Look, if the alleged “President” of the United States wants to distract from COVID-19 by changing the subject who am I to argue? Gives me something more fun to write about. And to make many comments about the stupidity of the alleged leader of the free world and how he has no understanding about internet law. Right up my alley!
Boy oh boy what a year we’ve had in the last week on the interwebs, eh? Let’s go back in time 6 years to two weeks ago with a timeline so we’re all on the same page:
- May 12 – the “President” tweets a debunked bullshit conspiracy theory that Joe Scarborough, MSNBC host and former congressman, murdered a staffer, Lori Klausutis (note – I will not be linking to any “Presidential” Tweets because fuck him is why);
- May 20 – he tweeted the same shit again, and one of his idiot sons jumped in too for for good measure;
- May 21 – the widower of Mrs. Klausutis writes a letter to Twitter CEO Jack Dorsey saying FOR THE LOVE OF GOD DELETE THOSE FUCKING TWEETS (but nicely), they violate Twitter’s own rules and Terms of Service (ed. – they do!);
- May 26 (this past Tuesday) – Twitter says nah, we ain’t doing that;
- May 26 – Twitter also says “but we have some things coming!”
- May 26 – those things come. On two Tweets of “Presidential” bullshit about mail-in ballots, Twitter adds a link to the Tweets to “Get the facts about mail-in ballots” which links to facts about mail-in ballots;
- All the time – “President” whines, says Twitter is mean to him for pointing out his bullshit, they are violating his first amendment (free speech) rights. Remember that part;
- Wednesday – “President” says “Shit is coming”;
- Yesterday – shit comes. It is in the form of an Executive Order called “Executive Order on Preventing Online Censorship” which is totally full of shit from an internet law perspective, but we’ll get to that;
- Last night, around midnight – in the light of serious unrest in Minneapolis following the death of an African-American at the hands (knee) of police, the “President” tweets that “when the looting starts, the shooting starts”;
- Some time after that last night, Twitter puts a warning on that Tweet that it violates Twitter rules for “glorifying violence”;
- Today – “President” is not happy, details to follow;
- Probably things are happening right now while I am typing. You should check Twitter.
OK, then. The point of this post is to talk about how the “President” is an idiot. Or at least the person who drafted the Executive Order is an idiot. OK we’ll do both. Let’s do some law! U.S. law, even. “Are you even licensed to practice law in the U.S., Allen”, you are asking me, “or did you fail the NY Bar?” Shut up.
First, let’s read the First Amendment of the Constitution of the United States (well the good parts):
Congress shall make no law … abridging the freedom of speech, or of the press…
What does that mean? It means (sort of) what that comic at the top of the post says. The government cannot restrict your speech. This has been held by the courts time and time again. It is settled law. Is Twitter the government? It is not. Well not yet. So Twitter can do whatever the fuck it wants. It can make its own rules, so it can add text to Tweets, it can delete Tweets, it can ban individual users, etc., and the First Amendment is not violated. It’s not fucking complicated! So when the “President” says that Twitter is violating his free speech rights, he is just wrong and / or an idiot and / or a liar and / or just throwing out bullshit to try and rile up his base and win an election he is going to lose.
OK then, what about this Executive Order? Let’s look at the title again:
Executive Order on Preventing Online Censorship
Yeah whatever no one is “censoring” you Mr. “President”. They are pointing out you are full of shit. Big difference! Also, remember, when a Tweet violates Twitter’s own rules, Twitter can do what it wants with that Tweet. It’s not censorship. Jebus.
ANYWAY before we look at the Executive Order a bit more, I have to explain something to you.
Section 230 of the Communications Decency Act Explained by An Actual (sort of) Law Professor Who Teaches it in His Law Class!
In my law class, I always tell my students that they cannot pass the course without knowing two U.S. legal-type things about the internet. S. 230 CDA is one of them! (Guess the other one! answer below.) What is s. 230? Here is the first key part of the section:
§ 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.
You always know we’re talking about a U.S. law when you see that squiggly thing at the beginning. I don’t know what it’s called because I failed the New York Bar. We’ll call this the (c)(1) section for this post (because it is, and you need to know that).
ANYWAY, here’s the deal. Normally under the law, a “publisher” would be liable / responsible for shit other people said (like if it was defamation), if they published it. In a case called Stratton Oakmont v. Prodigy (do you remember Prodigy? It was AOL before there was AOL) a Prodigy user posted some defamation about Stratton Oakmont on a Prodigy bulletin board, Stratton Oakmont sued Prodigy, and the courts held Prodigy was a “publisher” and thus liable for what was “published’ on their internet service. The government says “hmm, maybe that’s bad” and so s. 230 came into being. I’m simplifying, but this is not a 3-hour law class. As you can see above, s. 230 says any “interactive computer service” like Prodigy, or more importantly now, Facebook, Twitter, et al will not be a publisher for the stuff posted on their sites / services, and can’t be sued for it. As was put by a court in a case I will mention in a minute or two:
Section 230 marks a departure from the common-law rule that allocates liability to publishers or distributors of tortious material written or prepared by others
So this has been described as the “shield” of s. 230 – it “shields” interactive computer services from liability. S. 230 also has a “sword” in a later subsection – those same services can do what they want with crap posted on them, like delete it or ban the person who wrote it, when such content is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected” and they are “acting in good faith”. The “sword” is section (c)(2)(A); I point that out because it comes up soon.
Now, s. 230 is open to (very valid) criticism. Have you heard of The Dirty (sort of NSFW)? They post a ton of crap, and can’t be sued because the crap comes from their users, not them. In a case called Jones v. Dirty World, it was held that The Dirty did not have to remove a bunch of defamatory crap about a cheerleader, because of s. 230. The case is where the quote above comes from. As a practicing lawyer, I have had potential clients come to me and ask to have crap taken off The Dirty; I tell them they are screwed. Some of them have had their lives ruined. Because of s. 230.
So do you understand s. 230? Class over. Let’s get back to…
The Executive Order
Let’s pull some quotes:
Free speech is the bedrock of American democracy
That is true! You know what protects free speech? s. 230 of the CDA! Oh the irony. So later in the Order, they say, about the “sword”:
When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct. It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher that is not an online provider
Who shall determine whether the company (Twitter) is “meeting the criteria”? Well, the Order wants the FCC to make rules about that:
Within 60 days of the date of this order, the Secretary of Commerce (Secretary), in consultation with the Attorney General, and acting through the National Telecommunications and Information Administration (NTIA), shall file a petition for rulemaking with the Federal Communications Commission (FCC) requesting that the FCC expeditiously propose regulations to…
The FCC can in fact make regulations. What they cannot do is change laws. And those regulations? They should clarify that:
a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1)
You know what that is? It is two things: (1) it changes the law (by denying the (c)(1) shield for those who don’t meet the sword standards); and (2) a THREAT. Yes, the President is threatening Twitter. I know, you are SHOCKED. Don’t act in good faith when removing content? Well, you lose your shield and will be sued out of existence.
Now, how are we supposed to know if a service is acting in good faith when using the sword? Here:
(ii) the conditions under which an action restricting access to or availability of material is not “taken in good faith” within the meaning of subparagraph (c)(2)(A) of section 230, particularly whether actions can be “taken in good faith” if they are:
(A) deceptive, pretextual, or inconsistent with a provider’s terms of service; or
(B) taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard; and
(iii) any other proposed regulations that the NTIA concludes may be appropriate to advance the policy described in subsection (a) of this section.
I don’t understand it either. But the bottom line, from my reading, is that if any removal / blocking of one piece of content doesn’t meet the standard, the service loses its “shield”. That whole thing is bullshit.
After all this crap, there is a new section. Not about s. 230, but a whole bit about how the “head of each executive department and agency shall review its agency’s Federal spending on advertising and marketing paid to online platforms”, and once they have that report the Department of Justice will look into it. Ok then.
The best part is in the next section, where it says:
It is the policy of the United States that large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech.
It sounds like to me that this Order makes Twitter and Facebook the government! Remember, the online platforms can do what they want! It is only the government that according the First Amendment “should not restrict protected speech”.
Then there is a whole bit about some “working group” run by the Attorney General that will be doing stuff you really don’t want to know about.
Superterrific Happy Hour Analysis
You know what’s funny? Well not “haha” funny but pathetic? You recall from our timeline that the “President” thinks that Twitter is violating his First Amendment rights by putting the “Get the facts” link on his Tweet? You know what Twitter is doing there? Exercising its First Amendment rights. Corporations are people too! They have rights!! Haha.
Also, too, you know what will happen if s. 230 is thrown out of whack and the shield is removed? Twitter goes out of business, and Trump is robbed of his main mode of communications. Haha.
I could go on like this for hours but it’s Friday afternoon and it’s 5:00 somewhere.
p.s. For the record I did not fail the New York Bar. I never took it. It’s too hard!
p.p.s The other one is DMCA 512.
Allen, I am sure you would have passed.
We live in a world where the law is both a shield and a sword, and lawyers are warriors.
In the end like Obama said today, good laws will make people good.
Next leap in jurisprudence keeping the law colour blind while making exceptions for color. Yeah I know and I agree wtih the sentencing rules for aboriginals. Do we extend that to everyone. So if your white you fry, if your a person of colour you fly:)
somebody needs a good internet attorney
My favorite web site for news and man sitrap.
I am not a lawyer, although I play a tinfoil hat version on the internet. Never claiming to be a lawyer or a doctor, dammit Jim.
Now AI may replace all lawyers who sign off on the the things all their legal clerks do. Yeah many are likely people of colour going down to the local registry office on real estate deals. I have had far to many interactions with lawyers in my time. The only thing I got to say is I had a positive outcome in all cases.
AI is going to replace retail law. You read it here in the comments of the blog of one of the top 30 and almost the top twenty intellectual internet lawyers in Canada.