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.

A warning to those who would abolish the bar exam, from a dual-admitted U.K./U.S. lawyer

Utah has done the unthinkable: it has cancelled its bar exam and decided to admit future lawyers, for one year only, on the basis of diploma privilege.

I joke, but only a little. Covid-19 is the sort of force majeure scenario which justifies such a drastic course of action, although I’m sure that prospective lawyers in Utah from the law schools that benefit from the so called “diploma privilege” exemption aren’t crying themselves to sleep every night over the fact that they didn’t have to take what is, by any account, the worst thing most lawyers will ever have to do.

Which is not to say that I regret taking the exam myself. Far from it. I am glad I took the test. I felt incomplete being an American citizen and English lawyer who hadn’t passed the test. I will remember the day I passed it (first attempt, fyi), and the day I was sworn in about 35 days later, for the rest of my life. I am particularly glad that, unlike these poor souls in Utah, I will never have to endure the asterisk: “Well let me tell you, when I was your age I remember passing the bar exam… you didn’t have to take the bar exam?… well LET ME TELL YOU…” …that every law partner in Utah will tell to the Class of 2020 for the next twenty years.

Of course, legal academics and legal education observers, who love to talk and thinkpiece their way through life, have now begun to contemplate the implications of not holding the exam – not just this year, but permanently. I’ve seen this argument made a hundred different ways over the past ten years. Recently Law360 ran this article – Don’t Just Delay the Bar Exam, Cancel it Forever – in which an attorney wrote that

Law students go through three years of legal education (or not) and have to take exams in all the required courses (and some electives). More and more law schools are providing clinical education and courses about law practice management. And while the profession questions whether today’s law students are prepared to be lawyers, we still make them sit in a large ballroom or convention center for two or three days and answer questions about legal concepts.

Another articleIs the Bar Exam Necessary? written by Stephen Foster of Oklahoma City University, tweeted below by a law professor from Ohio State, had this to say:

From the article:

Aside from the obvious financial bias, the white paper conflates bar exams protecting the public with their version of the bar exam protecting the public. They espouse the MBE’s greatness through reliability and validity. Their argument is an objective MBE is fair, and thus the best assessment. The argument is persuasive if fairness also related to the practice of law, but unfortunately, I believe the MBE only tangentially relates to competence to practice law...

I contacted over a thousand former students and attorneys in OKC to take a simulated MBE provided by a bar review company.  Approximately 20 agreed to take the exam.  The practice experience ranged from 1 year to over 15 years.  Unsurprisingly, 0 (zero) people passed the simulated MBE according to the Oklahoma MBE cut score at the time (135).  A litigator passed the Evidence section, but no one else passed the subject they practiced the most.  ADAs and PDs failed the Crim Law section.  Transaction attorneys failed Contracts.  As attorneys’ experience increased, MBE scores decreased.  I had Superlawyers, local award winners, and Superlawyer Rising Stars take the test.  The results were the same for everyone.

This is a garbage argument, because (a) the bar exam does not test competence and (b) a bar test-taker’s competence to practice law the day after the exam is non-existent or very close to it.

Virtually no law student is competent to practice on the day they leave school, or even on the day they pass the bar exam. They have never practiced law a day in their lives; they have no idea what awaits them. Competence at law practice can only be acquired and added to through experience, “on the streets,” with actual clients and actual legal work. Law school is about teaching students the language and logic used in law practice, not practice itself.

“The criteria for admission should be competence” is therefore little more than a pretty lie we tell ourselves. We cannot make policy based on a lie, however convenient it may be.

What we really mean, and what we should say, is that the bar exam is a test of intelligence and mettle. Brilliant candidates can and do fail if they do not put in the work; the most determined candidate can and does fail if they’re just not cut out for it (one of the test takers in Connecticut in 2018 had taken, and failed, the exam something like 13 times). Nobody admits this because doing so would offend test takers, particularly those who do not pass, and law school professors, particularly those at schools with low pass rates.

“Protecting the public,” “ensuring lawyers are competent,” blah blah is all doublespeak designed to avoid stating the obvious, and uncomfortable, fact that, while all lawyers make mistakes, dumb and undisciplined lawyers have the potential to make many more mistakes than average. The exam serves as an intellectual hazing ritual which weeds out less able candidates by testing a huge battery of basic knowledge the bar has decided students must have, even if they will never use it, much like medical boards which young doctors must take.

Seeing and understanding that material easy-does-it, steady-as-she-goes, at a slow pace, as students do in law school, with the assistance of group outlines, in many cases tested by open-book or even open note(!) exams, is easy. (Most 3Ls don’t flunk out.) Having enough familiarity with the material to comprehend problem questions and compose answers on the bar exam proves the student has at least seen the material once, has mastered it, and is smart enough to recall it and form coherent thoughts about it in an immensely high-pressure situation.

(The Common Professional Examination battery of academic law exams in England, by contrast, is not open-book, is 100% essays, expects detailed knowledge of case law and takes 21 hours over 10 days rather than 12 over 2 days. It was considerably harder than U.S. law school finals and in my opinion it was somewhat harder than the Uniform Bar Exam.)

Passing the bar exam requires a lot of hard work to commit information to memory, and sufficient intelligence to be able to apply it to problem questions. I would agree with the authors above that possessing a certain number of IQ points and a willingness to work one’s ass off is not, in itself, enough to say a test-taker is competent to practice law — how could it be? — but it is a good indication of some of the basic qualities a lawyer needs to possess in order to serve a client effectively, chiefly, intelligence, the ability to process information while operating with a degree of expeditiousness, the ability to express him or herself coherently and the willingness to focus one’s efforts and work very hard to achieve a singular, arbitrary objective that a third party has set.

Lawyers, like doctors, must fuse practical competence with intellectual competence. A heart surgeon may have outstanding manual dexterity, but failure to match skill with the hands with wider medical knowledge necessary to treat the whole person – failing to demonstrate an ability to master of the basic corpus of medical knowledge required to pass the boards – should be disqualifying. So it is and should be with law.

I therefore think the bar exam is actually not so bad as its detractors portray it. This state of affairs is unfair, of course, as life is unfair. By the same token, so is the requirement that most students must complete three years of postgraduate study before being allowed to sit the bar exam; that is particularly unfair, especially for bright students from low- and middle-income backgrounds who might be in a position to just avoid all the fuss, take a bar review course and sit the exam. (We do not often hear it said by legal academics, “abolish the law schools and allow college graduates to proceed directly to the bar, because three years of life and $200,000 in federally-guaranteed student loan debt which is applied towards our salaries is unfair!”)

The question then is not “should we abolish the bar exam because it is unfair?” The question should be whether the bar exam is the least unfair or least bad option to ensure that individuals possessing the requisite intelligence and drive to be lawyers, become lawyers, so that there may be adequate competition for legal services at the same time as the public is protected and the administration of justice remains efficient.

Due to economics, “Diploma Privilege Plus” is probably less fair than the bar exam

The alternatives seem to be one of two things. “Diploma privilege,” where obtaining a law degree is on its own sufficient to practice, and “diploma privilege plus,” meaning the bar exam is waived, but students have to practice under supervision of a senior attorney for a time.

Except for a few odd jurisdictions like Wisconsin, pure diploma privilege is not practiced; in my view, nor should it be, as this takes responsibility for testing newly graduated students and puts it in the hands of the universities, which are not to be trusted seeing as their incentives are to ensure all their paying students pass. Per ATL,

EWPvLcCXYAEAwBG.jpg

“Who does all the supervising?” ATL asks. The answer is “probably no-one,” at least in an economic depression. “Diploma Privilege Plus” will have three consequences.

1) There are those who argue the bar exam is an undue financial burden (about $1,000). Under Diplo Privilege Plus (“DPP”) The price of admission to the legal profession is the cost of three years of law school, which is much more expensive than the administration of the bar exam (for those folks who argue that the bar exam is an undue financial burden).

2) DPP requires all prospective candidates for admission to first find a lawyer willing to oversee them for a period of apprenticeship. Employment is a qualitative exercise rather than a quantitative one. The well-connected and well-educated will be first in line for those jobs, much as they are today. Except, where today being poorly-connected might result in a lower salary, under DPP being poorly-connected might mean not getting admitted at all.

3) In the worst economic crisis in living memory, DPP might make it appear superficially easier for students to pass through the gates. We cannot know what will happen in advance, but if I had to guess, I’d think that if DPP were rolled out in a depression, the number of law jobs available for prospective attorneys would fall dramatically, acting as an absolute cap of the number of attorneys that will be admitted in that year, regardless of ability.

There’s a system that works like this already. It’s called England and Wales.

As it happens, I’m one of very few Americans I know of – I know of two others – who were first admitted in England. Of the three of us I’m the only one who decided to come home and get admitted again. (It’s a lot of school.)

In England, after law school one is required to undertake a one- or two-year apprenticeship (depending on whether you’re a barrister or solicitor) before you’re admitted. If you get an apprenticeship a few years ahead of time, the firm (often) will pay for law school and give you a stipend to live on.

Not bad, right? Well, it’s a contract, and as such, it cuts both ways. During your apprenticeship, you are bound to that employer; your pay is considerably lower than that of a junior associate at a comparable firm in the United States; leave your job, and your entry into the profession will be more or less permanently denied (no-one will re-hire a trainee who quit).

For law students now thinking that “diploma privilege plus” might seem like a *great* idea, a word of caution. “Lawyers pay our law school fees! No exam, we can get straight down to work!” Sure, fine. The problem is that, unlike in the U.S., before you can get admitted you have to get a job – and get a law firm to commit to keeping you on its payroll for a fixed two year term up front – before you can practice.

Amid a worsening economic crisis it’s not hard to see why “diploma privilege plus” might be a bad idea. If you thought the bar exam was a barrier to entry, apprenticeship programs – properly, “training contracts” – are *way* worse. If the number of law students exceeds the number of places, it is a guarantee – an absolute certainty – that everyone who wants to become a lawyer won’t, even if they’re good enough, because a prerequisite to qualification is legal employment for a fixed term.

After a certain number of attempts, many people give up – law firms won’t hire someone whose degree has gone “stale.” This also means that admission tightens the supply of lawyers in response to recessions and increases the supply of lawyers in response to economic booms, in each case on a two- to three-year time delay.

The law grad/job availability ratio in the UK is something like 6:1 in any given year, 10:1 (or worse!) for barristers. I dread to think what it will look like in September 2021.

So diploma privilege may look great now. But in countries that have it plus apprenticeship, access to the profession isn’t easier. In terms of conversion of successful law graduates into actual, practising (British spelling) solicitors and barristers, it’s considerably more difficult. Which means there are significantly fewer lawyers: in the UK there are 140,000 solicitors and 13,000 (thirteen thousand) barristers on a population base of 66 million. In the U.S. there are approximately 1,338,000 lawyers – roughly 9 times as many lawyers – on a population base five times as large, all of whom have higher rights of audience (a right which, in England, is the exclusive preserve of the barristers and the occasional solicitor-advocate).

There are cultural reasons for this. But there are also economic ones, and the apprenticeship requirement is one of them. I have a number of close personal friends who tripped up on that final leg of the race to admission.

Nobody disagrees there should be a barrier to entry to the legal profession. The question is what that barrier should be. Personally, I would have preferred then, and still prefer now, having an objective, anonymously-graded test, lasting two days and costing $800, as that barrier. The “Diploma Privilege Plus” crowd would abandon that test and instead force new law grads to deal with hiring managers, work visas and the labor market in a quest to secure a two-year, underpaid, apprenticeship which they may never obtain.

No thanks.

What Section 230 of the Communications Decency Act actually says

I’m not your lawyer and the below is not legal advice. Note disclaimer.

I wrote a follow-up to this piece on 29 May 2020, when the President of the United States called for the repeal of Section 230 on Twitter. Read the post here.

I also wrote a version of this post illustrating how Section 230 works by using stick figures in June 2020. See that here.

So far as the ordinary person is concerned, Section 230 of the Communications Decency Act essentially says two things:

  1. Online publishing platforms – personal websites, newspapers’ websites, e-mail list-servs, whatever – and their users are not legally liable for content they do not create. 
  2. If a web app moderates any of your content off of their platform, and you sue them for it, you’re going to lose.

Moreover, Section 230 is a one-way street. Tech companies – nor any other publisher that uses a web app that hosts user-generated content – do not promise to be neutral in exchange for these immunities. They get these immunities because Congress correctly surmised that the unrestricted development of the Internet was good for America.

Congress goes out of its way in the Communications Decency Act to tell us that this is what it intended in the Act. The intention of the Act is to keep government out of the business of moderating online content. Period.

Read on and I’m going to tell you what this means in greater detail.

In the wake of the El Paso and Dayton shootings and the subsequent deplatforming of the 8Chan imageboard, Section 230 of the Communications Decency Act (47 U.S.C. § 230) has become one of the most-discussed, most-misinterpreted, and in terms of its practical effects on day to day American life, most poorly-understood legislative provisions in American public discourse.

Moreover, Section 230 is a one-way street. It’s an unconditional provision that applies to everyone, whether publishers or platforms or bloggers or auto body shops, who has a presence on the Internet.

If ever you hear a conservative politician talking about Twitter as a “publisher and not a platform,” such as Ted Cruz or Josh Hawley, you’re listening to a viewpoint that doesn’t reflect Section 230 at all.

If in the New York Times you read that the importance of Section 230 is that “sites can moderate content — set their own rules for what is and what is not allowed — without being liable for everything posted by visitors,” and leaves it at that, you’re reading a viewpoint that understands what Section 230 says, but doesn’t really understand why it’s important.

If you read still other commentary, such as this blog post by Twitter user Ben Thompson, who writes:

Section 230 doesn’t shield platforms from the responsibility to moderate…

Actually… it sort of does.

This is how we have arrived at the uneasy space that Cloudflare and others occupy: it is the will of the democratically elected Congress that companies moderate content above-and-beyond what is illegal, but Congress can not tell them exactly what content should be moderated.

Wrong.

This viewpoint belongs to someone who wishes to make a trendy or clever point, having just read the Wikipedia article on the subject.

As with many things, the problem with Section 230 as an object of public discussion – as with gun control – is that most people clearly haven’t bothered to read the rule, let alone understand it. Of those who have tried, a minority have a legal education. Of lawyers, only a small fraction of corporate technology bods and litigators will have worked with it in a professional setting. Still fewer will have had to grapple with it in a civil complaint.

I have. I understand that Section 230 is one of the most powerful pro-freedom, pro-free markets, pro-American, anti-government overreach laws in existence. If Section 230 is neutered, American online life will change beyond recognition.

Section 230 protects American companies, and by extension all American citizens who benefit from the services those American companies provide, by conferring broad immunity from frivolous lawsuits and government interference.

It does this simply, deliberately, and effectively. It’s not rocket science, and we’re going to walk through what the key provisions say and how they work, line by line, below.

What Section 230 of the Communications Decency Act actually says

1. 230(c)(1): “Platforms” are more or less absolutely immune from liability arising out of user-generated content…

Contrary to what you read in the news, Section 230(c)(1) has absolutely nothing to do with content moderation. It has nothing to do with “platforms acting as publishers.” It has to do with how we treat user-generated content on a “platform” (properly, an “interactive computer service”).

It reads as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

To understand what this means we need to turn to the definitions section in Section 230(c)(f), which says

  • interactive computer service” means “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.”
  • In other words, for most people, a web app or other kind of internet communications platform.
  • information content provider” means “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”
  • In other words, a user who generates content.

Thus, for most people’s everyday browsing experience, in plain English this section means:

Platforms and users are not liable for content they do not create. 

This makes a lot of sense, if you think about it. “Not my circus, not my monkeys” is a bedrock principle of liability in the English common law tradition. Section 230 extends this principle to internet-based communications.

If you didn’t write/make/speak it, someone cannot sue you for it (and win).

The law is simple, and clear. 

…and the politicians are deliberately screwing up their explanations of it

That has to be it, because I can’t believe that guys as clever as Ted Cruz or Josh Hawley, both attorneys, both really good attorneys, are that misinformed. The idea that, per Senator Hawley,

With Section 230, tech companies get a sweetheart deal that no other industry enjoys: complete exemption from traditional publisher liability in exchange for providing a forum free of political censorship.

…doesn’t appear anywhere in Section 230(c)(1). Or anywhere in the entire Communications Decency Act, for that matter. 

First, EVERYONE benefits from Section 230. If you wander onto the comment section below this post and decide you want to go insult some dude you knew in college, Section 230 says that the dude can’t sue me for what you said on my site. Same with local newspapers or any other website.

Second, the whole point of Section 230 is that it is designed to exempt the Internet from government regulation. They say it right in the Act: “unfettered from Federal or State regulation,” (see s. 230(b) – more on this below). Section 230 was not a qualified, transactional kind of law where tech companies received an immunity in exchange for providing unbiased political forums.

It is a testament to how truly awful politics is, that politicians have managed to so thoroughly confuse the public about a legal command which is only slightly more complicated than a stop sign. Apart from the fact that an obligation of impartiality is not mentioned anywhere in Section 230, Section 230(c)(1) deals with allocation of liability for statements made on the Internet at a specific moment: at the moment they are made. 230(c)(1) focuses on a point in time where it is impossible for content moderation to have occurred. 

Even if a given platform’s moderation were openly biased against one particular viewpoint, even if the entire world used that platform, even if that platform advertised itself as “the world’s public square for free speech,” and even if that claim weren’t true, all of those questions are conditions subsequent that depend on the statement having been made in the first place. Whatever platforms might do or refrain from doing after that point, when moderating statements that have already been made, is, from a public policy standpoint, irrelevant to the question of how liability should be apportioned at the moment of genesis.

Section 230(c)(1) is therefore engaged any time any user creates any content on any platform that is subject to the jurisdiction of the United States. It sets out the simple principle that user generated content is the problem of the user who created it, and no one else’s

There are, of course, certain very limited carveouts specific to federal criminal law e.g. illegal pornography or sex trafficking (and note, the sex trafficking provision, known as FOSTA/SESTA, is currently being very credibly challenged on First Amendment grounds in the courts) which do create an obligation to remove certain types of unlawful speech after it has been posted. But this isn’t moderation as much as it is prohibition, and these carve-outs aren’t what the politicians are talking about when they talk about Section 230 reform.

2. 230(c)(2): “Platforms” are immune with regard to good-faith moderation calls

Section 230(c)(2) is an entirely separate provision. It has no effect whatsoever on the rights granted by 230(c)(1). Section 230(c)(2) confers immunity for moderation activity for platforms that choose to moderate. It reads as follows:

No provider or user of an interactive computer service shall be held liable on account of (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in [sub-]paragraph ([A]).

In plain English:

If a web app moderates any content off of their platform, and you sue them for it, you’re going to lose.

This statutory provision isn’t actually necessary for platforms to cover their asses vis-a-vis their users. This is because, each and every day, users consent to tech platforms’ contractual terms of service, and in so doing the users contract out of any remedies they may have for discretionary content moderation activity undertaken by those platforms. In plain English, when you use a platform like Twitter and Facebook, you agree to let them moderate your content. With this in mind, why do we need Section 230(c)(2) in the first place? Why not just let the market sort it out and let platforms compete on terms?

Well, this provision, and indeed all of Section 230, is expressed to supersede any contrary state law (see s. 230(e)(3)). This section therefore is best understood as being about preventing state regulators from creating state-level rules that could impose liability for content moderation, e.g. if Texas created a cause of action for moderating climate change skepticism and California created a cause of action for moderating climate change activism.

That such a provision can also be raised as an affirmative defense to any action challenging good-faith content moderation is a bonus, a nice-to-have. But it isn’t really why it’s there.

Accordingly, it would be less than correct to say that this rule is about encouraging companies to moderate “hate speech” (a term that was barely used in public discourse in the early 1990s) or any other type of objectionable content. Contract law could have handled (and does handle) that just fine. It would be more correct to say that this rule acts as a backstop that prohibits local interference with an interstate system.

More on that below.

3. The “will of Congress”

When we read something from Mr. Thompson and numerous other commentators that

it is the will of the democratically elected Congress that companies moderate content above-and-beyond what is illegal

…that’s just not true. The statute says nothing of the sort.

The Federal Government is constitutionally barred by the First Amendment from regulating protected speech (See: “Congress shall make no law… abridging the freedom of speech,” U.S. Const., Amend. I). Accordingly, the regulation of “hate speech” and other forms of highly objectionable content, such as that complained of by the Times or Mr. Thompson, has been outside of province of Congress for 228 years. Congressional regulation of “hate speech” is unconstitutional. An illegal purpose cannot have been intended with the passage of the Communications Decency Act or any other statute. 

The intent of Congress is that companies who operate legal businesses are immune from liability arising from publishing user-generated content, subject to the few aforementioned carve-outs under federal law. Period. They’re also immune from suit with regard to good-faith moderation of objectionable content on their sites. Period.

Section 230 is a one-way street: “these are the rules, because the unrestricted development of the Internet is good for America.” Congress goes out of its way to tell us that this is what it intended. To do this we need to navigate away from Wikipedia, look up the statute and scroll up one sub-section to the (legally non-binding) preamble, Section 230(b), in which Congress says:

It is the policy of the United States (1) to promote the continued development of the Internet and other interactive computer services and other interactive media; (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation; [and] (3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other Interactive computer services

In plain English:

  1. Internet good.
  2. Free markets good. Government regulation bad.
  3. States creating local rules that result in American domestic “splinternet” very bad.
  4. Users should be maximally in control of what they see.

Note that “providing an unbiased forum free of political censorship” is not among the United States’ stated reasons for enacting Section 230.

4. Proper avenues for content enforcement

In the wake of a tragedy like El Paso or Christchurch there is a temptation to recommend regulating online speech. I wrote about this at length in a blog post I published after the Christchurch shooting, Open Access Publishing Platforms and Unlawful Threats. Summarizing that post in a line, calls to ban online speech in response to a tragedy are feel-good solutions that don’t actually make anyone safer.

First, banning a user from a website doesn’t ban the person from existence. They’re still very much there, and there are many darknet avenues they can use to communicate with like-minded people.

Second is the lesson that I was taught as a four-year-old, but which most journalists these days seem to have a hard time grasping:

Sticks and stones will break my bones, but words will never hurt me.

A post on 8Chan isn’t going to kill anyone. It can’t even scratch anyone. It can’t do anything to anyone else but offend them. What it does, however, every single time, is identify the speaker. And if that speech is threatening and/or illegal, it gives law enforcement probable cause to serve a platform such as 8Chan with a search warrant or emergency disclosure request. Just as the publication of Unabomber Ted Kaczynzki’s manifesto in the New York Times led to his identification by his own brother thanks to the presence of telltale prose, a user on 8Chan will generate all manner of personally identifying data, including e.g. an IP address, which law enforcement can use to try to intervene in a tragedy. If the most extreme users migrate to ZeroNet, as indeed some have, this ability all but disappears.

Saying “we should ban 8Chan” is the digital equivalent of burying your head in the sand. What will happen, will happen. If you ban the site, you just will remain blissfully unaware of it until after the fact.

5.  Why do we want Section 230?

I’ll write this story in full another day. Suffice it to say, perfectly legal user generated content can be a pain in the ass, and people and governments who don’t like and complain about perfectly legal user generated content are an even bigger pain in the ass, for any internet business.

Section 230 makes it very easy for a business to focus on its business and tell the hordes of basement dwelling complainers from around the world to get lost. Countries like the UK, France, and Australia empower the complainers by imposing liability on service providers for failing to remove content which is defamatory, or which the governments, as informed by “concerned citizens,” of these countries find objectionable.

The American answer to these issues is (in the case of defamation) to file a lawsuit against the user who generated the content, or (in the case of objectionable but legal content) do nothing at all, or leave the discretion to moderate in the hands of the company providing the service. If we ditch Section 230, all that changes. The American answer, and the First Amendment, will cease to be relevant. Litigants and foreign actors will have considerably greater power to use lawfare to shut down American venues that host speech that these private or foreign persons disagree with, including political speech.

Foreign governments adopt approaches to speech regulation which are subjective and, if enacted in the U.S., would be both unconstitutional in their aim and unconstitutionally vague.

The U.S. approach, and the Section 230 shield that creates it, is the last defense for freedom online and should not be amended. Make no mistake, the intent of Congress in passing this law was to protect online business from vexatious litigation and government interference of all kinds, foreign and domestic.

We already have myriad legal solutions for truly egregious conduct online. If speech on an open-access publishing platform is criminal, law enforcement needs partners who are able to respond to search warrants, and the Stored Communications Act gives LEAs the legal framework in which to obtain them. If speech is not criminal but privately damaging, if it’s really that damaging, there should be a private cause of action against the user who created the content and that action should be brought against that user, and that user alone.

If it’s neither criminal nor tortious, really, who cares? There are 7+ billion people on the planet. We can’t silence everyone who disagrees with us. Nor should we want to try.

Screen Shot 2019-08-08 at 11.21.31 AM.png

Legal #Brexit

Just stumbled across this outstanding conference call from Allen & Overy last Friday. A must-listen:

 

“The EU is a very large law project. It has involved the creation of law, it has involved the harmonisation of law. It is my strong conviction that the legislation that will be needed to implement this decision, it is very important for this country that that legislation is cool, measured and rational. And that it does not bear the mark of rancour.”

“This is like a demerger. The biggest in history.”