Archive

Posts Tagged ‘Section 230’

Guest Post by @cagoldberglaw:  Scared as Hell: Section 230 Denies Access to Justice, Not Free Speech Protection

October 4, 2019 Comments off

By Carrie A. Goldberg

[We are honored to be able to post this article by one of the great lawyers of our time, Carrie Goldberg author of the new book Nobody’s Victim: Fighting Psychos, Stalkers, Pervs, and Trolls and victim rights lawyer extraordinaire.  Carrie is going after Grindr for putting a product into commerce with a design defect that allows stalkers to use the app to assault users.  This argument is similar to the Ford Pinto’s exploding gas tank.  This post started as a Twitter thread, and we’re very pleased that Carrie agreed to let us post it as an article.  We should all be aware that in addition to the “value gap” of the DMCA safe harbor, Big Tech also has another safe harbor in Section 230 which I call the “values gap.”  You have to ask yourself, how do they sleep at night?]

For the past 2-1/2 years my firm has been in the fight of our life in the case Herrick vs. Grindr which involved owners and operators of the Grindr gay dating app refusing to assist our client, Matthew Herrick, when mobs of strangers were coming to his home to have sex with him.

Using Grindr’s geolocating and other technology, Herrick’s ex impersonated him and directed over 1200 men to him in person. Sometimes 23 a day. Herrick went to the police and got an order of protection. Nothing Herrick was able to do helped to stop this assault. 

And neither did Grindr. No, Grindr said in court they didn’t need to help Matthew because the Communications Decency Act Section 230 protected them from any legal responsibility for harms caused by their app.  The district judge agreed. We appealed it to a panel of judges sitting on the Second Circuit Court of Appeals.

The Second Circuit panel also said Grindr bore no responsibility to Matthew and that the earlier judge was right to throw the case out. We sought a rehearing en banc before all the judges on the Second Circuit trying to explain that we were not suing for words or communications from a user (for which Grindr would get Section 230 immunity) but rather, we were suing Grindr because its product was defective.  

Why?  Because Grindr designed their product without an internal system or other protective functionality to save users and the world at large from people abusing their product to impersonate, stalk, prey—easily foreseeable harms that a reasonable person could have predicted might happen before Grindr was put into commerce.

In August we submitted a cert petition for the Supreme Court of the United States to review the Second Circuit’s ruling and reverse it. We’ll know Oct. 1 if they will. In my practice, I see a lot of people like Matthew whose lives were destroyed because apps and social media companies ignored them.  People who are victims of revenge porn, sextortion, harassment, doxxing, horrible content coming up in search engines, all of which could be prevented by eliminating these design defects and putting people over profits.

These Big Tech companies have ZERO incentive to build safety precautions into their products because this 1996 law Section 230 has been interpreted by the courts to shield tech companies from just about any responsibility.  It means we as individuals CAN NOT sue them. A bunch of politicians, lobbyists and even some professors will say that Section 230 protects our speech. 

That is not true.

What Section 230 does is remove options for us as individuals when lives are destroyed through tech. Our courts are no longer an option for us to get justice.  I can’t overstate how extreme it is for there to be companies that are UNTOUCHABLE by our courts.

Our tort system is centuries old and it is the great equalizer enforced by the courts—an entire branch of government and integral to our entire concept of checks and balances. In almost every kind of harm, for a couple hundred bucks a single person can use the tort law and the courts to hold the most powerful person or company responsible if they caused us harm and we can stop them from further hurting us which is Matthew’s case.

The ramifications of Section 230 immunity don’t just impact those harmed. Section 230 harms us all as a society. We are entering an era of greater surveillance, Artificial Intelligence, self-driving cars, facial recognition technology.  Companies developing this have ZERO incentive to be thinking about how their products will be abused and exploited by bad actors. Why?  First and foremost because there is no pressure on them from the threat of litigation. 

So in addition to Matthew’s battle with the courts, my big discovery is that our politicians are now inserting language into our international trade agreements that echos Section 230.  

If they succeed and we are injured by some other country’s negligent tech product, app or social media company, our country is immunizing those companies too. Those international companies now can’t be sued by us either.

Look at Article 19.17 of NAFTA 2.0 nafta excerpt

The language, which is even MORE expansive than Section 230 in protecting tech companies was already included in NAFTA.

And we have some politicians working to include it in trade deals with Japan, India, and the EU.  This is INSANE. 

These politicians are taking away our rights against tech companies in our own country and others. This means they can all be as exploitive of users and privacy and human rights as they want. 

Everybody should be scared as hell. Section 230 is NOT about online speech. It is about access to justice.  No other industry is immune like this. These companies basically have sovereign immunity. The most powerful, wealthy, omniscient, omnipotent industry in the history of the world has as much or more protections from being sued as a government. 

We need to hold our politicians accountable. We need to expose those who are fighting against our individual rights and voting to exclude these companies from judicial systems around the world. Additionally, if our American companies don’t like changes we make to Section 230, they’ll just relocate to a country with whom we have a trade agreement.

Who in congress is THAT owned by Big Tech that they would betray the American people and strip them of all recourse for injuries that occur online?

Google Feels the Heat from Congress on Sex Trafficking–And Gaslights Public Opinion on @SenRobPortman’s and @RepAnnWagner’s Legislation

September 12, 2017 1 comment

 

I first called your attention to Dr. Robert Epstein in 2013.  Dr. Epstein’s work on Google’s power to throw elections by manipulating public opinion was startling to many, and I got the usual eye rolling about how mistrustful I was of Google.  (See “Democracy at Risk: Manipulating Search Rankings Can Shift Voting Preferences Substantially Without Voter Awareness”)  That doesn’t happen much after 2016.

But–the stakes don’t have to be as high as who controls the White House for the dominant global source of information to manipulate us.  Think not?  Who wants to live with the consequences of losing a bet on Google’s moral compass?

Senator Rob Portman and Rep. Ann Wagner are standing up to Google (and the Internet Association) with legislation to remove the law that allows the special people in the connected class to profit from human trafficking because they’re…well, special people.  Senator Portman’s bill is the Stop Enabling Sex Traffickers Act of 2017 (SESTA) and has 27 cosponsors include Sen. Richard Blumenthal (D-CT), Sen. John McCain (R-AZ) and Sen. Claire McCaskill (D-MO).  Rep. Ann Wagner’s corresponding bill in the House of Representatives is titled the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 has 111 co-sponsors. Both would amend the safe harbor in Section 230 of the Communications Decency Act (aka “CDA”).

Just like Google loves them some DMCA, Google especially loves them some CDA 230 safe harbor that Google and their shills argue protects them from liability for letting pimps advertise on their platforms among other vileness.  (Which makes their fascination with forcing songwriters and artists to maintain a “global rights database” for Google’s protection ring even hollower.)  Taken together the DMCA and CDA safe harbors give Google so much crony capitalist protection that they rival other connected class sacred cows like farm subsidies and the oil depletion allowance.

Why should Google get these even safer harbors?  The answer is obvious.  Because the Internet.

But after Google’s several high profile losses in the post-Obama era, it looks like Google is about to lose on the CDA safe harbor.  We know this because it appears that Google is manipulating search results to affect public opinion on Google’s ability to profit from human trafficking.

According to Consumer Watchdog, which is about the only consumer group that is challenging Google’s stranglehold on the Congress not to mention reality, Google is manipulating search results to promote Google’s point of view on Section 230 reform.

This is a close analog to what Google was fined $2.7 billion for doing in Europe with commercial goods.  There’s no question that they do it, the only question is whether they are doing it to you all the time without your knowing it.

And since you are the product for Google, it should not be surprising that they are doing it to promote their legislative agenda.

Consumer Watchdog says:

Internet giant Google appears to be manipulating its search engine results to favor opposition to bipartisan efforts seeking to amend a key Internet law so websites like Backpage that facilitate online sex trafficking can be held accountable, Consumer Watchdog said today.

Three of the top four links returned under the news tab for the search term “Section 230” were to articles from the Electronic Frontier Foundation, a staunch opponent of amending the Internet law, Section 230 of the Communications Decency Act, Consumer Watchdog found.

Searches for news results for “Section 230” on competing search engines Bing and DuckDuckGo gave links to articles presenting all sides of the issue.  View screenshots of the results from the three search engines here: http://www.consumerwatchdog.org/resources/search_section_230.pdf

“Google is supposed to be an unbiased gatekeeper to information,” said John M. Simpson Consumer Watchdog’s Privacy Project Director. “Instead they appear to be stacking the deck to favor their own purposes. You can forget their motto; this is evil.”

Google is leading Tech industry efforts to block any amendment to Section 230, which protects websites from liability for material posted by third parties on their sites. The companies and other defenders of Section 230 claim it promotes and protects free expression on the Internet, but a U.S. Senate Permanent Subcommittee on Investigations staff report shows that sites like Backpage aid and abet under-age sex traffickers using the blanket protection of the Act.  By one count 73% of child trafficking reports in the United States involve Backpage.com.

Needless to say, the Electronic Frontier Foundation is a frequent recipient of Google’s largesse and was disclosed by Google in the Oracle case (on what came to be known as the “Google Shill List“) as a long-time beneficiary.

Here’s a video of Consumer Watchdog’s John Simpson confronting Eric Schmidt about human trafficking and Google’s Backpage connection at the Google annual shareholder meeting (which is about the only place anyone can actually question Google’s top executives directly).  Schmidt appears to swallow his tongue, but was saved by his lawyer, Kent Walker (who was slated to give the keynote at the Recording Academy’s Entertainment Law Initiative a few years ago):

So much for don’t be evil.

Nicholas Kristof recently wrote an op-ed about Google’s sex trafficking problem in the New York Times:

Sex traffickers in America have the police and prosecutors pursuing them, but they do have one crucial (if secret) ally: Google.

Google’s motto has long been “Don’t be evil,” and I admire lots about the company. But organizations it funds have for years been quietly helping Backpage.com, the odious website where most American victims of human trafficking are sold, to battle lawsuits from children sold there for sex.

Now Google is using its enormous lobbying power in Washington to try to kill bipartisan legislation that would crack down on websites that promote sex trafficking.

Not only is Google using its lobbying power to protect its profits by manipulating the Congress, it is also using its control over information to manipulate public opinion against Sen. Portman’s and Rep. Wagner’s bills.  This should come as no surprise to anyone who was paying attention and it certainly would come as no surprise to Dr. Epstein (for more detail, read his paper co-written with Dr. Ronald Robertson on “search engine manipulation effect” in the Proceedings of the National Academy of Sciences).

Why?  Because as Google lawyer Kent Walker says in the video above, the Congress “was striking a blow for Good Samaritan review by Internet platforms” with CDA 230.  In other words, the Congress wanted to help Good Samaritans that are “quietly helping Backpage.com….to battle lawsuits from children sold there for sex.”  And Google likes their CDA just fine the way it is.

And no doubt they’ll produce some kind of survey results showing that the public thinks so, too–after Google apparently manipulates its search results for a while using its secret algorithm.

Here’s the really sick part–somebody in Google’s engineering team knows exactly what they are doing, and they are doing it in secret, in the dark, where no one can see, with deniability.  Gaslighting on steroids.  You know–just following orders.

But then, the Devil’s greatest trick is convincing the world he doesn’t exist.

%d bloggers like this: