>Even just a state law that says "you must give users a window of 24 hours to export their data and leave."
Perfectly permitted. They wouldn't have to display the content publicly, which would mean they're not an interactive computer service for the purpose of that section. For someone making confident assertions about what's obvious, they fail to point to court cases that actually interpret the law that way.
I don't like attacking the author for not being a lawyer (mostly because I am not a lawyer either), but it's quite clear to me that their legal interpretation is completely wrong.
To fix the original title: the First Amendment is a censorship law, not Section 230. Or at least, the First Amendment constitutionally protects internet websites that censor their users. It's called freedom of association.
IANAL, but I think you're likely wrong on the first amendment issue. Contract law regularly supersedes first amendment concerns, e.g. even though courts are a part of the government, they are allowed to enforce NDAs. Even outright restrictions of speech are often allowed; there are broad exemptions. e.g. it's OK to regulate noise levels, even if you're shouting protected speech - as long as the regulations are content neutral (and likely a host of other tests courts apply - again, IANAL).
A state law regulating such contracts - which is in essence what this might be, as they concern EULAs - especially to the really limited extent that we're talking merely about not deleting content for a short period of time, in a content neutral fashion - that doesn't shout first amendment issue to me anyhow. Even if it required (or strongly promoted) keeping content up, I'm not sure there would be an issue (though there might be).
Here, e.g. a quick google finds a link (hopefully a reliable source, but I'm not vouching for it...) about the kind of things that can survive a first amendment challenge: https://www.mtsu.edu/first-amendment/article/1023/time-place... - sounds to me like requirements to keep content online temporarily to allow for dispute resolution would be no less impermissible that the converse which is already in the DMCA (effectively albeit indirectly requiring content to be taken down upon the mere accusation of copyright infringement). Also, the part about the takedown requests should give some idea as to technicalities that in effect regulate speech while technically not doing so, and those could be applied here too - DMCA after all does not require compliance with takedown requests, it merely makes it economically non-viable to fail to comply, even if the request is in bad faith.
While the first amendment may be spiritually related to laws like this, I'm not convinced it's a serious impediment either way, even if the outcome is a pretty serious chilling effect. The loopholes are too large, and the first amendment simply too narrowly focused on government impositions to reliably protect from indirect restrictions. To be transparent: I'm not saying it couldn't be a protection, just that I don't see it as obvious, and since IANAL, I'm not comfortable assuming it's a relevant factor here, although it certainly could be.
This post consists of a non-lawyer giving legal hot takes without sources or support. Many of his points defy both the law and common sense. Legally, nothing prevents a company from contracting away their rights, for example, so the prospect of users not being able to enforce the terms of service against a provider is a complete fabrication.
> The other part is a near free-for-all permission from Uncle Sam to nuke nearly any bad content free from civil liability.
Although the law purports to grant this permission, it did not need to. The constitution's free speech protections are sufficient to grant companies the right to decline to publish whatever they choose to. Although the government can compel speech in certain specific circumstances -- think medical disclosures -- generally they cannot compel political speech. State laws cannot override the constitution in this regard.
Right, the purpose of the law was to prevent the act of moderation resulting in the moderator becoming complicit. Moderators' options before Section 230 were either:
1) assert some control over the content, thus showing you are engaged with it, meaning you can be held liable for it; or
2) do nothing and avoid sharing any guilt.
My go-to example of a Section 230 defense is a library sued by a mom whose kid looked at internet porn on the library's computers. It's not the library's fault there's porn on the internet, so even if they had policies and safeguards trying to prevent this, it doesn't make sense to punish them.
I was going to say, refusing to host on your own platform something you find objectionable is not in any way an infringement on speech, but forcing someone to host it tramples all over free speech.
This issue has become the worst and least productive flame war on HN that I've ever seen. It's literally the same argument over and over with nothing new added.
Flagged because the article is completely, demonstrably wrong in its legal analysis and because another of these flame wars is not making any of us smarter.
I've followed (US) lawblogs for years, and I've learnt solidly exactly and only 2 things:
1) If you're arrested, immediately ask for a lawyer and then keep your mouth shut. Anything else out of your mouth will bring pain to you and your lawyer. Doesn't matter if you're innocent, shut up.
2) We should listen to software developers opine about the law as much as we should listen to lawyers opine about software development. Even lawyers and judges get law wrong more than one might expect. A non-lawyer has no hope.
If you want to know what a law means, listen to a lawyer who works in that area, otherwise you run a bad risk of being made stupider merely for having paid attention.
I know my harsh tone will turn some people off, but if this PSA helps anyone avoid actual trouble with the law, I am okay with that.
I've never understood why right-wingers in the tech field will scream about censorship, while congregating on sites that downvote, and shadownban, ban people. Anytime I hear "censorship" on on HNews because techies are upset a Neo-Nazi site got dehosted, I can't help but think "That word (censorship) doesn't mean what you think it means".
[+] [-] ikeboy|5 years ago|reply
This violates the 1st amendment by compelling speech. If you want to pass such a law, section 230 isn't your biggest obstacle.
>All state contract law that would enable legal action to enforce a contract or terms of service that a party felt were violated by the moderator.
Nothing in section 230 prevents contract enforcement. In fact, courts that threw out other counts because of section 230 have addressed contract breach counts separately. See e.g. https://blog.ericgoldman.org/archives/2019/12/breach-of-cont...
>Even just a state law that says "you must give users a window of 24 hours to export their data and leave."
Perfectly permitted. They wouldn't have to display the content publicly, which would mean they're not an interactive computer service for the purpose of that section. For someone making confident assertions about what's obvious, they fail to point to court cases that actually interpret the law that way.
[+] [-] LurkersWillLurk|5 years ago|reply
To fix the original title: the First Amendment is a censorship law, not Section 230. Or at least, the First Amendment constitutionally protects internet websites that censor their users. It's called freedom of association.
[+] [-] emn13|5 years ago|reply
A state law regulating such contracts - which is in essence what this might be, as they concern EULAs - especially to the really limited extent that we're talking merely about not deleting content for a short period of time, in a content neutral fashion - that doesn't shout first amendment issue to me anyhow. Even if it required (or strongly promoted) keeping content up, I'm not sure there would be an issue (though there might be).
Here, e.g. a quick google finds a link (hopefully a reliable source, but I'm not vouching for it...) about the kind of things that can survive a first amendment challenge: https://www.mtsu.edu/first-amendment/article/1023/time-place... - sounds to me like requirements to keep content online temporarily to allow for dispute resolution would be no less impermissible that the converse which is already in the DMCA (effectively albeit indirectly requiring content to be taken down upon the mere accusation of copyright infringement). Also, the part about the takedown requests should give some idea as to technicalities that in effect regulate speech while technically not doing so, and those could be applied here too - DMCA after all does not require compliance with takedown requests, it merely makes it economically non-viable to fail to comply, even if the request is in bad faith.
While the first amendment may be spiritually related to laws like this, I'm not convinced it's a serious impediment either way, even if the outcome is a pretty serious chilling effect. The loopholes are too large, and the first amendment simply too narrowly focused on government impositions to reliably protect from indirect restrictions. To be transparent: I'm not saying it couldn't be a protection, just that I don't see it as obvious, and since IANAL, I'm not comfortable assuming it's a relevant factor here, although it certainly could be.
[+] [-] torstenvl|5 years ago|reply
[+] [-] asdfasgasdgasdg|5 years ago|reply
Although the law purports to grant this permission, it did not need to. The constitution's free speech protections are sufficient to grant companies the right to decline to publish whatever they choose to. Although the government can compel speech in certain specific circumstances -- think medical disclosures -- generally they cannot compel political speech. State laws cannot override the constitution in this regard.
[+] [-] vharuck|5 years ago|reply
1) assert some control over the content, thus showing you are engaged with it, meaning you can be held liable for it; or
2) do nothing and avoid sharing any guilt.
My go-to example of a Section 230 defense is a library sued by a mom whose kid looked at internet porn on the library's computers. It's not the library's fault there's porn on the internet, so even if they had policies and safeguards trying to prevent this, it doesn't make sense to punish them.
[+] [-] RuggedPineapple|5 years ago|reply
[+] [-] smt88|5 years ago|reply
Flagged because the article is completely, demonstrably wrong in its legal analysis and because another of these flame wars is not making any of us smarter.
[+] [-] rendall|5 years ago|reply
[+] [-] cafard|5 years ago|reply
[+] [-] rendall|5 years ago|reply
Ok, I'ma stop right there.
I've followed (US) lawblogs for years, and I've learnt solidly exactly and only 2 things:
1) If you're arrested, immediately ask for a lawyer and then keep your mouth shut. Anything else out of your mouth will bring pain to you and your lawyer. Doesn't matter if you're innocent, shut up.
2) We should listen to software developers opine about the law as much as we should listen to lawyers opine about software development. Even lawyers and judges get law wrong more than one might expect. A non-lawyer has no hope.
If you want to know what a law means, listen to a lawyer who works in that area, otherwise you run a bad risk of being made stupider merely for having paid attention.
I know my harsh tone will turn some people off, but if this PSA helps anyone avoid actual trouble with the law, I am okay with that.
[+] [-] blockmarker|5 years ago|reply
[+] [-] fastball|5 years ago|reply
Seems directed but not sure at whom.
[+] [-] unknown|5 years ago|reply
[deleted]
[+] [-] x86_64Ubuntu|5 years ago|reply
[+] [-] rendall|5 years ago|reply
Would you mind showing some links to this? Seems rather hyperbolic, to me, but I'll keep an open mind about it.