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The law provides a CONDITIONAL exemption. That makes the most critical element in the law... the full required element of compliance with the conditions... before the object in the law may be realized.
That partial presentation... makes it fundamentally dishonest... as it presents the intended outcome desired as being intended to be granted, fait acompli... first... on faith... without even bothering to mention the existence of the preliminary requirements, those conditions precedent required to enable it. It matters... whether or not those pre-conditions are actually MET... prior to OUR granting the reward... which in this case is the narrow exemption from civil liability... that attaches to those who fail to meet the conditions ?
"Mom said I could have a cookie if I clean my room"... takes cookie... room not cleaned...
This is not rocket science... or a Clintonian negotiation over the temporal meaning of the word if in context... and many if not most lawyers will have very little difficulty in understanding it.
That the deplorable state of jurisprudence in this country too often willingly tolerates that wrongful taking of cookies... buys the bait and switch with a wink and nudge... and some cash funneled the right way... or future employment potential for team players... and an appropriate effort in obfuscation ? The good ole boy network in some jurisdictions is beyond incestuous. Another subject... but, more of the same in terms of the extent of corruption... often delivering OBVIOUS error, posing it as if it were a good faith substitute for truth... particularly in lawfare where the assumption is that deep pockets will be adequate to (venue shop and) forestall meaningful resistance... particularly on narrow and apparently esoteric bits of the law.
I've noted my opinion... that the money invested in posturing elaborate legal defenses of cookie thievery... is time and effort wasted, the money poured down a rathole. Building and defending castles... while daring others to attack them... makes little tactical or strategic sense today. I wouldn't waste a dime... jousting with the industry... on the list field they've designed for the spectacle, while hoping to dupe you into an engagement on their turf, conducted in he way they prefer.
There are better processes by which corrections of those sorts of errors occur... with a key element in the correct response being... Mom taking the cookies away.
That's what I'm suggesting... That without good faith... including clear acknowledgement of the intent of the law... and of the nature of the offending behavior... along with full compliance with corrections... taking the cookies away is the MINIMUM necessary response... and that won't happen in a "friendly" courtroom. Spankings could ensue... and, "you're grounded... with no TV, computer or phone"... although...
The first requirement still: all the protestations of cookie thieves... that cookie thievery is settled law... are easily ignored. The kids don't make the rules... and don't get to tell the parents what they have to do...
Then, the legitimate concern of companies... in the cost of solutions that depend on paying moderators ? It is reasonable to find a way to "make it work" that's rational... for business... but, business has to understand that we value our freedom and our rights A LOT MORE than their cost or convenience... or survival.
Beyond that... left too long learning bad habits and getting their way... some kids aren't correctable... and some of the kids we're talking about do not intend to be corrected.
Facebook is probably going to have to die...
They might, to some, seem ignorant of the fact there is an axe hanging over their heads... but the behavior you see... showing them doubling down on choices they know will ensure they fail ? Is Zuckerberg Thelma... or Louise ? Noted Sergey and Larry slinking off toward the shadows this week, instead... following a similar pattern as apparent in Eric Schmidt's sudden departure ? Hmmm. I have also noted a bit of a reversal in some of the prior trends established at Google, just recently...
Clocks are ticking. interactive computer services cannot be held liable for third-party content that appears on their platforms.
That's correct... but, content CEASES TO BE THIRD PARTY... the moment you exercise ANY editorial control over that content... so the law offering conditional liability limits is made irrelevant... at that point.
And there's the bait and switch... as the companies PRETEND that they aren't exercising editorial control... when they are doing that... and vastly more... That "vastly more"... also changes the body of law that applies...
Quibbles over the limits, the performance requirements in meeting conditions, and the meaning of the CDA 230 requirements that have it NOT apply when interactive computer services violate others rights... seem not a useful distraction any more.
The behaviors in question... leave no doubt that the issue is NOT third party content... but a direct result of interactive computer service providers own... not transparent... interventions in free market information flows. Sorting, arranging ? Limiting some, promoting others ? Limiting or obstructing access to some content... interfering disparately with some users rights ? Fraudulently reporting interest... the numbers in clicks ? All for purpose... not as an uninterested "third party"... but takings of function and value from some... giving more to others... and delivering disparate benefits unique to the interest of the provider... imposing a bias... putting the providers in direct opposition to the CDA 230 requirements, certainly including in the lack of good faith... in differential treatment obviating equal rights.
It doesn't matter if someone "calls you" a publisher... but it does matter IF YOU ARE ONE... while wrongly seeking to disclaim and avoid liability you do own. Admission in court filings... where it benefits you... that you ARE ONE... is pretty good evidence that you are one ? Opposing filings denying the same... in another instance where it doesn't benefit you... in which you swear to the judge that you ARE NOT one... at the same time you claim you ARE in another court ? That's then not about the limit in answering the question about whether or not you are a publisher... then its about whether or not you are a perjurer... and conspiring in deliberately practicing frauds on the court... as well, obviously, as the conflict in your own competing assertions likely having an impact on whatever actions were engaged as those wrongs were committed in an attempt to dodge the risks those actions pose.
A pattern of behavior... seems to be emerging...
So, that insistently demanded exemption from civil liability... earned or not... doesn't even begin to impose real limits, even in civil liability, for those actions taken outside the sphere of the editorial in publishing... where CDA 230 just doesn't really matter at all. Say... if you are convicted of criminal conspiracy... for instance.
Or, say... if you are engaged in a pattern of widespread violations of civil rights... not just in limiting some users free speech, or limiting, suppressing, obstructing their access to information... but are engaged in purposeful voter suppression operations... targeting some, to benefit others ? Obviously, CDA 230 is not going to limit your liability ?
And, at that point, SI actually becomes an nearly idyllic case in point... for our discussion here, at least... that largely the reason I am here now... because I am perhaps an atypically well informed consumer, not clueless about the technology, from the nano scale to the wetware, quite well aware of my rights, and the practices in providers behavior...
In my entire RECENT ( ignoring that I was among the "lifetime grandfathered" handful of volunteers participating here prior to the public launch) experience with SI... I have had only ONE (in aggregate) instance of an related experience with SI... that was of a like nature as what is occurring elsewhere now as a matter of routine.
In that instance... I had "someone" at SI who disagreed with me. They were deleting my (fully compliant with the rules) posts, first. An easy workaround there... to write and keep them outside the site... and re-post the deletes in proper venue. Then, I noted, they weren't being deleted... but were being modified... someone else was editing my posts after I posted them. Same solution works... sort of. But, then... my SI hacker/stalker began creating posts in my name... posts I didn't write... which did violate the TOS, egregiuosly... and they tried to use those posts to have me banned from the site. When I provided SI with a deep copy of the offending post... and my real messages including identifying headers and routing information... it was a simple matter to show the offending post had an origin in Missouri... from an SI owned IP... and it didn't originate from my computer... or transit the web from my locale.
Took about 15 minutes on the phone to walk SI through it... to get the message understood... and then, there was that OMG moment... and an "OK we'll take care of it"... and it never happened again. And, that was YEARS ago...
I have no reason to question SI's good faith. I don't see them limiting my site access, limiting others ability to access me, or exercising any editorial control over my posts of links to others work, or posts of opinions that are my own. If I do violate the TOS... and get sent to SI Jail for being rude, etc., I won't assume the problem is SI persecuting me because of an opposing political agenda ? Even where I KNOW that I don't agree with someone at SI... or they with me... I don't have any concern that our varying opinions matter in how SI performs in delivering their services.
In the one problematic instance... I believe them... and see proofs of their good faith... I accept that my experience wasn't "an SI problem"... but a problem imposed on me, and SI, by one individual acting independently outside of the proper constraint in the limits that apply here.
But, how does that experience inform... others ?
Should SI be punished, for others bad behavior, by having the rules of the road changed to account for others abuses ? And, there, I admit to being puzzled... much as I was by some in the ostensibly libertarian crowd readily lining up to voice sustained support for backpage... even long after it was clear they were not good faith champions of free speech, sexual liberation, and women's rights... which... in my own libertarian view of the world... requires that the idea of "victimless crime"... just doesn't really jibe with facilitating trafficking and child sexual slavery ?
They were simply exploiting libertarians... using them as dupes to mask their criminal activity... and win sympathy... without being honest... only pretending to be good faith actors...
The point, then, or the question, is about the nature of the social obligation of those WHO ARE operating within the rules in good faith... Do they have an obligation to oppose the subversive acts of those who lack good faith... while they are seeking to violate others rights... using the cover of the protection of the law... ?
They appear to have awareness of a self interest in enabling the law... and sustaining its liability limits...
So they have a SELF INTEREST in protecting the law...that protects them... and an obligation to not protect those who flagrantly abuse and violate the law... and thus put its continued existence at risk ?
And maybe that's the right way to view the personal messages contained in the subtext in the exchange between Penn Jillette and Sacha Cohen ? That personal integrity and social consciousness... may require more than passive observation... comment at least, and participation in the public debate... at that boundary between free expression and freedom to act without oppression... where you pass that limit where ones own actions do harm to others.
I'm not likely to ever have a reason to sue Facebook. I'm a deliberate non-user of Facebook... and have been since they launched. I think you'd have to be brain dead to read their TOS and still agree to become their product. Zuckerberg's opinion: "Dumbfucks"... seems about right. I don't know why people trust him either. My recent interest... emerged only as Facebook's well known excesses have metastasized, making them into a purposeful public menace... an ardent and aggressive enemy of free expression... and thus a public policy problem... and an obvious poster representing the larger problem.
Spent only a few minutes dissecting their positions... before seeing how obvious are the risks they face... risks that they've created for themselves... by acting in bad faith... and crossing that limit... where their actions harm others. Even dumbfucks have an equal right to the protection of the law...
My opinion... I've noted... Facebook is a legal train wreck waiting to happen... They've created overlapping risks... in which the lack of integration in a coherent policy based in good faith... requires that their responses to one risk... expose and amplify the errors in their approach to others.
That they have submitted opposing court filings... one claiming they are a publisher... the other claiming they're not... doesn't define a limit in the internal conflicts (and resulting risks)... it merely exposes it in a laughable proof.
And, if and when they implode... we'll all be better off... as we likely are now without having backpage imposing the abuse of child sex slavery on children... and doing it in our names. That event... will be one less reason to worry about bad actors lack of good faith... as they abuse the public trust... while (falsely) claiming the protection of the law, asserting (falsely) that the law intends to enable them in doing so.
Facebook, in particular, seems to have a massive problem with a large number of similar instances as that I describe in my one issue here at SI. Only at Facebook... there is no good faith in the response users get... and it keeps happening, over and over ?
They seem unable to contain the excessive zeal and political bias of their human moderators... have infused their bots with the same bias... while denying that it is a reflection of deliberate company policy... only... the only change that ever does occur... is modification of the user agreement to make you agree to allowing it ? LOL!! We're also way past "blame it on the algorithm" as a neutral filter...and "we don't shadow ban"... Running out of excuses pretty rapidly... and not convincing anyone.
Will be fascinating to see the paper (email, text) trail on that...
It doesn't make any difference whatsoever if you want to call them a "publisher" or even if they call themselves a publisher. If they are an interactive computer service, the law is that they willnot be treated as the publisher.
That, again, is a CLEAR mis-statment of the law... by taking it TOTALLY out of context. That is simply INCORRECT. The law does not first wave a magic wand and declare you to be EXEMPT, first, and "not a publisher"... or "not treated as a publisher"... just because you ARE an interactive computer service. Cart before horse. Before you can make that work... you need the horse in front of the cart... you have to EARN the exemption, FIRST... by complying with the conditions required to EARN it... And, those conditions include everything in the first two paragraphs... describing the purpose and intent of the legislation and its mechanics... with an end-to-end GOOD FAITH effort in compliance... BEFORE you are "not treated as the publisher". And, if you ARE the publisher... you own the liability as a non-third party... so there isn't any exemption to apply anyway... no matter what else you may choose to call yourself.
The FACT that effort is made... persistently fostering the misdirection in relation to "what the law says"... is in itself a proof of a lack of good faith ?
