Judges rule Big Tech's free ride on Section 230 is over
thebignewsletter.com
thebignewsletter.com
I think the ultimate problem is that social media is not unbiased — it curates what people are shown. In that role they are no longer an impartial party merely hosting content. It seems this ruling is saying that the curation being algorithmic does not absolve the companies from liability.
In a very general sense, this ruling could be seen as a form of net neutrality. Currently social media platforms favor certain content, while down weighting others. Sure, it might be at a different level than peer agreements between ISPs and websites, but it amounts to a similar phenomenon when most people interact on social media through the feed.
Honestly, I think I'd love to see what changes this ruling brings about. HN is quite literally the only social media site (loosely interpreted) I even have an account on anymore, mainly because of how truly awful all the sites have become. Maybe this will make social media more palatable again? Maybe not, but I'm inclined to see what shakes out.
With this ruling, HN is suddenly responsibly for all posts here specifically because of the moderation. So they have 2 options.
(1) Stop the moderation so they can be safe under 230. Result, HN turns to 4chan.
(2) enforce the moderation to a much higher degree by say, requiring non-anon accounts and TOS that make each poster responsible for their own content and/or manually approve every comment.
I'm not even sure how you'd run a website with user content if you wanted to moderate that content and still avoid being liable for illegal content.
I think this is a mistaken understanding of the ruling. In this case, TikTok decided, with no other context, to make a personalized recommendation to a user who visited their recommendation page. On HN, your front page is not different from my front page. (Indeed, there is no personalized recommendation page on HN, as far as I'm aware.)
I don't see how this is about personalization. HN has an algorithm that shows what it wants in the way it wants.
> "What does all this mean for Anderson’s claims? Well, § 230(c)(1)’s preemption of traditional publisher liability precludes Anderson from holding TikTok liable for the Blackout Challenge videos’ mere presence on TikTok’s platform. A conclusion Anderson’s counsel all but concedes. But § 230(c)(1) does not preempt distributor liability, so Anderson’s claims seeking to hold TikTok liable for continuing to host the Blackout Challenge videos knowing they were causing the death of children can proceed."
As-in, Dang would be liable if say somebody started a blackout challenge post on HN and he didn't start censoring all of them once news reports of programmers dieing broke out.
https://fingfx.thomsonreuters.com/gfx/legaldocs/mopaqabzypa/...
It’s still curated, and not entirely automatically. Does it make a difference whether it’s curated individually or not?
I think that is quite generous. I think it is a deliberate reinterpretation of what the order says. The order states that 230(c)(1) provides immunity for removing harmful content after being made aware of it, i.e., moderation.
For HN, Dang's efforts at keeping civility don't interfere with Section 230. The part relevant to this ruling is whatever system takes recency and upvotes, and ranks the front page posts and comments within each post.
It would be perfectly legal for a platform to choose to allow a user to decide on their own to filter out spam.
Maybe a user could sign up for such an algorithm, but if they choose to whitelist certain accounts, that would also be allowed.
Problem solved.
HN is also heavily moderated with moderators actively trying to promote thoughtful comments over other, less thoughtful or incendiary contributions by downranking them (which is entirely separate from flagging or voting; and unlike what people like to believe, this place relies more on moderator actions as opposed to voting patterns to maintain its vibe.) I couldn't possibly see this working with the removal of Section 230.
[1] https://en.wikipedia.org/wiki/Cubby,_Inc._v._CompuServe_Inc.
As if it was something bad. 4chan has /g and it's absolutely awesome.
For example the qanon conspiracy nuts got moderated out of /pol/ for arguing in bad faith/just being too crazy to actually have any kind of conversation with and they fled to another board (8chan and later 8kun) that has even less moderation.
Yep, 4chan isn't bad because "people I disagree with can talk there", it's bad because the interface is awful and they can't attract enough advertisers to meet their hosting demands.
TikTok. Facebook. Twitter. YouTube.
All of these have their algorithms specifically curated to try to keep you angry. YouTube outright ignores your blocks every couple months, and no matter how many people dropping n-bombs you report and block, it never endingly pushes more and more.
These company know that their algorithms are harmful and they push them anyway. They absolutely should have liability for what their algorithm pushes.
HN engages in the former but not the latter. The big three engage in the latter.
Even mentioning certain topics, such as Israel's invasion of Palestine, even when the mention is on-topic and not disruptive, as in this comment you are reading, is practically a death sentence for a comment. Not because of votes, but because of the moderators. Downvotes may prioritize which comments go in front of moderators (we don't know) but moderators make the final decision; comments that are downvoted but not removed merely stick around in a light grey colour.
By enabling showdead in your user preferences and using the site for a while, especially reading controversial threads, you can get a feel for what kinds of comments are deleted by moderators exercising. It is clear that most moderation is about editorial control and not simply the removal of disruption.
This comment may be dead by the time you read it, due to the previous mention of Palestine - hi to users with showdead enabled. Its parent will probably merely be down voted because it's wrong but doesn't contain anything that would irk the mods.
The pro-science crowd (which includes me fwiw) seems incapable of providing a proof any given scientist is that important. Same old social politics norms inflate some deflate others and we confirm our survival means we special. Ones education is vacuous prestige given physics applies equally; oh you did the math! Yeah I just tell the computer to do it. Oh you memorized the circumlocutions and dialectic of some long dead physicist. Outstanding.
There’s a lot of ego driven banal classist nonsense in tech and science. At the end of the day just meat suits with the same general human condition.
They may lose 230 protection, sure, but probably not really a problem here. For Facebook et al, it's going to be an issue, no doubt. I suppose they could drop their algos and bring back the chronological feeds, but, my guess is that wouldn't be profitable given that ad-tech and content feeds are one in the same at this point.
I'd also assume that "curation" is the sticking point here, if a platform can claim that they do not curate content, they probably keep 230 protection.
I don't frequent 4cuck, I use soyjak.party which I guess from your perspective is even worse, but there are of plenty of smart people on the 'cuck thoughbeit, like the gemmy /lit/ schizo. I think you would feel right at home in /sci/.
Specifically, every political or science thread that makes it, is raided by 4chan. 4chan also regularly pushes anti/science and anti-education agenda threads to the top here, along with posts from various alt-right figures on occasion.
This is literally the purpose of Section 230. It's Section 230 of the Communications Decency Act. The purpose was to change the law so platforms could moderate content without incurring liability, because the law was previously that doing any moderation made you liable for whatever users posted, and you don't want a world where removing/downranking spam or pornography or trolling causes you to get sued for unrelated things you didn't remove.
Basically true.
> Section 230 was intended to clarify the common carrier role of ISPs and similar providers of third party content.
No, it wasn't, and you can tell that because there is literally not a single word to that effect in Section 230. It was to enable information service providers to exercise editorial control over user-submitted content without acquiring publisher-style liability, because the alternative, giving liability decisions occurring at the time and the way providers were reacting to them, was that any site using user-sourced content at scale would, to mitigate legal risk, be completely unmoderated, which was the opposite of the vision the authors of Section 230 and the broader CDA had for the internet. There are no "common carrier" obligations or protections in Section 230. The terms of the protection are the opposite of common carrier, and while there are limitations on the protections, there are no common carrier like obligations attached to them.
>
That part of the law was unconstitutional and pretty quickly got struck down, but it still goes to the same point that the intent of Congress was for sites to remove stuff and not be "common carriers" that leave everything up.
> Section 230 was intended to clarify the common carrier role of ISPs and similar providers of third party content. It does have a subsection to clarify that attempting to remove objectionable content doesn't remove your common carrier protections, but I don't believe that was a response to pre-CDA status quo.
If you can forgive Masnick's chronic irateness he does a decent job of explaining the situation:
https://www.techdirt.com/2024/08/29/third-circuits-section-2...
What part of deliberately showing political content to people algorithmically expected to agree with it, constitutes "moderation"?
What part of deliberately showing political content to people algorithmically expected to disagree with it, constitutes "moderation"?
What part of deliberately suppressing or promoting political content based on the opinions of those in charge of the platform, constitutes "moderation"?
What part of suppressing "misinformation" on the basis of what's said in "reliable sources" (rather than any independent investigation - but really the point would still stand), constitutes "moderation"?
What part of favouring content from already popular content creators because it brings in more ad revenue, constitutes "moderation"?
What part of algorithmically associating content with ads for specific products or services, constitutes "moderation"?
Well, maybe it's just me, but only showing political content that doesn't include "kill all the (insert minority here)", and expecting users to not object to that standard, is a pretty typical aspect of moderation for discussion sites.
> What part of deliberately suppressing or promoting political content based on the opinions of those in charge of the platform, constitutes "moderation"?
Again, deliberately suppressing support for literal and obvious facism, based on the opinions of those in charge of the platform, is a kind of moderation so typical that it's noteworthy when it doesn't happen (e.g. Stormfront).
> What part of suppressing "misinformation" on the basis of what's said in "reliable sources" (rather than any independent investigation - but really the point would still stand), constitutes "moderation"?
Literally all of Wikipedia, where the whole point of the reliable sources policy is that the people running it don't have to be experts to have a decently objective standard for what can be published.
The idea that curation is a problem with social media is always a head scratcher for me. The option to just directly publish to the world wide web without social media is always available, but time and again, that option is largely not chosen... this ruling could well narrow it down that being the only option.
Now, in practice, I don't think that will happen. This will raise the costs of operating social media, and those costs will be reflected in prices advertisers pay to advertise on social media. That may shrink the social media ecosystem, but what it will definitely do is raise the draw bridge over the moat around the major social media players. You're going to see less competition.
Not exactly. You still have to procure web hosting somewhere, and that hosting provider might choose to refuse your money and kick you off.
You might also have to procure the services of Cloudflare if you face significant traffic, and Cloudflare might choose to refuse your money and kick you off.
>that option is largely not chosen...
That's because most people do not have neither the time nor the will to learn and speak computer.
Social media and immediate predecessors like Wordpress were and are successful because they brought down the lowest common denominator to "Smack keys and tap Submit". HTML? CSS? Nobody has time for our pig latin.
Who says you need to procure a web hosting provider?
But yes, if you connect your computer up to other computers, the other computers may decide they don't want any part of what you have to offer.
Without that, I wouldn't want to be in the Internet. I don't want to be forced to ingest bytes from anyone who would send them my way. That's just not a good value proposition for me.
> That's because most people do not have neither the time nor the will to learn and speak computer.
I'm sorry, but no. You can literally type in to a word processor or any number of other tools and select "save as web content", and then use any number of products to take a web page and serve it up to the world wide web. It's been that way for the better part of 25 years. No HTML or CSS knowledge needed. If you can't handle that you can just record a video, save it to a file, and serve it up over a web server. Yes, you need to be able to use a computer to participate on the world wide web, but no more than you do to use social media.
Now, what you won't get is a distribution platform that gets your content up in front of people who never asked for it. That is what social media provides. It lowers the effort for the people receiving the content, as in exactly the curation process that the judge was ruling about.
Then give the choice to the user.
If a user wants to opt in, or change their moderation preferences then they should be allowed.
By all means offer a choice of moderation decisions. And let the user change them, opt out conditionally and ignore them if they so choose.
Actually it seems like with these recent rulings, we will be free to use major social media platforms where the choice of moderation is given to the user, lest those social media platforms are otherwise held liable for their "speech".
I am fully fine with accepting the idea that if a social media platform doesn't act as a dumb pipe, then their choice of moderation is their "speech" as long as they can be held fully legally liable for every single moderation/algorithm choice that they make.
Fortunately for me, we are commenting on a post where a legal ruling was made to this effect, and the judge agrees with me that this is how things aught be.
> There is no way to run a targeted ad social media company with 40% margins if you have to make sure children aren’t harmed by your product.
Wouldn't that put the responsibility back on the parents?
The state told you XYZ was bad for your kids and it's illegal for them to use, but then you bypassed that restriction and put the sugar back into their hands with an access-blocker-blocker..
Random wondering
Media, generally, social or otherwise, is not unbiased. All media has bias. The human act of editing, selecting stories, framing those stories, authoring or retelling them... it's all biased.
I wish we would stop seeking unbiased media as some sort of ideal, and instead seek open biases -- tell me enough about yourself and where your biases lie, so I can make informed decisions.
This reasoning is not far off from the court's thinking: editing is speech. A for you page is edited, and is TikTok's own speech.
That said, I do agree with your meta point. Social media (hn not excluded) is a generally unpleasant place to be.
What are the legal ramifications for the many thousands of similar operators which are much closer in feel to a message board than to Facebook or Twitter? Does a server run by Republicans have to accept Communist Party USA members and their posts? Does a vegan instance have to allow beef farmers? A PlayStation fan server host pro-PC content?
It is not only biased but also biased for maximum engagement.
People come to these services for various reasons but then have this specifically biased stuff jammed down their throats in a way to induce specific behavior.
I personally don't understand why we don't hammer these social media sites for conducting psychological experiments without consent.
I'll have to read the third circuit's ruling in detail to figure out whether they are trying to draw a line in the Sand on whether an algorithm satisfies the requirements for section 230 protection or falls outside of it. If that's what they're doing, I wouldn't assume a priori that a site like Hacker News won't also fall afoul of the law.
That's how I read it, too. Section 230 doesn't say you can't get in trouble for failure to moderate, it says that you can't get in trouble for moderating one thing but not something else (in other words, the government can't say, "if you moderated this, you could have moderated that"). They seem to be going back on that now.
Real freedom from censorship - you cannot be held liable for content you hosted - has never been tried. The US government got away with a lot of COVID-era soft censorship by just strong-arming social media sites into suppressing content because there were no first-amendment style protections against that sort of soft censorship. I'd love to see that, but there's no reason to think that our government is going in that direction.
But I doubt this gets held on appeal. Given how fickle this Supreme Court is they’ll probably overrule themselves to fit their agenda since they don’t seem to think precedent is worth a damn.
No more moderation? This seems bad.
No more recommendation/personalization? This could go either way, I'm also willing to see where this one goes.
No more public comment sections? Arstechnica claimed back in the day when section 230 was under fire last time that this would be the result if it was ever taken away. This seems bad.
I'm not sure what will happen, I see 2 possible outcomes that are bad and one that is maybe good. At first glance this seems like bad odds.
Actually there's a fourth possibility, and that's holding Google responsible for whatever links they find for you. This is the nuclear option. If this happens, the internet will have to shut all of its American offices to get around this law.
The underlying hosted service is nearly completely unmoderated and unpersonalised. It's just streams of bits and data routing. You can scan for/limit the propagation of CSAM or DMCA content to some degree as an infrastructure provider but that's really about it and even then you can only really do so to fairly limited degrees and that doesn't stop other providers (or self hosted participants) from propagating that anyways.
Then you provide custom feed algorithms, labelling services, moderation services, etc on top of that but none of them change or control the underlying data streams. They just annotate on top or provide options to the client.
Then the user's client is the one that directly consumes all these different services on top of the base service to produce the end result.
It's a true, unbiased section 230 compatible protocol (under even the strictest interpretation) that the user then can optionally combine with any number of secondary services and addons that they use to craft their personalised social media experience.
It is pretty clear that china already forces a very different tiktok ranking algo for kids within the country vs outside the country. Forcing a single algo is pretty unamerican though and can easily be abused, let's instead open it up.
Even if they may have different skews on some issues, under a system where all such entities are operated entirely for-profit, they will tend to converge on other issues, largely related to maintaining the rights of capital over labor and over government.
In the newspaper case, you write your post, send it to the newspaper, and some editor at the newspaper decides whether or not to publish it.
In Social Media, the same thing happens, but it's just super fast and algorithmic: You write your post, send it to the Social Media site (or forum), an algorithm (or moderator) at the Social Media site decides whether or not to publish it.
I feel like it's reasonable to interpret this kind of editorial selection as "promotion" and "recommendation" of that comment, particularly if the social media company's algorithm deliberately places that content into someone's feed.
I think if social media companies relayed communication between it's users with no moderation at all, then they should be entitled to carrier protections.
As soon as they start making any moderation decisions, they are implicitly endorsing all other content, and should therefore be held responsible for it.
There are two things social media can do. Firstly, they should accurately identify its users before allowing them to post, so they can counter sue that person if post harms them, and secondly, they can moderate every post.
Everybody says this will kill social media as we know it, but I say the world will be a better place as a result.
There’s an enormous difference in the debate between what should be prohibited and what should be prohibited for children.
I think we'd all agree that most websites are better off with curation and moderation of some kind. If you don't like it, you are free to leave the forum, website, etc. The problem is that Big Tech fails to work in the same way, because those properties are becoming effectively the "public highways" where everyone must pass by.
This is not dissimilar from say, public utilities.
So, why not define how a tech company becomes a Big Tech "utility", and therefore, cannot hide behind 230 exception for things that it willingly does, like censorship ?
In reality this will not be the case and instead it will introduce the bias of regulators to replace the bias companies want there to be. And even with their motivation to sell users attention, I cannot see this as an improvement. No, the result will probably be worse.
I think of this more along the lines of preventing a factoring from polluting a water supply or requiring a bank to have minimum reserves.
"But by the time Nylah viewed these videos, TikTok knew that: 1) “the deadly Blackout Challenge was spreading through its app,” 2) “its algorithm was specifically feeding the Blackout Challenge to children,” and 3) several children had died while attempting the Blackout Challenge after viewing videos of the Challenge on their For You Pages. App. 31–32. Yet TikTok “took no and/or completely inadequate action to extinguish and prevent the spread of the Blackout Challenge and specifically to prevent the Blackout Challenge from being shown to children on their [For You Pages].” App. 32–33. Instead, TikTok continued to recommend these videos to children like Nylah."
We need to see another document, "App 31-32", to see what TikTok "knew". Could someone find that, please? A Pacer account may be required. Did they ignore an abuse report?
See also Gonzales vs. Google (2023), where a similar issue reached the U.S. Supreme Court.[1] That was about whether recommending videos which encouraged the viewer to support the Islamic State's jihad led someone to go fight in it, where they were killed. The Court rejected the terrorism claim and declined to address the Section 230 claim.
Their review process was developed to hit the much more stringent speech standards of the Chinese market, but it opens them up to even more liability here.
I unfortunately can't find the source articles for this any more, they're buried under "how to make your video go viral" flowcharts that elide the "when things get banned" decisions.
TikTok isn't available in China. They have a separate app called Douyin.
"The TikTok Defendants Knew the Deadly Blackout Challenge Had Killed Multiple Children"
https://storage.courtlistener.com/recap/gov.uscourts.ca3.118...
Rest of the filings here:
https://www.courtlistener.com/docket/67500541/tawainna-ander...
TikTok, Inc., via its algorithm, recommended and promoted videos posted by third parties to ten-year-old Nylah Anderson on her uniquely curated “For You Page.” One video depicted the “Blackout Challenge,” which encourages viewers to record themselves engaging in acts of self-asphyxiation. After watching the video, Nylah attempted the conduct depicted in the challenge and unintentionally hanged herself. -- https://cases.justia.com/federal/appellate-courts/ca3/22-3061/22-3061-2024-08-27.pdf?ts=1724792413
Or you do things that gives you rewards - and do not care what it will result otherwise - but you want to be saved from any responsibility (automatically!) for what it causes just because it is an algorithm?
The enjoying the benefits but running away from responsibility is a cowardly and childish act. Childish acts need supervision from adults.
Impossible goals are an asinine standard and "responsibility" and "accountability" are the favorite weasel words of those who want absolute discretion to abuse power.
Except right now youtube have a self advertisement in the middle of the page warning people not to trust the content on youtube. A company warning people not to trust the product they built and the videos they choose to show you... we need to rethink 230. We've gone seriously awry.
I know youtube is different in important ways than the post, but it's also different in important ways from e.g. somebody who builds a building that falls down.
The dangers of social media are unknown to most still.
Then when you accidentally hit your hand with the hammer, you actually stabbed yourself. And that's when you realized your hammer is now a screwdriver.
If a child searches Google for "boobs", it's not fair to accuse Google of showing naked women to children, and definitely not fair to even say Google was targeting children.
«Had Nylah viewed a Blackout Challenge video through TikTok’s search function, rather than through her FYP, then TikTok may be viewed more like a repository of third-party content than an affirmative promoter of such content.»
> But by the time Nylah viewed these videos, TikTok knew that: 1) "the deadly Blackout Challenge was spreading through its app," 2) "its algorithm was specifically feeding the Blackout Challenge to children," and 3) several children had died while attempting the Blackout Challenge after viewing videos of the Challenge on their For You Pages. App. 31-32. Yet TikTok "took no and/or completely inadequate action to extinguish and prevent the spread of the Blackout Challenge and specifically to prevent the Blackout Challenge from being shown to children on their [For You Pages]." App. 32-33. Instead, TikTok continued to recommend these videos to children like Nylah.
Do you think this should be legal? Would you do nothing if you knew children were dying directly because of the content you were feeding them?
Then again, I guess your platform is about article recommendation and not about recording yourself doing popular trends. And perhaps children are not your target audience, or an audience at all. In many ways the situation was different for TikTok.
If your algorithm decides that things in the 90th percentile of shock value will boost engagement to a user profile that can also include users who are ten years old then you maybe have built a negligent algorithm. Maybe that’s not the case in this particular instance but it could be possible.
Like if I'm a cement company, and I build a sidewalk that's really good and stable, stable enough for a person to plant a milk crate on it, and stand on that milk crate, and hold up a big sign that gives clear instructions on self-asphyxiation, and a child reads that sign, tries it out and dies, am I going to get sued? All I did was build the foundation for a platform.
If you were indeed monitoring the footpath for milk crate signs and moving them, yes you may be liable for showing or not removing one to someone it wouldn't be appropriate for.
In my analogy the stable sidewalk that can hold the milk crate is both the platform and the optimization algorithm. But to your point there's actually a lot more going on with the optimization than just building a place where any rando can market self-asphyxiation. It's about how they willfully targeted people with that content.
Given the Supreme Court's observations that platforms engage in protected first-party speech under the First Amendment when they curate compilations of others' content via their expressive algorithms, it follows that doing so amounts to first-party speech under Section 230, too."""
I've agreed for years. It's a choice in selection rather than a 'natural consequence' such as a chronological, threaded, or even '__end user__ upvoted /moderated' (outside the site's control) weighted sort.
If my forum has a narrow scope (say, 4×4 offroading), and I delete a post that’s obviously by a human but is seriously off‐topic (say, U.S. politics), does that make me legally liable for every single post I don’t delete?
What are the limits here, for those of us who unlike silicon valley corporations, don’t have massive legal teams?
No.
From the court of appeals [1], "We reach this conclusion specifically because TikTok’s promotion of a Blackout Challenge video on Nylah’s FYP was not contingent upon any specific user input. Had Nylah viewed a Blackout Challenge video through TikTok’s search function, rather than through her FYP, then TikTok may be viewed more like a repository of third-party content than an affirmative promoter of such content."
So, given (an assumption) that users on your forum choose some kind of "4x4 Topic" they're intending to navigate a repository of third-party content. If you curate that repository it's still a collection of third-party content and not your own speech.
Now, if you were to have a landing page that showed "featured content" then that seems like you could get into trouble. Although one wonders what the difference is between navigating to a "4x4 Topic" or "Featured Content" since it's both a user-action.
[1]: https://fingfx.thomsonreuters.com/gfx/legaldocs/mopaqabzypa/...
"may"
Basically until the next court case when someone learns that search is an algorithm too, and asks why the first result wasn't a warning.
The real truth is, if this is allowed to stand, it will be selectively enforced at best. If it's low enough volume it'll just become a price of doing business, sometimes a judge has it out for you and you have to pay a fine, you just have to work it into the budget. Fine for big companies, game ender for small ones.
Consider HackerNews's functionality of flamewar suppression. https://news.ycombinator.com/item?id=39231821
And this is the difference between https://news.ycombinator.com/news and https://news.ycombinator.com/newest (with showdead enabled).
According to the article, probably not:
> A platform is not liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
"Otherwise objectionable" looks like a catch-all phrase to allow content moderation generally, but I could be misreading it here.
> any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected
I think that allows your use case without liability.
The "my moderation makes me liable for everything I don't moderate" problem, that's what's addressed by the preceding section, the core of the law and the part that's most often at issue, which says that you can't be treated as publisher/speaker of anyone else's content.
That doesn't mean anyone is free to promote content without liability, just that moderating by deleting content doesn't make it an "expressive product."
As an example, suppose on a HN thread about the Coq theorem prover, someone starts a discussion about the name, and it's highly upvoted but the moderators downrank that post manually to stimulate more productive discussions. Is this considered curation, and can this be no longer done given this ruling?
It seems to me that this is indeed the case, but in case I'm mistaken I'd love to know.
If you discovered a thread on the forum where a bunch of users were excitedly talking about doing something incredibly dangerous in their 4x4s, like getting high and trying some dangerous maneuver, would you let sit on your forum?
How would you feel if somebody read about it on your forum and died trying to do it?
Update: The point I'm trying to make is that _I_ wouldn't let this sit on my forum, so I don't think its unethical to ask others to remove it from their forums as well.
However, if my hypothetical forum received a persistent flood of posts designed to soften people up to dangerous behaviors, I'd be pretty liberal removing posts that smelled funny until the responsible clique moved elsewhere.
I imagine that getting rid of spam wouldn't meet the bar, and neither would enforcing that conversations are on-topic. But if you're removing and demoting posts because they express views you disagree with, you're implicitly endorsing the opinions expressed in the posts you allow to stay up, and therefore are exercising editorial control.
I think the lesson here is: either keep your communities small so that you can comfortably reason about the content that's up there, or don't play the thought police. The only weird aspect of this is that you have courts saying one thing, but then the government breathing down your neck and demanding that you go after misinformation.
> “Section 230 protects targeted recommendations to the same extent that it protects other forms of content presentation,” the members wrote. “That interpretation enables Section 230 to fulfill Congress’s purpose of encouraging innovation in content presentation and moderation. The real-time transmission of user-generated content that Section 230 fosters has become a backbone of online activity, relied upon by innumerable Internet users and platforms alike. Section 230’s protection remains as essential today as it was when the provision was enacted.”
[1][PDF] https://www.wyden.senate.gov/download/wyden-cox-amicus-brief...
[2] https://www.wyden.senate.gov/news/press-releases/sen-wyden-a...
It is now firmly established in the case law that Section 230 cannot act as a shield whenever a website is in any way complicit in the creation or development of illegal content.
...
In FTC v. Accusearch,[69] the Tenth Circuit Court of Appeals held that a website’s mere posting of content that it had no role whatsoever in creating — telephone records of private individuals — constituted “development” of that information, and so deprived it of Section 230 immunity. Even though the content was wholly created by others, the website knowingly transformed what had previously been private information into a publicly available commodity. Such complicity in illegality is what defines “development” of content, as distinguished from its creation.
In writing Section 230, Rep. Wyden and I, and ultimately the entire Congress, decided that these legal rules should continue to apply on the internet just as in the offline world. Every business, whether operating through its online facility or through a brick-and-mortar facility, would continue to be responsible for all of its own legal obligations.
EDIT: Added quote about additional legal obligations.
[1]: https://jolt.richmond.edu/2020/08/27/the-origins-and-origina...
Whether an intermediary has knowledge of specific content that is illegal to redistribute is very different from whether the intermediary has "knowledge" that the algorithm it designed to rank legally distributable content can "sometimes" produce a high ranking to "some" content that's illegal to distribute. The latter case can be split further into specific illegal content that the intermediary has knowledge of and illegal content that the intermediary lacks knowledge of. Unless a law such as KOSA passes (which it shouldn't [1]), the intermediary has no legal obligation to search for the illegal content that it isn't yet aware of. The intermediary need only respond to reports, and depending on the volume of reports the intermediary isn't obligated to respond within a "short" time period (except in "intellectual property cases", which are explicitly exempt from Section 230). "TikTok knows that TikTok has blackout challenge posts" is not knowledge of post PQR. "TikTok knows that post PQR on TikTok is a blackout challenge post" is knowledge of post PQR.
Was TikTok aware that specific users were being recommended specific "blackout challenge" posts? If so, then TikTok should've deleted those posts. Afterward, TikTok employees should've known that its algorithm was recommending some blackout challenge posts to some users. Suppose that TikTok employees are already aware of post PQR. Then TikTok has an obligation to delete PQR. If in a week blackout challenge post HIJ shows up in the recommendations for user @abc and @xyz, then TikTok shouldn't be liable for recommendations of HIJ until TikTok employees read a report about it and then confirm that HIJ is a blackout challenge post. Outwardly, @abc and @xyz will think that TikTok has done nothing or "not enough" even though TikTok removed PQR and isn't yet aware of HIJ until a second week passes. The algorithm doesn't create knowledge of HIJ no matter how high the algorithm ranks HIJ for user @abc. The algorithm may be TikTok's first-party speech, but the content that is being recommended is still third-party speech. Suppose that @abc sues TikTok for failing to prevent HIJ from being recommended to @abc during the first elapsed week. The First Amendment would prevent TikTok from being held liable for HIJ (third party speech that TikTok lacked knowledge of during the first week). As a statute that provides an immunity (as opposed to a defense) in situations involving redistribution of third-party speech, Section 230 would allow TikTok to dismiss the case early; early dismissals save time and court fees. Does the featured ruling by the Third Circuit mean that Section 230 wouldn't apply to TikTok's recommendation of HIJ to @abc in the first elapsed week? Because if so, then I really don't think that the Third Circuit is reading Section 230 correctly. At the very least, the Third Circuit's ruling will create a chilling effect on complex algorithms in violation of social media websites' First Amendment freedom of expression. And I don't believe that Ron Wyden and Chris Cox intended for websites to only sort user posts by chronological order (like multiple commenters on this post are hoping will happen as a result of the ruling) when they wrote Section 230.
[1] https://reason.com/2024/08/20/censoring-the-internet-wont-pr...
However, if Section 230 is on its way out, won't this just benefit the largest tech companies that already have massive legal resources and the ability to afford ML-based or manual content moderation? The barriers to entry into the market for startups will become insurmountable. Perhaps I'm missing something here, but it sounds like the existing companies essentially got a free pass with regard to liability of user-provided content and had plenty of time to grow, and now the government is pulling the ladder up after them.
are able to profit to the tune of a 40% margin on advertising revenue
With that, they're saying that they're only going to be able to profit this much in this current regulatory environment. If that goes away, so too does much of their margin, potentially all of it. That's a big blow no matter the size, though Facebook may weather it better than smaller competitors.
I'd wager the bigger you are the harder it gets. How would they fend off tens of thousands of simultaneous lawsuits?
This is a pretty good take, and it relies on pre-Internet legal concepts like distributor and producer. There's this idea that our legal / governmental structures are not designed to handle the Internet age and therefore need to be revamped, but this is a counterexample that is both relevant and significant.
> So what happens going forward? Well we’re going to have to start thinking about what a world without this expansive reading of Section 230 looks like.
There was an internet before the CDA. From what I remember, it was actually pretty rad. There can be an internet after, too. Who knows what it would look like. Maybe it will be a lot less crowded, less toxic, less triggering, and less addictive without these gigantic megacorps spending buku dollars to light up our amygdalas with nonsense all day.
Judge Matey's basic point of contention is that Section 230 does not provide immunity for any of TikTok's actions except "hosting" the blackout challenge video on its server.
Defining it in this way may lead to a tricky technical problem for the courts to solve... While working in web, I understand "hosting" to mean the act of storing files on a computer somewhere. That's it. Is that how the courts will understand it? Or does their definition of hosting include acts that I would call serving, caching, indexing, linking, formatting, and rendering? If publishers are liable for even some of those acts, then this takes us to a very different place from where we were in 1995. Interesting times ahead for the industry.
>(2) Interactive computer service The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
That's crazy, I feel like being a lawless no-man's land is the best part of the internet.
It would be nice to see those 'For you' and youtube's recomendations gone. Chronological timelines are the best , and will bring back some sanity. Don't like it? don't follow it
> Accordingly, TikTok’s algorithm, which recommended the Blackout Challenge to Nylah on her FYP, was TikTok’s own “expressive activity,” id., and thus its first-party speech.
>
> Section 230 immunizes only information “provided by another[,]” 47 U.S.C. § 230(c)(1), and here, because the information that forms the basis of Anderson’s lawsuit—i.e., TikTok’s recommendations via its FYP algorithm—is TikTok’s own expressive activity, § 230 does not bar Anderson’s claims.
How did you find it in the first place? A search? Without any kind of filtering (that's an algorithm that could be used to manipulate people), all you'll see is pages and pages of SEO.
Opening up liability like this is a quagmire that's not going to do good things for the internet.
«Had Nylah viewed a Blackout Challenge video through TikTok’s search function, rather than through her FYP, then TikTok may be viewed more like a repository of third-party content than an affirmative promoter of such content.»
Also, lists of content (or blind links to random pages - web rings) have been a thing since well before Twitter or Dig.
Not sure if you've noticed, but the internet seemingly ran out of good things quite some time back.
For example, just today there was a highly entertaining and interesting article about how to replace a tablet-based thermostat. And it was posted on the internet, and surfaced via an algorithm on Hacker News.
Do you genuinely believe a judge is going to rule that a Boyer-Moore implementation is fundamentally biased? It seems likely that sticking with standard string matching will remain safe.
Not to mention CNN, MSNBC, the New York Times, NPR, etc.
You realize that there is immense arrogance in this statement where you have decided that something is good for me ? I am totally fine with youtube's recommendations or even Tiktok's algorithms that according to you "manipulate" me.
The alleged activity in this lawsuit was TikTok either knew or should have known that it was targeting content to minors that contained challenges that was likely to result in harm if repeated. That goes well beyond simple moderation, and is even something that various social media companies have argued in court is speech made by the companies.
Elected governments also aren't as free as you'd think. Two parties control 99% of US politics. Suppose I'm not a fan of trade wars; both parties are in favor of them right now.
A corporation might have "power" in an economic sense. It might have market significant presence in the marketplace. That presence might pressure or influence you in certain ways that you would prefer it not, such as the fact that all of your friends and family are customers/users of that faceless corporation.
But what the corporation cannot do is put you in jail, seize your assets, prevent you from starting a business, dictate what you can or can't do with your home etc.
Government is a necessary good. I'm no anarchist. But government is far more of a potential threat to liberty than the most "powerful" corporation could ever be.
It's one thing to say, "Some idiot posted this on our platform." It's another thing altogether to promote and endorse the post and send it out to everybody.
Businesses should be held responsible for their actions.
As opposed to when they didn’t?
Section 230 is not canceled. This is a significant but fairly narrow refinement of what constitutes original content and Stoller’s take (“The business model of big tech is over”) is vastly overstating it.
Some kinds of recommendation algorithms produce original content (speech) by selecting and arranging feeds of other user generated content and the creators of the algorithms can be sued for harms caused by those recommendations. This correctly attaches liability to risky business.
The businesses using this model need to exercise a duty of care toward the public. It’s about time they start.
More specific than being harmed by your product, Section 230 cares about content you publish and whether you are acting as a publisher (liable for content) or a platform (not liable for content). This quote is supposing what would happen if Section 230 were overturned. But in fact, there is a way that companies would protect themselves: simply don't moderate content at all. Then you act purely as a platform, and don't have to ever worry about being treated as a publisher. Of course, this would turn the whole internet into 4chan, which nobody wants. IMO, this is one of the main reasons Section 230 continues to be used in this way.
Would love to have a timeline only, non reinforcing content feed.
Wouldn't this be the perfect precedence case on why minors should not be allowed on social media?
Also, I’m not sure how TikTok would know that the videos are viral among the protected demographic if the protected demographic cannot even put in the information to classify them as such?
I don’t think requiring moderation is the answer in all cases. As an adult, I should be allowed to consume unmoderated content. Should people younger than 18 be allowed to? Maybe.
I agree that below age X, all content should be moderated. If you choose not to do this for your platform, then age-restrict the content. However, historically age-restriction on the internet is an unsolved problem. I think what would be useful is tighter legislation on how this is enforced etc.
This case is not a moderation question. It is a liability question, because a minor has been granted access to age-restricted content. I think the key question is whether TikTok should be liable for the child/their parents having bypassed the age restriction (too easily)? Maybe. I’m leaning towards the opinion that a large amount of this responsibility is on the parents. If this is onerous, then the law should legislate stricter guidelines on content targeting the protected demographic as well as the gates blocking them.
Facebook has a “marketplace” but no customer support line. Google is serving people scam ads for months, leading to millions in losses. (Imagine if a newspaper did that.) And feeds are allowed to recommend content that would be beyond the pale if a human were curating it. But because “it’s just an algorithm bro” we give them a pass because they can claim plausible deniability.
If fixing this means certain companies can’t scale to a trillion dollars with no customer support, too bad. Google can’t vet every ad? They could, but choose not to. Figure it out.
And content for children should have an even higher bar than that. Kids should not be dying from watching videos.
The key thing people are missing is that TikTok is not being held responsible for the video content itself, they are being held responsible for their own code's actions. The video creator didn't share (or even attempt to share) the video with the victim- TikTok did.
If adults want to subscribe themselves to that content, that is their choice. Hell, if kids actively seek out that content themselves, I don't think companies should be responsible if they find it.
But if the company itself is the one proactively choosing to show that content to kids, that is 100% on them.
This narrative of being blind to the vagaries of their own code is playing dumb at best: we all know what the code we write does, and so do they. They just don't want to admit that it's impossible to moderate that much content themselves with automatic recommendation algorithms.
They could avoid this particular issue entirely by just showing people content they choose to subscribe to, but that doesn't allow them to inject content-based ads to a much broader audience, by showing that content to people who have not expressed interest/ subscribed to that content. And that puts this on them as a business.
> Because TikTok’s “algorithm curates and recommends a tailored compilation of videos for a user’s FYP based on a variety of factors, including the user’s age and other demographics, online interactions, and other metadata,” it becomes TikTok’s own speech. And now TikTok has to answer for it in court. Basically, the court ruled that when a company is choosing what to show kids and elderly parents, and seeks to keep them addicted to sell more ads, they can’t pretend it’s everyone else’s fault when the inevitable horrible thing happens.
If that reading is correct, then Section 230 isn't nullified, but there's something that isn't shielded from liability any more, which IIUC is basically the "Recommended For You"-type content feed curation algorithms. But I haven't read the ruling itself, so it could potentially be more expansive than that.
But assuming Matt Stoller's analysis there is accurate: frankly, I avoid those recommendation systems like the plague anyway, so if the platforms have to roll them back or at least be a little more thoughtful about how they're implemented, it's not necessarily a bad thing. There's no new liability for what users post (which is good overall IMO), but there can be liability for the platform implementation itself in some cases. But I think we'll have to see how this plays out.
> presenting a curated and “edited compilation of [third party] speech” is itself protected speech.
This circuit court case mentions the personalization but doesn't limit its judgment based on its presence - almost any type of curation other than the kind of moderation explicitly exempted by the CDA could create liability, though in practice I don't think "sorting by upvotes with some decay" would end up qualifying.
Court: Social Media algos are protected speech
Social Media: Yes! Protect us
Court: Since you're speech you must be liable for harmful speech as anyone else would be
Social Media: No!!
You’re cheering on expansion of government power and the end of the free internet as we know it.
> You’re cheering on expansion of government power
More like a shrinking of megacorp tech giant power.
If they can customize the feed, does that make it their speech or my speech? Like if I give them a "subscribe to x communities" thing with "hide already visited". It'll be a different feed, and algorithmic (I suppose) but user controlled.
I imagine if you have explicitly ask the user "what topics" and then use a program to determine which topic then it's a problem.
I've got a WIP mastodon client that uses a llama3 to follow topics. I suppose that's not releasable.
The Ninth Circuit has a reputation as flamingly progressive (see "Grants Pass v. Johnson", where SCOTUS overruled the Ninth Circuit, which had ruled that cities couldn't prevent homeless people from sleeping outside in public parks and sidewalks). The Fifth Circuit has a reactionary reputation (see "Food and Drug Administration v. Alliance for Hippocratic Medicine", which overruled a Fifth Circuit ruling that effectively revoked the FDA approval of the abortion drug mifepristone).
So- platforms aren’t publishers, they are distributors (like news stands or pharmacies).
So they are responsible for the goods they sell.
They aren’t responsible for user content - but they are responsible for what they choose to show.
This is going to be dramatic.
I am not happy with how governments think they can dictate what internet users can and cannot see.
With respect to TikTok, parents need have some discipline and not give smart phones to their ten-year-olds. You might as well give them a crack pipe.
I guess that's one way to say that you never experienced the early internet. In three words: rotten dot com. Makes all the N-chans look like teenagers smoking on the corner, and Facebook et.al. look like toddlers in paddded cribs.
This will frankly hurt any and all attempts to host any content online, and if anyone can survive it, it will be the biggest corporations alone. Section 230 also protected ISPs and hosting companies (linode, Hetzer, etc) after all.
Their targeting may not be intentional, but will that matter? Are they willing to be jailed in a foreign country because of their perceived inaction?
The Judge made no ruling on Section 230 protection for anyone who truly just hosts the content so ISPs/Hosting Companies should be fine.
But more on point, we're discussing modification of how laws are interpreted. If someone can be held civilly liable, why can't they be held criminally liable if the "recommended" content breaks criminal laws (CSAM, for example)? There's nothing that prevents this interpretation from being considered in a criminal case.
Parasites.
I think especially content for children should be much more severely restricted, as it is with other media.
It’s pretty well-known that age is easy to fake on the internet. I think that’s something that needs tightening as well. I’m not sure what the best way to approach it is though. There’s a parental education aspect, but I don’t see how general content on the internet can be restricted without putting everything behind an ID-verified login screen or mandating parental filters, which seems quite unrealistic.
Pretty much every option is full of pain, but I think the least-terrible approach would be for for sites to describe content with metadata (e.g. HTTP headers) and push all responsibility for blocking/filtering onto the client device.
This has several benefits:
1. Cost. The people paying the most expense for the development and maintenance of blocking infrastructure will be the same parents who want to actually use it, instead of creating an enormous implicit tax on the entire digital world.
2. Privacy. The websites of the world don't need to know anything at all about the user. No birthdays, no geographical information to figure out what legal jurisdiction they live in, and no giant national lookup database that can track every website any resident registers to. Just isolated local devices that could be as simple as a Boolean for whether the child lock is currently unabled. (In practice I'm sure there will be local user accounts.)
3. Leveraging physical security. Parents do not need to be programmers to understand and enforce "little Timmy shouldn't be using anything except the tablet we specially set up for him that's covered with stickers of his favorite cartoon." Sure, Timmy might gain access to an unlocked device, but that's a challenge parents and communities are equipped to understand and handle.
4. Rule complexity. The individual devices can be programmed with whatever the local legal rules are for ages of majority, or it can simply be parents' responsibility to change things on a notable birthday. Parents who think ankles on women should never be shown at any age would be responsible for putting on plugins that add extra restrictions, instead of forcing that logic on the rest of the world.
“Most users load n pages with ankles, the likelihood of a user only loading a single page with ankles is someone under the age of X from country Y with Z% likelihood”
Once they've weighed in, we'll know if the "free ride" really is over, and if so what ride replaces it.
Option 1: ByteDance appeals, loses, and the ruling stands
Option 2: ByteDance appeals, wins, and the ruling is overturned
Option 3: ByteDance doesn’t appeal, the ruling stands, and nobody has standing to appeal the ruling without bringing a new case.
This is fascinating and raises some interesting questions about where the liability starts and stops i.e. is "trending/top right now/posts from following" the same as a tailored algorithm per user? Does Amazon become culpable for products on their marketplace? etc.
For good or for bad, this century's Silicon Valley was built on Section 230 and I don't foresee it disappearing any time soon. If anything, I suspect it will be supported by future/refined by legislation instead of removed. No one wants to be the person who legisliate away all online services...
If you actually want to understand something about the decision, I highly recommend Eric Goldman's blog post:
https://blog.ericgoldman.org/archives/2024/08/bonkers-opinio...
If you're going to throw up your hands and say, "Well, users posted this, not us!" then you'd better not promote or bury any content with any algorithm, period. These assholes (TikTok et al) are now getting what they asked for with their abusive behavior.
Deleting the useless garbage one has to develop an idea where the line is suppose to be. The bias there will eventually touch all angles of human discourse. As an audience matures it gets more obvious what they would consider interesting or annoying. More bias.
Then there are legal limits in each country, the "correct" religion and natuonalism.
Quite the shit storm.
Excellent news, frankly.
First, this seems like courts directly overruling the explicit wishes of Congress. As much as Congress critters complain about DCA Sec230, they can’t agree on any improvements. Judges throwing a wrench at it won’t improve it, they will only cause more uncertainty.
not liking what social media has done to people doesn’t seem like a good reason to potentially destroy the entire corpus of videos created on YouTube.
The original video is still the original poster's comment, and thus still 230 protected. If the kid searched specifically for the video and found it, TikTok would have been safe.
However, TikTok's decision to show the video to the child is TikTok's speech, and TikTok is liable for that decision.
Meta - Helped facilitate multiple ethnic cleansings.
Twitter - Now a site run by white supremacists for white supremacists.
Youtube - Provides platforms to Matt Walsh, Ben Shapiro and a whole constellation of conspiracy theorist nonsense.
Reddit - Initially grew its userbase through hosting of softcore CP, one of the biggest pro-ana sites on the web and a myriad of smaller but no less vile subreddits. Even if they try to put on a respectable mask now its still a cesspit.
Linkedin - Somehow has the least well adjusted userbase of them all, its destruction would do its users a kindness.
My opinion of social media goes far and beyond what anyone could consider "not liking".
In any case, it would mean that those videos would have to be self hosted and published, we'd see an en masse return of websites like college humor and cracked and the like, albeit without the comments switched on.
This is a pedantic thing to point out, but I do it because the comment has been downvoted, and the top response to it seems to misunderstand it, so it's possible others did too.
I remember the internet pre social media but I don't exactly remember it being filled with the sparkling wit of genius.
The internet is supposed to belong to everyone, it wasn't meant to be a playground only for a few nerds. It's really sad that hacker culture has gotten this angry and elitist. It means no one will ever create anything with as much egalitarian potential as the internet again.
... because it's small tech that need Section 230. If anything, retraction of 230 will be the real free ride for big tech, because it will kill all chance of threatening competition at the next level down.
So, we actually have to watch out for kids, and maybe only have a 25% profit margin? Oh, so terrible! /s
I'm 100% against the political use of censorship, but 100% for the reasonable use of government to promote the general welfare, secure the blessings of liberty for ourselves, and our posterity.
Robert Heinlein in "Life-Line"
Whether it was Eugene Debs being thrown in the pokey, or every Japanese civilian on the west coast, or some harmless muslim suburbanite getting waterboarded, nothing ever changes. Wake me up when they actually do something to Facebook.
the chinese and iranians are taking advantage of this and thats not something i would want to entrust to them
Section 230 absolutely should come with an asterisk that if you train an algorithm to do your dirty work you don't get to claim it wasn't your fault.
An algorithm in this context is nothing more than a reflection of what all the humans who created it designed it to do. In this case, it's to deny Medicaid to make money. For RealPage, it's to drive up rents for profit. Health insurance companies are using "AI" to deny claims and prior authorizations, forcing claimants to go through more hoops to get their coverage. Why? Because the extra hoops will discourage a certain percentage.
All of these systems come down to a waterfall of steps you need to go through. Good design will remove steps to increase the pass rate. Intentional bad design will add steps and/or lower the pass rate.
Example: in the early days of e-commerce, you had to create an account before you could shop. Someone (probably Amazon) realized they lost customers this way. The result? You could create a shopping cart all you want and you didn't have to create an account unti lyou checked out. At this point you're already invested. The overall conversion rate is higher. Even later, registration itself became optional.
Additionally, these big consulting companies are nothing more than leeches designed to drain the public purse
TikTok's design presented harmful information to a minor resulting in her death.
TikTok's product presented harmful information to a minor resulting in her death.