The association representing Big Tech says that free speech will be increasingly under attack from state legislatures that, after the midterms, will be controlled by one party.

Both Democrats and Republicans are concerned about edge provider content moderation, though they disagree on the problem and the solution.

Democrats say the issue is that not enough hate speech is being restricted while Republicans say that the problem is liberal-leaning social media sites censoring conservative speech in the name of restricting hate speech.

Also: Privacy Bill Could Turn Off Targeted Advertising

The Computer & Communications Industry Association, whose members include Facebook, Twitter, Amazon and Google, this week released a summery of what it called the state content moderation landscape.

That included the observation that in only the past year, 250 bills to regulate content on online platforms have been introduced, including legislation in California, New York, Texas, D.C., Florida, Georgia, Minnesota, Utah, and South Carolina.

CCIA says that "many of the bills are unconstitutional, conflict with federal law including Section 230, and would place major barriers on digital services' abilities to restrict dangerous content on their platforms."

CCIA says many of the bills conflict with Section 230 of the Communications Decency Act that gives them protection from liability over third-party posts on their social media platforms, a protection national legislators from both parties have suggested needs to be modified or eliminated.

Federal privacy legislation could reduce the threat by preempting state efforts, but that is a long-shot in what will be a divided Congress in the New Year.

"As states convene legislative sessions in 2023, they’ll be doing so in a unique environment," says CCIA State Policy Director Khara Boender. "As a result of the midterm elections, a larger number of states will have one party controlling both chambers of the legislature in addition to the governor's seat. This, coupled with an increased interest in content moderation issues – on both sides of the aisle – leads us to believe this will be an increasingly hot topic." ■

Computer companies and edge providers are asking the U.S. Supreme Court to weigh in on the issue of whether state governments can impose what the Computer & Communications Industry Association (CCIA) is branding must-carry for online platforms and a "road map" for those wishing to fill the internet with offensive content edge providers would have to carry.

Cable operators have long been subject to must-carry rules governing carriage of broadcast stations, carriage those operators have also argued is compelled speech that violates the First Amendment, though those rules remain on the books.

CCIA and NetChoice, whose members include Amazon, Apple, Google, Facebook, and many others, have been making the same argument against a Florida law that made platforms liable for third-party speech.

On Monday (October 24), they filed a petition with the High Court asking it to rule on the constitutional issues after the State of Florida did the same.

The 11th U.S. Circuit Court of Appeals last May upheld a lower court's injunction against the enforcement of provisions in the law that restrict social media platforms' ability to moderate content while the underlying issue made its way through the courts. That court suggested Big Tech was likely to win on its First Amendment arguments.

But that appeals court left in place content moderation disclosure obligations computer companies say are unnecessarily, and unconstitutionally, burdensome to speech and hope the Supreme Court agrees with them.

The law was the product of a Republican-controlled legislature. Republicans have argued that Silicon Valley giants have attempted to suppress conservative speech in the guise of moderating their platforms and under the protection of Section 230 of the Communications Decency Act, which exempts them from civil liability over most of that third-party content.

Asserting that “social media platforms have unfairly censored, shadow-banned, deplatformed and applied post-prioritization algorithms to Floridians,” the law removed that Section 230 civil liability protection for content on Big Tech platforms — like Facebook or Twitter — that violated the law, including allowing for monetary damages up to $250,000 per day for deplatforming political candidates for statewide office and $25,000 for non-statewide offices.

That law, including the reporting obligations, “abridges websites’ editorial decisions and imposes crippling ‘disclosure’ obligations, forcing websites to explain each of the countless decisions they must make every day,” the CCIA/NetChoice petition said. “Such compelled obligations not only inflict enormous compliance burdens, but would provide a roadmap for those wishing to evade efforts to eliminate offensive content.” ▪️

The Supreme Court has blocked, for now, a Texas law that computer companies strongly oppose.

Justices Neil Gorsuch, Clarence Thomas and Samuel Alito dissented, saying they would have voted to allow the law to be enforced while the underlying challenge to the law is being adjudicated in a district court.

The law, which passed a Republican-controlled legislature last year, “prohibits an interactive computer service from censoring a user, a user’s expression, or a user's ability to receive the expression of another person based on … the viewpoint of the user or another person.” It also requires large social media platforms like Facebook and Twitter to disclose how they manage content, to publish an acceptable use policy that users can find telling them what content is acceptable, to publish quarterly transparency reports, and to have a complaint system in place.

NetChoice and the Computer and Communications Industry Association (CCIA) filed an emergency petition with the High Court to prevent the enforcement of the law, which they say prevents online platforms from exercising editorial discretion over content and irreversibly tarnishing their businesses.

That was after a three-judge panel of the 5th U.S. Circuit Court of Appeals, in a split 2-1 decision, reversed a lower court opinion and lifted a preliminary injunction against the law.

Computer companies called it a victory for free speech, but pointed out there is more work to be done. "While today’s victory is welcome news, we’re only halfway there  — our case will soon return to the district court, where we’ll proceed to arguments on the merits," NetChoice said in a statement. “And as this case proceeds, we await a ruling from the 11th Circuit in our parallel case against the State of Florida.”

“Texas’s HB 20 is a constitutional trainwreck — or, as the district court put it, an example of ‘burning the house to roast the pig,’ ” said NetChoice counsel Chris Marchese. “We are relieved that the First Amendment, open internet, and the users who rely on it remain protected from Texas’s unconstitutional overreach. Despite Texas’s best efforts to run roughshod over the First Amendment, it came up short in the Supreme Court,” Marchese said. “HB 20 will once again be enjoined and the case will proceed in the lower courts.”

“We are encouraged that this attack on First Amendment rights has been halted until a court can fully evaluate the repercussions of Texas’s ill-conceived statute,” CCIA president Matt Schruers said. “This ruling means that private American companies will have an opportunity to be heard in court before they are forced to disseminate vile, abusive or extremist content under this Texas law. We appreciate the Supreme Court ensuring First Amendment protections, including the right not to be compelled to speak, will be upheld during the legal challenge to Texas’s social media law.” ■

A federal appeals court has agreed to block enforcement of the major provisions of a Florida law targeting social media content moderation. NetChoice and the Computer & Communications Industry Association had sought the preliminary injunction while their legal challenge of the law works its way through the courts.

In a unanimous decision penned by judge Levin Newsom, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit upheld a lower court's injunction against the enforcement of provisions in the law that restrict social media platforms' ability to moderate content and that they have to come up with a "thorough rationale" for all of their content moderation decisions.

The court said both are likely unconstitutional. It declined to block enforcement of the "far less burdensome" requirement of other disclosure provisions, saying the lower court got it wrong when it blocked those as well.

The law was the product of a Republican-controlled legislature. Republicans have argued that Silicon Valley giants have attempted to suppress conservative speech in the guise of moderating their platforms and under the protection of section 230 of the Communications Decency Act, which exempts them with civil liability over most of that third-party content.

Asserting that “social media platforms have unfairly censored, shadow-banned, deplatformed and applied post-prioritization algorithms to Floridians,” the law removed civil liability protection for content on Big Tech platforms — like Facebook or Twitter — that violated the law, including allowing for monetary damages up to $250,000 per day for deplatforming political candidates for statewide office, and $25,000 for non-statewide offices.

"The question at the core of this appeal is whether the Facebooks and Twitters of the world — indisputably 'private actors,' with First Amendment rights — are engaged in constitutionally protected expressive activity when they moderate and curate the content that they disseminate on their platforms. The State of Florida insists that they aren’t," Newsom wrote in the panel decision.

By contrast, Newsom said the panel was pretty sure those Big Tech companies were, indeed, private actors engaging in protected speech. ■

Internet advertisers and others have filed a friend of the court brief at the Supreme Court in support of NetChoice and the Computer and Communications Industry Association, which are challenging a Texas social media law they say will irreparably damage online platforms as advertising vehicles.

The brief paints a stark picture. It says the law (HB20) "will result in the wholesale lifting of content moderation. The resulting deluge of hate speech, graphic images and video, and vile content of all forms is not what users want," and will irredeemably harm those platforms' goodwill and reputations.

“Businesses large and small want to know that their advertising and marketing is reaching its intended audience without having their ads placed next to content they deem to be offensive or untrue," said Lartease Tiffith, IAB executive VP for public policy, in explaining why the group was weighing in.

CCIA and NetChoice filed an emergency petition at the Supreme Court to prevent the enforcement of a Texas law they say prevents online platforms from exercising editorial discretion over content and irreversibly tarnishes their businesses.

Also: New Bill Would Break Up Big Tech Ad Giants

The law, which passed a Republican-controlled legislature last year, “prohibits an interactive computer service from censoring a user, a user’s expression, or a user's ability to receive the expression of another person based on … the viewpoint of the user or another person.” It also requires large social media platforms like Facebook and Twitter to disclose how they manage content, to publish an acceptable use policy that users can find telling them what content is acceptable, to publish quarterly transparency reports, and to have a complaint system in place.

Among the groups joining IAB in the brief are the Multicultural Media, Telecom and Internet Council (MMTC), the Information Technology & Innovation Foundation (ITIF), the NAACP, and the Anti-Defamation League. ■

Social media companies are asking the Supreme Court to prevent the enforcement of a Texas law they say prevents online platforms from exercising editorial discretion over content and irreversibly tarnishes their businesses.

The law, which passed a Republican-controlled legislature September 9, 2021, “prohibits an interactive computer service from censoring a user, a user’s expression, or a user's ability to receive the expression of another person based on … the viewpoint of the user or another person.” It also requires large social media platforms like Facebook and Twitter to disclose how they manage content, to publish an acceptable use policy that users can find telling them what content is acceptable, to publish quarterly transparency reports, and to have a complaint system in place for violations of its policies.

The Computer & Communications Industry Association and NetChoice, whose membership includes Amazon, Facebook, Google and Twitter, filed an emergency brief with the Supreme Court Friday (May 13) asking it to block the statute, calling it an "unprecedented assault on the editorial discretion of private websites, listing Facebook, Twitter, Instagram, Pinterest, Vimeo and YouTube among those under assault.

Earlier in the week, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit in a split 2-1 decision reversed a lower court opinion and lifted a preliminary injunction against the Texas law. CCIA and NetChoice want the Supreme Court to overrule the 5th Circuit panel.

Also: Big Tech Fires Latest Legal Volley at Texas Social Media Law

The social media companies say that denying them the ability to engage in any viewpoint-based content moderation would "compel platforms to disseminate all sorts of objectionable viewpoints—such as Russia’s propaganda claiming that its invasion of Ukraine is justified, ISIS propaganda claiming that extremism is warranted, neo-Nazi or KKK screeds denying or supporting the Holocaust, and encouraging children to engage in risky or unhealthy behavior like eating disorders."

They said the sites can't comply with the law without "irreversibly transforming" their worldwide platforms, in the process tarnishing their reputations, causing users and advertisers to flee.

They said the court should maintain the status quo while the courts consider the merits of their underlying challenge to the law. ■

The United States has joined with more than 55 other nations to issue a Declaration for the Future of the Internet (DFI), a statement of principles in defense of the internet against threats from Russia, China and other authoritarian regimes and in support of an “open, free, global, interoperable, reliable, and secure Internet for the world,” or essentially net neutrality principles writ large.

The declaration's presentation evokes another U.S. declaration of principles of almost 250 years ago, but that one was about independence not interdependence.

The principles are in support of “an internet that fosters the protection and promotion of basic human rights online; and an internet that advances these goals across relevant economic policies and regulatory activities.”

The DFI, said the White House, is about democratic governments — and “like-minded partners“ including from civil society, industry, and academics — attempting to “reverse” what they said is the current trajectory of the internet.

The Biden administration defines that trend as “rising digital authoritarianism, where some states have been acting to repress freedom of expression, to censor independent news sources, to interfere with elections, promote disinformation around the world, and deny their citizens other human rights.”

And while the White House called out Russia and China by name, they said they were hardly alone in following that “dangerous new model.”

The administration said the U.S. was launching the DFI effort, but that it was a joint operation and will complement and “fortify” existing internet freedom efforts.

“[We are united by a belief in the potential of digital technologies to promote connectivity, democracy, peace, the rule of law, sustainable development and the enjoyment of human rights and fundamental freedoms,” the DFI states in its preamble. “As we increasingly work, communicate, connect, engage, learn, and enjoy leisure time using digital technologies, our reliance on an open, free, global, interoperable, reliable, and secure Internet will continue to grow. Yet we are also aware of the risks inherent in that reliance and the challenges we face. 

“We call for a new Declaration for the Future of the Internet that includes all partners who actively support a future for the internet that is open, free, global, interoperable, reliable, and secure,“ the declaration continues. “We further affirm our commitment to protecting and respecting human rights online and across the digital ecosystem. Partners in this Declaration intend to work toward an environment that reinforces our democratic systems and promotes active participation of every citizen in democratic processes, secures and protects individuals’ privacy, maintains secure and reliable connectivity, resists efforts to splinter the global Internet, and promotes a free and competitive global economy.“

Jason Oxman, president the Information Technology Industry Council (ITI), offered reasons behind his industry group‘s backing of the declaration. 

“ITI supports the Declaration on the Future of the Internet’s call to action to work with global partners who actively support an internet that is open, interoperable, reliable, and secure,“ Oxman said. ”Many governments are advancing a range of policies that restrict the movement of information, goods, and services under the guise of data protection, data sovereignty, cybersecurity, government access to data, or industrial policy. 

“The tech industry supports the cosignatories’ shared vision of promoting open, non-discriminatory policies based on rigorous and objective criteria, recognizes existing efforts on internet freedom taking place with allies globally, and appreciates the United States' leadership in driving the Declaration forward,” he added.

"As we carry out President Biden’s ambitious goal to connect every single American to high-speed internet, this declaration reaffirms our commitment to advancing a positive vision for the internet and digital technologies, while ensuring that all people are able to reap these benefits,” Commerce Secretary Gina Raimondo said.  

Commerce’s National Telecommunications & Information Administration is overseeing more than $40 billion in broadband infrastructure subsidies and has said that quality and price, as well as openness and equal access, are part of the definition of broadband availability.

According to Commerce, those signing on to the DFI in addition to the U.S. are Albania, Andorra, Argentina, Australia, Austria, Belgium, Bulgaria, Cabo Verde, Canada, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Dominican Republic, Estonia, the European Commission, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Jamaica, Japan, Kenya, Kosovo, Latvia, Lithuania, Luxembourg, Maldives, Malta, Marshall Islands, Micronesia, Moldova, Montenegro, Netherlands, New Zealand, Niger, North Macedonia, Palau, Peru, Poland, Portugal, Romania, Senegal, Serbia, Slovakia, Slovenia, Spain, Sweden, Taiwan, Trinidad and Tobago, the United Kingdom, Ukraine and Uruguay. ■

Concerned that a March 25 Big Tech hearing may be a chance for legislators to beat up on web platforms' Sec. 230 immunity from civil liability over third party content, computer companies wanted the House Energy & Commerce Committee leadership to know the implications of weakening or eliminating the protection.

They argue the section has allowed the internet to flourish and, in the process, develop content moderation policies that protect consumers and speech. Narrowing or eliminating the shield would lead to more disinformation, and cost millions of jobs and over $400 billion.

Also Read: Senate Democrats Target Sec. 230

That came in a letter from Arthur Sidney, VP of public policy for the Computer & Communications Industry Association to those committee leaders in advance of the hearing titled, "Disinformation Nation: Social Media’s Role in Promoting Extremism and Misinformation." 

It also comes as both Democrats and Republicans have said Sec. 230 needs reining-in or scrapping. Supporters of the latter have included President Joe Biden.

Sidney says Sec. 230 "facilitates legal certainty regarding online commerce and communication, making it possible for millions of entrepreneurs and businesses to flourish."

He argued that responsible services already aggressively moderate harmful content with a mix of automated and human reviews. He also said that nothing is preventing states or the feds to pursue content that violates civil rights laws.

He signaled that getting rid of Sec. 230 would eliminate the kind of moderation that prevents "racism and hate speech, religious and ethnic intolerance, public health-related misinformation, and election-related disinformation by foreign agents."

"Services can respond aggressively to this material because they have the legal certainty to do so," he said. "Narrowing this protection would have the perverse result of impeding online services’ and websites’ efforts to police bad actors and misconduct, including key consumer protections that users have come to expect, such as spam filtering."

Sec. 230 critics counter that such content is not being aggressively moderated, by which they mean prevented, and that the section's shield from liability for that insufficient moderation is to blame.

Also Read: CCIA Warns FCC Against Sec. 230 Rulemaking

But the cost is more than insufficiently moderated speech, he suggested. "The certainty provided by this [Sec. 230] framework reduces the threat of costly, likely ruinous litigation, enabling small U.S. businesses and startups to scale up. Undermining foundational intermediary liability protections could cost an estimated 4.25 million American jobs and $400 billion over the next decade, according to 2017 research."

CCIA members include Amazon, Facebook, Google and Twitter.

Computer companies have filed a complaint in U.S. district court against Maryland's Digital Advertising Gross Revenues Tax, asking the court to declare the law is, itself, unlawful and barring its enforcement.

The complaint was filed by the Computer & Communications Industry Association (CCIA) along with the U.S. Chamber of Commerce, Internet Association, and NetChoice. CCIA members include Amazon, Dish, Google, eBay, and Facebook.

The Maryland General Assembly last week overrode Governor Larry Hogan's veto of the new law (HB 732). The Association of National Advertisers (ANA), which signaled it would take the law to court as well.

The law institutes a gross revenues tax on "certain" digital ad services, and presumes that digital ads are provided in the state under "certain" circumstances and require "certain" persons with "certain" annual gross revenues from digital ad services to pay the tax.  

Also Read: ANA Warns of D.C. Ad Tax

In its complaint, the groups call the act a "punitive assault on digital, but not print, advertising."

They argue it is meant to penalize digital advertisers, citing testimony during the bill's consideration to the effect that digital ad companies were eroding "the shared values and norms of American society."

They say taxing digital ads will reduce resources for creating high-value content, leaving the field open to low-quality "junk." They also say that it will raise consumer costs. 

Also Read: Advertisers Try to Help Providers Navigate CCPA

"Simply put, the Act will harm Marylanders and small businesses and reduce the overall quality of internet content—all while doing nothing to stave off the dissemination of misinformation and hate speech."

The law is itself unlawful in "myriad" ways, they say, including that it is preempted by the Internet Tax Freedom Act (ITFA) prohibition on “multiple and discriminatory taxes on electronic commerce," and violates due process "by burdening and penalizing purely out-of-state conduct and interfering with foreign affairs."

Yet another front has opened in the tug-of-war among computer companies, Congress and the Obama Administration over cybersecurity versus privacy.

Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.) were feeling the love from tech companies and others Thursday (May 19) for introducing the Stopping Mass Hack Act, which is targeted not at shady offshore Web denizens but U.S. law enforcement.

The senators introduced the bill to block recently approved changes to government surveillance rules that would allow the government, with a single warrant, to "hack an unlimited number of computers" if those computers had been "affected by criminals," even without letting the computer owners know the government was accessing their computers. Sens. Tammy Baldwin (D-Wisc.), Steve Daines (R-Mont.) and Jon Tester (D-Mont.) are original co-sponsors of the bill.

The senators say those changes should have been debated by Congress. They go into effect Dec. 1 unless Congress steps in.

The Justice Department requested the change to Rule 41 of the Federal Rules of Criminal Procedure, which the Supreme Court approved. The main changes, according to the Senators, are the single warrant for multiple -- potentially millions -- of searches, and allowing remote searches when law enforcement doesn't know the location of a device.

“The government hacking proposal that will automatically go into effect unless Congress passes the Stopping Mass Hacking Act represents a serious expansion of law enforcement powers," said Kevin Bankston, director of New America’s Open Technology Institute, "yet Congress has never had a chance to consider the complex issues raised by such a significant change to the law. Unless Congress acts now, these new government hacking rules will grant the Justice Department dangerous and unprecedented authority to hack millions of Americans, many of whom may only be guilty of being the victim of a malicious cyber attack themselves.”

Ross Schulman, Open Technology Institute senior counsel, added, “We thank Senators Wyden and Paul for introducing this important bill." New America funders include Google, Netflix, Comcast and Dish.

“We welcome Senators Wyden and Paul’s efforts to prevent this highly controversial rule change from taking effect," said Computer and Communications Industry Association president Ed Black. "They recognize that the far-reaching implications of the government’s proposed changes merit the full attention of their colleagues in Congress. There are constitutional, international, and technological questions that ought to be addressed transparently before such a broad rule change.

CCIA's members, in addition to Google, Netflix and Dish, include Amazon, Yahoo, eBay, Microsoft, and Sprint.