Comments regarding the NTIA's #Section230 petition are due. Given the conflict with my role @ Google, I am not submitting official comments. But, as someone deeply passionate about the Internet, I can't help but offer some personal opinions (thread).
ntia.gov/files/ntia/pub…
I'll start with a couple reminders:
-184K dead Americans from COVID-19
-racial injustice continues to plague our nation
-Kyle Rittenhouse MURDERED two people and both our president and the GOP refuse to condemn his acts.
-the democratic process is being tampered with
I offer those reminders simply to point out that our country is suffering. WE are suffering. Our nation is at its absolute lowest point.

But rather than putting out these massive fires, our government is fanning the flames. #Section230 shouldn't be anywhere near top of mind.
The Internet is all we have left. It's the last thread of "normal" that we have to hang on to.

Why our elected leaders are actively working to fray that thread is truly beyond me. But here we are, wasting time and taxpayer money to protect what should be guaranteed.
Think for a second about how much we've relied on the Internet since the "new normal" began. Thanks to video-conferencing, some of us are finishing our degrees. Some of us are blessed to maintain employment.

Some continue to enjoy life's most precious milestones (like weddings)
In a time where we can't give hugs, or offer a shoulder to cry on, we've still been able to share the emotional, tense, and raw moments with those loved ones who have experienced loss or tragedy.

Some have even been able to make their final goodbyes.
When it comes to our democracy, social media has in many way empowered us to share truths; to call out mis and disinformation; to band together in protest against atrocious leadership; to put our heads together on COVID-19; and most importantly, to get out the vote.
In times of quarantine loneliness, we're still there for each other. We share laughs, watch movies together, recreate date nights and holidays, Zoom with distant relatives, check in, set up coffee chats, and simply enjoy each other's virtual company.

Imagine if we couldn't.
Even the little things like not having to expose ourselves at the grocery store (thanks to services like instacart and Amazon), have made the past six or so months tolerable.

We love to hate Amazon, and reasonably so. But these days, you can't beat contactless convenience.
Sure, there are aspects of human life that just can't be replaced by technology and the Internet. But importantly, the Internet allows us to recreate those aspects as close as humanly possible. It's not all or nothing.

None of this would be possible without #Section230.
My views aside, the NTIA petition is 57 pages of unintelligible, unsophisticated, and uninteresting garbage, ridden with unforgivable mistakes, hyperbole, misinformation, and fairy tales. It lists four major arguments at the outset.

I'll briefly respond to each of those points.
(1) There exists myriad case law clarifying the difference between (c)(1) and (c)(2). (c)(1) says websites are not liable for third-party content. (c)(2) says websites are not liable for "good faith" blocking/removing of said content.
Over time, courts (and defendants) have reached the same outcomes under (c)(1) as they had under (c)(2) just in less time w/less expense. And even where (c)(1) and (c)(2) might fail, the First Amendment picks up the slack too.
(c)(2)(A)'s "good faith" requirement makes it expensive to litigate (often requiring discovery). If the courts reach the same conclusion under (c)(1) w/o the discovery component, then (c)(2)(A)'s resource drain is pointless.

At the same time (c)(2) isn't superfluous.
Instead (c)(2) is a gap filler for the rare cases in which (c)(1) doesn't suffice. This is usually the situation where a website might substantially aid in the creation or development of content such that, as a service, they fall out of scope of (c)(1). (c)(2) is the catch all.
The petition cuts all of this important progress back, for nothing. In NTIA's world, (c)(1) would be reserved for publisher torts and (c)(2) for content moderation.

Courts would still reach the same decisions as they would under (c)(1) or 1A. But at a higher overall cost.
I'll admit, this is some serious #Section230 inside baseball. But if NTIA wants to play, we sure as hell should expect them to understand the crucial ins and outs of the game.

Yet the petition reflects a disturbingly clear lack of knowledge of said game.
(2) This is precisely what 230(c)(1) was set out to do. The drafters themselves have made this clear countless times: cnn.com/2020/06/09/per…

realclearpolitics.com/articles/2020/…
The pre-230 moderator's dilemma was the impetus for #Section230. Websites could either avoid liability by taking a totally hands off approach to content moderation or accept the risks in favor of creating a family friendly environment for their users. This was a horrible outcome.
Today, services go to great lengths to protect us from some of the worst kinds of harms we could imagine. We don't usually appreciate that simply because we don't see it.

Indeed, there are many amazing innovations in the content mod space that 230(c)(1) encouraged.
Nextdoor's misinformation policy is one example. In fact, services like Nextdoor have been making amazing strides on the COVID-19/election integrity front in general. All thanks to (c)(1).

help.nextdoor.com/s/article/Next…
The NTIA's argument isn't just ridiculous, it's flat out wrong (and hence, intellectually dishonest). Of course 230(c)(1) was designed to protect decisions and actions on user-generated content.

That was literally the ENTIRE POINT.
On this point, I defer to @MSchruers' article: project-disco.org/innovation/072…

"In short, the term “otherwise objectionable” envisions problematic content that may not be illegal but nevertheless violates community standards or norms, sometimes described as “lawful but awful.”"
Lastly, I can't tell if this is intentionally dishonest or the product of pure ignorance (both are unacceptable). Modifying/altering content in a way that materially changes its meaning already isn't covered by (c)(1). Neither is substantially creating/developing the content.
However, commenting upon/editorializing about third party content is ABSOLUTELY in every way protected by Section 230 (AND 1A!!!).

Again, I invite you to imagine if they weren't. How many times have you ever commented on or quote tweeted someone else's content?
It's easy to think about #Section230 in terms of big tech but we forget that it also protects us USERS too. Would you still be willing to share/comment/retweet if you could be sued for the underlying content? Of course not.
More importantly, I'm disturbed by the obvious intent behind this final argument.

The Trump executive order was a consequence of Twitter's attempt to fact check Trump's false tweets about mail-in ballots.
The NTIA petition follows suit. Why are our elected leaders hellbent on combatting fact-finding? I answer that Q here: jurist.org/commentary/202…

(Spoiler, it's not about protecting democracy or free-speech. It's all about advancing corruption).
The petition is major threat to the Internet. Additionally, it's a massive threat to our democracy and everything we value as Americans, like free speech.

Anyone (or any company) supporting these guidelines automatically goes down as another Trump enabler in my book.

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More from @jess_miers

21 Sep
🚨 Fellow #Section230 #contentmoderation, and Internet defenders / thought leaders: pay attention to what is going on in the States. The same problematic policy ideas we've seen on the federal playing field are being remixed by state legislatures. #HB20
blog.ericgoldman.org/archives/2021/…
Texas HB20 shares many similarities with Florida's SB 7072 [blog.ericgoldman.org/archives/2021/…]

Both bills would force Internet services to carry content, including "lawful but awful" content, that would otherwise violate community guidelines and harm audiences.
These types of proposals are typically categorized as "must carry" laws. As @ericgoldman and I explained in our recent article, must carry laws are not only censorship bills in disguise, but they also lead to terrible policy outcomes. papers.ssrn.com/sol3/papers.cf…
Read 8 tweets
3 Jun
This week I've received many calls / DMs from law students who just started their summer legal internships. What's keeping them up at night?

Impostor syndrome.

Let's talk about it. #lawtwitter 🧵
I am no stranger to impostor syndrome.

Having pursued a "J.D. Advantage" career path, I've spent a lot of cycles worrying about my peers (who were following traditional legal paths) and wondering if I was doing something wrong.

Lots of toxic self-comparison.
I encountered it daily during my 1L internship at Twitter. My co-interns are some of the most brilliant colleagues I've had the opportunity to work alongside.

That left me wondering how the hell I slipped through the cracks.
Read 24 tweets
6 Oct 20
Sigh. #ELI5 Section 230:

#Section230 requires you to sue the right person.
Starting with a basic example: If I Tweet something false about you, Section 230 requires that you sue me, not Twitter.

This outcome makes sense. Twitter isn't the author of the false Tweet, I am.
But that's not how it works offline! (you might be thinking). We sue newspapers all the time for the defamatory articles they choose to publish! They're even liable for the articles they don't author!

You're right to be confused. At a distance, this doesn't make sense.
Read 19 tweets
17 Sep 20
Of all the people he's attacked, I'm the only one who actually works for Google. I understand my ties to big tech may undermine my credibility. But ATOTD, like my colleagues, my #Section230 advocacy has always been rooted in my deep commitment to free speech and the Internet.
I became a legal scholar on #Section230 before Google, TechFreedom, or any other role I've had in this industry. My passion for preserving one of the greatest innovations for worldwide human communication is what gets me out of bed in the morning. Not my paycheck.
I joined Google not because I felt strongly about defending big tech but because I knew that I wanted to make serious, meaningful impact on the way we (the users) feel about the Internet.

I knew that as a junior scholar, that impact could only be made by joining the big leagues.
Read 6 tweets
10 Jul 20
Random late-night #lawtwitter thread: I'm often asked by incoming law students how they can start to figure out what field of law they're interested in so they can hit the ground running as soon as their 1L year starts. This is a fantastic Q.
You don't need to know exactly what it is you want to do day 1 of law school. That's impossible. You won't quite know what all your options are and there's just so much to learn.

But having an idea of what you might want to study/practice does have some awesome advantages.
For starters, you can tailor your informational interviews and networking experiences towards your interests and get more direction on how to pursue your "dream" career early on.

Also, people notice when you're passionate about something. You'll stand-out among your peers.
Read 11 tweets
28 May 20
If you've ever wondered why Internet companies don't follow their own rules, this is it. The one time Twitter attempts to elevate social discourse by experimenting with moderation that goes outside the binary leave up/takedown scheme, it's met with an #executiveorder.
Before #Section230, we had the "moderator's dilemma." Services could attempt to moderate in an effort to promote a healthier/friendlier environment. But they would do so at the risk of legal liability for any content that slipped through the cracks.
On the other hand, they could choose not to moderate, avoid any legal liability, and accept their resulting anti-social, garbage-filled cesspools. #Section230 made it so that they wouldn't have to choose between legal liability and trolls.
Read 12 tweets

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