5th Circuit Says Due Process Rights For Immigrants No Longer Exist In Its Jurisdiction
from the supreme-court-jr dept
Trump and his supporters clearly believe migrants have no constitutional rights. But that’s simply not true. They have the same rights as citizens for one truly obvious reason: a government could choose to declare certain people non-citizens in order to strip them of their rights. That would be highly problematic in a nation that’s almost entirely the result of immigration, which is why courts have routinely held that non-citizens have the same rights as citizens while on US soil.
That’s still the case, for the most part. The Fifth Circuit — fulfilling its role as the preferred US Supreme Court understudy — has chosen to ignore literally hundreds of rulings in favor of due process rights for immigrants to decide those no longer exist in the states most migrants detained by the government get sent to before being removed from the country.
Last November, the Trump administration’s efforts to eliminate due process rights had been rejected by more than 100 judges in more than 200 cases. A few months later — and with a full-press surge happening in Minneapolis, Minnesota — the number of rejections has spiked:
A POLITICO review of thousands of ICE detention cases found that at least 360 judges rejected the expanded detention strategy — in more than 3,000 cases — while just 27 backed it in about 130 cases.
While most of the mass deportation action is currently happening far north of the Fifth Circuit (which covers Louisiana, Mississippi, and Texas), arrested immigrants are often sent almost immediately to detention facilities closer to the southern US border. Texas is, by far, the most popular destination for ICE detainee flights.
The Fifth Circuit waited around until late Friday night to release this decision [PDF], presumably in hopes of seeing the backlash subside a bit before the judges were due back at the office. Steve Vladeck covers all the angles in his post on this abhorrent ruling, starting with how this is an insane conclusion to reach given that 3,000 cases around the country have upheld the same rights the Fifth Circuit has chosen to deny to any migrant with the misfortune of finding themselves in its jurisdiction.
Well, late Friday night, in a ruling handed down just two days after oral argument, a divided panel of the U.S. Court of Appeals for the Fifth Circuit adopted the extreme minority view—holding that, yes, the government can indefinitely detain without bond millions of non-citizens who have been here for generations; who have never committed a crime; and who pose neither a risk of flight nor any threat to public safety. The Fifth Circuit’s opinion was written by Judge Edith Jones and joined in full by Judge Kyle Duncan—two of the most reactionary, right-wing federal appellate judges in the country…
The obvious upshot of this decision is that ICE et al will be rushing detainees to Texas ASAFP to take advantage of this ruling.
As Aaron Reichlin-Melnick from the American Immigration Council noted last night, the Fifth Circuit’s decision will “fuel ICE’s push to transfer people to Texas immediately,” and it will put “even more pressure on plaintiffs and district courts outside the 5th Circuit. Unless the habeas is filed before a person is transferred to the 5th Circuit, a person may remain locked in appalling conditions, never even allowed to ask for bond.” All of that can be traced to another procedural technicality—the principle that a district court gains jurisdiction over a habeas petition if, but only if, it is filed while the petitioner is physically in that court’s jurisdiction. In other words, to avoid being subject to the Fifth Circuit’s decision (while it remains on the books), detainees arrested elsewhere would have to have someone file on their behalf before they’re physically transferred into the Fifth Circuit.
There’s still a chance that people arrested in, say, Minneapolis, Minnesota might be able to avoid the Fifth Circuit’s refusal to recognize their due process rights. But the denial of due process rights begins immediately in most cases, with ICE officers refusing to allow detainees to contact family members, much less seek legal representation. If ICE can get them on a plane headed south before anything is filed in local courts, the Fifth Circuit’s ruling will override whatever rights migrants might have still had access to in the states they were removed from.
An appeal of this decision is already in process. And while it’s concerning that this particular iteration of the Supreme Court will be handling it, it’s not a foregone conclusion that it will convert the Fifth’s ruling into nationwide precedent. Even at its worst, the Supreme Court has rejected a handful of Fifth Circuit rulings that cross the line into an open embrace of violent fascism. On the other hand, this version of the Supreme Court is far more prone to deliver wordless rubber stamps of appellate decisions it likes, so some caution is warranted.
This decision requires the most MAGA-coded judges in the Fifth to buy everything the Trump administration is selling. And what it’s selling is a brand new interpretation of the phrase “seeking admission.” Rather than limiting it to people crossing the border illegally, it applies this definition to any migrant who doesn’t have the proper paperwork, even if they arrived in this country decades ago.
The dissent, written by Judge Dana Douglas, makes it clear that this administration will do anything and everything that serves its racist desire to eject non-whites from the United States.
The Congress that passed IIRIRA (Illegal Immigration Reform and Immigrant Responsibility Act [1996]) would be surprised to learn it had also required the detention without bond of two million people. For almost thirty years there was no sign anyone thought it had done so, and nothing in the congressional record or the history of the statute’s enforcement suggests that it did. Nonetheless, the government today asserts the authority and mandate to detain millions of noncitizens in the interior, some of them present here for decades, on the same terms as if they were apprehended at the border.
Do you want to be this shitty, Judge Douglas asks the judges who pretended this sort of thing is OK as long as it’s Trump doing it.
The majority stakes the largest detention initiative in American history on the possibility that “seeking admission” is like being an “applicant for admission,” in a statute that has never been applied in this way, based on little more than an apparent conviction that Congress must have wanted these noncitizens detained—some of them the spouses, mothers, fathers, and grandparents of American citizens. Straining at a gnat, the majority swallows a camel. I dissent.
Hopefully this ruling will be reset by the Supreme Court or an en banc rehearing. But for now, the law of the land in three states that are willing to house ICE detainees says due process rights are only available in the 47 states the Fifth Circuit doesn’t control.
Filed Under: 14th amendment, 5th circuit, alien enemies act, due process, mass deportation, trump administration
NBC Hid The Boos For JD Vance. Where’s Trump’s ‘Unfair Editing’ Lawsuit?
from the they're-saying-boooo-urns dept
If you watched NBC’s prime time broadcast of the Winter Olympics opening ceremony on Friday, you saw Vice President JD Vance in the stands at San Siro Stadium in Milan with his wife, Usha. The commentary team said “JD Vance” and moved on. Pleasant enough.
But if you were watching literally any other country’s broadcast—or were actually in the stadium—you heard something else: the crowd booing. Loudly. Jeering. Whistling. CBC’s commentator captured the moment awkwardly:
There is the vice-president JD Vance and his wife Usha – oops, those are not … uh … those are a lot of boos for him. Whistling, jeering, some applause.
Multiple journalists on the ground reported the same thing. The Guardian’s Sean Ingle noted the boos. USA Today’s Christine Brennan noted the boos. The boos were, by all accounts, quite audible to anyone actually present in the stadium.
Timothy Burke put together clips of many other countries broadcasts, many of which called out the boos or discussed criticism of the Trump admin:
Mexico’s broadcast went on at length, including discussing how the US had to change the name of their Olympic village from “ice house” to “winter house” knowing how it would be perceived.
But if you were watching NBC’s broadcast in the United States? Crickets. As the Guardian reported:
However, on the NBC broadcast the boos were not heard or remarked upon when Vance appeared on screen, with the commentary team simply saying “JD Vance”. That didn’t stop footage of the boos being circulated and shared on social media in the US. The White House posted a clip of Vance applauding on NBC’s broadcast without any boos.
For what it’s worth, NBC denies that it “edited” the crowd booing the Vances. But the analysis on that page by the folks at Awful Announcing show pretty clearly that NBC (which ran a live feed of the opening ceremony as well as a prime time version) turned up the sound of music at the moment the Vances were shown on the screen.
Now, look. As a technical and legal matter, NBC has every right to make that editorial choice. Broadcasters exercise editorial discretion over their coverage all the time. They choose camera angles, they choose what to amplify and what to downplay, they shape narratives. That’s not illegal. It’s not even unusual. It’s called being a media company. The First Amendment protects editorial discretion—including editorial discretion that results in coverage that makes politicians look better than reality would suggest.
Of course, that principle cuts both ways. Or at least it should.
We’ve now spent months watching Donald Trump file lawsuit after lawsuit against news organizations for what he claims is “unfair” editing. The theory in these cases is that editing footage in ways that make Trump or his allies look bad is somehow actionable defamation or election interference. It’s a theory that, if accepted, would basically mean the president gets veto power over how he’s portrayed in any news coverage.
Remember, Trump sued CBS over a “60 Minutes” interview with Kamala Harris, claiming that the way the interview was edited amounted to “election and voter interference.” That lawsuit was, to put it charitably, legally incoherent nonsense. We covered it at the time, noting that Trump’s supposed smoking gun was that CBS edited an answer for time—you know, the thing every television program in history does, including cutting out the bits that make Trump look bad.
Then there was the $10 billion lawsuit against the BBC over a documentary that didn’t even air in the United States. Trump’s legal team actually cited VPN download statistics as evidence of damages, apparently believing that Americans who went out of their way to circumvent geographic restrictions to watch a documentary they weren’t supposed to see somehow constitutes harm to Trump.
Of course, as you already know, CBS, facing the Trump lawsuit while also trying to get FCC approval for the Paramount merger, decided to just… pay up. We called it what it was at the time: a $16 million bribe. Not because CBS thought Trump had a valid legal claim—the lawsuit was obviously baseless—but because CBS was terrified that an angry Trump administration would tank its merger if it didn’t make the lawsuit go away.
And that’s the point. The lawsuits aren’t really about winning in court. They’re about establishing a new norm: favorable coverage or else.
So now we have NBC, which happens to have a rather large interest in staying on the good side of this administration (what with the LA Olympics coming up in 2028 and all the broadcast rights that entails, and you already have Trump and FCC boss Brendan Carr threatening NBC’s late-night comedy hosts), making an editorial choice to mute crowd boos directed at the vice president. And I will bet you every meager dollar I have that no one in Trump’s orbit will say a single word about NBC’s “unfair” editing. No tweets from Trump about “fake news NBC” cutting audio to misrepresent crowd reactions. No lawsuits alleging that NBC’s editorial choices constitute fraud on the American public.
Because the “unfair editing” complaints were never actually about editing. They were about whether the editing made Trump look good or bad. Editing that cuts out boos? That’s just good production values. Editing that makes Harris’s answer seem more coherent? That’s election interference worthy of billions in damages.
This is what an attack on press freedom looks like. It’s not a single dramatic moment. It’s a slow accretion of pressure—lawsuits that are expensive to fight even when you win, regulatory approvals that get held hostage, implicit threats that keep executives up at night—until media companies internalize the lesson. The lesson isn’t “be accurate” or “be fair.” The lesson is: make us look good, or face the consequences.
And NBC appears to have learned the lesson well.
Filed Under: boos, editing, editorial discretion, jd vance, journalism, olympics
Companies: nbc
On Section 230’s 30th Birthday, A Look Back At Why It’s Such A Good Law And Why Messing With It Would Be Bad
from the retrospective-omnibus dept
This past weekend Section 230 turned 30 years old. In those 30 years it has proven to be a marvelous yet misunderstood law, often gravely, as too many, including in Congress and the courts, mistakenly blame it for all the world’s ills, or at least those that happen in some connection with the Internet. When in reality, Section 230 is not why bad things happen online, but it is why good things can happen. And it’s why repealing it, or even “just” “reforming” it, will not stop the bad, but it will stop the good.
Unfortunately, even 30 years in, these ignorant efforts to diminish or even outright delete the law continue, despite the harm that would result if they succeeded. Which is why this anniversary seems like a good time to review why many of the reasons why the hostility towards Section 230 is so misplaced. Here at Techdirt we’ve collectively all spilled a lot of digital ink over the years about why Section 230’s critics are wrong to condemn it, and not just a little bit but completely and utterly, as well as counter-productively. But on this celebratory occasion I thought it would be fun to look back on what I personally have written about Section 230—at least since its 20th birthday celebration and the piece I wrote then—and collect some of these “greatest hits” in a post to help get anyone new to thinking about Section 230, who may be unsure why those pushing to repeal it is so misguided, caught up on why Section 230 is not a law we should be messing with.
What Section 230 does. One reason that people get Section 230 wrong is that there are a lot of myths about it and what it does or does not do. A good place to start is with an overview of how it generally works, and if you like watching videos you can watch this presentation from a few years ago where I gave a crash course in its operation.
In short, though, Section 230 immunizes platform providers from liability in two key ways: for liability in what their users use their services for, and for liability that could possibly result in how they moderate their users’ use of their services. Section 230 aligns platforms providers with Congress and makes it possible for them to work towards what Congress wants—the most good material online, and the least bad—by making it legally possible for the providers to do the best they can to achieve it on both fronts. If it is legally safe for them to allow user expression, because they won’t have to fear being liable for it, they will allow the most good expression, and if it is legally safe for them to remove user expression, because they won’t have to fear being liable for their moderation, then, as this post explains, they will be able to remove the most that is bad.
But Section 230 is not some sort of special favor for Big Tech, as some have suggested. It’s not even one for startups, as others have alleged. In fact, it applies to regular people as much as it applies to anyone. Rather than it being any sort of subsidy, it instead operates more like a rule of civil procedure to make sure that platforms cannot be drained of resources having to defend themselves for whatever wrong a user’s conduct is accused. Which is also why “reforming” Section 230 effectively means repealing it, because nearly all the proposed reforms would make the statutory protection more conditional, but if platforms are unsure about whether they are protected or not and in jeopardy of having to litigate the question, then for all intents and purposes they are effectively unprotected, and they will act accordingly to defensively either deny more beneficial content, or leave up too much that is harmful (or both).
When Section 230 applies. One of the common myths about Section 230 is that it prevents anyone from ever being held responsible for how the Internet has been used. Not so; Section 230 does nothing to prevent anyone from being accountable for their own behavior. What it does not allow, however, is someone else being held accountable, namely the provider of the platform service they used, because, as discussed above, if the platform could have to answer for how any of their users used their services, they would never be able to offer their services, and if they couldn’t offer their services then there would be no Internet for anyone to use even for any of the good, useful, or important things we use it for.
Section 230 also doesn’t immunize platforms for their own actions, only those of their users. The issue sometimes is in telling the two apart, but as this post argues, it’s not actually as hard to figure out as some people would insist. First, the idea that there is some publisher/platform distinction is a fiction; the only thing that matters is whether the immune provider is providing an interactive computer service of some sort and someone else has provided the content, or if the platform has provided the content itself. And in the event we get confused about who the content provider is, we can look to see who imbued the offending expression with its allegedly wrongful quality, which more often than not is the user and not the platform. As we’ve understood since the Roommates.com case, that a platform has simply welcomed the expression isn’t enough to put the platform on the hook for it.
Furthermore, the type of content a platform might be immune for intermediating can be myriad, including online advertising, which is expression provided by others and then intermediated by a platform (despite what certain state governments think), online dating sites, or online marketplaces—although there have been some issues getting the courts to consistently recognize how Section 230 should apply in that context, even though the statutory history supports it. Although sometimes they still do.
Why Section 230 is important. Regulators can be tempted to take swings at Section 230 because it can be tempting to try to control what can be said on the Internet, and Section 230 gets in the way of those efforts. While the First Amendment also protects platforms’ ability to choose what user expression to facilitate, Section 230 makes that protection meaningful by making those choices practically possible. When they cannot be freely made, then the user expression they facilitate takes a hit.
Which is why efforts to change Section 230 are a problem, because of all the collateral damage they will cause to online expression. But for some regulators, that censorship is the goal and why they have Section 230 in their sights. They want to prevent online expression, because too often it is online expression they don’t like. And, indeed, sometimes the speech is unfortunate, potentially even actionable.
But eliminating Section 230 is no solution at all. If we take away platforms’ ability to be platforms, then we take away everyone’s ability to use them to speak, no matter how important what they have to say is. It’s why we need to defend Section 230, even when it’s hard. There are always things that need to be said online, especially when we need to speak truth about power. Section 230 means we can. And we’d miss it if we couldn’t.
Filed Under: intermediary liability, section 230
Section 230 Turns 30; Both Parties Want It Gone—For Contradictory Reasons
from the they're-both-wrong dept
Here’s what’s strange about Section 230 of the Communications Decency Act, the law that made the open internet possible: Both sides of the traditional political spectrum hate it. But for opposite reasons. That, alone, should highlight that something is wrong in their analysis.
Republicans hate it because they say it lets websites censor conservative speech. Democrats hate it because they say it lets websites host dangerous disinformation.
Read those two sentences again.
One side is furious that platforms can moderate. The other side is furious that platforms don’t have to moderate. Both sides are attacking the same 26-word provision of a 30-year-old law—and if you understand why their complaints are contradictory, you understand what Section 230 actually does.
This weekend marked the 30th anniversary of the Telecommunications Act of 1996, which contained the mostly unconstitutional Communications Decency Act, which inexplicably contained Section 230. (If you want the full history, I hosted a podcast series about it last year.) And after three decades, there’s now a concerted, bipartisan effort to kill it—by people who either don’t understand what the law does, or understand perfectly well and see its destruction as a path to controlling the flow of information online.
Years back I wrote a piece debunking many of the myths about 230. The myths have only multiplied since.
Both critiques, stripped of their partisan framing, are about the same thing: who gets to control what speech appears where. And Section 230’s answer to both sides is the same: pound sand.
That’s what the law actually does. It doesn’t mandate or prohibit “censorship.” It doesn’t require neutrality (that’s a myth that won’t die). It simply says: if you have a problem with content online, take it up with the person who created it, not the service hosting it. Platforms can moderate however they see fit—aggressively, lightly, inconsistently, politically—and they won’t face ruinous liability for those choices. They also won’t face liability for what they don’t remove.
This is what makes an open internet possible. Without that protection, no service would risk hosting user content at all. Or if they did, every moderation decision would require a lawyer’s sign-off, optimizing for liability reduction rather than healthy communities. The people who actually understand how to build good online spaces—trust and safety professionals, community managers—would be overruled by legal departments playing defense.
Almost all criticism of Section 230 is not actually about Section 230. It’s about one of two things: (1) not liking something in society that manifests online, and incorrectly believing that changing the law will somehow fix it, or (2) wanting control over what content platforms host.
So what happens if critics get their way? There’s a lobbying campaign right now claiming that reforming or repealing 230 will lead to “greater responsibility from tech companies.”
This is exactly backwards.
Without 230’s protections, smaller platforms—the ones that might actually compete with the giants—get destroyed first. They can’t afford the vexatious lawsuits. They can’t afford buildings full of lawyers. The big players survive, and their market position gets locked in even harder.
And those surviving giants won’t become more responsible. They’ll become less. Any competent legal team will tell them: the less you know, the less liability you have. Don’t proactively look for harmful content. Don’t research how your platform causes harm—those findings would be exhibit A in every lawsuit. Just stick your head in the sand and let the lawyers handle the subpoenas.
This is how liability regimes work, and America’s exceptionally litigious legal culture makes these incentives even stronger. The critics either don’t understand this or don’t care, because their actual goal was never “responsibility.” It was control. That they’ve duped some tech critics into thinking it’s about “responsibility” or “safety” doesn’t change that. Because it won’t improve responsibility or safety. But it will give politicians tremendous power over online speech.
Thirty years ago, a 26-word provision buried in a mostly unconstitutional law kicked off the open internet. It let anyone build a platform, host a community, create something new—without needing permission from lawyers or regulators first. That era is now under direct attack by people who misrepresent what Section 230 does and misrepresent what killing it would mean.
The open web turned 30 this weekend. The bipartisan campaign to kill it was never about responsibility or safety, it was always about control. Whether the open web sees age 31 comes down to 26 words that tell both sides to pound sand.
Filed Under: control, free speech, intermediary liability, open internet, section 230
Daily Deal: AdGuard Personal or Family Plan
from the good-deals-on-cool-stuff dept
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Filed Under: daily deal
Reflections On Section 230’s Past, Present, And Future On Its 30th Anniversary
from the 230-is-30 dept
The Telecommunications Act of 1996 became law thirty years ago today, on February 8, 1996. Buried in a corner of that sprawling law was Section 230, a law that says websites aren’t liable for third-party content.
Section 230 didn’t receive much attention when it was passed, but it has since emerged as one of Congress’ most important media laws ever. Section 230 helped trigger the Web 2.0 era–where people principally talk with each other online, rather than just having content broadcast at them one-way. By enabling that discourse and other new categories of human interaction, Section 230 has thus reshaped the Internet and, by extension, our economy, our government, and our society.
To commemorate Section 230’s 30th anniversary, this post considers Section 230’s past, present, and future.
* * *
Section 230’s Past
“Big Tech” Didn’t Lobby for Section 230. Google and Facebook didn’t exist in 1996; they emerged in the wake of Section 230’s passage. In 1996, the Internet industry was small, especially as compared to other media industries like cable or telephony. However, AOL played a key role in Section 230’s passage, as evidenced by the fact Section 230 uses statutory terms like “interactive computer service” and “information content provider” (a really terrible phrase) that mirror AOL’s idiosyncratic jargon.
The Internet Industry Didn’t Initially Celebrate Section 230’s Passage. I’m not aware of any fetes in 1996 that celebrated Section 230’s passage. That’s because Section 230 was overshadowed by another part of the Telecommunications Act of 1996, the Communications Decency Act (CDA). The CDA imposed an unmanageable risk of criminal liability on Internet companies for user-generated content, so Internet executives were panicked that they might go to jail for the ordinary operation of their services. There was no time to get excited about Section 230’s long-term implications in the face of the immediate threat of criminal prosecution.
A week after the act’s passage, a district court enjoined the CDA, and the industry panic slightly abated. The industry relaxed a little more when the Supreme Court struck down the CDA as unconstitutional in 1997 (the Reno v. ACLU decision). However, that relief was short-lived because Congress quickly passed another law to criminalize user-generated content (the Child Online Protection Act of 1998, ultimately declared unconstitutional). So for years after Section 230’s passage, the industry was preoccupied by Congress’ UGC criminalization efforts.
Section 230’s Impact Wasn’t Immediately Clear. Section 230 includes some unusual and non-intuitive statutory language. As a result, the Internet industry wasn’t initially sure exactly what it said. Section 230’s potential scope only started to emerge after the district court ruling in Zeran v. AOL in March 1997. Then, after the Zeran v. AOL Fourth Circuit opinion in November 1997, it became clearer that Section 230 had reshaped the law of user-generated content. For more on the Zeran case, see this ebook.
Section 230 Left Open a Problematic “Copyright Hole.” Section 230 expressly excludes intellectual property claims based on third-party content. As a result, even after Section 230 passed, Internet services still faced potential secondary copyright liability with no statutory protection from Congress.
In particular, vicarious copyright infringement turns on a service’s “right and ability to control” the content on its servers, and plaintiffs can cite a service’s content moderation efforts–including those otherwise immunized by Section 230–as inculpatory evidence. In other words, Section 230 didn’t immediately legalize content moderation, because default copyright law still made those practices legally risky.
Two-plus years later, Congress partially plugged Section 230’s copyright hole in the Digital Millennium Copyright Act of 1998. In contrast to Section 230’s unconditional immunity for UGC, the DMCA created a notice-and-takedown liability scheme for user-caused copyright infringement. However, it took years for court cases to confirm that standard content moderation efforts didn’t increase services’ copyright liability for user-generated content.
Due to its unusual drafting and the legal context surrounding it, Section 230 didn’t definitively resolve the legitimacy of user-generated content and content moderation efforts when it passed in 1996. That implication took several more years to emerge.
For more on Section 230’s past, see Prof. Jeff Kosseff’s book, The 26 Words That Created the Internet. See also the 15-year retrospective event we held at SCU in 2011.
* * *
Section 230’s Present
Section 230 Offers Critical Procedural Benefits. Critics, politicians, and the media often focus their fire on Section 230’s substantive scope, such as how it compares to the First Amendment and whether it strikes the right policy balances. However, much of Section 230’s “magic” is procedural, not substantive. Section 230 provides courts with a helpful way of quickly dismissing unmeritorious cases. This, in turn, reduces defendants’ costs and increases their confidence of winning in court; and this further emboldens services to optimize their editorial policies for their audiences, engage in content moderation to effectuate those policies, and legally defend individual items of user-generated content. Even if the First Amendment dictated all of the same substantive outcomes as Section 230 (it doesn’t), Section 230 provides greater procedural predictability to the parties and thus achieves superior outcomes.
Section 230 Affects a Lot of Court Cases. According to the Shepard’s citation service, Section 230 has been cited in over 1,700 cases. As this figure indicates, citations keep going up:
Section 230 Discourages Many Lawsuits From Ever Being Filed. Section 230 has largely extinguished the genre of lawsuits against Internet services for their individual content moderation decisions. Without Section 230, every content moderation decision might prompt a lawsuit, manufacturing millions of potential lawsuits every day.
Section 230’s Drafters Future-Proofed the Law. Section 230 critics often highlight its adoption during the Internet’s infancy, as if that’s proof the law is not appropriate for the modern mid-2020s Internet. In 2020, Sen. Wyden and former Rep. Christopher Cox, the authors of Section 230, responded:
[Critics] assert that Section 230 was conceived as a way to protect an infant industry, and that it was written with the antiquated internet of the 1990s in mind – not the robust, ubiquitous internet we know today. As authors of the statute, we particularly wish to put this urban legend to rest…our legislative aim was to recognize the sheer implausibility of requiring each website to monitor all of the user-created content that crossed its portal each day…
The march of technology and the profusion of e-commerce business models over the last two decades represent precisely the kind of progress that Congress in 1996 hoped would follow from Section 230’s protections for speech on the internet and for the websites that host it. The increase in user-created content in the years since then is both a desired result of the certainty the law provides, and further reason that the law is needed more than ever in today’s environment.
* * *
Section 230’s Future
[TL;DR: 
]
Congress Has Begun Chipping Away at Section 230. Congress has made two crucial reductions in Section 230’s scope in the past decade. In 2018, in FOSTA, Congress amended Section 230 to exclude immunity for commercial sex promotions. Then, last year, Congress passed the TAKE IT DOWN Act, which apparently overrides Section 230 to establish a notice-and-takedown scheme for intimate visual depictions.
Congress Could Repeal Section 230 at Any Moment. No politically powerful constituencies still publicly support Section 230. If a floor vote for a Section 230 repeal bill were scheduled in the House or Senate, I expect the repeal would pass by overwhelming margins.
Courts Are Repealing Section 230 Without Any Help From Congress. In 2024, in Anderson v. TikTok, the Third Circuit functionally repealed Section 230 in its circuit. The court said that any service that qualifies for First Amendment protections (which all online content publishers do) simultaneously cannot qualify for Section 230.
Separately, throughout the country, plaintiffs are pushing courts to hold websites liable for how they design their services because (they argue) such design choices are outside of Section 230’s scope. This argument is extremely problematic. A service’s “design choices” are synonymous with a publisher’s editorial decisions about how to gather, organize, and disseminate content. These are the kind of activities the First Amendment ought to protect. Further, for social media services that principally republish third-party content, “negligent design” claims could impose liability for that content–exactly what Section 230 should prevent. So long as courts are open to lawsuits over “design choices” and don’t apply Section 230 to those claims, plaintiffs will erode Section 230’s legal protections.
The Internet’s Future is Dire, Regardless of Section 230’s Fate. Fueled by the techlash, especially panics about children’s online usage, regulators are passing a tsunami of laws to regulate every aspect of how online publishers gather, organize, and disseminate content. Many of these laws are unconstitutional and violate Section 230, but legislators pay little heed to such concerns. Even if courts strike down most of these laws, the surviving laws will reshape how the Internet works.
In particular, legislatures are enacting laws that require online publishers to age-authenticate their users. These laws will have dramatic and universally negative consequences for the Internet, including raising publisher costs, shrinking publishers’ audiences, rewarding incumbents over startups, and creating massive privacy and security risks.
For these reasons, you should not assume that the Internet in 5 or 10 years will bear any resemblance to what we love most about the Internet today–no matter what Congress does to Section 230.
* * *
About the Author: Prof. Eric Goldman is Associate Dean for Research and Co-Director of the Datta Center for High Tech Law at Santa Clara University School of Law. He began practicing as an Internet lawyer, and teaching an Internet Law course, before Section 230 became law.
* * *
Want to read even more on Section 230? Check out some of my other articles on the topic:
- An Overview of the United States’ Section 230 Internet Immunity
- Why Section 230 Is Better Than the First Amendment
- Want to Kill Facebook and Google? Preserving Section 230 Is Your Best Hope
- Dear President Biden: You Should Save, Not Revoke, Section 230
* * *
Today is also the 30th anniversary of John Perry Barlow’s essay, “A Declaration of the Independence of Cyberspace,” his fever-dream response to the CDA’s passage. The opening paragraph is exquisite:
Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.
This essay is a culturally significant artifact because it had a tremendous impact on the mid-1990s discussions about Internet exceptionalism–even though the essay was always misguided and naive and has aged poorly.
This article was originally published on the Technology & Marketing law blog. Republished here with permission.
Filed Under: big tech, free speech, open internet, section 230
Companies: aol
Whoops: ‘AI’ Toy Company Leaks Chat Logs, Personal Data Of 50,000 Toddlers
from the monetizing-imaginary-friends dept
My biggest complaints with AI tend to be with the human beings who are rushing language learning models into mass adoption without doing their basic due diligence. Like AI toy maker Bondu, the creator of “AI” enabled stuffed animals, which recently left the stored chat logs children have with their polyester-filled automated friends openly available online to anybody with a Gmail account:
“[security researcher Joel Margolis] made a startling discovery: Bondu’s web-based portal, intended to allow parents to check on their children’s conversations and for Bondu’s staff to monitor the products’ use and performance, also let anyone with a Gmail account access transcripts of virtually every conversation Bondu’s child users have ever had with the toy.”
At this point there’s just no excuse for this sort of thing. We’ve been writing for more than a decade about how most “smart,” internet-connected toys were being rushed to market without adequate privacy and security safeguards, creating OpSec risks for kids before they’ve even been adequately potty trained.
Now, as we’ve done in sectors like health insurance and journalism, we’ve slathered half-cooked language learning models all over existing dysfunction we refused to address, called it innovation, and then ignored the fact we’ve introduced entirely new problems.
In this case, the included exposed data included kids’ names, birth dates, family member names, and even the detailed summaries and transcripts of every previous chat between the child and their Bondu stuffed animals.
On the plus side, once alerted, the company quickly fixed the issue in a matter of minutes. And when asked by journalists about it, didn’t try to lie about the problem (a low bar, but still):
“When WIRED reached out to the company, Bondu CEO Fateen Anam Rafid wrote in a statement that security fixes for the problem “were completed within hours, followed by a broader security review and the implementation of additional preventative measures for all users.” He added that Bondu “found no evidence of access beyond the researchers involved.”
If hackers are clever they don’t leave many footprints, so that last bit might not be worth much.
One recent survey found that 84 percent of Americans want tougher privacy laws. But corruption has ensured that the country still lacks even baseline internet-era privacy protections. The powers that be have decided, repeatedly, to prioritize mass commercialized surveillance over public safety, and it’s only a matter of time before those chickens come home to roost in ways we can’t even begin to consider.
Filed Under: ai, automation, privacy, security, smart, surveillance, toys
Companies: bondu
Funniest/Most Insightful Comments Of The Week At Techdirt
from the speaking-out dept
This week, our first place winner on the insightful side is Stephen T. Stone with a comment about ICE and CBP stealing money from citizens at the Minneapolis airport:
Dear Democrats in leadership positions:
There is no reforming or retraining this level of institutional rot. Your centrist asses need to start demanding the abolishment of ICE (and DHS), and you need to start doing it now.
Sincerely, a concerned US citizen
In second place, it’s Strawb with an answer to the question of why the CIA deleted its famous World Factbook resource:
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