The Cyberlaw Podcast: Big Tech’s Chickens Coming Home to Roost

We open today’s episode by teasing the Supreme Court’s decision to review whether section 230 protects big platforms from liability for materially assisting terror groups whose speech they distribute (or even recommend). I predict that this is the beginning of the end of the house of cards that aggressive lawyering and good press have built on the back of section 230. Why? Because Big Tech stayed out of the Supreme Court too long. Now, just when section 230 gets to the Court, everyone hates Silicon Valley and its entitled content moderators. Jane Bambauer, Gus Hurwitz, and Mark MacCarthy weigh in, despite the unfairness of having to comment on a cert grant that is two hours old.

Just to remind us why everyone hates Big Tech’s content practices, we do a quick review of the week’s news in content suppression. 

• A couple of conservative provocateurs prepared a video consisting of Democrats being “election deniers.” The purpose was to show the hypocrisy of those who criticize the GOP for a meme that belonged mainly to Dems until two years ago. And it worked. YouTube did a manual review before it was even released and demonetized the video because, well, who knows? An outcry led to reinstatement, too late for YouTube’s reputation. Jane has the story.
• YouTube also steps in the same mess by first suppressing then restoring a video by Giorgia Meloni, the biggest winner of Italy’s recent election. She’s on the right, but you already knew that from how YouTube dealt with her.
• Mark covers an even more troubling story, in which government officials point to online posts about election security that they don’t like, NGOs that the government will soon be funding take those complaints to Silicon Valley, and the platforms take a lot of the posts down. Really, what could possibly go wrong?
• Jane asks why Facebook is “moderating” private messages by the wife of an FBI whistleblower. I suspect that this is related to the government and big tech’s hyperaggressive joint pursuit of anything related to January 6. But it definitely requires investigation.
• Across the Atlantic, Jane notes, the Brits are hating Facebook for the content it let 14-year-old Molly Russell read before her suicide. Exactly what was wrong with the content is a little obscure, but we agree that the material served to minors is ripe for more regulation, especially outside the United States.

For a change of pace, Mark has some largely unalloyed good news. The International Telecommunication Union will not be run by a Russian; instead it elected an American, Doreen Bodan-Martin to lead it.  

Mark tells us that all the Sturm und Drang over tougher antitrust laws for Silicon Valley has wound down to a few modestly tougher provisions that have now passed the House. That may be all that can get passed this year, and perhaps in this Administration.

Gus gives us a few highlights from FTCland:

• The FTC is likely to strengthen enforcement tools for its consent decrees, mainly by tagging individuals with potential fines for violations. Gus doubts this will work out well in practice.
• The FTC is also end-running a recent Supreme Court decision that denied it the authority to impose certain financial penalties. Now the Commission will bring cases jointly with state agencies who have that authority.

Jane unpacks a California law prohibiting cooperation with subpoenas from other states without an assurance that the subpoenas aren’t investigating abortions that would be legal in California. I again nominate California as playing the role in federalism for the twenty-first century that South Carolina played in the nineteenth and twentieth centuries and predict that some enterprising red state attorney general is likely to enjoy litigating the validity of California’s law – and likely winning.

Gus notes that private antitrust cases remain hard to win, especially without evidence, as Amazon and major book publishers gain the dismissal of antitrust lawsuits over book pricing.

Finally, in quick hits and updates:

• Gus previews an upcoming executive order to cool off the fight over data transfers across the Atlantic
• I cover two U.S. espionage arrests, one of which is best summarized by the Babylon Bee

I also note a large privacy flap Down Under, as the exposure of lots of personal data from a telco database seems likely to cost the carrier, and its parent dearly.

Russian botmasters have suddenly discovered that extradition to the U.S. may be better than going home and facing mobilization.

Download the 424th Episode (mp3) 

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