from the you-only-destroy-the-internet-once dept
The Ninth Circuit appeals court seems to have figured out the best way to “reform” Section 230: by pretending it doesn’t apply to some stuff that the judges there just randomly decide it doesn’t apply to anymore. At least that’s my reading of the recent ruling against YOLO Technologies.
Now, let’s start by making something clear: YOLO Technologies appears to be a horrible company, making a horrible service, run by horrible people. We’ll get more into the details of that below. I completely understand the instinctual desire that YOLO should lose. That said, there are elements of this ruling that could lead to dangerous results for other services that aren’t horrible. And that’s what always worries me.
First, a quick history lesson: over fifteen years ago, we wrote about the Ninth Circuit’s ruling in Barnes v. Yahoo. At the time, and in the years since Barnes, that ruling seemed potentially problematic. The case revolved around another horrible situation, where an ex-boyfriend posted fake profiles. Barnes contacted Yahoo and reached a Director of Communications who promised to “take care of” the fake profiles.
However, the profiles remained up. Barnes sued, and Yahoo used 230 to try to get out of it. Much of the Barnes decision is very good. It’s an early decision that makes it clear Section 230 protects websites for their publishing activity of third-party content. It clearly debunks the completely backwards notion that you are “either a platform or a publisher” and only “platforms” get 230 protections. In Barnes, the court is quite clear that what Yahoo is doing is publishing activity, but since it is an interactive computer service and the underlying content is from a third party, it cannot be held liable as the publisher for that publishing activity under Section 230.
And yet, the court still sided with Barnes, noting that the direct promise from the employee at Yahoo to take care of the content went outside of traditional publishing activity and created a promise, and therefore a duty to live up to that promise.
In the fifteen years since that ruling, there have been various attempts to use Barnes to get around Section 230, but most have failed, as they didn’t have that clear promise like Barnes had. However, in the last couple of months, it seems the Ninth Circuit has decided that the “promise” part of Barnes can be used more broadly, and that could create a mess.
In YOLO, the company makes an add-on to Snapchat that lets users post questions and polls on the app. Other users could respond anonymously (they also had the option to reveal who they were). The app was very popular, but it shouldn’t be a huge surprise that some users used to harass and abuse others.
However YOLO claimed publicly, and in how it represented the service to users who signed up, that one way it would deal with harassment and abuse would be to reveal those users. As the Ninth Circuit explains:
But it appears that YOLO never actually intended to live up to this, or it just became overwhelmed, because it appears not to have done it.
Now, this is always a bit tricky, because what some users consider abuse and harassment, a service (or other users!) might not consider to be abuse and harassment. But, in this case, it seems pretty clear that whatever trust & safety practices YOLO had were not living up to the notification it gave to users:
These users, and their families, sought to unmask the abusers. Considering that YOLO told users that’s how abuse and harassment would be dealt with, it wasn’t crazy for them to think that might work. But it did not. At all.
So, uh, yeah. Not great! Pretty terrible. And so there’s every reason to want YOLO to be in trouble here. The court determines that YOLO’s statements about unmasking harassers meant that it had made a promise, a la Barnes, and therefore had effectively violated an obligation which was separate from its publishing activities that were protected by Section 230.
And, again, given all the details, this feels understandable. But I still worry about where the boundaries are here. We’ve seen plenty of other cases. For example, six years ago, when the white supremacist Jared Taylor sued Twitter for banning him, he argued that it could not ban users because Twitter had said that it “believe[s] in free expression and believe[s] every voice has the power to impact the world.”
So it seems like there needs to be some clear line. In Barnes, there was a direct communication between the person and the company where an executive at the company directly made a promise to Barnes. That’s not the case in the YOLO ruling.
And when we combine the YOLO ruling with the Ninth Circuit’s ruling in the Calise case back in June, things get a little more worrisome. I didn’t get a chance to cover that ruling when it came out, but Eric Goldman did a deep dive on it and why it’s scary. That case also uses Barnes’ idea of a “promise” by the company to mean a “duty” to act that is outside of Section 230.
In that case, it was regarding scammy ads from Chinese advertisers. The court held that Meta had a “duty” based on public comments to somehow police advertisements, that was outside of its Section 230 protections. That ruling also contained a separate concurrence (oddly written by the same Judge who wrote the opinion, but which apparently he couldn’t get others to agree to) that just out and out trashed Section 230 and basically made it clear he hated it.
And thus, as Eric Goldman eloquently puts it, you have the Ninth Circuit “swiss-cheesing” Section 230 by punching all kinds of holes in it, enabling more questionable lawsuits to be brought, arguing that this or that statement by a company or a company employee represented some form of a promise under Barnes, and therefore a “duty” outside of Section 230.
And maybe that feels right in this case, where YOLO’s behavior is so egregious. But, it’s unclear where this theory ends, and that leaves it wide open for abuse. For example, how would this case have turned out if the messages sent to the kids weren’t actually “abusive” or “harassing”? I’m not saying that happened here, as it seems pretty clear that they were. But imagine a hypothetical where many people did not feel that the behavior was actually abusive, but the user argued that it was. Perhaps they even said this to be abusive back.
Under this ruling, would YOLO still need to reveal who the anonymous user was to avoid liability?
That seems… problematic?
However, the real lesson here is that anyone who runs a website now needs to be way more careful about what they say regarding how they moderate or do anything. Because anything they say could be used in court as an argument for why Section 230 doesn’t apply. Indeed, I could see how this could even conflict with other laws requiring websites to be more transparent about their moderation practices, but where doing so could remove 230 protections.
And I really worry about how this plays out in situations where a platform changes trust & safety policies mid-stream. I have no idea how that works out. What if when you signed up, the platform had a policy that said it would remove certain kinds of content, but later on decided to change that policy as it was ineffective. Would someone who signed up under the old policy regime now claim that the new policy regime violates the original promise that got them to sign up?
On top of that, I fear that this will lead companies to be way less transparent about their moderation policies and practices. Because now, being transparent about moderation policies means that anyone who thinks you didn’t enforce them properly might be able to sue and get around Section 230 by arguing you didn’t fulfill the duty you promised.
All that said, there is some other good language in this decision. The plaintiffs also tried a “product liability” claim, which has become a hipster legal strategy for many plaintiffs’ lawyers to try to get around Section 230. It has worked in some cases, but it fails here.
They also make clear, contrary to the claims we keep hearing, that an app having anonymous messaging as a feature isn’t an obvious liability. We’ve seen people claim this in many cases, but the court clearly rejects that idea:
So, this decision is not the worst in the world, and it does seem targeted at a truly awful company. But poking a hole like this in Section 230 so frequently leads to others piling through that hole and widening it.
And one legitimate fear of a ruling like this is that it will actually harm efforts to get transparency in moderation practices, because the more companies say, the more liability they may face.
Filed Under: 9th circuit, anonymity, duty, duty of care, promises, promissory estoppel, section 230, terms of service
Companies: yolo
from the fascism-in-action dept
More and more politicians have decided the only way to make America great is to abandon the things that made America great in the first place. The free and open exchange of ideas is getting shut down. The First Amendment is being remade and remodeled to only protect the ideas those in power are in favor of.
As is always the case when aspiring fascist take the law into their own hands, the first people against the wall are those whose job it is to pass information on to others. That’s why when rulers seek to control the public’s perception, they go after journalists and teachers first. An educated and informed voting bloc won’t vote the “right” way. And if they’re going to hold onto their power, they need to make sure the next generation of voters and public servants only know what their current leaders want them to know.
This is America and yet it feels like something else entirely in far too many states. Between the incessant book bans, anti-LGBTQ laws, and the constant portrayal of the First Amendment as only protective of speech government leaders like, no one insisting on travelling in Donald Trump’s orbit is actually trying to make America “great.” Instead, it appears they’re trying to make America WWII Germany. Or Russia under Lenin/Stalin/Putin.
That’s why state officials now feel comfortable punishing teachers for the crime of… teaching. Here’s Nadia Lathan with more details for the Associated Press.
For that, the board pulled her license. And All Boismier did was highlight the ridiculousness of the state government’s actions and provide opportunities for students to discover for themselves the content Oklahoma legislators unilaterally decided they should no longer have access to.
There’s nothing more American than someone fighting censorship, especially when that person is tasked with educating and informing developing minds. But the Oklahoma government doesn’t want Americans teaching in its schools. And it clearly doesn’t want anyone — no matter what age or position — to question the status quo being imposed by the censors in its midst. All it wants is unquestioning equivocation — the sort of thing that, if adopted by the founding fathers, would have resulted in us never referring to them as “founding fathers.” This would still be a British colony, or failing that, a former British colony now presided over by China or strip-mined of anything of value periodically by successive European nations with their own takes on colonialism before settling in for a long run of corrupt governments and military coups.
But we’re not that. We’re the land of liberty. Or supposed to be. Firing teachers for pushing back against censorship isn’t an American ideal. It’s apparently an Oklahoman ideal, although it would be a stretch to think all Oklahomans support this sort of thing.
But one politician has managed to convert a personal vendetta into a chilling effect that will harm teachers, librarians, and other government employees across the state. State Superintendent Ryan Walters has been trying to get Bosmier fired for two years. And now he’s finally succeeded.
Strong words from the state sup. Strong words indeed. Of course, one feels Walters would be completely supportive of a teacher with a “conservative political agenda” presiding over a classroom of young impressionables. His follow-up statement — that Bosier was fired for “breaking the law” that prohibits instruction on topics related to race and gender (and let’s just take a beat to recognize just how amazingly shitty that law is) — doesn’t add anything that would alter the immediate reaction to this news. That reaction being: the state will always fire people who don’t align themselves with the bigots running the government.
He also added this:
This is just as patently false as it is technically false. Bosmier didn’t provide any material to anyone. In fact, she taped off a section of her own classroom bookshelf to prevent access. Handing the kids a QR code to a list of banned books doesn’t “provide” this material to anyone. All it gives them is a list of books. It’s up to the students to do what they will with that information.
But discussing this in rational terms is useless. These are not rational people. These are people steeped in hatred who have the power to inflict misery on anyone who pushes back against their agenda. The state superintendent doesn’t seem to like any political agenda other than his own and the ones pushed by the party he clearly supports. That’s not how America is supposed to work. There’s supposed to be free and open discussion of competing views — something that encourages younger minds to consider all the facts and draw their own conclusions.
For all the whining about “indoctrination” of students with “liberal agendas,” state officials clearly aren’t opposed to indoctrinating kids. They just want to be the ones doing the indoctrinating. It’s sickening and, unfortunately, it’s not the political career-killer it once was. Now, going as far right as you can — even past the Constitutional confines these people claim to support — is encouraged and rewarded. Many more people will be up against the wall before America (hopefully) moves past this embrace of the worst people to ever hold public office.
Filed Under: 1st amendment, bigotry, book ban, censorship, oklahoma, ryan walters, schools, summer bosnier
from the both-a-coward-and-a-liar dept
The fallout came fast and hard for New College of Florida and its administrators after multiple videos were posted of books dealing mainly with sexual identity and race found filling a dumpster behind the school library.
The immediate reaction from the school’s spokesperson, Nathan Marks, was nonsensical. Marks claimed two things, neither of them believable. The first was that this was just routine periodical “pruning” of books that were too damaged or otherwise unneeded by the school. The second was that it was illegal to notify students, staff, or other entities that this purge was happening so that they might be able to rescue some of the books slated for destruction.
As to the first part of his claim, it was immediately apparent most books were neither damaged or old. Instead, they were books retained by the school’s now-defunct Gender and Diversity Center — something that was axed as soon as Governor DeSantis stocked the school board with his personal picks.
The second part was blatantly false. The school was permitted by law to sell or give away the books to anyone interested in them. In this case, it simply chose not to because the far right school board saw the books as garbage and treated them as such.
Now, the flailing is even worse. A steady stream of criticism has forced the college to react. And it has reacted in the worst way possible. The worst way is personified by school president Richard Corcoran, who has decided to pin all of the blame on someone who likely had no control over the purge pushed by the school board.
Maybe Hausinger agreed with the purge. Maybe she didn’t. Either way, Corcoran has made her the scapegoat.
But that’s not all he did. He claimed the public was too stupid to recognize what happened here. As is almost always the case when public leaders get caught doing things they shouldn’t, Corcoran has chosen to blame the media and anyone else who might have disagreed with this move.
To put this politely, that’s bullshit. The school board — the same one that shut down the Gender and Diversity Center — had a hand in this. We know this because at least one board member has admitted as much. Christopher Rufo — a board member personally appointed by Ron DeSantis — took to ExTwitter to crow about this purge of LGBTQ content, saying the quiet part as loudly as he could.
If you can’t see/read the screenshot, it features several shots of these books in the dumpster, accompanied by Rufo’s statement:
And here’s what Rufo said after taking the college board position:
None of this is addressed in the school president’s letter to the college’s staff. This unfortunate truth is simply ignored and spun to make it appear as though it’s just a misunderstanding that has been inflamed by careless reporting.
But that was never the case. This was always about a conservative-majority board inflicting its preferences on the college, starting with the gender studies program and culminating in the shocking display of contempt that is hundreds of gender and race-related books being consigned to a dumpster and hauled away before any collective effort could be made to rescue literary works DeSantis’ hand-picked board considers trash.
Filed Under: book bans, censorship, chris rufo, free speech, new college of florida, richard corcoran, ron desantis, shannon hausinger, stop woke act
from the natural-stupidity dept
I’ll admit, when I’ve been able to witness some of the fuckery around the use of artificial intelligence in stupid ways, some part of me has always gotten some amusement at those being fooled. I’ve gotten to witness most of this from afar, after all. It feels a bit different when you write about a situation where you were among those fooled by the bullshit.
At some point in the last week or so, I personally recall seeing the following trailer for Megalopolis, the forthcoming film from Francis Ford Coppola.
Now, the reason I recall seeing that trailer is due to those opening quotes from movie reviews of previous Coppola films. See, I’m a fan of many of his movies, as are millions of others. I recall laughing at those quotes, wondering just how in the hell reviewers could have gotten it so completely wrong when it comes to films like The Godfather and Apocolypse Now. I even thought briefly about googling those critics’ names and seeing if I could find the full reviews, just to laugh at how hilariously wrong they were.
Well, someone else did exactly that. And they found that those are AI-generated quotes from fake reviews that those reviewers never wrote.
That’s being far too kind. Some of these critics supposedly trashing Coppola’s work absolutely loved the films they were supposed to have denigrated. Variety was able to generate similar quotes with some trial and error prompting using ChatGPT, which is likely where this all came from. Misattributing the words and reviews of a film critic merely to drum up fake outrage as an interest multiplier for Coppola’s new film is both a complete violation of the actual work those critics did and an abdication of trust the public will have in the studio.
Now, to be fair, it appears Lionsgate had no idea that the quotes in the trailer were fakes, and worked fairly quickly to pull the trailer once it found out.
Still, at a time when both the public and every SAG member out there is concerned about how AI is going to start filtering into creative work in negative ways, this is a fairly terrible look for the industry.
Or, if Lionsgate would like ChatGPT’s take on this:
And on that, you can quote me.
Companies: lionsgate