Judges rule Big Tech’s free ride on Section 230 is over

I think the ultimate problem is that social media is not unbiased — it curates what people are shown. In that role they are no longer an impartial party merely hosting content. It seems this ruling is saying that the curation being algorithmic does not absolve the companies from liability.

In a very general sense, this ruling could be seen as a form of net neutrality. Currently social media platforms favor certain content, while down weighting others. Sure, it might be at a different level than peer agreements between ISPs and websites, but it amounts to a similar phenomenon when most people interact on social media through the feed.

Honestly, I think I’d love to see what changes this ruling brings about. HN is quite literally the only social media site (loosely interpreted) I even have an account on anymore, mainly because of how truly awful all the sites have become. Maybe this will make social media more palatable again? Maybe not, but I’m inclined to see what shakes out.

With this ruling, HN is suddenly responsibly for all posts here specifically because of the moderation. So they have 2 options.

(1) Stop the moderation so they can be safe under 230. Result, HN turns to 4chan.

(2) enforce the moderation to a much higher degree by say, requiring non-anon accounts and TOS that make each poster responsible for their own content and/or manually approve every comment.

I’m not even sure how you’d run a website with user content if you wanted to moderate that content and still avoid being liable for illegal content.

I think this is a mistaken understanding of the ruling. In this case, TikTok decided, with no other context, to make a personalized recommendation to a user who visited their recommendation page. On HN, your front page is not different from my front page. (Indeed, there is no personalized recommendation page on HN, as far as I’m aware.)

I don’t see how this is about personalization. HN has an algorithm that shows what it wants in the way it wants.

But the basis of this ruling is basically “well the Moody case says that curation/moderation/suggestion/whatever is First Amendment protected speech, therefore that’s your speech and not somebody else’s and so 230 doesn’t apply and you can be liable for it.” That rationale extends to basically any form of moderation or selection, personalized or not, and would blow a big hole in 230’s protections.

Given generalized anti-Big-Tech sentiment on both ends of the political spectrum, I could see something that claimed to carve out just algorithmic personalization/suggestion from protection meeting with success, either out of the courts or Congress, but it really doesn’t match the current law.

I see a lot of people saying this is a bad decision because it will have consequences they don’t like, but the logic of the decision seems pretty damn airtight as you describe it. If the recommendation systems and moderation policies are the company’s speech, then the company can be liable when the company “says”, by way of their algorithmic “speech”, to children that they should engage in some reckless activity likely to cause their death.

Personalisation simply matches users with the content the algorithm thinks they want to see. Moderation (which is typically also an algorithm) tries to remove harmful content from the platform altogether.

The ruling isn’t saying that Section 230 doesn’t apply because TikTok moderated. It’s saying Section 230 doesn’t apply because TikTok personalised, allegedly knew about the harmful content and allegedly didn’t take enough action to moderate this harmful content.

These algorithms aren’t matching you with what you want to see, they’re trying to maximize your engagement- or, its what the operator wants you to see, so you’ll use the site more and generate more data or revenue. Its a fine, but extremely important distinction.

And they probably didn’t think through how this particular argument could affect other areas of their business.

Importantly, this does not mean that before the Third Circuit decision platforms could just curate any which way they want and government couldn’t regulate at all — the mandatory removal regime around CSAM content is a great example of government regulating speech and forcing platforms to comply.

The Third Circuit decision, in a nutshell, is telling the platforms that they can’t have their cake and eat it too. If they want to claim that their algorithmic feeds are speech that is protected from most government regulation, they can’t simultaneously claim that these same algorithmic feeds are mere passive vessels for the speech of third parties. If that were the case, then their algorithms would enjoy no 1A protection from government regulation. (The content itself would still have 1A protection based on the rights of the creators, but the curation/ranking/privileging aspect would not).

This ruling is a natural consequence of the NetChoice ruling. Social media companies can’t have it both ways.

> If that were the case, then their algorithms would enjoy no 1A protection from government regulation.

Well, the companies can still probably claim some 1st Amendment protections for their recommendation algorithms (for example, a law banning algorithmic political bias would be unconstitutional). All this ruling does is strip away the safe harbour protections, which weren’t derived from the 1A in the first place.

Winding up in the same place as the defendant would require making a unique, dynamic, individualized BB for each user tailored to them based on pervasive online surveillance and the platform’s own editorial “secret sauce.”

In other words, the Supreme Court decision mentions editorial decisions but no court case has yet backed up if that means editorial decisions in the HN front page sense (as in mods make some choices but it’s not personalized.) Common sense may say mods making decisions is editorial decisions but it’s a gray area until a court case makes it clear. Precedence is the most important thing when interpreting law, and the only precedence we have is that it pertains to personalized feeds.

If you child porn that gets shared via direct links then that is bad even if nobody can see it, but it is much much worse if you start recommending that to people as well.

It’s rarely if ever going to be the case that there is some distinct unit of code called “the algorithm” that can be separated and considered legally distinct from the rest of the codebase.

Although HN’s algorithm depends (mostly) on user input for how it presents the posts, it still favours some over others and still runs afoul here. You would need a literal ‘most recent’ chronological view and HN doesn’t have that for comments. It probably should anyway!

@dang We need the option to view comments chronologically, please

I don’t think the feature was that unknown. Per Wikipedia, the CDA passed in 1996 and Slashdot was created in 1997, and I doubt the latter’s moderation/voting system was that unique.

“(2)Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or”

Algorithmic ranking, curation, and promotion are not.

The FYP algorithm that’s contested in the case surfaced the video to the minor without her searching for that topic, following any specific content creator, or positively interacting (liking/favoriting/upvoting) with previous instances of said content. It was fed to her based on a combination of what TikTok knew about her demographic information, what was trending on the platform, and TikTok’s editorial secret sauce. TikTok’s algorithm made an active decision to surface this content to her, despite knowing that other children had died from similar challenge videos, they promoted it and should be liable for that promotion.

I even think it would count if the only moderation you did on your Lionel model train site was to make sure that most of the conversation was about Lionel model trains, and that they be treated in a positive (or at least neutral) manner. That degree of moderation, for that purpose, would make you liable if you left illegal or tortious content up i.e. if you moderate, you’re a moderator, and your first duty is legal.

If you’re just a dumb pipe, however, you’re a dumb pipe and get section 230.

I wonder how this works with recommendation algorithms, though, seeing as they’re also trade secrets. Even when they’re not dark and predatory (advertising related.) If one has a recommendation algo that makes better e.g. song recommendations, you don’t want to have to share it. Would it be something you’d have to privately reveal to a government agency (like having to reveal the composition of your fracking fluid to the EPA, as an example), and they would judge whether or not it was “editorial” or not?

(edit: that being said, it would probably be very hard to break the law with a song recommendation algorithm. But I’m sure you could run afoul of some financial law still on the books about payola, etc.)

I’m not sure that’s quite it. As I read the article and think about its application to Tiktok, the problem was more that “the algorithm” was engaged in active and allegedly expressive promotion of the unsafe material. If a site like HN just doesn’t remove bad content, then the residual promotion is not exactly Hacker News’s expression, but rather its users’.

The situation might change if a liability-causing article were itself given ‘second chance’ promotion or another editorial thumb on the scale, but I certainly hope that such editorial management is done with enough care to practically avoid that case.

You can’t be licensing user content to AI as it’s not yours. You also can’t be undeleting posts people make (otherwise it’s really reddit’s posts and not theirs).

When you start treating user data as your own; it should become your own and that erodes 230.

It is theirs. Users agreed to grant Reddit a license to use the content when they accepted the terms of service.

If it does any customization based on what it knows about you, or what it tries to sell you because you are you, then it would be liable.

Yep., recommendation engines would have to be very carefully tuned, or you risk becoming liable. Recommending only curated content would be a way to protect yourself, but that costs money that companies don’t have to pay today. It would be doable.

This could very well be true for TikTok. Of course “selection” would include liked videos, how long you spend watching each video, and how many videos you have posted

And on the flip side a button that brings you to a random video would supply different content to users regardless of “selections”.

That kind of sounds… great?
The only instance where I genuinely like to have a recommendation engine around is music steaming. Like yeah sometimes it does recommend great stuff.
But anywhere else? No thank you

It’s still curated, and not entirely automatically. Does it make a difference whether it’s curated individually or not?

> “What does all this mean for Anderson’s claims?
Well, § 230(c)(1)’s preemption of traditional publisher liability
precludes Anderson from holding TikTok liable for the
Blackout Challenge videos’ mere presence on TikTok’s
platform. A conclusion Anderson’s counsel all but concedes.
But § 230(c)(1) does not preempt distributor liability, so
Anderson’s claims seeking to hold TikTok liable for
continuing to host the Blackout Challenge videos knowing
they were causing the death of children can proceed.”

As-in, Dang would be liable if say somebody started a blackout challenge post on HN and he didn’t start censoring all of them once news reports of programmers dieing broke out.

https://fingfx.thomsonreuters.com/gfx/legaldocs/mopaqabzypa/…

Does TikTok have preempt this category of videos in the future or simply respond promptly when notified such a video is posted to their system?

Do you think its reasonable for social media to send videos to people without considering how harmful they are?

Do you even think its reasonable for search engine to respond to a specific request for this information?

In general, judges will be ultimately responsible for evaluating whether “any”, “sufficient”, “appropriate”, etc. actions were taken in each future case judgement they make. As with all things legalese, it’s impossible to define with certainty a specific degree of action that is the uniform boundary of acceptable; but, as evident here, “none” is no longer permissible in that set.

(I am not your lawyer, this is not legal advice.)

This has interesting higher-order effects on free speech. Let’s apply the same ruling to vaccine misinformation, or the ability to organize protests on social media (which opponents will probably call riots if there are any injuries)

I think that is quite generous. I think it is a deliberate reinterpretation of what the order says. The order states that 230(c)(1) provides immunity for removing harmful content after being made aware of it, i.e., moderation.

For HN, Dang’s efforts at keeping civility don’t interfere with Section 230. The part relevant to this ruling is whatever system takes recency and upvotes, and ranks the front page posts and comments within each post.

It would be perfectly legal for a platform to choose to allow a user to decide on their own to filter out spam.

Maybe a user could sign up for such an algorithm, but if they choose to whitelist certain accounts, that would also be allowed.

Problem solved.

HN is also heavily moderated with moderators actively trying to promote thoughtful comments over other, less thoughtful or incendiary contributions by downranking them (which is entirely separate from flagging or voting; and unlike what people like to believe, this place relies more on moderator actions as opposed to voting patterns to maintain its vibe.) I couldn’t possibly see this working with the removal of Section 230.

(1) https://en.wikipedia.org/wiki/Cubby,_Inc._v._CompuServe_Inc.

Along those lines then then an upvote i.e. endorsement would be protected, up to any point where it violated one of the free speech exceptions, e.g. incitement.

For example the qanon conspiracy nuts got moderated out of /pol/ for arguing in bad faith/just being too crazy to actually have any kind of conversation with and they fled to another board (8chan and later 8kun) that has even less moderation.

Yep, 4chan isn’t bad because “people I disagree with can talk there”, it’s bad because the interface is awful and they can’t attract enough advertisers to meet their hosting demands.

TikTok. Facebook. Twitter. YouTube.

All of these have their algorithms specifically curated to try to keep you angry. YouTube outright ignores your blocks every couple months, and no matter how many people dropping n-bombs you report and block, it never endingly pushes more and more.

These company know that their algorithms are harmful and they push them anyway. They absolutely should have liability for what their algorithm pushes.

HN engages in the former but not the latter. The big three engage in the latter.

Or.. are you suggesting there’s more to how this works? Is dang watching votes and then making decisions based on those votes?

“Editorial control” is more of a term of art and has a narrower definition then you’re allowing for.

The same applies to comments on HN. Comments are not moderated based purely on legal or certain general “good manners” grounds, they are moderated to keep a certain kind of discourse level. For example, shallow jokes or meme comments are not generally allowed on HN. Comments that start discussing controversial topics, even if civil, are also discouraged when they are not on-topic.

Overall, HN is very much curated in the direction of a newspaper “letter to the editor” section, then more algorithmic and hands-off like the Facebook wall or TikTok feed. So there is no doubt whatsoever, I believe, that HN would be considered responsible for user content (and is, in fact, already pretty good at policing that in my experience, at least on the front page).

Maintaining topicality is literally a bias. Excluding posts that reflect certain perspectives is censorship.

Even mentioning certain topics, such as Israel’s invasion of Palestine, even when the mention is on-topic and not disruptive, as in this comment you are reading, is practically a death sentence for a comment. Not because of votes, but because of the moderators. Downvotes may prioritize which comments go in front of moderators (we don’t know) but moderators make the final decision; comments that are downvoted but not removed merely stick around in a light grey colour.

By enabling showdead in your user preferences and using the site for a while, especially reading controversial threads, you can get a feel for what kinds of comments are deleted by moderators exercising. It is clear that most moderation is about editorial control and not simply the removal of disruption.

This comment may be dead by the time you read it, due to the
previous mention of Palestine – hi to users with showdead enabled. Its parent will probably merely be down voted because it’s wrong but doesn’t contain anything that would irk the mods.

Comments are marked (flagged) (dead) when ordinary users have clicked on the timestamp and selected “flag.” So user downvotes cannot kill a comment, but flagging by ordinary non-moderator users can kill it.

The pro-science crowd (which includes me fwiw) seems incapable of providing a proof any given scientist is that important. Same old social politics norms inflate some deflate others and we confirm our survival means we special. Ones education is vacuous prestige given physics applies equally; oh you did the math! Yeah I just tell the computer to do it. Oh you memorized the circumlocutions and dialectic of some long dead physicist. Outstanding.

There’s a lot of ego driven banal classist nonsense in tech and science. At the end of the day just meat suits with the same general human condition.

Specifically, every political or science thread that makes it, is raided by 4chan. 4chan also regularly pushes anti/science and anti-education agenda threads to the top here, along with posts from various alt-right figures on occasion.

Seems pretty sparse to me, and from a casual perusal, I haven’t seen any actual calls to raiding anything here, it’s more of a reference where articles/posts have happened, and people talking about them.

Remember, not everyone who you disagree with comes from 4chan, some of them probably work with you, you might even be friends with them, and they’re perfectly serviceable people with lives, hopes, dreams, same as yours, they simply think differently than you.

4chan is very well known for brigading. It is also well known that using 4chan as well as a number of other locations, such as discord, to post links for brigades are an extremely common thing that the alt-right does to try to raise the “validity” of their statements.

I also did not claim that only these opinions come from 4chan. Nice strawman bro.

Also, my friends do not believe these things. I do not make a habit of being friends with people that believe in genociding others purely because of sexual orientation or identity.

Also the alt-right is a giant threat, if you categorize everyone right of you as alt-right, which seems to be the standard definition.

That’s not how I’ve chosen to live, and I find that it’s peaceful to choose something more reasonable. The body politic is cancer on the individual, and on the list of things that are important in life, it’s not truly important. With enough introspection you’ll find that the tendency to latch onto politics, or anything politics-adjacent, comes from an overall lack of agency over the other aspects of life you truly care about. It’s a vicious cycle. You have a finite amount of mental energy, and the more you spend on worthless things, the less you have to spend on things that matter, which leads to you latching further on to the worthless things, and having even less to spend on things that matter.

It’s a race to the bottom that has only losers. If you’re looking for genocide, that’s the genocide of the modern mind, and you’re one foot in the grave already. You can choose to step out now and probably be ok, but it’s going to be uncomfortable to do so.

That’s all not to say there aren’t horrid, problem-causing individuals out in the world, there certainly are, it’s just that the less you fixate on them, the more you realize that they’re such an extreme minority that you feel silly fixating on them in the first place. That goes for anyone that anyone deems ‘horrid and problem-causing’ mind you, not just whatever idea you have of that class of person.

What are you expecting it to show? That site removes all content after a matter of days.

For the record, ensuring that those who wish to genocide LGBT+ people are not the majority voice on the internet is absolutely not “a worthless matter”, not by any stretch. I would definitely rather not have to do this, but then, the people who dedicate their lives to trolling and hate are extremely active.

I don’t frequent 4cuck, I use soyjak.party which I guess from your perspective is even worse, but there are of plenty of smart people on the ‘cuck thoughbeit, like the gemmy /lit/ schizo. I think you would feel right at home in /sci/.

This is literally the purpose of Section 230. It’s Section 230 of the Communications Decency Act. The purpose was to change the law so platforms could moderate content without incurring liability, because the law was previously that doing any moderation made you liable for whatever users posted, and you don’t want a world where removing/downranking spam or pornography or trolling causes you to get sued for unrelated things you didn’t remove.

Basically true.

> Section 230 was intended to clarify the common carrier role of ISPs and similar providers of third party content.

No, it wasn’t, and you can tell that because there is literally not a single word to that effect in Section 230. It was to enable information service providers to exercise editorial control over user-submitted content without acquiring publisher-style liability, because the alternative, giving liability decisions occurring at the time and the way providers were reacting to them, was that any site using user-sourced content at scale would, to mitigate legal risk, be completely unmoderated, which was the opposite of the vision the authors of Section 230 and the broader CDA had for the internet. There are no “common carrier” obligations or protections in Section 230. The terms of the protection are the opposite of common carrier, and while there are limitations on the protections, there are no common carrier like obligations attached to them.

>

That part of the law was unconstitutional and pretty quickly got struck down, but it still goes to the same point that the intent of Congress was for sites to remove stuff and not be “common carriers” that leave everything up.

> Section 230 was intended to clarify the common carrier role of ISPs and similar providers of third party content. It does have a subsection to clarify that attempting to remove objectionable content doesn’t remove your common carrier protections, but I don’t believe that was a response to pre-CDA status quo.

If you can forgive Masnick’s chronic irateness he does a decent job of explaining the situation:

https://www.techdirt.com/2024/08/29/third-circuits-section-2…

This would be the worst outcome of a rollback of 230.

Well, maybe it’s just me, but only showing political content that doesn’t include “kill all the (insert minority here)”, and expecting users to not object to that standard, is a pretty typical aspect of moderation for discussion sites.

> What part of deliberately suppressing or promoting political content based on the opinions of those in charge of the platform, constitutes “moderation”?

Again, deliberately suppressing support for literal and obvious facism, based on the opinions of those in charge of the platform, is a kind of moderation so typical that it’s noteworthy when it doesn’t happen (e.g. Stormfront).

> What part of suppressing “misinformation” on the basis of what’s said in “reliable sources” (rather than any independent investigation – but really the point would still stand), constitutes “moderation”?

Literally all of Wikipedia, where the whole point of the reliable sources policy is that the people running it don’t have to be experts to have a decently objective standard for what can be published.

The idea that curation is a problem with social media is always a head scratcher for me. The option to just directly publish to the world wide web without social media is always available, but time and again, that option is largely not chosen… this ruling could well narrow it down that being the only option.

Now, in practice, I don’t think that will happen. This will raise the costs of operating social media, and those costs will be reflected in prices advertisers pay to advertise on social media. That may shrink the social media ecosystem, but what it will definitely do is raise the draw bridge over the moat around the major social media players. You’re going to see less competition.

You said this: “People, and particularly advertisers, wanted a curated environment.”

If moderation choices are put in the hands of the user, then what you are describing is not a problem, as the user can have that.

Therefore, you saying that this choice exists, means that there isn’t a problem for anyone who chooses to not have the spam, and your original complaint is refuted.

Well then feel free to choose differently for yourself.

Your original statement was this: “People, and particularly advertisers, wanted a curated environment.”

You referencing what people “want” is directly refuted by the idea that they should be able to choose whatever their preferences are.

And your opinion on other people’s choices doesn’t really matter here.

I think maybe we’re talking past each other. What I’m saying what people “want” is a reflection of the overwhelming choices they make. They’re choosing the curated environments.

The “problem” that is being referenced is the curation. The claim is that the curation is a problem; my observation is that it is the solution all the parties involved seem to want, because they could, at any time, choose otherwise.

Ok, and if more power is given to the user and the user is additionally able to control their current curation, then that’s fine and you can continue to have your own curated environment, and other people will also have more or less control over their own curation.

Problem solved! You get to keep your curation, and other people can also change the curation on existing platforms for their own feeds.

> The claim is that the curation is a problem

Nope. Few people have a problem with other people having s choice of curation.

Instead the solution that people are advocating for is for more curating powers to be giving to individual users so that they can choose, on current platforms, how much is curated for themselves.

Easy solution.

Who says you need to procure a web hosting provider?

But yes, if you connect your computer up to other computers, the other computers may decide they don’t want any part of what you have to offer.

Without that, I wouldn’t want to be in the Internet. I don’t want to be forced to ingest bytes from anyone who would send them my way. That’s just not a good value proposition for me.

> That’s because most people do not have neither the time nor the will to learn and speak computer.

I’m sorry, but no. You can literally type in to a word processor or any number of other tools and select “save as web content”, and then use any number of products to take a web page and serve it up to the world wide web. It’s been that way for the better part of 25 years. No HTML or CSS knowledge needed. If you can’t handle that you can just record a video, save it to a file, and serve it up over a web server. Yes, you need to be able to use a computer to participate on the world wide web, but no more than you do to use social media.

Now, what you won’t get is a distribution platform that gets your content up in front of people who never asked for it. That is what social media provides. It lowers the effort for the people receiving the content, as in exactly the curation process that the judge was ruling about.

Most people these days don’t have a word processor or, indeed, “any number of other tools”. It’s all “in the cloud”, usually Google Docs or Office 365 Browser Edition(tm).

>select “save as web content”

Most people these days don’t (arguably never) understand files and folders.

>and then use any number of products to take a web page and serve it up to the world wide web.

Most people these days cannot be bothered. Especially when the counter proposal is “Make an X account, smash some keys, and press Submit to get internet points”.

>If you can’t handle that you can just record a video, save it to a file, and serve it up over a web server.

I’m going to stop you right here: You are vastly overestimating both the will and the computer-aptitude of most people. There is a reason Youtube and Twitch have killed off literally every other video sharing service; there is a reason smartphones killed off personal computers (desktops and to a lesser degree laptops).

Social media became the juggernaut it is today because businesses figured out how to capitalize on the latent demand for easy sharing of information: Literal One Click Solutions(tm) that anyone can understand.

>what you won’t get is a distribution platform that gets your content up in front of people who never asked for it.

The internet and more specifically search engines in general have always been that distribution platform. The only thing that changed in the last 30 years is how easy it is to get your stuff on that platform.

Read that again. 😉

> Most people these days don’t (arguably never) understand files and folders.

We can debate on the skills of “most people” back and forth, but I think it’s fair to say that “save as web content” is easier to figure out than figuring out how to navigate a social media site (and that doesn’t necessarily require files or folders). If that really is too hard for someone, there are products out there designed to make it even easier. Way back before social media took over, everyone and their dog managed to figure out how to put stuff on the web. People who couldn’t make it through high school were successfully producing web pages, blogs, podcasts, video content, you name it.

> I’m going to stop you right here: You are vastly overestimating both the will and the computer-aptitude of most people.

I disagree. I think they don’t have the will to do it, because they’d rather use social media. I do believe if they had the will to do it, they would. I agree there are some people who lack the computer-aptitude to get content on the web. Where I struggle is believing those same people manage to put content on social media… which I’ll point out is on the web.

> There is a reason Youtube and Twitch have killed off literally every other video sharing service

Yes, because video sharing at scale is fairly difficult and requires real skill. If you don’t have that skill, you’re going to have to pay someone to do it, or find someone who has their own agenda that makes them want to do it without charging you… like Youtube or Twitch.

On the other hand, putting a video up on the web that no one knows about, no one looks for, and no one consumes unless you personally convince them to do so is comparatively simple.

> there is a reason smartphones killed off personal computers (desktops and to a lesser degree laptops)

Yes, that reason is that smartphones were subsidies by carriers. 😉

But it’s good that you mentioned smartphones, because smart phones will let you send content to anyone in your contacts without you having anything that most would describe as “computer-aptitude”. No social media needed… and yet the prevailing preference is for people to go through a process of logging in, shaping content to suit the demands of social media services, attempting to tune the content to get “the algorithm” to show it to as many people as possible, and put their content there. That takes more will/aptitude/whatever, but they do it for the distribution/audience.

> Social media became the juggernaut it is today because businesses figured out how to capitalize on the latent demand for easy sharing of information: Literal One Click Solutions(tm) that anyone can understand.

I’d agree with you if you said “distribute” instead of “sharing”. It’s really hard to get millions of people to consume your content. That is, until social media came along and basically eliminated the cost of distribution. So any idiot can push their content out to millions and fill the world with whatever they want…. and now there’s a sense of entitlement about it, where if a platform doesn’t push that content on other people, at no cost to them, that they’re being censored.

Yup, that does really require social media.

> The internet and more specifically search engines in general have always been that distribution platform. The only thing that changed in the last 30 years is how easy it is to get your stuff on that platform.

No, the Internet & the web required you to go looking for the content you wanted. Search engines (at least at one time) were designed to accelerate that proces of find exactly the content you were looking for faster, and get you off their platform ASAP. Social media is kind of the opposite of search engines. They want you to stay on their platform; they want you to keep scrolling at whatever “engaging” content they can find, regardless of what you’re looking for; if you forget about whatever you were originally looking for, that’s a bonus. It’s that ability to have your content show up when no one is looking for it where social media provides an advantage over the web for content makers.

That’s how I read it, too. Section 230 doesn’t say you can’t get in trouble for failure to moderate, it says that you can’t get in trouble for moderating one thing but not something else (in other words, the government can’t say, “if you moderated this, you could have moderated that”). They seem to be going back on that now.

Real freedom from censorship – you cannot be held liable for content you hosted – has never been tried. The US government got away with a lot of COVID-era soft censorship by just strong-arming social media sites into suppressing content because there were no first-amendment style protections against that sort of soft censorship. I’d love to see that, but there’s no reason to think that our government is going in that direction.

Media, generally, social or otherwise, is not unbiased. All media has bias. The human act of editing, selecting stories, framing those stories, authoring or retelling them… it’s all biased.

I wish we would stop seeking unbiased media as some sort of ideal, and instead seek open biases — tell me enough about yourself and where your biases lie, so I can make informed decisions.

This reasoning is not far off from the court’s thinking: editing is speech. A for you page is edited, and is TikTok’s own speech.

That said, I do agree with your meta point. Social media (hn not excluded) is a generally unpleasant place to be.

> There is no way to run a targeted ad social media company with 40% margins if you have to make sure children aren’t harmed by your product.

Wouldn’t that put the responsibility back on the parents?

The state told you XYZ was bad for your kids and it’s illegal for them to use, but then you bypassed that restriction and put the sugar back into their hands with an access-blocker-blocker..

Random wondering

What are the legal ramifications for the many thousands of similar operators which are much closer in feel to a message board than to Facebook or Twitter? Does a server run by Republicans have to accept Communist Party USA members and their posts? Does a vegan instance have to allow beef farmers? A PlayStation fan server host pro-PC content?

But I doubt this gets held on appeal. Given how fickle this Supreme Court is they’ll probably overrule themselves to fit their agenda since they don’t seem to think precedent is worth a damn.

No more moderation? This seems bad.

No more recommendation/personalization? This could go either way, I’m also willing to see where this one goes.

No more public comment sections? Arstechnica claimed back in the day when section 230 was under fire last time that this would be the result if it was ever taken away. This seems bad.

I’m not sure what will happen, I see 2 possible outcomes that are bad and one that is maybe good. At first glance this seems like bad odds.

Actually there’s a fourth possibility, and that’s holding Google responsible for whatever links they find for you. This is the nuclear option. If this happens, the internet will have to shut all of its American offices to get around this law.

The underlying hosted service is nearly completely unmoderated and unpersonalised. It’s just streams of bits and data routing. You can scan for/limit the propagation of CSAM or DMCA content to some degree as an infrastructure provider but that’s really about it and even then you can only really do so to fairly limited degrees and that doesn’t stop other providers (or self hosted participants) from propagating that anyways.

Then you provide custom feed algorithms, labelling services, moderation services, etc on top of that but none of them change or control the underlying data streams. They just annotate on top or provide options to the client.

Then the user’s client is the one that directly consumes all these different services on top of the base service to produce the end result.

It’s a true, unbiased section 230 compatible protocol (under even the strictest interpretation) that the user then can optionally combine with any number of secondary services and addons that they use to craft their personalised social media experience.

There’s an enormous difference in the debate between what should be prohibited and what should be prohibited for children.

In the newspaper case, you write your post, send it to the newspaper, and some editor at the newspaper decides whether or not to publish it.

In Social Media, the same thing happens, but it’s just super fast and algorithmic: You write your post, send it to the Social Media site (or forum), an algorithm (or moderator) at the Social Media site decides whether or not to publish it.

I feel like it’s reasonable to interpret this kind of editorial selection as “promotion” and “recommendation” of that comment, particularly if the social media company’s algorithm deliberately places that content into someone’s feed.

I think if social media companies relayed communication between it’s users with no moderation at all, then they should be entitled to carrier protections.

As soon as they start making any moderation decisions, they are implicitly endorsing all other content, and should therefore be held responsible for it.

There are two things social media can do. Firstly, they should accurately identify its users before allowing them to post, so they can counter sue that person if post harms them, and secondly, they can moderate every post.

Everybody says this will kill social media as we know it, but I say the world will be a better place as a result.

“The speech is either wholly your speech or wholly someone else’s. You can’t have it both ways.”

Either they get to act as a common carrier (telephone companies are not liable for what you say on a phone call because it is wholly your own speech and they are merely carrying it) or they act as a publisher (liable for everything said on their platforms because they are exercising editorial control via algorithm). If this ruling is upheld by the Supreme Court, then they will have to choose:

* Either claim the safe harbour protections afforded to common carriers and lose the ability to curate algorithmically

or

* Claim the free speech protections of the First Amendment but be liable for all content as it is their own speech.

If this goes through I don’t think it will be such a big boost for Google search as you suggest. For one thing, it has no effect on OpenAI and other LLM providers. That’s a real problem for Google, as I see a long term trend away from traditional search and towards LLMs for getting questions answered, especially among young people. Also note that YouTube is social media and features a curation algorithm to deliver personalized content feeds.

As for social media, I think we’re better off without it! There’s countless stories in the news about all the damage it’s causing to society. I don’t think we’ll be able to roll all that back but I hope we’ll be able to make things better.

This ruling is not a ban on algorithms, it’s a ban on the vertical integration between search or recommendation and hosting that today makes it possible for search engines other than Google to see traffic.

This whole case comes down to having your cake and eating it too. Newspapers don’t have that. They have free speech protections but they aren’t absolved of liability for what they publish. They aren’t protected under section 230.

If the ruling is upheld by SCOTUS, Google will have to choose: section 230 (and no editorial control) or first amendment plus liability for everything they publish on SERPs.

Yes, it would be great if parents would, universally, parent better, but getting all of them (or a large enough portion of them for it to make a difference) to do so is essentially impossible.

I think we’ve reached the point now that there is more speech than any person can consume by a factor of a million. It now comes to down to picking what speech you want to hear. This is exactly what content algorithms are doing -> out of the millions of hours of speech produced in a day, it’s giving you your 24 hours of it.

Saying “teach your kids critical thinking” is a solution but it’s not the solution. At some point, you have to discover content out of those millions or hours a day. It’s impossible to do yourself — it’s always going to be curated.

EDIT: To whomever downvoted this comment, you made my point. You should have replied instead.

I remember my mom being so mad about the curriculum in general that she ran for the school board and won. (I believe it was more of a math and science type thing. She was upset with how many coloring assignments I had. Frankly, I completely agreed with her then and I do now.)

Sorry. That’s simply disingenuous.

Yes, children and especially teenagers do lots of things even though their parents try to prevent them from doing so. Even if children and teenagers still get them, we don’t throw up our hands and sell them tobacco and alcohol anyway.

It is pretty clear that china already forces a very different tiktok ranking algo for kids within the country vs outside the country. Forcing a single algo is pretty unamerican though and can easily be abused, let’s instead open it up.

Even if they may have different skews on some issues, under a system where all such entities are operated entirely for-profit, they will tend to converge on other issues, largely related to maintaining the rights of capital over labor and over government.

I’ll have to read the third circuit’s ruling in detail to figure out whether they are trying to draw a line in the Sand on whether an algorithm satisfies the requirements for section 230 protection or falls outside of it. If that’s what they’re doing, I wouldn’t assume a priori that a site like Hacker News won’t also fall afoul of the law.

It is not only biased but also biased for maximum engagement.

People come to these services for various reasons but then have this specifically biased stuff jammed down their throats in a way to induce specific behavior.

I personally don’t understand why we don’t hammer these social media sites for conducting psychological experiments without consent.

By asking.

The government asking you to do something is like a dangerous schoolyard bully asking for your lunch money. Except the gov has the ability to kill, imprison, and destroy. Doesn’t matter if you’re an average Joe or a Zuckerberg.

I don’t think that’s settled law.

For example, suppose the US Postal Service opens a new location, and Google Maps has the pushpin on the wrong place or the hours are incorrect. A USPS employee submits a report/correction through normal channels. How is that trampling on Google’s first-amendment rights?

All large sites have terms of service. If you violate them, you might be removed, even if you’re “the dominant electoral candidate”. Remember, no one is above the law, or in this case, the rules that a site wishes to enforce.

I’m not a fan of political censorship (unless that means enforcing the same ToS that everyone else is held to, in which case, go for it). Neither am I for the radical notion of legislation telling a private organization that they must host content that they don’t wish to.

This has zero to do with net neutrality. Nothing. Nada.

Is there evidence that the government leaned on a private company instead of meeting with them and asking them to do a thing? Did Facebook feel coerced into taking actions they wouldn’t have willingly done otherwise?

“But by the time Nylah viewed these
videos, TikTok knew that: 1) “the deadly Blackout Challenge
was spreading through its app,” 2) “its algorithm was
specifically feeding the Blackout Challenge to children,” and
3) several children had died while attempting the Blackout
Challenge after viewing videos of the Challenge on their For
You Pages. App. 31–32. Yet TikTok “took no and/or
completely inadequate action to extinguish and prevent the
spread of the Blackout Challenge and specifically to prevent
the Blackout Challenge from being shown to children on their
(For You Pages).” App. 32–33. Instead, TikTok continued to
recommend these videos to children like Nylah.“

We need to see another document, “App 31-32”, to see what TikTok “knew”. Could someone find that, please? A Pacer account may be required. Did they ignore an abuse report?

See also Gonzales vs. Google (2023), where a similar issue reached the U.S. Supreme Court.(1) That was
about whether recommending videos which encouraged the viewer to support the Islamic State’s jihad led someone to go fight in it, where they were killed. The Court rejected the terrorism claim and declined to address the Section 230 claim.

(1) https://en.wikipedia.org/wiki/Gonzalez_v._Google_LLC

Their review process was developed to hit the much more stringent speech standards of the Chinese market, but it opens them up to even more liability here.

I unfortunately can’t find the source articles for this any more, they’re buried under “how to make your video go viral” flowcharts that elide the “when things get banned” decisions.

TikTok isn’t available in China. They have a separate app called Douyin.

  TikTok, Inc., via its algorithm, recommended and promoted videos posted by third parties to ten-year-old Nylah Anderson on her uniquely curated “For You Page.” One video depicted the “Blackout Challenge,” which encourages viewers to record themselves engaging in acts of self-asphyxiation. After watching the video, Nylah attempted the conduct depicted in the challenge and unintentionally hanged herself. -- https://cases.justia.com/federal/appellate-courts/ca3/22-3061/22-3061-2024-08-27.pdf?ts=1724792413

An algorithm accidentally enticed a child to hang herself. I’ve got code running on dozens of websites that recommends articles to read based on user demographics. There’s nothing in that code that would or could prevent an article about self-asphyxiation being recommended to a child. It just depends on the clients that use the software not posting that kind of content, people with similar demographics to the child not reading it, and a child who gets the recommendation not reading it and acting it out. If those assumptions fail should I or my employer be liable?

Or you do things that gives you rewards – and do not care what it will result otherwise – but you want to be saved from any responsibility (automatically!) for what it causes just because it is an algorithm?

The enjoying the benefits but running away from responsibility is a cowardly and childish act. Childish acts need supervision from adults.

Impossible goals are an asinine standard and “responsibility” and “accountability” are the favorite weasel words of those who want absolute discretion to abuse power.

Since consumable alcohol has other legitimate uses besides getting a buzz on, I don’t think this point stands. For example, it’s used quite often in cooking and (most of the time?) no intoxicating effects remain in the final product.

Except right now youtube have a self advertisement in the middle of the page warning people not to trust the content on youtube. A company warning people not to trust the product they built and the videos they choose to show you… we need to rethink 230. We’ve gone seriously awry.

I know youtube is different in important ways than the post, but it’s also different in important ways from e.g. somebody who builds a building that falls down.

YouTube, TikTok, etc. differ by applying an algorithm to “decide” what to show you. Those algorithms have all sorts of weights and measures, but they’re ultimately personalized to you. And if they’re making personalized recommendations that include “how to kill yourself”… I think we have a problem?

It’s simply not just a FIFO of content in content out, and in many cases (Facebook & Instagram especially) the user barely gets to a choice in what is shown in the feed…

Contrast with e.g. Mastodon where there is no algorithm and it only shows you what you explicitly followed, and in the exact linear order it was posted.

(Which is actually how Facebook used to be)

Then when you accidentally hit your hand with the hammer, you actually stabbed yourself. And that’s when you realized your hammer is now a screwdriver.

It’s like trying to draw tiger but you’ve never seen an animal. We only have the faintest clue what social media is right now. It will change in the next 25+ years as well.

Sure we know some dangers but… I think we need more time to know them all.

If a child searches Google for “boobs”, it’s not fair to accuse Google of showing naked women to children, and definitely not fair to even say Google was targeting children.

> But by the time Nylah viewed these videos, TikTok knew that: 1) “the deadly Blackout Challenge was spreading through its app,” 2) “its algorithm was specifically feeding the Blackout Challenge to children,” and
3) several children had died while attempting the Blackout Challenge after viewing videos of the Challenge on their For You Pages. App. 31-32. Yet TikTok “took no and/or completely inadequate action to extinguish and prevent the spread of the Blackout Challenge and specifically to prevent the Blackout Challenge from being shown to children on their (For You Pages).” App. 32-33. Instead, TikTok continued to recommend these videos to children like Nylah.

Do you think this should be legal? Would you do nothing if you knew children were dying directly because of the content you were feeding them?

Then again, I guess your platform is about article recommendation and not about recording yourself doing popular trends. And perhaps children are not your target audience, or an audience at all. In many ways the situation was different for TikTok.

If your algorithm decides that things in the 90th percentile of shock value will boost engagement to a user profile that can also include users who are ten years old then you maybe have built a negligent algorithm. Maybe that’s not the case in this particular instance but it could be possible.

If you were indeed monitoring the footpath for milk crate signs and moving them, yes you may be liable for showing or not removing one to someone it wouldn’t be appropriate for.

In my analogy the stable sidewalk that can hold the milk crate is both the platform and the optimization algorithm. But to your point there’s actually a lot more going on with the optimization than just building a place where any rando can market self-asphyxiation. It’s about how they willfully targeted people with that content.

> “Section 230 protects targeted recommendations to the same extent that it protects other forms of content presentation,” the members wrote. “That interpretation enables Section 230 to fulfill Congress’s purpose of encouraging innovation in content presentation and moderation. The real-time transmission of user-generated content that Section 230 fosters has become a backbone of online activity, relied upon by innumerable Internet users and platforms alike. Section 230’s protection remains as essential today as it was when the provision was enacted.”

(1)(PDF) https://www.wyden.senate.gov/download/wyden-cox-amicus-brief…

(2) https://www.wyden.senate.gov/news/press-releases/sen-wyden-a…

  It is now firmly established in the case law that Section 230 cannot act as a shield whenever a website is in any way complicit in the creation or development of illegal content.

  ...

  In FTC v. Accusearch,(69) the Tenth Circuit Court of Appeals held that a website’s mere posting of content that it had no role whatsoever in creating — telephone records of private individuals — constituted “development” of that information, and so deprived it of Section 230 immunity. Even though the content was wholly created by others, the website knowingly transformed what had previously been private information into a publicly available commodity. Such complicity in illegality is what defines “development” of content, as distinguished from its creation.

He goes on to list multiple similar cases and how they fit the original intent of the law. Then further clarifies that it’s not just about illegal content, but all legal obligations:

  In writing Section 230, Rep. Wyden and I, and ultimately the entire Congress, decided that these legal rules should continue to apply on the internet just as in the offline world. Every business, whether operating through its online facility or through a brick-and-mortar facility, would continue to be responsible for all of its own legal obligations.

Though, ultimately the original reasoning matters little in this case, as the courts are the ones to interpret the law. In fact Section 230 is one part of the larger Communications Decency Act that was mostly struck down by the Supreme Court.

EDIT: Added quote about additional legal obligations.

(1): https://jolt.richmond.edu/2020/08/27/the-origins-and-origina…

Whether an intermediary has knowledge of specific content that is illegal to redistribute is very different from whether the intermediary has “knowledge” that the algorithm it designed to rank legally distributable content can “sometimes” produce a high ranking to “some” content that’s illegal to distribute. The latter case can be split further into specific illegal content that the intermediary has knowledge of and illegal content that the intermediary lacks knowledge of. Unless a law such as KOSA passes (which it shouldn’t (1)), the intermediary has no legal obligation to search for the illegal content that it isn’t yet aware of. The intermediary need only respond to reports, and depending on the volume of reports the intermediary isn’t obligated to respond within a “short” time period (except in “intellectual property cases”, which are explicitly exempt from Section 230). “TikTok knows that TikTok has blackout challenge posts” is not knowledge of post PQR. “TikTok knows that post PQR on TikTok is a blackout challenge post” is knowledge of post PQR.

Was TikTok aware that specific users were being recommended specific “blackout challenge” posts? If so, then TikTok should’ve deleted those posts. Afterward, TikTok employees should’ve known that its algorithm was recommending some blackout challenge posts to some users. Suppose that TikTok employees are already aware of post PQR. Then TikTok has an obligation to delete PQR. If in a week blackout challenge post HIJ shows up in the recommendations for user @abc and @xyz, then TikTok shouldn’t be liable for recommendations of HIJ until TikTok employees read a report about it and then confirm that HIJ is a blackout challenge post. Outwardly, @abc and @xyz will think that TikTok has done nothing or “not enough” even though TikTok removed PQR and isn’t yet aware of HIJ until a second week passes. The algorithm doesn’t create knowledge of HIJ no matter how high the algorithm ranks HIJ for user @abc. The algorithm may be TikTok’s first-party speech, but the content that is being recommended is still third-party speech. Suppose that @abc sues TikTok for failing to prevent HIJ from being recommended to @abc during the first elapsed week. The First Amendment would prevent TikTok from being held liable for HIJ (third party speech that TikTok lacked knowledge of during the first week). As a statute that provides an immunity (as opposed to a defense) in situations involving redistribution of third-party speech, Section 230 would allow TikTok to dismiss the case early; early dismissals save time and court fees. Does the featured ruling by the Third Circuit mean that Section 230 wouldn’t apply to TikTok’s recommendation of HIJ to @abc in the first elapsed week? Because if so, then I really don’t think that the Third Circuit is reading Section 230 correctly. At the very least, the Third Circuit’s ruling will create a chilling effect on complex algorithms in violation of social media websites’ First Amendment freedom of expression. And I don’t believe that Ron Wyden and Chris Cox intended for websites to only sort user posts by chronological order (like multiple commenters on this post are hoping will happen as a result of the ruling) when they wrote Section 230.

(1) https://reason.com/2024/08/20/censoring-the-internet-wont-pr…