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.
Politicians keep misrepresenting what the statute is for and how it works.
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.
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.
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:
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.
Good morning, on the strangest Monday morning in American history
This morning, on Twitter, the President of the United States declared Antifa – Antifaschiste Aktion, an originally-European street gang of far left wing activists – to be a terrorist organization.
Whether we agree with that designation or not, the fact that it has been made poses business challenges. It does not help that the President’s wording was legally confusing.
The United States recognizes two classes of terrorism: domestic and foreign.
The term “designation” is usually only associated with the foreign type. Section 302 of the Anti-terrorism and Effective Death Penalty Act of 1994 permits the Secretary of State to designate foreign organizations that engage in terrorist activity which threatens the security of the United States nationals or the United States. The consequences of such designation include possible asset seizures of the foreign domestic terrorist group, at the direction of the Secretary of the Treasury, and most importantly, the creation of criminal sanctions for providing “material support or resources” to a foreign terrorist organization (or “FTO”) or attempting or conspiring to do so, per 18 U.S. Code § 2339B.
The list of FTOs includes a veritable rogues’ gallery of international baddies including e.g. the Real IRA, Continuity IRA, FARC, the PFLP, Shining Path, ELN, ETA, Aum Shinrikyo, and of course various national chapters of Al-Qaeda and ISIS.
The First Amendment makes domestic terrorism different from foreign terrorism
What’s not on the list are American groups known or alleged to have engaged in terrorist activity, such as various white nationalist groups, the Klan, or, now, the U.S. chapter of Antifa. There is a reason for this, and that reason is the First Amendment to the U.S. Constitution. Lest we need a reminder what this says, I reproduce it below:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
As applied to the states and subordinate entities through the Fourteenth Amendment, the general import of this rule is that states do not have the power to control political thought.
“Freedom of speech” does not mean “freedom to say whatever the hell you want.” The English common law tradition has long recognized that certain types of low-value speech, including defamation, threatening and incitement, have no place in civilized society. Low-value speech of that type was not then, and is not now, legally tolerable.
The First Amendment was designed to address very specific political crimes, chiefly a crime known as “seditious libel” and a fake news tort known as “scandalum magnatum.”. Americans will be familiar with seditious libel through the grade-school history story of New York publisher John Peter Zenger. In 1733 Zenger, we will recall, printed editorial material which was offensive to the then-governor of New York. He was charged with seditious libel and acquitted by a jury, on the basis that truth was a defense. He is thus celebrated as an early hero of freedom of the press.
But if you ask most people what “seditious libel” actually is, they’ll struggle to give much of a definition beyond “uh, saying bad stuff about the government.” The true significance of that ruling can really only be understood if we actually look at what seditious libel actually was, element-by-element, and compare it to libel today. I did the reading here so you wouldn’t have to; summarizing, seditious libel is
That encouraged a breach of the peace, i.e., “diminished the affection of the people for the King or his minister and thereby encouraged rebellion”
Which is published
With malice; which is rebuttably presumed on publication;
Punishable as a misdemeanor.
See Philip A. Hamburger, The Development of the Law of Seditious Libel and Control of the Press, 37 Stan. L. Rev. 661, 678 (1985), citing trial of Dover, 6 STATE TRIALS 874 (1816) at 558 (King’s Bench, 1663).
Compare that with defamation, which is a
A false statement of fact
Which is published
Which is likely to lower the estimation of the claimant in the eyes of right thinking people
If we examine the elements of seditious libel, we notice that one element we would customarily require to maintain a modern-day defamation action is missing: there is no requirement that the statement be false. That is, if someone defames the King or his Ministers and thereby “encouraged rebellion,” which term really meant any disaffection of the state whatsoever, even if the statement were true, one could still be found guilty of libel and punished accordingly.
A related tort, as I mentioned, was “scandalum magnatum.” This was a publication in news, which was false, which slandered a peer, great man or institution in England. Scandalum magnatum was more limited in scope and harder to prove than seditious libel – the publication had to be news, and that news had to be false – so, as a result, this action eventually fell into disfavor, and seditious libel was the preferred mechanism for punishing thoughtcrime expressed by enemies of the state.
The English, in their very English way, tolerated this state of affairs for several hundred years; seditious libel was in fact regarded as something of a slap on the wrist, since an identical fact pattern could also sustain a charge of treason (but whereas treason was punishable by death, seditious libel was a misdemeanor).
Without waxing lyrical about the founding fathers and their motivations for creating the United States, they recognized that speaking truth about the government was an important element of a functioning democracy. For this reason, “the First Amendment was intended to wipe out the common law of sedition, and make further prosecutions for criticism of the government without any incitement to law-breaking, forever impossible in the United States of America.” (See Zechariah Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 947 (1919))
Generally speaking, in the United States, ideas are not illegal, “hate speech” is not illegal, advocacy of terrorism is not illegal and mere membership of a political group, however terrible its goals and however unlawful the end of its political advocacy, is not, by itself, illegal. Any law stating otherwise, generally, will be unconstitutional. This is as true with the Klan as it is with Antifa, as confirmed in the case Brandenburg v. Ohio, 395 U.S. 444 (1969).
This is the basic legal background necessary to understand the reasons for the differing legal treatment of domestic and international terrorism in the United States.
Terroristic syndicalism, without conspiracy or action, is not illegal. However, businesses should expect to face an increased number of Antifa- and riot-related legal process.
Because of this, domestic terrorism is not a separate category of crime, as it would be in, say, England and Wales – domestic terrorism is the commission of crimes which can be committed in a non-political fashion, like murder, battery, or arson, except committed with a political motive. The “domestic terrorist” designation is therefore best viewed as an instruction to local joint terrorism task forces, or JTTFs, to prioritize enforcement action against certain militant groups for violation of existing criminal laws, as we are constitutionally barred from considering political motives on domestic citizens (with certain exceptions for bias crimes).
Brandenburg has been the standard American courts apply to extreme political speech for over 50 years. Without going into too much detail, in Brandenburg, the defendant, a Klan member, hinted that taking revenge on the institutions of American government might be necessary if [insert the usual reasons].
He was arrested for criminal syndicalism, which basically is legalese for advocacy of terrorism. Convicted at first instance, with the conviction affirmed on appeal, the United States Supreme Court overturned the conviction and created a two-part test, the Brandenburg test, to determine when speech that advocates in favor of violence becomes unlawful. It wrote:
“The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.”
Two parts: (a) directed to inciting imminent lawless action and (b) likely to produce it.
That’s a high bar. Saying “Burn it all down” on Twitter doesn’t meet it. Writing “meet at Lafayette Square at 8:00 PM next Thursday to set a building on fire” in your journal which you show to nobody else doesn’t meet it either. Saying “meet at Lafayette Square in ten minutes to set a building on fire”, if indeed you are near Lafayette Square, probably meets the bar. Saying “throw a brick at that policeman” also meets the bar and will be unlawful.
Which brings us to Antifa. Antifa is a loosely-formed anticapitalist movement. Its precursor was founded in Germany at the end of the Weimar period, during Hitler’s rise to power. The original movement was crushed and, as we know, that story did not end well.
The name and symbolism of the original group has since been appropriated by a variety of different groups at different times. The current American version of the movement is one of these imitators. Per the Anti-Defamation League:
These violent counter-protesters are often part of “antifa” (short for “antifascist”), a loose collection of groups, networks and individuals who believe in active, aggressive opposition to far right-wing movements. Their ideology is rooted in the assumption that the Nazi party would never have been able to come to power in Germany if people had more aggressively fought them in the streets in the 1920s and 30s….
Antifa have expanded their definition of fascist/fascism to include not just white supremacists and other extremists, but also many conservatives and supporters of President Trump. In Berkeley, for example, some antifa were captured on video harassing Trump supporters with no known extremist connections.
Antifa is not a unified group; it is loose collection of local/regional groups and individuals. Their presence at a protest is intended to intimidate and dissuade racists, but the use of violent measures by some antifa against their adversaries can create a vicious, self-defeating cycle of attacks, counter-attacks and blame. This is why most established civil rights organizations criticize antifa tactics as dangerous and counterproductive.
What we have with these riots are two components: an ideology advocating violence against broad swathes of the U.S. population (if Trump supporters are counted, 63 million Americans); and individuals who are willing to carry out that ideology in the form of direct action in the streets. The first of these things, generally speaking, is legal; the second, generally speaking, is not.
Why Antifa and other violent elements of American society have decided to do what they did at this time is not presently known. What businesses need to know is that, in least in my assessment, Covid-19 has pulled back the curtain on a widespread, nihilist radical insurrectionist ideology adhered to by thousands of American citizens who, until this week, were not a priority for the Department of Justice.
Renewed compliance priorities.
What I suspect we will find as the DOJ’s investigation into this matter continues is that Antifa – as an ideology – is not a de novo movement but rather is a rebranding of prior, legally compliant movements on the left like the American Communist Party. Accordingly it is likely subscribed to by a significant but small percentage of the U.S. population on an informal basis.
What is likely to follow these riots is a domestic intelligence-gathering mission and campaign of criminal prosecution the likes of which has not been seen since COINTELPRO. To the extent that the political temperature rises or there is additional factionalism in the run-up to the election, it is probable that companies may need to be aware of numerous types of violent ideological users on their platforms.
Companies of all sizes need to adopt a strategy for dealing with law enforcement as these investigations proceed so they can provide timely and accurate responses to law enforcement officers who are doing the important work of keeping America safe.
The following issues are likely to be foremost in internet companies’ legal compliance after the riots are over.
1) For non-financial communications, Section 230 of the Communications Decency Act gives businesses considerable legal air cover regarding terrorist-related content on their sites.
Section 230, in a line, is a rule which basically says that any company that sets up a website that allows other people to speak is setting up a digital soapbox where other people can stand on it and use it to communicate, but the person who laid the soapbox on the commons won’t be liable for what they say (subject to certain statutory limitations).
The Section 230 immunity is generally thought to apply to terroristic content on a website. So, if a terrorist uses Facebook to communicate, but Facebook is just providing the soapbox but isn’t contributing to the speech, Facebook will not, generally speaking, be liable for the terrorist content, even if Facebook knows about it and even if Facebook chooses not to remove it. See Force v. Facebook, Inc., 934 F.3d 53 (2019).
This does not mean that companies should ignore terrorist content. Far from it; it is a good business decision to be aware of terrorist content and where possible to either interdict it, report it, or use a company’s terms of service to deny use of the network to terrorist users.
2) Financial communications
Terrorism compliance used to be a mostly foreign affair. Following the Trump Administration’s Antifa designation in an election year, this is no longer true. Surveillance will need to keep current with the situation on the ground to ensure that payment systems and banking systems are not used to finance violent insurrection. BSA compliance will need to acquire a degree of awareness of the current domestic U.S. political situation that it may not have deemed necessary prior to the DOJ’s designation of Antifa activities as domestic terrorism.
3) Expect a signficant uptick in Stored Communications Act disclosures.
Early-stage internet businesses which are not accustomed to receiving search warrants and subpoenas should prepare to begin receiving them. Generally this means a single, standalone e-mail inbox or web portal should be provided for law enforcement to contact a general counsel-level officer of the company or a direct report of the GC with document preservation orders, formal legal process such as subpoenas, 2703(d) orders and search warrants, or requests for emergency disclosure.
Disclosure of company data to law enforcement officials is controlled by the Stored Communications Act.
In the United States, companies are not at liberty to simply act as a data fire hose to the government. Congress requires, in keeping with the spirit if not the letter of the Fourth Amendment, that a modicum of legal process be followed before third party records on file with U.S. internet companies is provided to law enforcement officials. Generally speaking there are four types of disclosure. The first is a non-emergency grand jury or administrative subpoena in which subscriber data is requested; things like login records, IP logs, and user e-mail addresses.
The second is something known as a 2703(d) order, which can either request data and metadata or can request the content of communications data with disclosure to the subject of the investigation (although this notice can be temporarily waived with a nondisclosure order).
The third type of data request companies will get under the Stored Communications Act is a search warrant. Search warrants under the Stored Communications Act, unlike search warrants for the home, do not tend to be particularized and indeed can be incredibly broad (“provide all messages ever sent”). Businesses should be alert to requests in search warrants that actually ask for records of the business rather than records pertaining to the user, e.g. password salts, and push back on those requests where appropriate with a short note to the U.S. Attorney.
The fourth type of data request is an emergency data request when there is an emergency involving danger to life or of grievous bodily harm. Although compliance with these requests is optional, it is usually advisable to respond to these quickly. If you refuse, the FBI or other requesting agency likely has information which is sufficient to sustain a search warrant or a subpoena and they won’t be terribly pleased if they’ve told you it’s an emergency but you make them get the order. Law enforcement officers I have dealt with are pretty good about not overusing emergency requests, presumably lest they be viewed as having cried wolf.
These data requests will be extensive and may be frequent, particularly if your app or service is used by a hip millennial demographic that intersects with individuals who participated in the riots. Businesses will need to trade off between security on the one hand and ease of access to data on the other; user data should not, for example, be accessible by an administrator working remote from the surface web.
4) Employment manuals require clarity on the scope of permitted political activity outside of the office, and companies should examine whether to adopt a position of political neutrality on all issues not directly pertinent to the business, to avoid embarrassment.
As we move into a new, strange, and possibly dangerous phase in American history, what is clear is that businesses which hitherto were able to comfortably pretend that their employees all read the H.R. manual, enjoy the teambuilding exercises and feign attentiveness watching the diversity training videos may harbor extreme ideologies which hold the potential to create significant embarrassment for the business.
This weekend I was shocked to learn that a furloughed associate at Pryor Cashman – a well-respected midlaw law firm in New York – and another New York-admitted attorney were charged this weekend with setting an NYPD van on fire in Brooklyn. Attorneys in New York are sworn to uphold the Constitution of the United States and are subject to automatic disbarment if convicted of a felony. We are supposed to uphold the rule of law and the administration of justice. Firebombing a police van is about the greatest betrayal of those professional vows I can imagine.
Participating in a riot is surely grounds for summary termination and disbarment. In combination with the fact that these riots are so large and widespread that they’ve put American security forces on the defensive, this suggests that extreme radical views are held in a very widespread way in unusual places that, to date, the corporate media have refused, or been unable, to investigate.
After the 2016 election, corporate participation in partisan politics extended to the highest levels of business in many household names like Google, Facebook, and Citigroup. Many companies have chosen to express support for the protestors.
Support for the protestors, such as it was, is eroding quickly in affected areas as property damage is incurred and the body count rises. I should imagine that, as the investigations around these riots continue, this means that there is the potential for significant embarrassment if it is discovered that employees of these companies and company resources were devoted towards civil unrest.
Given how destructive the protests have become (St. John’s Church, around the corner from my place in D.C., is burning down as I write this blog post), I cannot help but wonder whether corporate political neutrality – the way our parents did business – will see a resurgence in the wake of this crisis.
Companies should immediately revisit their policy manuals and arrive at a view on whether partisan political activity outside of two-party politics (service on town boards and the like) will be permitted outside of work hours.
This will be a short blog post. I do not endeavor to explain Section 230; that explanation may be found elsewhere on this blog (click here). This post is for folks who know and understand what Section 230 is and want to know why repealing it will fail.
1. The proposal to make Section 230 conditional on “content neutrality” is flatly unconstitutional
Forcing someone to be “content-neutral” to obtain state privileges is itself a content-based speech mandate, presumptively unconstitutional and subject to strict scrutiny review.
There isn’t a compelling state interest in overriding Twitter’s Terms and Conditions. Adding a political neutrality provision to Section 230 should and probably would be struck down.
2. Repealing or modifying Section 230 will not have any effect on contract law; consumers will lose.
Much of the current debate around Section 230 ignores the fact that Twitter’s Terms and Conditions already permit Twitter to do what it wants with your content.
Even if you were to abolish 230 overnight, for most users (including the President of the United States) in a courtroom they’d need to somehow get over the threshold issue that they made a bargain with Twitter which, for whatever reason, they are now asking a court to set aside, which is no easy thing.
Twitter’s current Ts and Cs, presumably written and periodically reviewed by very expensive tech lawyers, do a very good job of covering the company’s ass:
The Twitter Entities make no warranty or representation and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Services or any Content; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services or any Content; (iii) the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services; and (iv) whether the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis.
We may suspend or terminate your account or cease providing you with all or part of the Services at any time for any or no reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms or the Twitter Rules and Policies or Periscope Community Guidelines, (ii) you create risk or possible legal exposure for us; (iii) your account should be removed due to unlawful conduct, (iv) your account should be removed due to prolonged inactivity; or (v) our provision of the Services to you is no longer commercially viable.
There’s also a liability cap of $100.
Assuming arguendo s. 230 were repealed, and I were advising Twitter, I’d advise them to change up their Ts and Cs to cap liability at $1 and make every reader of the platform indemnify them.
Depending on the facts of a particular case, they may be colorable issues here with adhesion contracts, unconscionability and/or state-level unfair trade practices rules. Unfortunately for users, regardless of what clever arguments it is possible to make, going into this the balance of probabilities is stacked in Twitter’s favor rather than the user’s, particularly where the user hasn’t provided much by way of consideration to use the service and damages are likely to be de minimis.
The consequence of all this would be that (a) Twitter would want to pass on any liability for unlawful speech to its users; (b) it would likely require more identifying information from its users and (c) there would be a lot more content-based takedowns.
The result would be less speech and less free speech for every American.
3. Repealing or modifying Section 230 will destroy the U.S. internet startup ecosystem.
Complying with DMCA takedown requests and fielding subpoenas and search warrants, as all online startups must do at some point in their lives, is very expensive. Repealing or modifying Section 230 will make it impossibly expensive for businesses of all kinds – websites, blogs, even newspapers with comment sections – to permit third party dialogue on their sites.
Section 230 doesn’t just protect American companies. It protects American citizens. On more than one occasion I have seen vexatious threats originating abroad (civil and regulatory) against American speech on American websites. Section 230 allows companies to shrug off those requests, with the result that American internet users aren’t muzzled by foreign litigants, states, and courts which are not constrained by the First Amendment.
The United States is unique in the world because of our free speech protections. Section 230 may allow platforms to interfere with our speech (230(c)(2)) but it also grants them latitude to protect our speech (230(c)(1)). The combination of these immunities means platforms can choose whatever moderation policy they want without consequence, even to permit speech that is not permitted by the First Amendment (subject to certain statutory limitations). It grants the platform immunity and places liability for the speech on the speaker.
Most publishing platforms do not operate at the extreme edges of the continuum. Rather they live somewhere in the middle:
Apple is the most illiberal of the Big Tech firms (Amazon is a close second). It yanked the Quartz news app in Hong Kong for engaging in what, in America, would be totally run of the mill reporting in order to appease the Chinese government.
Mastodon.social, a node in the decentralized “Fediverse,” screens legal but politically incorrect speech by default (see Section 2 of its code of conduct);
Twitter usually gets involved if there are swear words, doxing, or “glorification of violence” (although, as the Trump Administration complains today, that policy is unevenly applied), although they appear to adhere to local law outside of the U.S. (which is usually less permissive than the First Amendment). Twitter’s scandal du jour is that they censor the President – both on his personal account and on the White House’s account – but they aren’t censoring users like Cardi B who are calling for violent uprisings in the streets.
Gab states that it strives to adhere to a moderation policy that mirrors the First Amendment; the First Amendment has no cognizance of political correctness, hate speech, or even glorification of violence, but permits the state to punish categories of speech like incitement (as defined in Brandenburgv. Ohio), threatening, defamation, obstruction or perjury.
In all of the cases listed above, each company – Apple, Mastodon.social, Twitter, and Gab – is actually not availing itself of the theoretical maximum which Section 230 allows. In each case it is possible to find an internet user for whom the companies’ respective policies are too restrictive.
These immunities are necessary to run an online business; all three of those companies are currently immune from every shrieking harpy in the world who is offended in his or her subjective way by American speech on those platforms. Without Section 230, such people would sue and win against US companies in overseas forums and seek to then enforce those judgments in American courts. Nobody wants that, and Section 230 prevents that.
Leave Section 230 alone. If you don’t like Twitter’s rules, it’s crazy to change the rules of the game for every publisher in the country just to bend one company to one party’s political will.
Give your business to challenger platforms like Gab, Minds, Bitchute, Parler, or LBRY instead.
OPINION: Invented by white shoe New York City law firms, the two-step Simple Agreement for Future Tokens (SAFT) was supposed to keep crypto companies out of trouble. Now, the SEC is coming full bore for startups like @Kik and @Telegram.