the constitution "dangerous"(https://www.nytime
| s.com/2024/08/31/books/review/constitution...), fanning the
| flames of a kind of uncivil line of thinking that has
| unfortunately been more and more popular.
|
| But this article itself makes mistakes - it does not seem to
| understand that the first amendment is about protecting free
| speech principles, which are actually much bigger than just what
| the first amendment says. The author makes an illogical claim
| that there is a category of speech that we want to illegitimize
| and shield platforms from. This is fundamentally opposed to the
| principles of free speech. Yes there is the tricky case of spam.
| But we should not block people based on political views or
| skepticism about science or anything else that is controversial.
| The censorship regime of big social media platforms should be
| viewed as an editorial choice, under law and in principle.
|
| Lastly - large social media platforms are utility communication
| services and public squares. They need to be regulated and
| treated like a government agency, restricting their ability to
| ban users and content. After all, so much of today's speech is on
| these platforms. Not being able to share your ideas there is
| similar to not having free speech rights at all.
| kaibee wrote:
| > But we should not block people based on political views or
| skepticism about science or anything else that is
| controversial. The censorship regime of big social media
| platforms should be viewed as an editorial choice, under law
| and in principle.
|
| > Lastly - large social media platforms are utility
| communication services and public squares. They need to be
| regulated and treated like a government agency, restricting
| their ability to ban users and content. After all, so much of
| today's speech is on these platforms. Not being able to share
| your ideas there is similar to not having free speech rights at
| all.
|
| This is all well and good, but maybe the place to rehash a
| debate about whether vaccines work is not in fact, the center
| town square. I would say that a person who has no idea about
| any of the underlying science and evidence, but is spreading
| doubt about it anyway (especially while benefiting
| financially), is not in fact, 'sharing their ideas', because
| they don't meet the minimum standard to actually have an
| opinion on the topic.
| pests wrote:
| Everyone is equal.
|
| Just because they don't "meet the minimum standard" doesn't
| mean their view or opinion is irrelevant.
|
| There are people sprouting crazy ideas in actual public town
| squares all the time, and they have done so forever. You
| don't have to go there and you don't have to listen.
| blackeyeblitzar wrote:
| > they don't meet the minimum standard to actually have an
| opinion on the topic
|
| Who should judge that and why? I think that's what makes free
| speech a basic right in functional democracies - there is no
| pre judging it. Challenging authority and science is
| important if we want to seek truth.
|
| In the case of vaccines, for example, people were getting
| censored for discussing side effects. Myocarditis is now
| officially acknowledged as a (rare) side effect of the MRNA
| based COVID vaccines. But not long ago it was labeled as a
| "conspiracy theory" and you would get banned on Twitter or
| Reddit for mentioning it.
| pessimizer wrote:
| > the first amendment is about protecting free speech
| principles, which are actually much bigger than just what the
| first amendment says.
|
| The First Amendment definitely is not about "free speech
| principles." It's the first of a short list of absolute
| restraints on the previous text, which is a description of US
| government, insisted upon by interests suspicious of
| federalization under that government. Free speech writ large is
| good and something to fight for, but the First Amendment is not
| an ideology, it is law.
|
| The reason (imo) to talk about the First Amendment in terms of
| these giant social media platforms is simply because of their
| size, which was encouraged by friendly government acts such as
| Section 230 in the first place, without which they couldn't
| scale. Government encouragement and protection of these
| platforms gives the government some responsibility for them.
| harshreality wrote:
| I think the author is right that harms caused by incorrect
| content aren't--and shouldn't be--the fault of section 230, and
| are instead the fault of the original producers of the content.
|
| I think the author is wrong in claiming that modern attention-
| optimizing recommendation algorithms are better than more
| primitive, poorer recommendation algorithms. Appearing to be more
| engaging/addictive does not imply more value. It's a measurement
| problem.
| johnnyanmac wrote:
| > Appearing to be more engaging/addictive does not imply more
| value.
|
| for modern day businesses it sadly does. But that misalignment
| of how to define "quality" is a part of why we're in this real
| time divide of whether social media is good/bad to begin with.
| basch wrote:
| Id like to propose something akin to the Ship of Theseus
| Paradox: lets call it the Ransom Letter Paradox.
|
| At what point do newspaper clipping arranged together become
| the work of the arranger and not the individual newspapers. If
| I take one paragraph from the NYT and one paragraph from the
| WSJ am I the author or are the NYT and WSJ the author? If I
| take 16 words in a row from each and alternate, am I the
| author? If I alternate sentences am I the author?
|
| At some point, there is a higher order "creation" of context
| between individually associated videos played together in a
| sequence. If I arrange one minute clips into an hour long
| video, I can say something the original authors never intended.
| If I, algorithmically, start following up videos with
| rebuttals, but only rebuttals that support my viewpoint, I am
| ADDING context by making suggestions. Sure people can click
| next, but in my ransom note example above, people can speed
| read and skip words as well. Current suggestion algorithms may
| not be purposely "trying to say something" but they effectively
| BECOME speakers almost accidently.
|
| Ignoring that a well crafted sequences of videos can create new
| meaning leaves us with a disingenuous interpretation of what
| suggestion algorithms either are doing or can do. I'm not
| saying that google is purposely radicalizing children into lets
| say white nationalists, buuut there may be something akin to
| negligence going on, if they can always point to a black box
| algorithm, one with a mind of its own, as the culprit. Winter
| v. GP Putnam giving them some kind of amnesty from their own
| "suggestions" rubs me the wrong way. Designing systems to give
| people "more of what they want" rubs me the wrong way because
| it narrows horizons not broadens them. That lets me segue into
| again linking to my favorite internet article ever (which the
| bbc has somehow broken the link to so here is the real link,
| and an archive
| https://www.bbc.co.uk/blogs/adamcurtis/entries/78691781-c9b7...
| https://archive.ph/RoBjr ) Im not sure I have an answer, but
| current recommendation engines are the opposite of it.
| fluoridation wrote:
| If one treats the order of content as a message unto itself,
| then wouldn't an attempt to regulate or in some way restrict
| recommendation algorithms infringe upon freedom of speech? If
| I decide to tweak my site's recommendation algorithm to
| slightly more often show content in favor of a particular
| political party, isn't that my right?
| basch wrote:
| That's why I proposed the paradox. At what tipping point
| does the arranger become the speaker?
|
| Read 230.
|
| https://www.law.cornell.edu/uscode/text/47/230
|
| "No provider or user of an interactive computer service
| shall be treated as the publisher or speaker of any
| information provided by another information content
| provider."
|
| "No provider or user of an interactive computer service
| shall be held 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.
|
| 230 says you can moderate however you like and what you
| choose to leave up doesnt become your own speech through
| endorsement osmosis.
|
| I agree with 230 to a point, but at some extreme it can be
| used to misrepresent speech as "someone elses." Similar to
| how the authors of newspapers wouldnt be the speaker of a
| ransom note because they contributed one letter or word,
| and it woild be absurd to claim otherwise.
|
| If the arranger is the speaker, restrictions on free speech
| apply to their newly created context. Accountability
| applies.
| andrewla wrote:
| The question that section 230, and the Communications Indecency
| Act in general, is the same one that plagued the court cases
| leading up to it, is to what degree the voluntary removal of some
| content implies an endorsement of other content.
|
| Some material you can be required to remove by law, or required
| to suspend pending review for various MDCA safe harbor
| provisions. But when you remove content in excess of that, where
| does the liability end?
|
| If you have a cat forum and you remove dog posts, are you also
| required to remove defamatory posts in general? If you have a new
| forum and you remove misinformation, does that removal constitute
| an actionable defamation against the poster?
|
| I generally dislike section 230, as I feel like blanket immunity
| is too strong -- I'd prefer that judges and juries make this
| decision on a case-by-case basis. But the cost of litigating
| these cases could be prohibitive, especially for small or growing
| companies. It seems like this would lead to an equilibrium where
| there was no content moderation at all, or one where you could
| only act on user reports. Maybe this wouldn't even be so bad.
| basch wrote:
| That is the entire point of 230. You can remove whatever you
| want for whatever reason, and what you leave up doesn't make
| you the speaker or endorser of that content.
|
| Taken to the extreme it obviously leaves a window for a crazy
| abuse where you let people upload individual letters, then you
| remove letters of your choice to create new sentences and claim
| the contributors of the letters are the speakers, not the
| editor.
|
| However, as far as I know, nobody is yet quite accused of that
| level of moderation to editorialize. Subreddits however ARE
| similar to that idea. Communities with strict points of view
| are allowed to purge anything not aligned with their community
| values. Taking away their protection basically eliminates the
| community from being able to exist.
| Manuel_D wrote:
| > If you have a new forum and you remove misinformation, does
| that removal constitute an actionable defamation against the
| poster?
|
| Twitter was sued for this, because they attached a note to a
| user's post. But note that this was not a user-generated
| community note. It was authored directly by Twitter.
|
| Without Section 230, any moderation - even if it was limited to
| just removing abjectly offensive content - resulted in the
| internet service taking liability for all user generated
| content. I think even acting on user reports would still result
| in liability. The two court cases that stablished this are
| here:
|
| https://en.wikipedia.org/wiki/Stratton_Oakmont,_Inc._v._Prod...
| .
|
| https://en.wikipedia.org/wiki/Cubby,_Inc._v._CompuServe_Inc.
| maxlybbert wrote:
| I'm sure that the difficulty the New York Times editors have
| about summarizing laws related to online publishing shouldn't
| make you wonder about what glaring mistakes are in their other
| reports about topics the newspaper wouldn't be expected to know
| as deeply.
| htk wrote:
| Related to that, there's the "Gell-Mann Amnesia" effect[1],
| where an expert can see numerous mistakes on his area of
| expertise being reported on the news, but somehow takes the
| rest as being accurate.
|
| [1]: https://www.epsilontheory.com/gell-mann-amnesia/
| jay_kyburz wrote:
| I can't speak to the legality or meaning of section 230, but I
| can share my somewhat controversial opinions about how I think
| the internet should operate.
|
| The author points out that the publisher of a book of mushrooms
| cannot be held responsible for recommending people eat poisonous
| mushrooms. This is OK I guess because the author _can_ be held
| responsible.
|
| If the author had been anonymous and the publisher could not
| accurately identify who should be responsible, then I would like
| to live in a society where the publisher _was_ held responsible.
| I don't think that's unreasonable.
|
| Over on the internet, content is posted mostly anonymously and
| there is nobody to take responsibility. I think big tech needs to
| be able to accurately identify the author of the harmful
| material, or take responsibility themselves.
| phkahler wrote:
| >> Over on the internet, content is posted mostly anonymously
| and there is nobody to take responsibility.
|
| I sometimes suggest that the internet should start from
| strongly verifiable identity. You can strip identity in cases
| where it makes sense, but trying to establish identity is very
| hard. When people can be identified it make it possible to
| track them down and hold them accountable if they violate laws.
| People will generally behave better when they are not
| anonymous.
| kaibee wrote:
| Yeah, it's illegal to shout "fire" in a crowded theater, but if
| you hook up the fire-alarm to a web-api, the responsibility for
| the ensuing chaos disappears.
| pessimizer wrote:
| It is not illegal to shout "fire" in a crowded theater. That
| was from an argument about why people should be jailed for
| passing out fliers opposing the US draft during WWI.
|
| https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the.
| ..
| freejazz wrote:
| >The author points out that the publisher of a book of
| mushrooms cannot be held responsible for recommending people
| eat poisonous mushrooms.
|
| I don't think this is true at all. If a publisher publishes a
| book that includes information that is not only incorrect, but
| actually harmful if followed, and represents it as true/safe,
| then they would be liable too.
| jay_kyburz wrote:
| From the article.
|
| >I know I've discussed this case before, but it always gets
| lost in the mix. In Winter v. GP Putnam, the Ninth Circuit
| said a publisher was not liable for publishing a mushroom
| encyclopedia that literally "recommended" people eat
| poisonous mushrooms. The issue was that the publisher had no
| way to know that the mushroom was, in fact, inedible.
|
| "We conclude that the defendants have no duty to investigate
| the accuracy of the contents of the books it publishes. A
| publisher may of course assume such a burden, but there is
| nothing inherent in the role of publisher or the surrounding
| legal doctrines to suggest that such a duty should be imposed
| on publishers. Indeed the cases uniformly refuse to impose
| such a duty. Were we tempted to create this duty, the gentle
| tug of the First Amendment and the values embodied therein
| would remind us of the social costs."
| riskable wrote:
| The main point the author is making is that algorithms represent
| _the opinion_ of the corporation /website/app maker and opinions
| are free speech. That is, deciding what to prioritize/hide in
| your feed is but a mere manifestation of the business's opinion.
| Algorithms == Opinions.
|
| This is a fine argument. The part where I think they get it wrong
| is the assumption/argument that a person or corporation can't be
| held accountable for their opinions. They most certainly can!
|
| In Omnicare, Inc. v. Laborers District Council Construction
| Industry Pension Fund the Supreme Court found that a company
| cannot be held liable for its opinion as long as that opinion was
| was "honestly believed". Though: the Court also
| held, however, that liability may result if the company omitted
| material facts about the company's inquiry into, or knowledge
| concerning, the statement of opinion, and those facts conflict
| with what a reasonable investor would understand as the basis of
| the statement when reading it.
|
| (from: https://www.jonesday.com/en/insights/2015/03/supreme-
| court-c...)
|
| That is, a company _can_ be held liable if it intentionally
| mislead its client (presumably also a customer or user). For that
| standard to be met the claimant would have to prove that the
| company was aware of the facts that proved their opinion wrong
| and decided to mislead the client anyway.
|
| In the case of a site like Facebook--if Meta was aware that
| certain information was dangerous/misleading/illegal--it very
| well _could_ be held liable for what its algorithm recommends. It
| may _seem_ like a high bar but probably isn 't because Meta is
| made aware of all sorts of dangerous/misleading information every
| day but only ever removes/de-prioritizes individual posts and
| doesn't bother (as far as I'm aware) with applying the same
| standard to re-posts of the same information. It must be manually
| reported and review again, every time (though maybe not? Someone
| with more inside info might know more).
|
| I'd also like to point out that if a court sets a precedent that
| algorithms == opinions it _should_ spell the end of all software
| patents. Since all software is 100% algorithms (aside from
| comments, I guess) that would mean all software is simply speech
| and speech isn 't patentable subject matter (though the SCOTUS
| should've long since come to that conclusion :anger:)
| johnnyanmac wrote:
| Yeah, that's the motte-and-bailey argument about 230 that makes
| me more scrutinous of tech companies by the day
|
| motte: "we curate content based on user preferences, and are
| hands off. We can't be responsible for every piece of (legal)
| content that is posted on your platform .
|
| bailey: "our algorithm is ad-friendly, and we curate content or
| punish it based on how happy or mad it makes out adverts, the
| real customers for our service. So if adverts don't like
| hearing the word "suicide" we'll make creators who want to be
| paid self-censor".
|
| if you want to take hands on what content is allowed on that
| granular a level, I don't see why 230 should protect you.
|
| >I'd also like to point out that if a court sets a precedent
| that algorithms == opinions it should spell the end of all
| software patents.
|
| I'm sure they'd word it very carefully to prevent that, or
| limit it only to software defined as "social media".
| aidenn0 wrote:
| This is the actual reason for s230 existing; without 230,
| applying editorial discretion could potentially make you
| liable (e.g. if a periodical uncritically published a
| libelous claim in its "letters to the editor"), so the idea
| was to allow some amount of curation/editorial discretion
| without also making them liable, lest all online forums
| become cesspools. Aiding monetization through advertising was
| definitely one reason for doing this.
|
| We can certainly decide that we drew the line in the wrong
| place (it would be rather surprising if we got it perfectly
| right that early on), but the line was not drawn blindly.
| fallingknife wrote:
| > That is, a company can be held liable if it intentionally
| mislead its client
|
| But only in a case where it has an obligation to tell the
| truth. The case you cited was about communication to investors,
| which is one of the very few times that legal obligation
| exists.
|
| Furthermore, you would be hard pressed to show that an
| algorithm is intentionally misleading unless you can show that
| it has been explicitly designed to show a specific piece of
| information. And recommendation algorithms don't do that. They
| are designed to show the user what he wants. And if what he
| wants happens to be misinformation, that's what he will get.
| freejazz wrote:
| Two five year old mistakes? Really? Techdirt has such a bent,
| this is silly. The rest is all within the fair boundaries of
| reasonable disagreement.
| pyuser583 wrote:
| We need to stop calling it "Section 230," "Section 230 of the
| CDA," or worst "Section 230 of the Telecommunications Act."
|
| Call it "Section 230 of the Communications Decency Act."
|
| As the name implies, the CDA was an attempt at censorship,
| specifically an act to outlaw internet pornography.
|
| An unconstitutional (per SCOTUS) act to outlaw unpopular speech
| (pornography).
|
| Far from being some libertarian Christmas gift, the whole point
| is to facilitate internet censorship.
|
| Without 230 of the CDA, third parties would be held liable for
| attempts at moderation (a synonym for private censorship).
|
| It's so bizarre that the popular understanding is so far removed
| from what was actually done.
| janalsncm wrote:
| I create recommender systems for a living. They are powerful and
| also potentially dangerous. But many people fall into the trap of
| thinking that just because a computer recommends something it's
| objectively good.
|
| It is math but it's not "just math". Pharmaceuticals is chemistry
| but it's not "just chemistry". And that is the framework I think
| we should be thinking about these with. Instagram doesn't have a
| God-given right to flood teen girls' feeds with anorexia-inducing
| media. The right is granted by people, and can be revoked.
|
| > Because you can't demand that anyone recommending anything know
| with certainty whether or not the content they are recommending
| is good or bad. That puts way too much of a burden on the
| recommender, and makes the mere process of recommending anything
| a legal minefield.
|
| Let's flag for a moment that this is a value judgement. The
| author is using "can't" when they really mean "should not". I
| also think it is a strawman to suggest anyone is requiring
| absolute certainty.
|
| When dealing with baby food manufacturers, if their manufacturing
| process creates poisoned food, we hold the manufacturer liable.
| Someone might say it's unfair to require that a food manufacturer
| guarantee none of their food will be poisoned, and yet we still
| have a functioning food industry.
|
| > The whole point of a search recommendation is "the algorithm
| thinks these are the most relevant bits of content for you."
|
| Sure. But "relevant" is fuzzy and not quantifiable. Computers
| like things to be quantifiable. So instead we might use a proxy
| like click. Click will lead to boosting clickbait content. So
| maybe you include text match. Now you boost websites that are
| keyword stuffing.
|
| If you continue down the path of maximal engagement somewhere
| down the line you end up with some kind of cesspool of clickbait
| and ragebait. But choosing to maximize engagement was itself a
| choice, it's not objectively more relevant.
| lasermike026 wrote:
| And Nero played the fiddle while Rome burned.
| echoangle wrote:
| > It being just a suggestion or a recommendation is also
| important from a legal standpoint: because recommendation
| algorithms are simply opinions. They are opinions of what content
| that algorithm thinks is most relevant to you at the time based
| on what information it has at that time.
|
| Is that really how opinions work in US law? Isn't an opinion
| something a human has? If google builds a machine that does
| something, is that protected as an opinion, even if no human at
| google ever looks at it? ,,Opinion" sounds to me like it's
| something a humans believes, not the approximation a computer
| generates.
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