Republicans: stop begging the government to protect you from internet censorship

Lately there has been a veritable litany of stupidity emanating from Republicans and “conservatives” of all stripes who claim they are being censored by mainstream “big tech” companies like Twitter and Facebook.

Global social media companies face an almost impossible task with their moderation practices. In most cases, these companies have global operations. As a consequence, the companies tend to adhere to global standards.

Speaking as one admitted to practice law in the U.S. and in Europe, the United States has the most expansive speech laws in the entire world. Speech which is protected in the United States is, very often, illegal overseas. As a consequence, tech companies have had to adapt to overseas legal norms. In terms of crafting a company-wide policy which can be uniformly applied across its business, this usually means that they adhere to the lowest common denominator.

Facebook, e.g., has had to cave to requests to censor seditious libel from Pakistan. See e.g.

Upon a routine review of our actions, we determined that we restricted access to 17 items in error during this period, including 11 items that should have been deleted for violating the Community Standards and six items on which we should have taken no action. We have corrected these mistakes.

Twitter, for its part, has banned “offensive” accounts in Germany and the UK, and deleted Tweets at the behest of the French government:

Meanwhile, NPR’s Eleanor Beardsley reports from Paris that Twitter “has agreed to remove French-language anti-Semitic tweets that have flooded the micro-blogging site in recent days. The union of French Jewish students had said it would seek an injunction against Twitter if it did not remove offensive, anti-Jewish messages and photos that have proliferated since October 10.”

Apple, similarly, has restricted access to apps that are used by pro-democracy protestors in Hong Kong, including that of online news company Quartz:

News organization Quartz tells The Verge that Apple has removed its mobile app from the Chinese version of its App Store after complaints from the Chinese government. According to Quartz, this is due to the publication’s ongoing coverage of the Hong Kong protests, and the company says its entire website has also been blocked from being accessed in mainland China.

All of this speech – no matter how distasteful or offensive – is legal in the United States. So, Republicans, take note – this is not (necessarily) about you. Facebook and Twitter take sides all over the world. These companies censor anyone, anywhere. They have to do this by virtue of the fact that they have global operations and local staff.

Back at home, there is another dimension that these companies must consider: although the American government is legally barred from interfering with speech, and American litigants are precluded from suing companies for the speech expressed by their users, American activist groups which have significant influence in Silicon Valley, which shall remain nameless for the purposes of this exercise but which, suffice it to say, have been very successful in ensuring that individuals and companies on the right are denied access to mainstream technology platforms, exert considerable pressure on these companies in furtherance of their agendas. And companies respond. By way of example, the group Sleeping Giants successfully mounted an ad boycott campaign against Breitbart News; companies like Check My Ads offer services to companies who don’t want ad budgets being funnelled to groups and organizations they do not support.

When Twitter or Facebook bans a user or adopts a content policy as a result of public criticism – for example, Facebook’s platformwide ban on content pertaining to a particularly popular “conspiracy theory” which will also go nameless in this post – they are responding to public pressure, and revenue pressure, much in the same way that any other company would.

Wargaming the commercial response to a legislative amendment of Section 230

In the time it takes to repeal Section 230 or win an antitrust suit the GOP could lose three Presidential elections. If the President and everyone else opened accounts on newer technology platforms that expressly place free speech front and center in their moderation policies tomorrow, he would kneecap Twitter and Facebook forever.

There are three potential pathways for the future of this statute.

The first, most often tweeted by the President of the United States, is the repeal of Section 230.

This is, in my view, the least realistic and would likely result in the end of social media as a business. This is not an exaggeration; if platforms became liable for the speech of their speakers (as platforms are publishers in the plain and ordinary meaning of the word) any tortious speech by any person would expose the platform to liability as a principal. This is currently the situation in the UK which, I note, has a notice-and-takedown procedure similar to the U.S.’ DMCA notice-and-takedown procedure in Section 5 of that country’s Defamation Act 2013. The provision reads:

It is a defence for the operator to show that it was not the operator who posted the statement on the website.

(3)The defence is defeated if the claimant shows that—

(a)it was not possible for the claimant to identify the person who posted the statement,

(b)the claimant gave the operator a notice of complaint in relation to the statement, and

(c)the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.

Failure to respond to a notice of complaint in one of the prescribed methods results in the website operator becoming liable for defamation under UK law. I note the UK is not the home of any large social media companies and suggest for the purposes of this discussion that the absence of a Section 230-style safe harbor may be part of the reason.

A second pathway involves some kind of statutory reform. There are various proposals. Let’s just play it out to see what hurdles those proposals have to overcome in order to achieve the result that the whiny Republicans want.

Current situation is as follows: Twitter censors Alice. Alice sues Twitter. Twitter moves to dismiss on Section 230(c)(2). Case ends.

Now let’s say Section 230 is repealed: Twitter updates terms and conditions. Alice grants Twitter right to censor her. Twitter censors Alice. Alice sues Twitter. Twitter files motion to dismiss. Alice loses. Case ends.

Now let’s say Section 230 is reformed: Senator Josh Hawley passes reform bill that says Twitter must be “neutral,” whatever that means. Twitter updates terms stating that users consent to its non-neutrality. Twitter censors Alice. Alice sues Twitter.

Twitter moves to dismiss on the basis that “Hawley’s Law” is an unconstitutional prior restraint, a content based restriction on speech that is subject to strict scrutiny (default result: government loses) because it prevents Twitter from publishing what it chooses to publish on its publishing platform.

Yes, Twitter is a publisher. No, it doesn’t matter one whit for the purposes of Section 230.

In the alternative Twitter points to the updated contract.

Twitter might win on the constitutional claim. In terms of the breach of contract claim, no proposals for Section 230 that I have seen prevent the parties from contracting out or (in the alternative) indemnifying the website for liability arising from user speech (so e.g. if Joe Bloggs tweets a defamatory statement, and Twitter is sued, Twitter would then be able to recover its costs in defending the action from Joe Bloggs).

Under this scenario, where there were any possibility of Twitter becoming liable for user speech, Twitter would be very unlikely to permit users to create anonymous accounts, because it would want users to know (a) that it knows who they are and (b) that it knows where to find them in the event that Twitter finds itself on the receiving end of a defamation claim arising from that user’s speech.

Anonymity, lest we forget, is among the core rights protected by the First Amendment – see the EFF’s victory In Re: DMCA Complaint to Reddit.

This is the point where legally savvy Internet commenters are keen to remind us the First Amendment doesn’t bind Twitter. It binds the state. In my view it likely binds the American state in such a manner as to prohibit the American state’s interference with Twitter’s moderation rules, although if Section 230 “reform” proposals eventually led to that it would be an issue of first impression for the courts. But in terms of the extent to which web services’ moderation policies are coextensive with the First Amendment right, 230 reform – making platforms liable for speech – creates commercial and legal pressures on companies like Twitter which incentivize them to restrain the scope of permitted expression on their platforms, instead of expanding it.

The third pathway is to leave Section 230 alone.

Before proceeding with a reform proposal, the key question for anyone who would pass a law and believes in free speech should be this:

Does the proposal expand the scope of free expression on the Internet, or does it restrict it?

On balance, 230 reform that withdraws protections for technology companies probably winds up restricting free expression more than it expands it, because it will create commercial pressures to eliminate anonymous speech and expand the scope of moderation to remove more speech, speech which is less objectionable than that which is currently removed.

It also will act to increase compliance burdens, much as the European Union’s passage of the GDPR did, which will have the effect of “pulling up the ladder” behind existing Web behemoths to the detriment of smaller, newer competitors with moderation and content display policies more in line with the First and Fourth Amendment’s intentions (companies like Bitchute, LBRY, Minds, Gab, Parler, DuckDuckGo and Protonmail immediately come to mind as the credible challengers to the existing social, search and e-mail stacks).

“Section 230 reform” – government intervention – will be stymied by contract and First Amendment lawsuits. It will not make the Internet safer. It will not promote competition. It will not make the Internet freer. Reform proposals that fail to understand the commercial and foreign legal pressures that have led these companies to adopt the policies that they have are doomed to failure.

What is not doomed to failure – the one thing which has always worked when there is market demand for a service – is competition and innovation. That’s how we do things in America.

Facebook felled MySpace. One day, sooner or later, another company will take down Facebook. The best thing you can all do if you want to promote Internet freedom is to stop using Big Tech’s services and to use the services of American companies whose values align with your own.

Image licensed under the Pixabay License. Free for commercial use, no attribution required.

Summon the Libertarians!

In the wake of the Portland rioting and subsequent deployment of federal law enforcement officers in that city to protect federal property and enforce federal law, there has been something of a trend on that dystopian hellscape of a microblogging site – Twitter – where the sort of people who normally oppose libertarianism and/or don’t understand it suddenly had the nerve to criticize libertarians’ bona fides and ask for our help.

Such as this senator from Hawaii:

To which I retorted (in the only acceptable form of retort, a quote-tweet):

This verified reply guy added:

Or see, for example, this “gun violence” activist, who seems to be… calling for gun violence? Very strange.

This response from Rep. Thomas Massie more or less sums up why most libertarians look at something like the situation in Portland and shrug:

Libertarian “ideology”

Libertarian ideology is much-misunderstood by its detractors and, often enough, also misunderstood by those who claim to be its adherents. Unlike, say, Marxism or Critical Theory, libertarian doctrine is not complex; though there are analytical frameworks, there are no overly formal dialectics or theories, there are few leaders, there is no scripture.

There is little officialdom. Which perhaps is to be expected given that libertarianism is a belief system that focuses on individual liberty above all else. It should be accessible to anyone, not just navel-gazing philosophy graduate students. The truth of the theory is not taught, but experienced: each libertarian knows that the improvement of his or her lot is determined not by a faraway ruler or an abstract political party but by concrete actions he or she deliberately takes in their everyday life.

“I am the master of my fate, I am the captain of my soul.” The ideology seeks to maximize individual freedom to allow us the greatest amount of latitude to pursue our individual ends in the limited time we have on Earth.

The closest thing to an agreed upon maxim for modern American libertarianism – the idea I find is most widely held – is something known as the “non-aggression principle” or NAP. Put simply, the NAP states that “initiating aggression is wrong,” or more simply, “aggression is wrong.”

It seeks to understand the world in bilateral terms (Alice and Bob are the only people in existence; Alice points a gun to Bob’s head and orders him to do something in circumstances where Bob has done nothing wrong to Alice – indeed he has no relationship to Alice prior to this moment. Is Alice in the right to do this, if she feels her cause is sufficiently meritorious?) and then scales those analogies up to society at large.

At what point does a coercive action which would be reprehensible and criminal if done by one person to another person become acceptable if it is done by many people to one person? Two to one? Three to one? Fifty to one? A million to one? There is, of course, no answer to this question; libertarians say that this is because the use of coercive force is wrong no matter how many people require its use against how few.

Of course, we have to live in a society and the hypothetical Hobbesian war of all against all is not a reality on the ground (except perhaps in places like the Seattle CHAZ), so the essential task of those of us who call ourselves libertarians is on how to devise a system that maximizes freedom – of speech, to keep and bear arms, from invasion of privacy, etc. – and opportunity while providing the necessary coercive levers, but no more than that, to ensure that personal and property crime do not go unpunished and individuals are free to choose the courses of their own lives.

The “ideal” situation here, too, is unknown; different libertarians will have different opinions about what rules are needed to bring this freedom-maximizing, coercion-minimizing state about. For my part, I generally think that the English common law circa 1777 (the last year before the imposition of the first income tax in the English-speaking world) is a good guidepost, with consequential updates to account for financial regulation and the like; many of my friends give me a hard time for this, arguing that finance should be totally deregulated and remedies for e.g. sketchy initial coin offerings should be private rather than at the direction of enforcement agencies of the state. Antitrust law and enforcement is another common point of contention.

Traditionally libertarian policy positions

With this as our background, we arrive at the current discussion, of camouflaged, militarized federal police conducting arrests for violations of federal law on the streets of Portland.

By @owenbroadcast

Libertarians have been complaining about all of this for years. Libertarians complained when, after 9/11, strip searches were introduced in airports and warrantless wiretaps were conducted on American citizens. Libertarians complained about going to war in Iraq and Afghanistan. Libertarians continue to complain about the militarization of our police. Libertarians complained when the military started bringing home military hardware like MRAPs and Humvees and sold them to our police. Libertarians complained when gun control laws were passed that meant that police could possess M4s and AR-15s and citizens could not. Libertarians complained about drug legalization and mass incarceration. And so on.

And now, to quote a famous internet meme, that the world is on fire and the barbarians are at the gate you have the audacity to come to the libertarians for help?

Libertarians want to be left alone. Trying to draft libertarians into a cause misunderstands the sort of people libertarians are, particularly when the cause in question is on behalf of not peaceful protestors, but rather people who are willing to set federal buildings on fire and assault federal agents when they don’t get their way in federal politics. Libertarians realize that these are the sort of people that the Constitution was designed to contain.

When this weird historical moment passes and sanity is restored, I’m sure many libertarians would be happy to explain to you – those who now seek our input on your pet cause – of the ideology’s extreme discomfort with the fact that the government accounts for greater than 50% of GDP and its views on the imperfect implementation of the First, Second, Fourth, Fifth, Sixth, and Tenth Amendments, among other things. Libertarians will also be happy to explain how they think long term structural change in the United States that will benefit all can come about by leaving Americans alone to make individual choices.

But you weren’t listening to the libertarians before. The libertarians likely suspect you won’t be listening to them later if your “side” wins on November 3rd.

What of the protests, then?

What the “liberty” position on violent riots (where both peaceful protestors and the use of excessive force by police may also each be present) should be

Rioting is bad (and illegal). The use of excessive force or carrying out an unlawful arrest is also bad (and illegal). Peaceful protest is good (and legal). Legitimate use of police power to protect public property from destruction – property belonging to the judiciary, no less – is also good (and legal). Peaceful protestors may have violent elements hidden within their ranks. A line of good cops may have a few who step over the line. Portland is a bad, high tension situation where good people might accidentally or intentionally do bad things and bad people might accidentally or intentionally do bad things, with or without the approval – express or tacit – of other people on their “side.” All of this is capable of being true at the same time.

“If you’re not on the side of the protestors, you adopt the actions of every policeman whether justified or not” is a binary argument – and a false choice – being rolled out with increasing frequency in an election year by people who should know better, such as WaPo journalist and militarized policing writer Radley Balko:

Attorney Hutz to the rescue

The Non-Aggression Principle means you don’t start fights. It also means that you don’t take the same side as people who start fights. If two groups are engaged in a cycle of escalating violence the NAP says it’s OK – even moral – to not get involved.

I think if you ask your “average” libertarian what they think, they’d say that they support free speech, but that “setting buildings on fire and throwing things at people who aren’t throwing things at you is wrong” is something most of us learned when we were four years old. No volume of class-based revolutionary theory changes the analysis. Accordingly, the “average” libertarian is likely to think setting federal courthouses on fire or throwing projectiles at federal workers is also wrong and, quite apart from that, an incredibly stupid thing to do. In any event, the rioters’ conduct is way over the line for constitutionally-protected advocacy of violence set down by Brandenburg v. Ohio, and is indeed so far over that line that anyone engaged in that activity, regardless of motivations, should expect to meet the full force of the law.

As to how those consequences are handed down, the “average” libertarian might say something along the lines of “we hope and expect that due process will be afforded to anyone accused of a crime, that anyone accused will be presumed innocent until proven guilty, and that the U.S. Attorney will conduct its investigation into federal law enforcement activity impartially.”

Beyond that, whilst libertarian pamphlets generally read more like Andy Griffith than Jacques Derrida, and we may be plain-speaking, we aren’t stupid. I suspect that many of the officials and think-tankers presently complaining about the administrative state’s boots-on-the-ground in Portland should be all-too-happy to wield it as political appointees if the Blue Tribe wins the election on November 3rd, much as the Red Tribe wields it now. Indeed, the administrative state about which they presently complain was created on their watch.

All of which is to say, peaceful protest is great, lawbreaking yahoos should be prosecuted, the police should not be militarized, excessive force should not be used, and libertarians who don’t live in Portland – and, indeed, even those who do – didn’t start this fight, don’t have a dog in it, and are 100% justified in sitting this one out.

The best time to discuss police militarization was years ago. The next best time is after the election when libertarian positions won’t be co-opted to support illiberal agendas. Anyone trying to draft the libertarians into taking a partisan position with regard to the Portland protests/riots/whatever isn’t on the libertarians’ side. And the libertarians know it.

You really shouldn’t record Clubhouse calls

Somewhat distressingly, this is the second blog post I’ve written on a legal topic following a call for same from the inimitable Balaji Srinivasan.

It’s not legal advice. See disclaimer.

My last post was on the topic of how to introduce anti-cancellation language into an employment agreement. This blog post will be on the subject of privacy, prompted by this tweet from Balaji:

“The Lives of Others” is a film about an agent of the East German secret police, the Ministerium für Staatsicherheit or the Stasi, which employed hundreds of thousands of East German citizens to spy on their fellow-citizens. As a result, one could never be sure whether one was speaking privately or not.

If you can’t speak privately, you can’t share thoughts.

If you can’t think, you can’t organize.

If you can’t organize, you can’t resist.

If you can’t resist, you’ll remain oppressed.

Per Wikipedia, an unreliable but nonetheless convenient source,

The Stasi had 90,000 full-time employees who were assisted by 170,000 full-time unofficial collaborators (Inoffizielle Mitarbeiter); together these made up 1 in 63 (nearly 2%) of the entire East German population. Together with these, a much larger number of occasional informers brought up the total to 1 per 6.5 persons.

For context, the U.S. FBI – a vast and powerful law enforcement agency with a far larger country, and indeed world, to patrol – has a mere 35,000 employees. That should give you some idea of how insidious and pervasive the East German apparatus was.

In the United States, things are different. Companies like Clubhouse or Facebook not only do not act as data firehoses for the government, they are legally prohibited from doing so.

To understand why nobody should ever record Clubhouse calls, and to contextualize it among a wider internet privacy picture, we first need an electronic privacy crash course.

Our story begins in 1791.

The Constitution: your rights vs the government

The U.S. has among some of the strongest procedural protections for criminal defendants in the entire world. These protections start with the Fourth Amendment to the U.S. Constitution, ratified shortly after the Constitution itself, which guarantees something like a right to privacy. It reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

There’s a lot going on here, so let’s break it down.

“The right of the people” is an individual right rather than a collective one.

“…to be secure in their persons, houses, papers and effects” is also specific. The threshold of the home, in particular, is where the Fourth Amendment’s power is at its apex; see e.g. Payton v. New York, 445 U.S. 573 (1980).

Few people know that you don’t actually have a Fourth Amendment right to prevent a police officer from searching the field outside of your house. Nor does the right prevent a search of your boat by the Coast Guard exercising “plenary authority… to stop and board vessels” (although ideally the Coast Guard is expected to show up to save you from the proverbial boating accident, not to search your vessel before you have it). Nor do you have many rights when crossing the border per the border search exception.

“…against unreasonable searches and seizures, shall not be violated” is also interesting language. The fact is that not all searches are unreasonable. The Fourth Amendment’s perimeter extends around anywhere that a “reasonable expectation of privacy” exists, and no further. Katz et seq. This means that while one may have a reasonable expectation of privacy on, say, a phone call in a two-party consent state, or in one’s own home, one does not have a reasonable expectation of privacy in, say, third party records held by your ISP, or in an open channel on a service like Clubhouse (with a notable exception of cell phone location records ever since Carpenter v. United States was decided in 2018).

You also don’t have a reasonable expectation of privacy on the blockchain. As I told Decrypt this morning, you have as reasonable an expectation of privacy regarding information you put on the Bitcoin blockchain as you would with information you spray paint on a wall of a downtown building,

“…and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized” is what we lawyers know as the warrant requirement. This was created as a response to the (English colonial) practice of issuing what were known as “general warrants” which authorized a sheriff or other Crown officer to basically do whatever the hell they wanted. “Seize that man,” “search that house.” No reason was required.

The Americans weren’t particularly fond of that practice. So in the Constitution we find a requirement that (a) there must be probable cause to issue the warrant and (b) that probable cause must be supported by oath or affirmation. This is why police officers set out statements of facts and swear it to a magistrate before arrest or search warrants are issued. Because back in the day, 300 years ago, this was not a requirement. Furthermore, warrants must describe with particularity “the place to be searched, and the persons or things to be seized.” If the warrant says “search the car,” it’s unreasonable to search the house. If the warrant says “search the house for a sixty-inch television and seize it,” it’s unreasonable to rifle through the sock drawers during the search. Et cetera.

This of course is the briefest summary of the Fourth Amendment. If you would like to learn more, head down to your local law school and enroll in criminal procedure.

Right to privacy on the Interweb

On the Internet you don’t have much if any Fourth Amendment rights because, let’s face it, we’re all doing this on someone else’s computer. The Fourth Amendment protects “persons, houses, papers and effects.” If Alice is the user of a service and Bob is the service operator, Alice’s files on Bob’s computer aren’t Alice’s records. They are Bob’s. Accordingly the Fourth Amendment privilege over those records is Bob’s, not Alice’s, to assert.

Recognizing this, the U.S. Congress actually did something productive and passed the Electronic Communications Privacy Act in 1986. Among the provisions is something known as the Stored Communications Act, 18 U.S. C. § 2701 – 2713.

Again speaking in very general terms, the Stored Communications Act sets out the conditions on which an electronic service provider e.g. Twitter is able to render voluntary disclosure of communications and customer records to third parties, and when it is not.

One of the principal prohibitions is against providing data to law enforcement without a warrant or other legal process. 2702(b)(6)-(7) and 8 set out when communications can be voluntarily disclosed to a law enforcement agency, including where there’s inadvertent discovery of a crime and discovery or existence of an emergency that poses danger of death or serious bodily injury that requires immediate disclosure. (Mind you, it’s possible for a law enforcement officer to say something is an emergency when it isn’t, and not really the place of an information content provider to inquire further with a request for operational information. In my experience U.S. law enforcement doesn’t make emergency requests for trivial matters.) Similar provisions exist for customer records e.g. IP addresses, user account information, login history, whatever.

Under any other circumstance, voluntary provision of this data to law enforcement is not allowed. Law enforcement must obtain a subpoena, 2703(d) order, or search warrant to obtain the relevant records (with subpoenas being limited to customer records only and not the content of communications). This requirement is not created by the Fourth Amendment; it is created by statute, and was created out of recognition that, without it, law enforcement may be able to obtain Americans’ records by applying inappropriate informal pressure on electronic service providers to disclose these third party records over which American citizens had no standing to assert a Fourth Amendment right (as it’s not Alice’s record – it’s Bob’s).

Right to privacy from intrusions by other people

We also have a right to be secure from other people snooping on us. Not in the Constitution, but in statute and common law.

This right includes a range of privacy torts (defamation, intrusion upon seclusion, false light, invasion of privacy).

It also involves federal and state wiretap laws. 18 U.S. C. § 2511 et seq., known as the Wiretap Act, criminalizes a range of eavesdropping behavior including e.g. anyone who “intentionally intercepts, endeavors to intercept,” where “intercept” means “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device,” or “procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication”.

This rule does not, however, apply where “one of the parties to the communication has given prior consent to such interception.” Assuming that Balaji’s Clubhouse hypothetical above involved a registered user of the app conducting the recording, I shouldn’t think there’s a federal issue here (subject to the discussion on how new apps and methods will interact with existing one-party consent rules, provided near the end of the post). There might also be a CFAA issue if the Clubhouse participant was not authorized to log in to the app; so e.g. Balaji and Felicia are talking, Alice logs in to listen, but it is not Alice but in fact Carol using Alice’s login credentials. Whether this is the case will depend on the outcome in Van Buren v. United States, which was argued before SCOTUS in April.

The question then turns to states. Those who would record a conversation need to be very careful when they do so as the question of whether the recording is lawful will depend on where all the participants are standing. State laws vary considerably on whether surreptitious recording of conversations is allowed.

In Connecticut, for example, my home state and the center of the known universe, the rule reads as follows:

(a) No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording, or (2) is preceded by verbal notification which is recorded at the beginning and is part of the communication by the recording party, or (3) is accompanied by an automatic tone warning device which automatically produces a distinct signal that is repeated at intervals of approximately fifteen seconds during the communication while such instrument, device or equipment is in use.

Conn. Gen. Stat. § 52-570d (2018)

Breaking this down, in contrast to the federal rule, this rule states that if there is an “oral private telephonic communication,” unless

  • prior consent of all parties in writing or obtained at the start of the recording; or
  • it is preceded by a verbal notification (“This call may be monitored and recorded for quality and training purposes.”); or
  • it is accompanied by loud BEEP every fifteen seconds,

recording the conversation is a civil wrong, subject to a long list of specific exceptions. The aggrieved can sue for damages, costs and attorney’s fees.

But there’s more! Since we know

(a) A person is guilty of eavesdropping when he unlawfully engages in wiretapping or mechanical overhearing of a conversation.

(b) Eavesdropping is a class D felony.

C.G.S. § 53a-189 (2018)

…we know there’s a crime involved with eavesdropping, too. To understand how the crime is committed we need some definitions. And two sections above Section 189, we find them. “Wiretap” means

 the intentional overhearing or recording of a telephonic or telegraphic communication or a communication made by cellular radio telephone by a person other than a sender or receiver thereof, without the consent of either the sender or receiver, by means of any instrument, device or equipment.

C.G.S. § 53a-187 (2018)

And also

“Mechanical overhearing of a conversation” means the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment

Id.

and

“Unlawfully” means not specifically authorized by law.

Id.

So if we break that apart:

A person who

  • unlawfully (i.e. not specifically authorized by law, in particular by invoking any of the exceptions such as prior written consent etc. under C.G.S. § 52-570d)
  • wiretaps (i.e. overhears OR records communications without the consent of either the sender or the receiver in the conversation)
  • or mechanically overhears (in the case where someone is not a party to the conversation, without the consent of any party)

commits a felony in the State of Connecticut.

Where does this leave us? Well, you are operating in a federal union of 50 states, a federal district and a number of territories, each of which are governed by different rules. Violating the wiretap laws in any of them is a very bad idea. You don’t know where particular Clubhouse participants are and you don’t have a means of procuring their consent (I’m assuming this as I don’t know how the app works… with an invite I could of course be more specific. *doe eyes*).

California law (which presumably would have been applicable to many of the participants on that call) appears to have a requirement that the communications be “confidential” in order to charge for illegal wiretapping, raising the question of whether, when a new invitee to the room wiretaps the communication, absent any agreement with that invitee that the communication should remain confidential, the communication remains confidential (perhaps not, but speak to a California lawyer – which I am not – if you need advice). This may be able to be resolved with a quick update to the service’s terms and conditions.

In Connecticut’s case, whether you’re invited to the room or not is irrelevant for the civil cause of action. All that matters is that you didn’t avail the safe harbors (consent, verbal notification, or loud beeping noise) or have some other lawful excuse. If a Clubhouse user were spied on in Connecticut without their consent they could sue for damages, attorney’s fees and costs. If you don’t know who did it, file a John Doe lawsuit, hit Clubhouse with a third party subpoena, get the dox of everyone in the room and then work your way through them one by one.

As for the crime, it depends on whether someone who is in the Clubhouse room is considered a “receiver” or “party to the conversation.”

When I first wrote this blog post, which took 90 minutes, it didn’t appear to me that a third party was a “receiver,” but now I’m not so sure. Let’s suppose that Balaji and Felicia are talking to each other on a cell phone, and as such are “sender and receiver” in a particular conversation. If someone who is not participating in the conversation records it, does the eavesdropper fall foul of the rule? In the old world, yes, they do; they are not a sender of information or a recipient of information, and the consent of either sender or receiver is required (one-party) to stay on the right side of the law.

But this is not the old world. So we need to ask whether, simply by dint of being on the app, the third party itself becomes a “receiver” or a participant. If indeed it is found that Felicia and Balaji were having a bilateral conversation and the third party eavesdropper is not a “receiver” or “party” we could be looking at felony charges. In the alternative we could see the third party argue that their mere use of the app meant that they were a “receiver,” simply acting within the scope of their permissions within the app, and therefore capable of granting the required consent to recording. The idea of a telephone call which is open for the world to join is a fairly new one. A review of Connecticut case law (which I don’t propose to conduct at this juncture) would likely let us know which position was the more likely one for a court to take.

There’s also the issue of “mechanical overhearing”, which is distinct from wiretapping but also capable of forming the actus reus of the eavesdropping offense. This could be committed, e.g., if Balaji and Felicia are talking, Alice is a party to the conversation, Alice gets up to go make a pot of coffee, and Carol then surreptitiously turns on a tape recorder in the background. Whether Alice is in fact a party by being a passive listener in the app is, once again, a matter for case law that I don’t propose to dig into at this juncture.

We don’t know enough about how the Vice Clubhouse recording was made to really come down concretely on any of these points. What we know for certain is that a surreptitious recorder has 50 states – and their conflicts of law rules – to worry about. Accordingly someone conducting a surreptitious recording, even from a perch in a one-party consent state, runs the risk of falling foul of some other two party consent state’s rules where the conduct is unambiguously banned no matter what technology is involved. See e.g. the law codes applicable to a Clubhouse user physically present in that commonwealth of the barbarian tribes of the far northern wasteland, Massachusetts:

Except as otherwise specifically provided in this section any person who— willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.

The term ”interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.

Mass. Gen. Laws ch. 272 § 99

These are all matters I wouldn’t want to have to answer for in front of a judge. Doubly so when we’re talking about a judge in Suffolk County.

These laws exist to promote free thought. They punish those who seek to pry into our most private spaces and turn America into a place like East Germany.

So. Don’t record Clubhouse calls unless you have everyone’s prior consent. Preferably in writing.

Or unless Clubhouse creates a “record” feature which makes it blindingly obvious that a conversation is in fact being recorded. Which if they were smart, they won’t do, because it will be a compliance pain in the ass.

Also if anyone has a spare Clubhouse invite lying around there is a contact form on the front page of my website. Holla.

Another type of wiretap. Image licensed under the Pixabay license.

Anti-Cancellation Clauses: corporate timeouts for the digital age

Right now, a lot of people are getting fired because of Internet mobs.

This is a draft for discussion and is not legal advice. The text below is offered for discussion purposes only. You must speak to a lawyer in your jurisdiction and any other relevant jurisdictions before negotiating any employment agreement of any type. You are on notice of this disclaimer.

From Balaji “consistently several years ahead of everyone else” Srinivasan:

Or this from @stillgray:

So, in the United States employment terms are usually “at-will.” That is to say, anyone can fire anyone else for any reason at any time as long as they’re not discriminating against the person being fired when they do so. A typical employment-at-will clause might look something like this:

Your employment with the Company will be “at-will.” You may terminate your employment with the Company at any time and for any reason or no reason by notifying the Company. Likewise, the Company may terminate your employment at any time, for any reason or no reason, consistent with all applicable state and federal law, and without advance notice.  Your employment at-will status can only be modified in a written agreement signed by you and by an authorized officer of the Company.

– Standard form offer letter on my hard drive

In order for a clause like this to change to become cancellation-proof you’d really need two things to happen. First, you’d need to get a number of large companies to agree to adopt new standard language – or large numbers of workers would need to insist on it, such as workers in unions – in order that this would become an expected term everywhere, so workers had leverage to negotiate it. If Facebook and Google offer a term and Microsoft doesn’t, presented with materially identical offers, an employee might take Facebook and Google’s offering and ding Microsoft’s.

Second, companies would need to get their PR playbooks straight and adopt a pro-worker protection ethos and run a very standard form game to wait for the mobs to wash over them and move on to their next target.

Incentives don’t line up in favor of anti-cancellation clauses. It serves employers’ interests for employment to be at-will. Many employee handbooks have policies that require employees to not embarrass the company with their personal conduct. Seeing how the digital mobs are moving from target to target, though, query for how much longer companies will want this to be the case (who wants to be held hostage by Twitter mobs all the time?)

Any clause that achieves widespread adoption would need to accomplish the following:

  • Employment remains at will
  • Digital mob “Cancellation Event” is strictly defined
  • Cancellation Events always or almost always lead to Cancellation Leave of Absence/Cool-Down Periods before termination, and do not prejudice at-will employment rights of the employer after that period ends.

Here’s a first stab which isn’t legal advice, it’s just food for thought that I bashed out in 40 minutes. If you’re not paying me, I’m not your lawyer. Lawyers, feel free to critique on Twitter, or by e-mailing me at my work address (easily findable on Anderson Kill’s website).

The draft clause:

“(a) Your employment with the Company will be “at-will.” You may terminate your employment with the Company at any time and for any reason or no reason by notifying the Company. Likewise, the Company

i. may terminate your employment at any time, [and] [or];

ii. [save that,] on the occurrence of a Cancellation Event, Company [shall only] [may, in its sole and absolute discretion and in accordance with the provisions of sub-section (b) below, decide to] terminate your employment upon the expiration of any applicable Cool-Down Period,

in each case, for no reason or any reason, consistent with all applicable state and federal law, and without advance notice.  Your employment at-will status can only be modified in a written agreement signed by you and by an authorized officer of the Company.

“(b) Upon the occurrence of a Cancellation Event, [you and the Company agree that, in the Company’s sole and absolute discretion, the Company may require you to take] OR [you and the Company agree that you shall take] a 90-day leave of absence (“Cool-Down Period”) [in lieu of immediate termination,] [, with or without pay,] while the Company conducts an investigation, subject to such conditions and restrictions as the Company may in its sole and absolute discretion require. During such time you agree that you shall comply with any and all of the Company’s reasonable directions to protect the Company’s reputation including but not limited to deactivation of all social media accounts and making no statements about the Cancellation Event or any fact or circumstance arising out of or in relation to the Cancellation Event to any person except to the Company, to medical and mental health personnel, and attorneys, accountants or other professional services providers for the purpose of seeking professional advice.

“(c) “Cancellation Event” means an event where ten or more persons who are not employees, directors, shareholders, suppliers, customers, or other business relations of the Company or of Affiliates of the Company [“Affiliate” to be defined] contact the Company in a seven-day period with disparaging information about you, or call upon the Company to release you from your employment, in each case relating to your or a third party’s personal conduct outside of the scope of your employment which is legal in the United States.”

What the draft clause does:

This is not a pro-employer clause by any stretch of the imagination. Employers aren’t going to like this unless they’re really very anti-digital mob and are willing to put up with the heat of keeping someone controversial on staff for 90 days. A friend has suggested that if the 90 day period were expressed to be mandatory that a substantial severance be available for an employee who were “cancelled” as sometimes employers just need to get someone toxic out the door immediately. I might suggest that if the conduct were that bad there would probably be tangible reasons to effectuate a dismissal under normal circumstances anyway (creating a hostile work environment, etc.)

I freedrafted this but it’s kind of a mishmash of a suspension, a confidentiality agreement and a termination procedure. Key aspects:

  • Relentlessly pro-employee language.
  • Promotes the First Amendment space outside of the office, where it belongs, not inside it, where companies like Google have had to crack down on internal politics. This language encourages people to engage in politics in their free time and not on office time.
  • Strictly defines “Cancellation event.” Ten people. Seven-day period. Not related to the company. Personal conduct.
  • Protects out of office conduct which is outside of the scope of employment only. If you mess around within the scope of your employment you’re not getting cancelled, you’re getting fired.
  • Requires ten or more people who are not involved in the company to contact the company for aforementioned conduct. Employees can complain without triggering a Cancellation Event, so if someone gets wasted and behaves like a jerk at an office party you can move straight to termination with a straight face.
  • Allows third party conduct to trigger a cool-down period (so employees don’t get fired for the conduct of their wives, like the L.A. Galaxy’s Aleksandar Katai).
  • Protects employee conduct which is legal. Does not protect conduct which is illegal.
  • Allows the Company the ability to fire the employee OR go for a Cool-Down Period, relying on reputation risk to keep themselves honest (“this Employer rarely fires before a cool-down is done”). Obviously if the employee is particularly outspoken or represented by a union, he or she could negotiate a mandatory cool-down period in the event of a Cancellation Event. I’d think this would be an excellent clause for unions to insist on in employment contracts.
  • Allows the Company wide discretion to immediately remove the employee from active duty while it conducts an investigation.
  • Allows the company to prevent the employee from making a bad problem worse on social media and putting his or her foot in it with the press.
  • Gives the company air cover to say it is contractually bound to honor the process as it’s a term of employment that the Cancellation Event gives rise to a termination sequence which is contractually binding.
  • Allows people with a legitimate interest in the company’s business, such as employees, directors, shareholders, and suppliers, to complain about employee conduct while not counting towards the “Cancellation Event” ten-count or triggering a “Cancellation Event.”

Questions? Hit me up on Twitter or Gab. Or send a good comment and if I like it I’ll let it through moderation.

Section 230 explained with stick figures

Another day, another terrible take on Section 230 from politicians with law degrees who should know better.

Section 230 of the Communications Decency Act – 47 U.S.C. § 230 – is a law that, arguably, is the reason that the modern Internet exists.

Politicians keep misrepresenting what the statute is for and how it works.

Wrong. Fact: under Section 230 there is no “platform” vs “publisher” distinction. The immunity under Section 230 is granted to users of interactive computer systems and providers of interactive computer services. Those “providers” may be traditional publishers like the New York Times or mainly online republishers like Twitter; the immunity applies equally to both with regard to user-generated content, even though one of these businesses relies more heavily on user-generated content than the other.

Section 230 has two main operative provisions.

The first, Section 230(c)(1), says that providers or users of interactive computer services aren’t liable for what other people say on those services. So, if

  • Alice and Bob use Twitter, and
  • Bob threatens and says nasty and untrue things about Carol on Twitter,
  • and Carol sues Alice, Bob, and Twitter for harassment and defamation, then
  • Carol will prevail against Bob but lose (likely in pretrial motions) against Alice and Twitter.
High tech legal graphics software was used to make this image

The second, Section 230(c)(2), says that if a provider of an interactive computer service moves to block objectionable content in good faith, the provider of that service will not be liable for that good faith content moderation.

So, returning to our example of Alice, Bob, and Carol,

  • Alice and Bob use Twitter, and
  • Bob threatens and says nasty and untrue things about Carol on Twitter, and
  • irrespective of whether Carol sues Bob, Twitter decides Bob is anathema and moderates Bob’s content off the platform or bans him, then
  • Bob cannot sue Twitter for moderating that content. (Properly, he can sue Twitter, but he will lose.)
  • Note that Alice now has a blue check mark and has joined the ranks of the technomenklatura.
Quantum blockchain AI was used to render this image

Josh Hawley’s proposal screws all this up. The proposal says that neither (1) nor (2) shall apply to an online communications platform unless the Federal Trade Commission gives a company a certification that the company does not moderate information in a “manner that is biased against a political party, political candidate, or political viewpoint.” It says this rule will only apply to large companies with more than 30 million U.S. users, more than 300 million international users, or more than $500,000,000 in global annual revenue.

Meaning, if such a company exhibits the slightest bit of bias which draws the ire of the bureaucrats at the FTC, and its immunities are lost, the lawsuit matrix over a “Bob says bad things about Carol” situation turns into this:

Bob & Carol & Ted (Cruz) & Alice
  • Alice and Bob use Twitter, and
  • Bob threatens and says nasty and untrue things about Carol on Twitter,
  • Carol sues Alice, Bob, and Twitter for harassment and defamation;
  • some other Carol nobody has heard of before decides to get in on the fun and sues Bob and Twitter; and
  • Bob sues Twitter and Alice;
  • all because Bob said something about Carol and Twitter moderated the content off of the platform.

Mind you, poor Alice didn’t do anything wrong here. She simply had a blue check mark and enjoyed the privileges that come with it of greater engagement, prestige and invitations to better parties. But being innocent – and having a blue check mark – does not immunize Alice from being on the receiving end of a lawsuit.

The reason I have Alice getting sued is because the bill says “Paragraphs (1) and (2) shall not apply in the case of a covered company which…” and the said “Paragraph 1” (being 230(c)(1)) is an exemption for both “providers and users” of online publishing platforms. Meaning that if this became law as-written a clever lawyer might argue that when a platform loses the immunity, all of its users (retweeters, etc) do, too. Instead of Alice invoking Section 230 immunity as an affirmative defense, telling all comers to get lost and, if required, moving for summary dismissal, now Alice has to try to get the (now, not facially invalid) claims dismissed on the basis not that the claims are legally invalid as they would be if the Section 230 immunity applied, but that Alice is not a necessary or even proper party to the suit. Which involves more legal work, and more expense, for Alice.

The real victims of Section 230 reform proposals – those who stand to lose the most – are American tech companies large and small. Senator Hawley’s bill – which has the support of other conservative senators and, latterly, the Trump Administration – is a stupid piece of legislation. It would wreck the Internet. Maybe the Internet deserves to get wrecked in the age of social media moral panics, and maybe not, but we should be aware that that’s what passing this law will do.

In practice, there are millions of yahoos all over the planet – running states, municipalities, and companies, but also on their own account – who view social media companies as cash-rich targets for litigation. Section 230 doesn’t prevent these people from getting their day in court – if someone says something stupid about you on the Internet and they’re an anonymous troll, go file a John Doe lawsuit and serve a third party subpoena on the Internet company. After a couple of subpoenas you’ll get your guy and then you can ruin him.

The problems with this proposal are legion. Chief among them is that it would create the ultimate heckler’s veto; any company that doesn’t toe the FTC line will have to treat every petty complaint by anyone with an e-mail address with the seriousness of the DMCA notice and takedown procedure (not fun). Helpfully the proposal is presumptively unconstitutional on its face (it requires platforms to get the FTC to sign off that they are politically neutral in order to benefit from a state privilege, a content-based restriction on speech which is presumptively unconstitutional and is unlikely to survive the strict scrutiny review that applies to any infringement of the core the First Amendment right). Put simply, we have a First Amendment right to be biased, the government cannot tell us not to exhibit bias in public, and the government can’t discriminate against us based on those biases.

Speaking of “bias,” there’s also a very good argument to be made that this is a subjective term which renders Hawley’s proposed law unconstitutionally vague; virtually any statement other than reporting of the weather will contain the author’s bias, so it’s likely that categorical content bans in Twitter, Facebook, etc. terms of service on, for example, so-called “hate speech” would likely offend the proposed law, if not intentionally then in effect. Note, however, that Hawley’s proposed rule doesn’t appear to care whether bias is intentional or not – bias in effect, even if accidental, if found by the FTC, would be enough for a tech provider to lose its immunity.

It would be a mistake to enact this bill. It would be a mistake to touch Section 230 at all. It would put the government in control of the Internet, flagrantly violate Americans’ free speech rights and open up tech platforms and users to lawsuits from petty litigants which would have the effect of suppressing freedom of expression even more.

All of which is to say, if conservatives would stop complaining about platforms that clearly hate them and their politics, stop proposing stupid, unconstitutional laws, and start using free-speech-supporting rival platforms like Gab, Minds, Bitchute, or LBRY, none of this would be a problem and no lawmaking would be required, because these sites all respect the First Amendment, are worthy of your business, and are the best hope to supplant Big Tech.

Thank you for your time.