Thread by @BerinSzoka

1. This will not be a good hearing: 4 witnesses (3 lawyers) who want to fundamentally change #Section230 and only 1 to defend the law that made today's interactive Internet possible, who isn't a lawyer, so won't be able to debunk the misinformation about how 230 actually works]

https://twitter.com/AriCohn/status/1633495938734989312

2. @SenateJudiciary failed to publish their written testimony in advance. SOP is to publish testimony 1-2 day before the hearing to foster a more informed discussion.

But, of course, that's not really the purpose of this hearing...

3. Blumenthal: we have bipartisan consensus on reining in Big Tech. We don't agree on everything but I want to thank Sen. Hawley for his leadership on this issue

Hawley be all like:

4. The time when the Internet could be regarded as a neutral or passive conduit has passed. Um:
- 230 was intended to encourage sites NOT to be neutral or passive
- Why is Blumenthal mouthing Josh Hawley's talking points?

5. Hawley: #Section230 has been completely rewritten by the courts at the behest of Big Tech

Um you mean Zeran v AOL (1997), a decision written by perhaps the most acclaimed conservative on the any appeals court of the day?

6. @ma_franks's amicus brief in Gonzalez claims the courts have misread #Section230

supremecourt.gov/DocketPDF/21/2…

7. But if 230(c)(1) really protected only against defamation & like claims, there would have been no need for 230(e). IP law, privacy law & federal criminal law are nothing like defamation law. That Congress excluded these means 230(c)(1) must be far broader than she claims

8. She claims the "Good Samaritan" heading means (c)(1) has to be interpreted not to protect sites that don't do enough to stop bad content--essentially, not against distributor liability. That's not how statutory interpretation works. Headings can be useful cues but only that...

9. It's easy to see why Congress put the "Good Samaritan" label on (c)(1). Stratton Oakmont v. Prodigy (1995) disincentivized websites from moderating content by treating them as publishers. (c)(1) overruled that, thus preventing the Moderator's Dilemma

10. Franks is making Justice Thomas's argument: (c)(1) protects only against publisher liability, not distributor liability. Google's Gonzalez brief debunks that argument succinctly.

11. Hany Farid: 230 should be interpreted to protect platforms exclusively for their *hosting* of 3rd party content

Dude doesn't realize he just made the the Trump admin argument: that 230 (or at least (c)(1)) shouldn't protect content moderation (*removal* of content)

12. This is why we don't rely on non-lawyers to parse hard legal distinctions...

13. Bennett presents the holding in Henderson, a case she argued for the plaintiff. @ericgoldman has explained what the 4th Circuit got wrong in that case blog.ericgoldman.org/archives/2022/…

14. @SullivanISOC: The Internet is for people. The Internet enables everyone to talk to everyone. That interactivity can be a problem, but it also brings huge benefits. Congress intended #Section230 to protect that interactivity

15. Sullivan: Outright repeal of #Section230 would be a calamity. Ordinary features like retweeting would invite endless litigation. It would be bad to create special rules that only the richest companies could afford to meet.

16. Sullivan: Because #Section230 protects the entire Internet, including the ability of users to interact with each other, the law is a poor vehicle for addressing concerns about the Internet. Focus on competition policy, privacy law, etc.

17. Schnapper (who argued Gonzalez for the plaintiffs so badly that the Justices kept saying: "I don't understand") just opened his testimony by saying: "Section 260... I mean, Section 230..."

This guy is definitely one of Kagan's "nine greatest experts on the Internet!"

18. Schnapper: what we have learned since 1996, absolute immunity can breed absolute irresponsibility

230 doesn't immunize sites from:
- federal criminal law
- content they develop, even in part
- competition law

So, yeah, no

19. Check out Jess's livethread of this #Section230 hearing

https://twitter.com/jess_miers/status/1633553099943030785

20. Hawley: What would be the best way to amend #Section230
Schnapper: I'd prefer not to toss out language as I sit here

So after arguing two cases before the Supreme Court, Schnapper hasn't thought through yet what he'd change?

Maybe because it's not so easy?

21. Padilla introduces a letter signed by 3 dozens organizations across the ideological spectrum, including @TechFreedom, explaining that #Section230 protects not just big platforms, but Internet users—not business models but interactivity we all use daily static1.squarespace.com/static/5716817…

22. Franks: Internet services should be subject to the same rules as any other industry

But the Internet IS different. Billions of users interact daily. Each interaction could lead to a lawsuit. Without 230, America's uniquely expensive litigation system would kill the Internet.

23. Farid: Small platforms have small problems. We've seen in Europe that modest regulation doesn't kill small platforms.

He's talking about countries where plaintiffs don't sue because they have to pay defendants' costs if they lose and there are no class actions, etc etc?

24. The US is the most litigious society on earth. We have 15 times more lawyers per capita than Canada, for instance
riponsociety.org/article/dont-r…

25. @ma_franks blithely asserts that changing or reinterpreting 230(c)(1) is nbd because (c)(2) protects content moderation. In fact, nearly all content moderation cases are resolved under (c)(1).

26. The Trump admin wanted to force sites to rely on (c)(2)(A) to make it easier to sue websites for moderating content "unfairly."

27. The difference between the two is key: if you have to prove that content was moderated "voluntarily in good faith," you'll never win a motion to dismiss.

28. Every suit will require expensive discovery into motive and courts to decide hard questions on motions for summary judgment or at trial.

@ma_franks doesn't seem to understand that she's making the same arguments the Trump Admin made for an Internet Fairness Doctrine

29. Klobuchar: The hypocrisy of tech companies agreeing to do in Europe things they told us would break the Internet was the final dagger forcing me to change #Section230

Total non-sequitur. EU requirements aren't remotely comparable to American law...

30. In Europe, it's easy for a regulator to mandate or ban something because everything is soft law enforced at the discretion of a regulator.

The same legal requirement filtered through America's litigation system would produce radically different results

31. In Europe, regulators have room to be pragmatic, to avoid interpretations that would break the Internet. America, plaintiffs drive everything, especially attorneys general with political motives. And massive damages create huge risks, and thus overdeterrence.

32. A particularly low blow from @ma_franks: that users are so concerned about changes to #Section230 breaking the Internet just proves how addictive tech services are!

Yeah, so breaking the I̶n̶t̶e̶r̶n̶e̶t̶ Matrix is actually good, Neo.

33. Franks wants to amend 230 to replace "information" with "speech" and exclude sites acting with "deliberate indifference" to unlawful content. Then adds that a plaintiff should be able to sue if they can show a plausible connection between conduct and harm, which is different

34. All three ideas would have the same practical result: 230 might be ultimately a shield against liability in some cases, but it would no effectively never be a shield against lawsuits. Huge numbers of lawsuits would proceed past a motion to dismiss.

35. For Franks, that's a pure win, but it would fundamentally change the Internet. Few, if any sites, would be able to handle the expensive of fighting off lawsuits. They would have a perverse incentive to take down content they might get sued for--a Heckler's Veto

36. Conservatives might like the sound of the idea, but they'd find that they'd be "censored" far more often than they are today.

37. Sullivan: The problem isn't just that changing #Section230 "could break the Internet." It's not a binary. Changing the law could make it harder for users to interact with each other or make that functionality impossible.

38. Blumenthal: But what about KOSA? That law won't break the Internet. It just requires sites to let parents and teens opt-out from the algorithm

39. Actually, KOSA would require age-verification, which the courts have repeatedly declared unconstitutional, as we & leading scholars explain:
techfreedom.org/wp-content/upl…

40. Hawley: I worry about CSAM every day

Really? Then why do you keep lauding Parler, Getter, Gab, Truth Social and other "free speech" sites that take ZERO proactive measures to block known images/videos of children being raped (unlike every Big Tech company)?

41. Hawley: #Section230 is a massive subsidy to Big Tech

Oh so that's why Trump relied on 230 to get a court to dismiss a a lawsuit against him for retweeting someone else's content?

42. Hawley, Cruz and other MAGA nutters keep claiming that 230 is a subsidy to Big Tech. Nonsense. The law protects both providers and users of any interactive computer service, a term that includes blogs, podcast hosts, etc. Without it, most interactivity features wouldn't exist

43. 230(c)(1) has never blocked valid competition suits. If you're actually suing for a company's business practices, 230 doesn't protect them anymore than the First Amendment would. (c)(2)(A) requires good faith, so courts have allowed competition suits...

44. Blumenthal abruptly adjourns the hearing with "Bipartisan unanimity that we need change"

He just pretends not to see that what Hawley and other Rs want is to break moderation of some of the worst kinds of speech online: hate speech, barely legal incitement to violence etc