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Berin Szóka Profile picture
Berin Szóka
@BerinSzoka
🇺🇸🇩🇪🇫🇷🇪🇺 tech lawyer @TechFreedom, wanderer. “To have doubted one's own first principles is the mark of a civilized man” 🏳️‍🌈📚🗽
Jun 28 • 10 tweets • 3 min read
SCOTUS overrules Chevron in Loper Bright, but not past decisions relying on Chevron—with respect to the lawfulness of "specific agency actions." So Brand X is still good law in deferring to the FCC's 2002 classification of cable modem as Title I, but not for reversing that 🧵 Image Gorsuch, concurring, singles out Brand X as an example of why Chevron must be overturned: only if courts read statutes for themselves can we achieve stable interpretations and avoid endless ping-pong matches Image
Mar 8, 2023 • 44 tweets • 14 min read
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] 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...
Mar 7, 2023 • 15 tweets • 5 min read
1. I've disagreed with @gigibsohn about the biggest telecom issues for 15 years—but those issues aren't why her nomination floundered. Multiple Dem Senators feared supporting someone who had called out Fox for what it was in the Trump years: "state-sponsored propaganda" 2. In 2020, Senate Republicans summoned Twitter, Facebook & Google CEOs for a hearing on their alleged "bias" against conservatives. The Dem chair asked why broadcasters weren't there. Gigi tweeted this:
Mar 6, 2023 • 12 tweets • 13 min read
Live now: State of the Net conference #SOTN, featuring Assistant Attorney General for #antitrust Jonathan Kanter & @B_Fung

stateofthenet.org/sotn-23/ #SOTN #Section230 panel opens with @ma_franks claiming the law protects only against liability for defamation and related claims supremecourt.gov/DocketPDF/21/2…

If that were all 230 did, why did Congress spell out things didn't 230 affect completely unrelated to defamation and the like?
Sep 16, 2022 • 23 tweets • 8 min read
The Fifth Circuit opinion just dropped, upholding Texas's law compelling social media sites to host speech they don't want to host.

techfreedom.org/wp-content/upl… The court refused to strike down the TX law as facially unconstitutional because of overbreadth, suggesting that it would have to be challenged as to specific applications

Just like Florida's 1903 must-carry mandate was unconstitutional as applied to all newspapers all the time? Image
Sep 15, 2022 • 8 tweets • 3 min read
1/ Today, the #FTC will vote to issue a staff report about last year's workshop on Dark Patterns—at which Prof. @harrybr, who helped coined the term, warned that it was "vague." Let's hope the report gets a lot more specific about what kind of cases the FTC will bring Image 2/ The concept of “darkness” implies that consumers are necessarily unaware of what is happening. This kind of opacity may be problematic, but by itself, insufficient under Section 5(n) of the FTC Act. Image
Feb 10, 2022 • 10 tweets • 4 min read
Before #EARNITAct markup, a @SenateJudiciary Culture Wars kerfuffle

January: @MarshaBlackburn asked a black appellate nominee (Andre Mathis) about his "rap sheet" (actually 3 decade-old traffic tickets)

Today, @SenAlexPadilla complained about this... 🧵ballsandstrikes.org/nominations/an… Blackburn was pissed that Biden nominated Mathis to an appeals court in Tennessee over the "blue slip" objections of both TN Republican Senators

Trump bypassed 17 Dem blue slips

So Blackburn focused on Mathis's "rap sheet," implying that getting 3 tickets made him a criminal
Feb 10, 2022 • 50 tweets • 20 min read
.@SenateJudiciary is marking up #EARNITAct, which claims to crack down on child sexual abuse material but will really jeopardize prosecutions. Forcing tech firms not to use strong encryption & to monitor users makes them state actors who need a warrant 🧵

judiciary.senate.gov/meetings/02/03… #EARNITAct's sponsors say they've fixed the bill. They haven't. Making the "best practices" "voluntary" doesn't help. The 4th Amd./privacy problem has always been come from exposing tech companies to such vast liability that they *must* monitor what users say & abandon encryption
Oct 14, 2021 • 12 tweets • 4 min read
1/ Democrats want to stop websites from spreading hate speech, misinformation, etc

But this bill would do the opposite; it would do exactly what the Trump administration wanted—because @EnergyCommerce Dems still don't understand how #Section230 works
2/ The bill would expose many websites to liability, both civil and criminal, for making recommendations. States will enforce existing laws & write new ones, and we'll spend years litigating them under the First Amendment

But that's not all the bill does...
May 14, 2021 • 8 tweets • 3 min read
1/ There's nothing "conservative" (or constitutional) about the MAGA Fairness Doctrine for the Internet

They're recycling 1960s left's “media access theory”

Me in the WSJ: wsj.com/articles/sen-j… 2/ The First Amendment doesn't give you a right to speak on someone else's property. It actually guarantees *their* right to tell you to take a hike, no matter now "unfair" that might be

Because the 1A is a shield against government meddling in media, not a sword
Apr 21, 2021 • 32 tweets • 7 min read
Livetweeting this hearing on app store competition

The central premise, that app stores have "gatekeeper" control, is greatly exaggerated, if not wrong Klobuchar emphasizes that Apple won't allow sideloading of apps onto iOS photos (as Google does)

But Apple has, since 2018, allowed progressive web apps (PWAs) to run in the Safari mobile browser

And PWAs are increasingly able to duplicate the functionality of "native" apps
Apr 21, 2021 • 9 tweets • 3 min read
Just tuned in to @LinaMKhan's confirmation hearing. Of course, Wicker focuses on whether social media can be treated as common carriers, citing Justice Thomas

Apples & oranges: Lina's paper was about *economic* regulation of Amazon, not content moderation, protected by the 1A Unfortunately, she didn't make that distinction clear, just saying that we need to be "a bit market specific"

I debunk Thomas's opinion here (with @corbinkbarthold) lawfareblog.com/justice-thomas…
Apr 19, 2021 • 21 tweets • 8 min read
Republicans have relentlessly attacked "Big Tech" companies for "censoring" conservatives

Under pressure, Apple has caved, reinstating the #Parler app even though, for example, openly Nazi content is still readily available on the site. And that's just the tip of the iceberg... It's hard to know what's really on Parler because the site doesn't allow full text search: unlike on Facebook or Twitter, you can only search for user names and hashtags

Even before the January 6 insurrection, Parler censored certain hashtags, like the N-Word
Apr 19, 2021 • 7 tweets • 3 min read
Hawley's bill would force Amazon to spin off its Web Services division

He doesn't even allege any economic harms flowing from owning both a marketplace and a hosting service

Obviously, he's trying to punish Amazon for booting Parler after the January 6 insurrection Hawley isn't subtle about the motive for the bill: he's trying to use #antitrust law to retaliate against a private company for exercising editorial judgment in a way that Hawley doesn't like Image
Mar 30, 2021 • 28 tweets • 8 min read
At noon, Prof. Hamburger will repeat his nonsense claims that the First Amendment is a sword by which government can force private websites to host speech they find reprehensible. His Fairness Doctrine for the Internet is the opposite of what the right has argued for decades, as @AriCohn and I explained here

lawfareblog.com/wall-street-jo…
Mar 25, 2021 • 134 tweets • 40 min read
Another "Big Tech" hearing today (noon ET) with G, TW & FB CEOs

Dems will complain that tech companies don't moderate enough content and Republicans will say they're being "censored"

Both sides will attack 230, but the real issue is the First Amendment

energycommerce.house.gov/committee-acti… Websites have the same First Amendment rights as parade organizers, newspapers or other media to exclude speech they find objectionable, however "unfair" their decisions may be

It's just not the government's job to second-guess those content moderation decisions
Mar 23, 2021 • 8 tweets • 4 min read
.@BrendanCarrFCC is on a @FSFthinktank zoom now & about to talk about social media regulation
us02web.zoom.us/j/85978754303

Here's the thread I posted the last time he talked about #Section230

tl;dr: No, the FCC can't mandate "transparency" for content moderation akin to NN rules Requiring ISPs to disclose how they block, throttle and prioritize is radically different from regulating how websites moderate content

The DC Circuit upheld 2015 NN rules because they applied only to ISPs that held themselves out as *not* curating the broadband experience
Jan 12, 2021 • 19 tweets • 7 min read
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

Jan 12, 2021 • 4 tweets • 1 min read
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
Jan 12, 2021 • 11 tweets • 5 min read
#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.
Jan 11, 2021 • 14 tweets • 4 min read
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
protocol.com/we-need-sectio… 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).