Tuesday, March 20, 2018

Senator Wyden's amendment may limit FOSTA-SESTA and slow passage; WSJ expects Section 230 will get gutted on other politically sensitive issues

Senator Ron Wyden, D-OR, has introduced an amendment to FOSTA-SESTA which would relieve the “moderator’s paradox” built within the legislation, providing that reasonable attempts at moderation by a host do not necessarily mean that the provider should have known or detected sex trafficking.  John Samples of the Cato Institute explained this in a blog posting Monday March 18 here.  Samples refers to a detailed Techdirt article by Mike Masnick on Techdirt here. 
The wording of the amendment would say:

“The fact that  provider or user of an interactive computer service has undertaken any efforts (including monitoring and filtering) to identify, restrict access to, or remove material the provider or user considers objectionable shall not be considered in determining the criminal and civil liability of the provider or user for ny material that the provider or user has not removed or restricted access to.”

Note that “provider” and “user” are mentioned interchangeably. It’s not clear whether a web hosting service falls within the idea of “interactive” computer service because the hosting activity is more removed from “interaction” than is, say, social media.

Samples had earlier published a dire article, “The Death of an Open Internet”, Feb 27 here  in which he referred to a long analysis by Eric Goldman. 
Earlier Tuesday, the Wall Street Journal had “connected the dots” in an editorial  (“Facebook joins the club; Big tech is learning what it is like to deal with political risk”)  predicting the passage of SESTA this week and predicting much more similar legislation.  WSJ predicts synergy from Trump and 2018-elected Democrats in Congress in pouncing on liability exemption and socializing risk.
However, it appears that this editorial was written before knowledge of the Wyden amendment, which could slow down passage and cause one more round in the House.
Intuitively, it seems hard to see how Section 230 could protect Facebook if it deliberately manipulates which news items (among friends) users are most likely to see.  YouTube does a little of this by showing previews based on past behavior;  part of the question though would reside in whether algorithms really were "neutral" and considered only your own habits.  Independent blogs, on the other hand, simply display the same thing to everyone.  That's like saying a book author has no right to control who buys his book.
Indeed, the personal scuttlebutt that I deal with (as a visible blogger) all the time is pleading to join collective speech of others (even “intersectional” activism) and become much more personally involved with others in ways that would not have been welcome in decades past.

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