A tiny Idaho ISP has blocked Facebook & Twitter, citing complaints from its subscribers about their "censorship" of conservatives

At last we can see that the #NetNeutrality wouldn't have banned such blocking IF it were properly disclosed to consumers

Because the First Amendment
First, let's stipulate that what the ISP is doing is galaxy-brain-level insane

And let's note that they are about as fringey, as it gets, only serving a few rural communities with mostly wireless service

Their subscribers are some of the Trumpiest people in country

So this doesn't tell us anything about what the ISPs that serve nearly everyone will do
The FCC's 2015 & 2015 #netneutrality rules always applied only to ISPs that offered connectivity to "substantially all Internet endpoints"

The FCC never explained exactly what this would meant
But in 2017, the DC Circuit finally addressed this Q

A panel upheld the 2015 rules. The full court denied rehearing. Then-Judge Kavanaugh dissented, arguing the rules violated the First Amendment

Judges Srinivasan & Tatel, who wrote the panel decision explained why they didn't
To avoid First Amendment scrutiny, the FCC had banned blocking so long as you continued to provide access to "substantially all endpoints"

Srinivasan & Tatel chucked this approach and said what matters is whether ISPs "hold themselves out as neutral, indiscriminate conduits"
Srinivasan & Tatel didn't invent this concept. This has always been the core of what makes a company a common carrier: its representations to consumers

And that, in turn, is why common carriage regulation doesn't violate the First Amendment—to the extent it's chosen by carriers
But the flipside of that test is that a company can opt-out of the FCC's #netneutrality rules (and also common carriage status) by changing the representations it makes to consumers to make clear that it will exercise editorial discretion over content
It's debatable whether Yourt1wifi has done that, and exactly how such a change in their terms of service would have to work (effective on next month's bill, etc) but they easily could do so
Srinivasan and Tatel didn't specifically analyze how an ISP could opt-out of the FCC's #netneutrality rules, but they made crystal clear that a company could do so—and that's why the rules didn't violate the First Amendment
So in the end, all the FCC really achieved was a truth-in-marketing requirement that the FTC or any state AG could have enforced via consumer protection law

There was never any way to ban blocking of websites for political reasons, provided it was sufficiently disclosed
So it's time to stop pretending that the FCC's #netneutrality rules were "vital to democracy" or whatever

That doesn't mean #netneutrality isn't valuable, but that it's always been a question of ensuring that consumers get what they're promised
Yes, let's codify the 2015 "bright lines" rules because (a) there's never really been any disagreement about them, (b) ISPs have always been able to opt-out, and (c) we need legislation to resolve the fight over #TitleII

Here's the framework for a bill: internetsociety.org/resources/doc/…
If anything, this incident should illustrate how stupid the #TitleII fight was: it doesn't change any of the above analysis. An ISP would have been subject to Title II only insofar as it didn't say it was going to block specific websites for political reasons.
Before anyone rushes to object, please actually read pp 389-93 of Srinivasan and Tatel's opinion:
Oh and don't miss Kavanaugh warning that #netneutrality regulation could lead to the govn't trying to impose neutrality requirements on social media websites—the very thing MAGA Republicans are now frothing at the mouth for
Srinivasan and Tatel: lol no bro. Social media make clear that they ban certain content, while ISPs promise consumers exactly the opposite

This is why the right has drawn an utterly false equivalence between what it wants and net neutrality
In short, the First Amendment allow the gov't to enforce promises made to consumers (eg we offer you connectivity to the entire Internet without editorial intervention)

But the gov't can't second-guess how a social media site decides whether content violates its terms of service
I explained this in detail in this recent paper: gaidigitalreport.com/2020/10/04/sec…

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More from @BerinSzoka

12 Jan
Awarding electoral college votes on a winner-take-all basis by gerrymandered Congressional district may be even worse than doing it by entire state

If we're going to keep the Electoral College, votes should be awarded proportionally within each state for ALL states
Note that proportional electoral college vote allocation would make it more likely that no party would have 270 electoral votes, in which we'd see coalitions form, as in every other democracy, with small parties to get over 270
It would also be wise to change the crazy way the House decides elections (one vote for each state Congressional delegation), but EV coalitions would likely avoid elections going to the House unless...
Read 4 tweets
12 Jan
#Parler can't use #antitrust to sue against "political animus" because the First Amendment protects Twitter & Amazon's right to refuse to carry abhorrent content

Parler's lawsuit will be dismissed for failing to allege that AWS & Twitter conspired to suppress competition

Under clear Supreme Court precedent, Parler would have to prove that Amazon shut off service for non-political reasons

Parler & AWS don't compete. To show that AWS blocked Parler for anticompetitive reasons, Parler must show that AWS conspired with Twitter against Parler.
Instead, Parler complains that AWS was inconsistent in enforcing its Acceptable Use Policy, which reserves broad discretion to remove "harmful" or "offensive" or "otherwise objectionable" content
Read 11 tweets
11 Jan
Anyone sane wants to see less of the kind of content that led to the storming of the Capitol

#Section230 may be unsatisfying but it plays a vital role: protecting sites’ 1A right to take down content gov't can’t ban, eg misinformation & (most) incitement
The storming of the Capitol should make clear once and for all why all major tech services ban hate speech, misinformation and talk of violence: Words can have serious consequences — in this case, five deaths (plus a Capitol officer’s suicide days later).
The MAGA crowd is crying "censorship," conveniently forgetting (or more likely disingenuously abandoning) all of the First Amendment and free market arguments it has wielded in the past against people who they don't agree with
Read 14 tweets
7 Dec 20
I've been wondering: Why rush Simington onto the FCC (with just 5 months of telecom experience) if Pai doesn't have time to vote out a #Section230 order anyway?

I now think the FCC could, and likely will, vote out an order without further comment on January 13

Here's why...
Even most telecom lawyers assume FCC actions fall into two buckets:

1) rulemakings follow NPRMs and public comment and aren't final until published in the Federal Register

There isn't time for an NPRM/comments and the Biden FCC could block publication in the FedReg anyway
2) Declaratory orders can resolve adjudicatory disputes, but are only binding on the parties to the proceeding, which won't do what the Administration (NTIA) has asked the FCC to do here

But there's actually a third category that the FCC does have time to use here...
Read 23 tweets
17 Nov 20
Can't wait to hear @LindseyGrahamSC, the guy who urged Georgia's Secretary of State to throw out Democratic votes, accuse #BigTech of trying to steal the election 🤣

Watch this thread for more debunking of GOP nonsense about free speech and #Section230
"I don't want the government to have the power to decide what content stays up"

No, he just wants to amend #Section230 to enable, especially, for Republican hack state AGs to sue websites for removing hate speech, misinformation, voter suppression, etc
Content moderation involves difficult trade-offs that we think are better resolved through the democratic process
- Mark Zuckerberg

Um, no, the First Amendment bars the government from making decisions about online speech

No, you can't just "leave it up to Congress"
Read 39 tweets
19 Feb 20
1/ What might AG #BillBarr say at tomorrow's DOJ workshop on “#Section230—Nurturing Innovation or Fostering Unaccountability?"

Expect him to call for banning strong #encryption, as he did last July—but this time, via amending 230 and focused on "protecting the children"
2/ The whole point of the half-day workshop appears to be for Barr to make the case for a bill DOJ has no doubt helped @LindseyGrahamSC & @SenBlumenthal draft—that would empower a commission (stacked with DOJ allies) to effectively ban encryption

My take: techdirt.com/articles/20200…
3/ Last July, Barr gave a LONG speech denouncing encryption
Read 85 tweets

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