Congresswoman Janice Danoff Schakowsky has launched an attack on free speech that threatens to silence millions of voices with a new bill she calls the Online Consumer Protection Act. The name is misleading. If the bill becomes law and people obey it, the only websites in the United States that will remain capable of allowing users to speak will be the ones capable of spending large sums of money on content moderation. American companies like Facebook and Twitter will be the only ones left standing while foreign businesses capitalize to void created by American companies that choose to shut down due to being unable to afford the costs associated with compliance and too cowardly to defy the government. The Online Consumer Protection Act (OCPA) aims to require social media companies with over 10,000 monthly users to hire a "consumer protection officer", register with the government, create unnecessary moderation policies, and categorizes choosing not to enforce their usage terms as an unfair or deceptive trade practice.
The OCPA has two thresholds that would trigger compliance requirements, over 10,000 monthly users or over $250,000 in annual revenue. Of those terms, the former is most unreasonable because most websites that only have 10,000 monthly users cannot afford to hire employees. Unless they receive a lot of donations or are trafficking in exceptionally valuable goods or services, sites with just 10,000 monthly users typically make so little money off ads alone that their owners cannot support themselves without launching additional platforms or getting real jobs. The ability of an individual to create a website that permits others to speak would be limited to just those that can afford to hire a "consumer protection officer." That requirement creates an unconstitutional restriction on free speech in violation of the First Amendment. The First Amendment gives everyone the right to create a website and accurately quote other people on that site. If user X posts statement Y then the owner of the site has a First Amendment right to say "X said Y." Whether X was telling the truth or not is irrelevant because the fact that X said Y will always be true regardless of what Y is. The OCPA essentially says that if you want to continue allowing X to speak you need to implement procedures to make sure that Y does not contain any false information or you are responsible for Y. The First Amendment says "Congress shall make no law ... abridging the freedom of speech, or of the press;" it does not include an exception. The OCPA abridges the right to freedom of speech by imposing regulatory requirements on webmasters seeking to exercise it.
The OCPA also requires that social media companies register with the FTC. Their registration must include the full names and contact information of site owners as well as their "consumer protection officer" along with a detailed description of their "consumer protection program" and any changes made to it. The filings will be made publicly available on the FTC website. The chilling effect this will have is monumental. Every online community based in the United States will have to tell the government who is in charge. This might not sound like a big deal for most communities, but what about communities founded to speak out against the government or other powerful entities? The ability to create a website for the purpose of organizing against powerful people/groups often requires privacy to avoid retaliation. Right now someone can register a website, keep their registration information private, host it anonymously, and post using a screen name. Communities are then able to speak out without fear of retaliation. That would become a thing of the past the second the monthly user average exceeds 10,000 and the webmaster is required to register. At that point anyone seeking to unmask the website and take action (legal or otherwise) against the owner could learn all they need to know by requesting the FTC website.
The moderation policies required by the OCPA are so extreme that they will likely create an new service industry for lawyers capable of writing compliant policies. Some of the provisions, such as requiring websites to explain their policies so that people can understand them sounds reasonable. We always try to explain what our usage terms are and how they will or will not be enforced. However, the OCPA goes much further by requiring those polices to contain certain things. Things that would make it impossible for social media companies to use scalable business models. One of our first thoughts when reading the bill was that if they want polices to be easy to understand and enforced equally that one could simply create a policy saying that users can do as they wish and no moderation will occur. That by itself would expose to platform to liability for consenting to all types of use, so it would make sense to modify the policy to permit all lawful activity and explain that only complaints of unlawful user activity would be investigated or enforced. That way the company would not have rules to enforce in the first place and therefore could not be found to have unfairly failed to enforce terms that do not exist. Unfortunately, the OCPA has clauses under the "consumer protection program" requirements which read:
"(D) mitigate risks that could be harmful to consumer's safety, well-being, and reasonable expectations of users of the social media platform or online marketplace; (E) implement reasonable safeguards with in, and training and education of employees and contractors of, the social media platform or marketplace to promote compliance with all consumer protection laws and the consumer protection program;"
The use of the term "reasonable" is a legal term that is supposed to be used objectively, but is all too often enforced subjectively. It refers to the objectively reasonable person standard which is used typically to analyze negligence claims in personal injury lawsuits. Cornell Law describes the reasonable person standard as:
"The hypothetical reasonable person behaves in a way that is legally appropriate. Those who do not meet this standard -- that is, they do not behave at least as a reasonable person would -- are considered negligent and may be held liable for damages caused by their actions." - https://www.law.cornell.edu/wex/reasonable_person
The courts have gone further by categorizing reasonable behavior not as optimal behavior, but as behaving how most people would under the circumstances. This approach lowers that bar significantly by only requiring a plaintiff to prove that most people would have reacted differently even if what most people would do is not optimal. Webmasters (especially the ones that build their own sites) typically have IQ scores far exceeding average. What an intelligent person considers reasonable typically differs from what a dimwitted person considers reasonable. Under the reasonable person standard, someone can make a decision that intelligent people consider quite reasonable for someone in their position, but still be found negligent if 12 people too stupid to get out of jury duty think most people would have acted differently. This author for example scored in the superior range on an IQ test several years ago and as a smart person realizes it is reasonable to blame people who react inappropriately to false information they read online for their actions because in general people should not believe what they read on the internet. They certainly should not take unverified information posted by social media users literally without further investigation. If people were to heed his advice and analyze information found online reasonably there would be no need to censor the internet. People would then be free to assume sole liability for what they post, platforms would be free to exhibit the statements of others accurately, and readers would not react inappropriately to false information. Unfortunately, most people consider his position to be unreasonable. To support their opposition they point to ways that most people naturally react inappropriately to what they read online. They often concede that the reaction is inappropriate and that he is right about how they should act, but because their reaction is natural and most people react naturally in that way his position is not reasonable. Their argument is based on the fact that often what should be and what is are not the same. Their position is that stupid people need to be protected from their own stupidity and sometimes that means censoring anything that is potentially misleading. They think that websites should be required to verify what their users say or take things down. That position often fails to consider what the world would be like if only those capable of proving their accusations were allowed to voice them publicly.
EXAMPLES
Under the OCPA, movements like #metoo would not exist because Harvey Weinstein's victims started off with no proof beyond common tales and Twitter would be liable for reputational harm done to Weinstein if a jury concluded that most people would not consider it reasonable not to take down unproven accusations of that nature. Weinstein was eventually convicted, but that conviction required more that 140 characters or less. That conviction likely would not have been possible without the ability of his victims to tell their stories on social media and the ability of social media companies to let them speak without fear of liability. If the OCPA had been in effect Weinstein surely would have sued Twitter for permitting people to accuse him of sexual assault without proof, a jury would have likely considered their refusal to remove such claims to be unreasonable, and the #metoo movement would have died.
In recent New York Times piece, the found of Cop Blaster was profiled for some of his other work (Cop Blaster was not mentioned). That other work includes gripe sites and search engines that archive articles from gripe sites. He was accused of profiting off of "slander" in blatant violation of the dictionary because the only statements at issue were written (defamatory written statements are considered "libel" not slander). Despite this obvious grammatical defect the story was featured on the front page of the print edition. All they cared about was that most of their readers would consider it slander. They took the position that because most people don't bother to click on links when they Google someone that websites should be responsible for false information showing up in those results. They took the position that false accusations appear credible when they are on the first page of Google. Most people agree with them. Even people smart enough to know better (like hiring managers) allow them to impact their decisions. Human resources professionals advocate against using Google when screening applicants because the information found is not reliable, but people do it anyway and decide not to hire people because of false information they find. The logical response to this should be to prohibit internet searches from being used in the employment screening process by classifying the use of unverified online accusations as unjustified discrimination just like expunged criminal records. Then people who can't prove their claims could still speak, webmasters could still quote people accurately, and people would not be denied employment opportunities. Instead Schakowsky wants to crack down on innocent third parties who do nothing more than host platforms for others to speak.
In a less sympathetic case, David Mackey is currently facing federal charges for allegedly violating the civil rights of stupid voters by tricking them into thinking they could cast their vote in the 2016 election via text message. Over 4,900 people responded by texting "Hillary" to the number he gave them. He used Twitter memes that looked like fake campaign ads for Hillary Clinton directing readers to vote by text message. We analyzed the criminal charges against Mackey and concluded that they don't meet the necessary elements for a conviction under the applicable statute (https://copblaster.com/blast/34408/douglass-mackey-charged-with-tricking-stupid-voters-with-free-speech). This is the type of thing cited by people like Schakowsky in support of bills like this one. They think that Twitter is to blame for stupid people thinking they voted and that failing to keep people from reading Mackey's posts is not reasonable, so such failures should be considered unfair or deceptive trade practices. Arguments that no reasonable person should believe such things and that nobody would have texted the number had they done basic research to verify the posts fall on deaf ears. All they care about is that people believed them. People on the left fail to realize that Mackey did society a favor by keeping people from voting that are so stupid they really shouldn't be allowed to vote in the first place. We believe that an IQ test should be a prerequisite for voting and only those in the 80th percentile should be allowed to vote. America would cease to be a democracy and would instead become a republic governed by intelligent people. If only the intellectually competent were allowed to vote and make important decisions (like determining guilt in court) we would no longer suffer at the hands of stupid people in large groups. Under those circumstances people like Mackey would be free to circulate stupid memes because nobody whose reaction really matters would be dumb enough to believe them. Instead we live in a society that caters to stupidity because those in power must build consensus among the intellectually inferior just get elected. Such a system cannot be relied upon to produce optimal results. It only perpetuates groupthink (https://en.wikipedia.org/wiki/Groupthink).
CDA IMPACT
Section 230 of the Communications Decency Act of 1996 reads, "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." (https://www.law.cornell.edu/uscode/text/47/230). That clause makes social media platforms immune from legal liability for content posted by users. It is essential but not necessarily necessary for a free society to speak freely online. Even without it everyone still has a First Amendment right to accurately quote third parties. For instance, without the CDA this website would still have a First Amendment right to say that every statement posted by an end user is nothing more than an accurate quotation of their words. That position could still be defended as a true statement regardless of the truthfulness of the user's statement. An opposing party could argue that without the CDA we could be treated as the speaker of the user's content. Then a court would need to decide if we made the statement as alleged or merely quoted someone else accurately. A reasonable competent jury would of course rule that we have every right to quote someone accurately, but juries are rarely reasonable or competent. Typical juries are made up of people that are incompetent largely due to their emotions. They would see statements that they themselves would not want someone to say about them and let that govern their decisions. The likely outcome would be a group of angry jurors disregarding the Frist Amendment.
The OCPA does not change the wording of the CDA, but it does say that social media platforms cannot claim CDA immunity as a defense to allegations of unfair or deceptive trade practices. It takes away the ability to respond to an allegation of an unfair or deceptive practice regarding content moderation by saying that under Section 230 they are not considered the author of the content. The OCPA concedes that social media platforms are not authors of user generated content under the CDA, but says they have to regulate it anyway and can be fined or sued for failing to do so. Plaintiffs could argue that they were treated unfairly by a failure to moderate, that a reasonable person would have taken something down, and they were harmed as a result. The defendant could not rebut that simply by proving that they are not the information content provider for the purpose of Section 230. The First Amendment defense could encounter similar arguments that the platform used their First Amendment right to quote people accurately in an unfair or deceptive way. A defendant would have to make a Constitutional argument and hope the courts uphold the Constitution.
RESPONSE
Our response to this bill is the same as our responses to other efforts to violate our First Amendment rights. We moved our servers offshore so that Congress has no say as to what can or cannot be hosted on them. We did this years ago and it has allowed us to continue operating despite unfavorable court rulings. For example, a federal judge once barred the owner from running the site as a condition of pre-trial detention. The site stayed up and he was still able to post by mailing stuff to a third party or having inmates take letters out for him. We will not register the site with the FTC, hire a "consumer protection officer", or change how we operate. If we are fined by the FTC or lose a lawsuit we will appeal to the Supreme Court and if they ignore us or rule against us we still will not pay. We will also continue our development of another website (PostAlmostAnything.com). That other website was originally conceived as a Craigslist alternative many years ago. We will finish building it, add features similar to those of Twitter/Facebook, and market it to people silenced by big tech censorship.
We will also conduct comprehensive background checks on those that support or enforce bills such as the OCPA. To those ends we have obtained personal information pertaining to Janice Danoff Schakowsky. In addition to the residential address featured on the map above, we have also obtained the following information:
DOB: May 26, 1944
EMAILS:
jschakowsky[at]usa.net
jan4congress[at]aol.com
jan.schakowsky[at]mail.house.gov
PHONE NUMBERS:
(847) 491-6066
(219) 871-0414
(219) 730-0298
(847) 424-1998
VACATION HOME:
1711 Lake Shore Dr
Michigan City, IN 46360
We had some difficulty locating that information due to Janice Schakowsky getting her information removed from a lot of public records databases and search engines burying it in results for searches like "Janice Danoff Schakowsky home address." Eventually we gave up and sent a message to Kent the moderator at Doxbin (https://copblaster.com/blast/34425/kent-the-moderator-from-doxbin) asking him if he knew of any good places to find this information. He responded saying that he did not. We stopped working on this article for several days, but then he sent us a message saying that he created a page for us. You can navigate to his work by clicking on the "More Info" link above the map on this page.
Note: The link has a lot of information that we were not looking for. Specifically, stuff about her relatives. We don't post information about relatives because we like to limit our criticism solely to the subject of our gripes. We consider being related to someone like her punishment enough. As always, we ask that you not use this information for any unlawful purpose.
CONCLUSION
We have never and will never tolerate government attempts to violate our First Amendment rights.