Big Tech Tries to Have its First Amendment Cake and Eat It Too

 

While my headline lacks something in concision, the topic for today is anything but simple:  whether internet-based enterprises such as Amazon, Google, Tiktok, and X are free to do basically anything they want with the input their users provide, or whether the states of Texas and Florida can impose certain restrictions on content moderation.  Last week the U. S. Supreme Court heard opening oral arguments in two related cases on this topic that the Court has decided to hear together.

 

NetChoice v. Paxton pits the trade association NetChoice, which includes such heavy hitters as Amazon, Google, and X, against the Texas state gadfly and attorney general Ken Paxton, who attempted to enforce a bill that would prohibit social media companies from censoring posts except in extreme cases such as obscenity and libel.  Moody v. NetChoice concerns a law that was passed in Florida at the urging of Gov. Ron DeSantis to prevent social media firms from "de-platforming" a political candidate actively running for office.  The lawsuits arising from NetChoice's objections to what it sees as restrictions on its members' First Amendments freedom of speech have percolated through the federal courts and ended up at the Supreme Court last Monday.

 

There are two extreme positions that mark the boundaries of this debate.  One extreme is taken by the state legislatures, which is that large internet-based firms, including but not limited to social-media outfits such as X and TikTok, are used so universally that they should be considered as "common carriers."  A common carrier, in legal parlance, is a service that is so essential to modern life that it must accept customers and their activities on a basis limited only by common-sense rules.  The classic common carrier was the old Ma Bell system back when all you could do with a phone was call Aunt Maude.  As long as you paid your monthly bill, you could say absolutely anything you wanted to say, and Ma Bell wouldn't stop you.  And anybody who can muster up the cash for a bus ticket can ride the bus.  Similarly, the state bills object to censorship, de-platforming, and other ways that social media companies either emphasize or obscure certain users depending on what they are saying, because the state laws tend to view them as common carriers.

 

The other extreme is taken by NetChoice, which views its members as valiant warriors protecting their own freedom of speech as well as that of their users.  Their classic analogy is the old-fashioned hot-type newspaper, back when all you could do with the paper was line the bottom of the birdcage—after reading it, of course.  Nobody presumed to tell the editorial-page editor what letters he could or could not include in the paper, and so no state law should tell X which tweets to suppress or encourage, or leave alone.  They are private firms and it's their business what they do with their content, not the states' business. 

 

A report on the first day's arguments by the Electronic Privacy Informatiion Center (EPIC) indicates that the Supreme Court justices are not enthusiastic about either end of this spectrum.  In particular, they seem to think that NetChoice is being more than a little hypocritical because of how it has used a law called Section 230.

 

Section 230 of the federal Communications Decency Act gives NetChoice members immunity from prosecution for libel for what any of their users say, in this sentence:  "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."  The word "publisher" echoes our exemplary newspaper editor, and Section 230 lets X say, in effect, "Man, we didn't write or publish or say that.  Our crazy user said that, and you can't blame us for what he said."  Section 230 protection is one of the carefully guarded legal jewels of the NetChoice empire, and flocks of lawyers appear whenever anyone threatens it.

 

At least two Supreme Court justices perceived that NetChoice is trying to have its free-speech cake by defeating the state laws limiting their content-moderation actions, and eat it too by claiming innocence when someone posts something objectionable and a NetChoice member claims immunity under Section 230.  At one point, Justice Gorsuch asked, "So it's speech for the purposes of the First Amendment, your speech, your editorial control, but when we get to Section 230, your submission is that that isn't your speech?"  And at another point, Justice Alito said, "It's your message when you want to escape state regulation, but it's not your message when you want to escape liability under state tort law." 

 

It's anybody's guess what the Court will decide in these cases, but indications are that neither NetChoice nor the states will get everything they want.  My own view is that social-media firms, by catering to the lower instincts of the human mind and heart, have wrought incalculable damage to the political and social structures of not only the U. S. but many other countries as well.  And especially when the government begins to "assist" social-media firms in deciding what is free speech and should be left alone or promoted, and what is "disinformation" and should be de-emphasized or suppressed, we have traveled a good part of the way down a slippery slope to something akin to the old Soviet Union, or the present Peoples' Republic of China, where everything you say and do is monitored and assessed and has consequences that can be quite dire if you go against what the government wants you to do. 

 

The Texas and Florida laws are a first step toward opposing this trend, and NetChoice's actions opposing them is exactly what you would expect a bully to do if someone challenges his dominance.  Fortunately, the federal structure of our government is still functioning, although seriously damaged, and I hope that the justices' decisions in these cases will clip the wings of an industry which, Icarus-like, is flying way too close to the sun.

 

Sources:  I referred to an editorial by Jennifer Huddleston in the Mar. 1, 2024 edition of the Austin American-Statesman, a blog post on the EPIC website at https://epic.org/four-key-takeaways-from-the-netchoice-v-moody-and-paxton-oral-arguments/, and the Wikipedia articles on NetChoice and Section 230.

Social Media Faces the Supreme Court

 

In an insightful article in National Review, Dan McLaughlin lays out the spectrum of how discussion platforms, online video, search engines, and the whole social-media megillah are regulated by a 1994 law called Section 230 of the Communications Decency Act, and why the U. S. Supreme Court is probably going to weigh in soon on some apparently irreconcilable lower-court decisions.  While at first glance this may seem to be an obscure matter for legal specialists, it has the potential to affect everything from childrens' mental health to the survival of democracy.

 

When the Act was passed in 1994, there was no Google, Facebook, or YouTube, and legislators felt that the infant web-based communications industry needed some special protections to keep it from being nipped in the bud by lawsuits.  So they passed the two parts of Section 230 which now receive intense attention, because they do complementary things.

 

The first part protects providers of interactive computer services (e. g. Google, Facebook, etc.) from being treated as though they originated stuff that a third party came up with.  This sharply distinguishes them from conventional print publishers, for example.  National Review itself was the target of a costly lawsuit by climate scientist Michael Mann, who claimed the magazine and its writer Mark Steyn defamed him.  If Steyn had instead posted his article as a blog in online-only form, it's possible that the magazine could have claimed Section 230 immunity.

 

The second part of Section 230 more or less exempts private companies operating interactive computer services from being liable for consequences of their own censorship actions.  This almost makes it seem like the services can have their cake and eat it too.  If someone objects to a third party's content on a company's site, the firm can claim they aren't publishers and they're protected under the first part of Section 230.  But if the firm squashes a client organization's posts, as for example banning Donald Trump from Facebook after the Jan. 6, 2021 riots, the company can claim it can't be held liable because of its protection under the second part of Section 230. 

 

In general, organizations such as Facebook have tried to steer a middle ground between the two extremes of letting absolutely anything show up (protected by the first part of Sec. 230) and being the Mrs. Grundy of the Internet (protected by the second part of Sec. 230).  As there isn't much profit in censoring salacious material, the main abuses of censorship that have been most widely objected to concern political speech or postings on controversial topics such as abortion. 

 

Compared to the pre-Internet days when anyone could print nearly anything they wanted, but distribution was a difficult and expensive proposition, the Internet has reduced the cost of distributing speech to nearly zero (or even negative numbers, if you consider monetizing).  And a feature of social media which is not really addressed by Section 230 at all is the fact that in order to increase hits and thus advertising revenue, social media companies have developed sophisticated and exquisitely tuned algorithms to make using their platforms as habit-forming as possible.

 

As with other habit-forming enterprises such as alcohol and tobacco, users of social media form a spectrum.  Some like me rarely deal with it, and others spend eight or ten hours a day on it.  With the exception of Prohibition, now conceded by all hands to be a failure, society has chosen to deal with such habit-forming enterprises by restricting their use to adults and by taxation which is not prohibitive, but definitely inhibitory. 

 

Most of the commerce in the form of advertising and data sales that goes on in social media avoids direct taxation, and although some voices have been raised in favor of restricting the use of social media to those over 18, it's hardly a groundswell of opinion.  So for the time being, social media will continue on its merry way doing unknown but tremendous things to the democratic process and exerting incalculable powers to mold public opinion.

 

While it is probably a good thing that the Supreme Court will finally get to pass judgment on some issues regarding Section 230, the two extremes that the law regulates are more like guard rails than they are like lane markers.  By the time someone is either kicked off a social-media platform or decides to sue one for something online, some pretty serious damage has been done, at least in the eyes of the person getting censored or suing.  It's unlikely that the Court will turn the steering wheel violently toward one or the other guard rail.  I don't think anybody wants to see a completely unrestricted social-media world, although the type of restrictions that are currently imposed have huge blind spots influenced by profits (I'm thinking especially of online porn).  And it's just as obvious that we aren't likely to see companies clamping down on all sorts of questionable content, because it would cut into their revenues.

 

The problems caused by social media today are real.  Teen suicides, the polarization of political speech and resultant paralysis of government functions, online bullying, and many other abuses cry out for some sort of solution, or at least a mollifying influence.  Unfortunately, given the choices that the Court will face, its response will probably amount to tinkering with technical legal details, rather than making any wholesale revolutionary changes to Section 230 or how it is enforced. 

 

In any event, the Court—or any court, for that matter—is not where we should look first for improvements in human behavior.  As G. K. Chesterton responded to a question posed by a newspaper:

 

"The answer to the question, 'What is Wrong?' is, or should be, 'I am wrong.'  Until a man can give that answer, his idealism is only a hobby.  But this original sin belongs to all ages, and is the business of religion."  (from The Daily News, Aug. 16, 1905)

 

Neither the Supreme Court nor Google nor Facebook can do anything about original sin.  But they can make it easier for people to avoid sinning, and let's hope for some progress in that direction.

 

Sources:  Dan McLaughlin's article "The Supreme Court Joins the Section 230 Fight—Halfway" appeared on the National Review website at https://www.nationalreview.com/corner/the-supreme-court-joins-the-section-230-fight-halfway/.  I also referred to an article about the true origin of the Chesterton quote, which is often misquoted, at https://www.jordanmposs.com/blog/2019/2/27/whats-wrong-chesterton.

Abortion and Data Privacy: New Cause for Concern

 

With the June 24 Dobbs decision overturning of Roe v. Wade and Casey, the U. S. Supreme Court withdrew the nationwide blockade against the intention of many states to ban abortion to a greater or lesser degree.  Depending on where you live, abortion may already be illegal or will shortly become so. 

 

Texas, where I live, is one of the more aggressive states, having effectively banned most abortions since last fall by authorizing private citizens to sue anyone who assists in an abortion.  To the best of my knowledge, the penalties for performing abortion focus mainly on the providers.  But any woman who wants an abortion now faces a new forest of legal complications, including the possibility that law enforcement agencies may obtain extremely private information such as data from period apps in building a case that an abortion was performed.

 

In a recent Vox online piece, Sara Morrison pointed out that although women concerned about keeping their possible pregnancy status private should probably get rid of their period apps, that is not the only way you can be spied on, although period-app companies have a rather poor record when it comes to data privacy anyway. 

 

Most media companies have a boilerplate clause as part of that agreement everybody pretends to read (and nobody does), which allows them to share information with legally constituted law enforcement agencies that have a reason to obtain it.  So even if a woman sent a private text message to her closest friend saying that she thought she was pregnant, and a state police investigation thought it was relevant in prosecuting an abortionist, they could legally obtain that message. 

 

The concept of privacy lies mostly in tatters these days for anyone who spends any amount of time online, which is pretty much everybody.  While the Fourth Amendment to the U. S. Constitution guarantees the right to be secure in one's "persons, houses, papers, and effects," it does allow searches (presumably including online ones) in cases where a crime is suspected and a warrant for the search can be justified. 

 

What is so different today from the circumstances in 1792, when the Bill of Rights was enacted, is that all of us leave electronic trails that are in legal gray areas in many cases.  Simply being on social media and using one's mobile phone creates gobs of data that clever analysts with adequate resources and access to commercial databases by means of search warrants can use to create an incredibly intimate portrait, including one's pregnancy status or attempts to obtain an abortion. 

 

Morrison says the ultimate solution is better data-privacy laws.  And she may be right.  The problem with this is that the entire economic basis of social media relies on the violation of the kind of privacy that data privacy laws would protect.  So unless the Big Tech giants figure out an entirely new revenue model, their heavy hands on the scale of justice will outweigh any desire on the part of the general public to be more private online.

 

This is not an easy column for me to write, because I am personally opposed to abortion.  At the same time, I realize that trying to enact (or revoke) a law that creates a situation which is hugely unpopular among a large segment of the public leads to situations in which law either loses respect or unduly harsh measures are used to enforce it.  Probably some of both will happen in the coming months as the nation readjusts to the new circumstances surrounding abortion.

 

Judging from the way Morrison wrote her article, she seemed to take the point of view of a woman who finds herself pregnant against her intention and wants to get an abortion, but lives in a state where abortion is now illegal.  What are the options?

 

Over half of current abortions are achieved by means of medication, which means the combination of mifepristone and misoprostol taken to induce a spontaneous abortion.  Many states are or will shortly take steps to make such medications illegal for use in abortion, and the natural first thought of many—to order them online—leaves one open to surveillance as explained above.

 

The next option would be to travel out of state to a place where abortions are still performed.  But in a state like Texas, even helping someone with travel arrangements could be grounds for a lawsuit—remote grounds, maybe, but who wants to do something that leaves their friends liable to be sued?  And everyone's whereabouts are being tracked 24/7, or at least the whereabouts of your phone, unless  you turn it off.  So as things stand, there are really not many places to hide.

 

Far from solving the problem, the Dobbs decision has brought abortion into the spotlight of public consciousness and debate in a way that perhaps hasn't been equaled since the original 1973 decision that legalized it by judicial fiat nationwide.  The real problem, the one that lies deeper than online privacy, or legal decisions or codes, is a cultural one.

 

We live in a hypocritical culture which both promises untrammeled freedom, and withholds from nearly everyone the means to realize that freedom, which is illusory in any case.  The culture has convinced millions of women that pregnancy and childbirth is simply not an option compared to all the other treasures of the world, and if a woman becomes a mother without meaning to, she must correct the error even if it means the death of an innocent being. 

 

This is a serious distortion of how the world is, and correcting it is going to take more than the passage or revocation of a few laws or judicial rulings.  But if Dobbs and its fallout get us to thinking about these things, there is at least hope that the truth will eventually emerge.  And it is only the truth that makes people truly free.

 

Sources:  Sara Morrison's "Should I delete my period app? And other post-Roe privacy questions" appeared on Vox at https://www.vox.com/recode/2022/7/6/23196809/period-apps-roe-dobbs-data-privacy-abortion.  I also referred to a list of what many of the states are doing about abortion laws at https://apnews.com/article/supreme-court-abortion-ruling-states-a767801145ad01617100e57410a0a21d.

When Is a TV Not a TV?

When the U. S. Supreme Court says so, that's when.  Last Wednesday, June 25, the Court issued a split decision (6-3) against Aereo, a provider of over-the-Internet broadcast TV service which used a unique technology to get around the requirement to pay retransmission fees to program originators, as cable TV companies do.  Without such fees, Aereo's service was really cheap—as little as eight bucks a month—and over the last year or two the firm had expanded into several urban U. S. markets.  In response to the ruling, on Sunday June 28 Aereo's CEO Ken Kanojia pulled the plug on the service "temporarily," although it will be surprising if Aereo ever makes a comeback, at least in its present form.

For readers who missed my blog on Aereo last February 3, a little background is in order.  Copyright laws exist so that creators of original content won't starve to death while unscrupulous people copy or retransmit the content without paying for it.  It seems to this non-lawyer that there is a happy medium of copyright law between two extremes.  One extreme is that of no law at all, which stifles originality because nobody can make money doing creative stuff.  The other extreme is copyright control, by the originators, of everything in perpetuity, which leads to permanent monopolies that work against the interests of the consumer.  Copyright law is largely a federal matter, so the U. S. Congress is where it comes from, and the proper job of the courts, including the U. S. Supreme Court, is to interpret the law the way Congress intended.

When cable TV arose in the 1950s as a way of providing TV service for isolated communities beyond the reach of TV signals, the content providers (mostly the big three networks back in those days) were miffed, because here was a bunch of companies taking money from their customers for signals they didn't pay for.  In response, Congress amended the copyright laws in 1976 to make it clear that cable TV was a "public performance," legally speaking.  The basic idea is that if you as a content provider take somebody else's content and make it available to all comers, you are profiting from it and should compensate the parties that you got the content from.  Hence, the big retransmission fees that cable companies pay to content providers.  The only exception to this rule is the end user or consumer, for whom the whole system operates.  If you sit in your own house and watch an over-the-air broadcast on your own TV using your own antenna, then it's not a public performance, and you don't have to pay retransmission fees because you're not retransmitting.

It was Ken Kanojia's dream to take that exact situation, and just stretch it out technically while staying within what he thought was the letter of the law.  An Aereo subscriber was at the end of a long chain of technology that started with a paperclip-looking antenna at an Aereo "head-end."  Each head end had thousands of individual antennas, so that every active subscriber controlled a different antenna.  The signal the consumer selected was picked up by the assigned antenna, converted to digital form, and sent over the Internet to the receiver of choice—a phone or computer or iPad or what have you.  The effect, broadly considered, was not essentially different from what a cable TV company would do:  a lot of hardware delivering someone else's content to a lot of consumers.  But technically, each consumer controlled a virtual TV of his or her own, so Aereo claimed it wasn't like cable TV at all—it was just a whole lot of individual TVs controlled by individual consumers.  And therefore, Aereo didn't have to pay retransmission fees.

Naturally, the service providers hated this into the ground, and quickly got their lawyers to sue Aereo.  Back in February, the lawsuits were working their way up the legal ladder to the Supreme Court, which heard the arguments in April, and finally last week the Court issued its decision.

The basic argument of the Court's majority was what I would call the duck approach:  if it walks like a duck and quacks like a duck, it must be a duck.  If you ignore the technical insides of how Aereo provides its service and just treat it like a black box, it's not that much different from a cable TV provider.  Hence, Aereo has to pay up just like the cable companies.  With his whole business carefully tailored to the assumption that his firm would not have to pay such fees, Kanojia recognized that the jig was up, and shut it down.

Three conservative members of the Court—Alito, Thomas, and Scalia—sided with Aereo, but not because they think Aereo should be left alone to go about its business.  Even the dissenters agreed that what Aereo is doing smacks of copyright infringement, but the dissenters thought that the similarity argument with cable TV was a weak one.  The dissenters are concerned that the adverse decision against Aereo will stifle technological innovation, and wanted to see a more technically savvy argument as to exactly what Aereo was doing wrong besides looking broadly like a cable TV company.

They may be right, but frankly, I'm not sure Aereo's kind of innovation is the sort we need.  Remember, if it weren't for lawyers and copyright laws, Aereo never would have designed their system the way they did in the first place.  It was a brilliant technical dodge designed to evade the retransmission fees by configuring the system to imitate a legal technology.  Unfortunately for Aereo, a majority of the Supreme Court justices didn't think the technical details made that much difference.  And when all is said and done, I tend to agree with them.

It seems to me that we need people like Ken Kanojia engaged in technical challenges that really matter, rather than spending his time devising clever ways to avoid legal obstacles.  I'm sure Kanojia believes that what he was doing was a true service to the consumer, but at least in the U. S., his Aereo venture looks like it has made its final performance—public or otherwise. 

Sources:  I consulted these news items on the Supreme Court Aereo decision: http://www.huffingtonpost.com/2014/06/28/aereo-suspension-operatio_n_5539559.html

and http://www.businessinsider.com/aereo-supreme-court-ruling-2014-6.  As mentioned, I last blogged on Aereo on Feb. 3, 2014.