Proceeds from an auction of an unusual edition of Margaret Atwoods classic dystopian novel The Handmaids Tale will go to the free expression advocacy group PEN America, as the group stands up to right-wing attempts to ban books in the United States.

The single copy of the novel is made entirely of flame-resistant material, as evidenced in a video released on May 24 in which Atwood herself attempted to light the book on fire.

Atwood and the publishing company Penguin Random House announced Monday that the book will be auctioned off at Sothebys New York, both to help PEN America fight censorship and as a challenge to enacted and attempted book bans.

To see her classic novel about the dangers of oppression reborn in this innovative, unburnable edition is a timely reminder of whats at stake in the battle against censorship, said Markus Dohle, CEO of Penguin Random House.

The publisher worked with Atwood, PEN America, the Toronto-based creative agency Rethink, and a bookbinding studio called the Gas Company to create the book.

The flame-proof copy is made of thin sheets of Cinefoil, an aluminum product, and was sewn together using nickel copper wire.

The creation of the book comes as attempts to ban books by lawmakers and school districts have surged to their highest level since the American Library Association began recording such censorship two decades ago.

The group reported 729 challenges to materials in schools and libraries. Last week, more than 1,000 childrens book authors and artists signed a letter condemning the efforts by organized groups to purge books from our nations schools.

The Handmaids Tale was banned in schools in Texas and Kansas last year.

According to PEN America, as Republicans center their 2022 electoral campaigns largely on protesting the teaching of the United States long history of racial injustice and discussions of gender identity in public schools, GOP lawmakers in 42 states have proposed nearly 200 pieces of legislation seeking to limit school discussions of such topics.

The unburnable copy of The Handmaids Tale is an unforgettable visual metaphor for the current political climate in the U.S., Atwood said.

Excerpt from:

Battle against censorship: Fire-Proof edition of "Handmaid's Tale" released to fight GOP book-banning - Milwaukee Independent

One of the reasons that Russian media has been completely blocked in the West, along with the unprecedented control and censorship over the Ukraine war narrative, is the fact that western governments simply do not want their public to know that the world is vastly changing.

Ignorance might be bliss, arguably in some situations, but not in this case. Here, ignorance can be catastrophic as western audiences are denied access to information about a critical situation that is affecting them in profound ways and will most certainly impact the worlds geopolitics for generations to come.

The growinginflation, an imminent globalrecession, a festering refugee crisis, a deepening food shortage crisis and much more are the kinds of challenges that require open and transparent discussions regarding the situation in Ukraine, the NATO-Russia rivalry and the responsibility of the West in the ongoing war.

To discuss these issues, along with the missing context of the Russia-Ukraine war, wespokewith Professor Noam Chomsky, believed to be the greatest living intellectual of our time.

Chomsky told us that it should be clear that the (Russian) invasion of Ukraine has no (moral) justification. He compared it to the US invasion of Iraq, seeing it as an example of supreme international crime. With this moral question settled, Chomsky believes that the main background of this war, a factor that is missing in mainstream media coverage, is NATO expansion.

This is not just my opinion, said Chomsky, it is the opinion of every high-level US official in the diplomatic services who has any familiarity with Russia and Eastern Europe. This goes back to George Kennan and, in the 1990s, Reagans ambassador Jack Matlock, including the current director of the CIA; in fact, just everybody who knows anything has been warning Washington that it is reckless and provocative to ignore Russias very clear and explicit red lines. That goes way before (Vladimir) Putin, it has nothing to do with him; (Mikhail) Gorbachev, all said the same thing. Ukraine and Georgia cannot join NATO, this is the geostrategic heartland of Russia.

Though various US administrations acknowledged and, to some extent, respected the Russian red lines, the Bill Clinton Administration did not. According to Chomsky, George H. W. Bush made an explicit promise to Gorbachev that NATO would not expand beyond East Germany, perfectly explicit. You can look up the documents. Its very clear. Bush lived up to it. But when Clinton came along, he started violating it. And he gave reasons. He explained that he had to do it for domestic political reasons. He had to get the Polish vote, the ethnic vote. So, he would let the so-called Visegrad countries into NATO. Russia accepted it, didnt like it but accepted it.

The second George Bush, Chomsky argued, just threw the door wide open. In fact, even invited Ukraine to join over, despite the objections of everyone in the top diplomatic service, apart from his own little clique, Cheney, Rumsfeld (among others). But France and Germany vetoed it.

However, that was hardly the end of the discussion. Ukraines NATO membership remained on the agenda because of intense pressures from Washington.

Starting in 2014, after the Maidan uprising, the United States began openly, not secretly, moving to integrate Ukraine into the NATO military command, sending heavy armaments and joining military exercises, military training and it was not a secret. They boasted about it, Chomsky said.

What is interesting is that current Ukrainian President Volodymyr Zelensky was elected on a peace platform, to implement what was called Minsk Two, some kind of autonomy for the eastern region. He tried to implement it. He was warned by right-wing militias that if he persisted, theyd kill him. Well, he didnt get any support from the United States. If the United States had supported him, he could have continued, we might have avoided all of this. The United States was committed to the integration of Ukraine within NATO.

The Joe Biden Administration carried on with the policy of NATO expansion. Just before the invasion, said Chomsky, Biden produced a joint statement calling for expanding these efforts of integration. Thats part of what was called an enhanced program leading to the mission of NATO. In November, it was moved forward to a charter, signed by the Secretary of State.

Soon after the war, the United States Department acknowledged that they had not taken Russian security concerns into consideration in any discussions with Russia. The question of NATO, they would not discuss. Well, all of that is provocation. Not a justification but a provocation and its quite interesting that in American discourse, it is almost obligatory to refer to the invasion as the unprovoked invasion of Ukraine. Look it up on Google, you will find hundreds of thousands of hits.

Chomsky continued, Of course, it was provoked. Otherwise, they wouldnt refer to it all the time as an unprovoked invasion. By now, censorship in the United States has reached such a level beyond anything in my lifetime. Such a level that you are not permitted to read the Russian position. Literally. Americans are not allowed to know what the Russians are saying. Except, selected things. So, if Putin makes a speech to Russians with all kinds of outlandish claims about Peter the Great and so on, then, you see it on the front pages. If the Russians make an offer for a negotiation, you cant find it. Thats suppressed. Youre not allowed to know what they are saying. I have never seen a level of censorship like this.

Regarding his views of the possible future scenarios, Chomsky said that the war will end, either through diplomacy or not. Thats just logic. Well, if diplomacy has a meaning, it means both sides can tolerate it. They dont like it, but they can tolerate it. They dont get anything they want, they get something. Thats diplomacy. If you reject diplomacy, you are saying: Let the war go on with all of its horrors, with all the destruction of Ukraine, and lets let it go on until we get what we want.

By we, Chomsky was referring to Washington, which simply wants to harm Russia so severely that it will never be able to undertake actions like this again. Well, what does that mean? Its impossible to achieve. So, it means, lets continue the war until Ukraine is devastated. Thats US policy.

Most of this is not obvious to western audiences simply because rational voices are not allowed to talk and because rationality is not permitted. This is a level of hysteria that I have never seen, even during the Second World War, which I am old enough to remember very well.

While an alternative understanding of the devastating war in Ukraine is disallowed, the West continues to offer no serious answers or achievable goals, leaving Ukraine devastated and the root causes of the problem in place. Thats US policy, indeed.

(The interview with Noam Chomsky was conducted jointly with Italian journalist, Romana Rubeo)

Read more from the original source:

'Rationality Is Not Permitted': Chomsky On Russia, Ukraine And The Price Of Media Censorship OpEd - Eurasia Review

TAIPEI, Taiwan

Most internet users trying to get past Chinas Great Firewall search for a cyber tunnel that will take them outside censorship restrictions to the wider web. But Vincent Brussee is looking for a way in, so he can better glimpse what life is like under the Communist Party.

An analyst with the Mercator Institute for China Studies in Berlin, Brussee frequently scours the Chinese internet for data. His main focus is information that will help him understand Chinas burgeoning social credit system. But in the last few years, hes noticed that his usual sources have become more unreliable and access tougher to gain.

Some government websites fail to load, appearing to block users from specific geographic locations. Other platforms require a Chinese phone number tied to official identification. Files that were available three years ago have started to disappear as Brussee and many like him, including academics and journalists, are finding it increasingly frustrating to penetrate Chinas cyber world from the outside.

Its making it more difficult to simply understand where China is headed, Brussee said. A lot of the work we are doing is digging for little scraps of information.

One of the most sweeping surveillance states in the world, China has all but closed its borders since the start of the pandemic, accelerating a political turn inward as nationalism is on the rise and foreign ties are treated with suspicion. A harsh zero-COVID policy has contributed to the attrition of foreign residents, particularly after a long and bitter lockdown this spring in Shanghai, Chinas largest and most international city.

At the same time, academics and researchers have complained that the digital window into China seems to be constricting too. That compounds a growing concern for China experts locked out of the country amid deteriorating relations with the West. A tightening of internet access means observers will struggle to decipher what internal pressures Chinas leader Xi Jinping may be facing and how to keep track of Beijings diplomatic, technological and military ambitions.

Comprehensive analysis on whom Chinas Great Firewall keeps out is scarce; much of the focus on the countrys internet freedom remains on domestic censorship. But many researchers who have experienced such challenges suspect that their limited access is part of Chinas attempt to ward off what it sees as international meddling, and present its own tightly controlled narrative to the outside world.

Several researchers, for example, noted difficulties accessing Xinjiang government data from abroad, likely a response to international criticism on reports of forced labor and human rights abuses against the western regions Uyghur population. More puzzling to Brussee was when he encountered similar barriers to the government website of Anhui province, a decidedly less controversial part of China.

Brussee said websites have also added guards against data scraping, limiting how much information he can retrieve via automation on public procurement of surveillance systems, policy documents and citizens or businesses affected by the social credit system. Some bot tests known as CAPTCHA require manual input of Chinese characters or idioms, another barrier for those unfamiliar with the language.

China is keen to project an image of power and superiority. But that has been undermined at times by embarrassing revelations, including recent videos of Shanghai residents protesting harsh lockdown restrictions. The posts were quickly wiped from the Chinese web but continued to circulate beyond the Great Firewall, challenging Beijings claims that its zero-tolerance COVID policy was better at containing the pandemic than programs in the West.

Comments on Chinas internet can also cast an unflattering light. Earlier this year, users on the nations Twitter-like Weibo platform drew condemnation for sexist comments welcoming beautiful Ukrainian women as war refugees. An anonymous movement that translates extreme and nationalistic posts from Chinese netizens has outraged state commentators who call it an anti-China smear campaign.

In order to squeeze through bottlenecks, Brussee uses a virtual private network, or VPN, which routes an internet users web traffic through servers in a different geographic location. Though its a commonly used tool for Chinese netizens to circumvent the Great Firewall, Brussees aim is to appear to be visiting websites from within Chinas borders.

But VPNs arent foolproof. Chinese authorities have cracked down, making connections in and out of China slow and erratic. Brussee said he went a month without a VPN last fall, when his main provider inexplicably stopped functioning. After five fruitless calls to the company, he could only wait for service to eventually resume. His last resort would be to use a Chinese company with more reliable servers inside the country, but he said installing Chinese software comes with additional security risks.

I dont think the VPN is enough anymore a lot of the time, said Daria Impiombato, a researcher at the Australian Strategic Policy Institute who uses VPNs to bounce around to different locations when trying to visit Chinese government websites. You find workarounds, but it takes way longer.

One alternative source of information that Impiombato has relied on is WeChat, the ubiquitous social messaging app owned by Chinese gaming giant Tencent. Many party agencies have their own pages on WeChat where they post notices, but it requires a lot of mobile scrolling to find the relevant material, she said.

Signing up for an account, however, has become more challenging for foreigners in recent years as Chinese platforms like WeChat, Weibo and others have implemented additional screening, such as a Chinese phone number and official identification. In some cases, those registration requirements can be more prohibitive than geoblocking, ruling out resources from online discussions to official documents to industry databases.

Graham Webster, editor in chief of the DigiChina Project at the Stanford University Cyber Policy Center, has searched for a way to use Weibo since losing the use of his Chinese phone and subsequently his account. The closest solution he could find was a service that provided temporary, and he suspected fraudulent, phone numbers.

We are talking about something that would be on the internet for one-fifth of the worlds population and not for the other four-fifths, Webster said. This is one more wedge in a steepening curve of barriers between China and the outside world. It leaves a lot more ground for suspicion and uncertainty.

Blocking foreign internet users, particularly from sensitive information, is not unique to China. According to a 2020 report from Censored Planet, which studies internet freedom and censorship, the U.S. government had blocked about 50 websites from being viewed from Hong Kong and mainland China, including official military home pages and stores of economic data.

But Chinas control of information appears more expansive. The government, according to researchers and academics, had made files and data available online over the last decade. But in recent years as China has become more sensitive about its global image and more critical of the West that degree of openness has run into a trend to deter outsiders from peering in.

Its the effort of openness coming up against the current push towards closedness, said Maya Wang, senior China researcher at Human Rights Watch. The result is some strange hybrid landscape, where you can have access to a lot of information if you go through all these hoops, specifically because they are not designed for you to have access to them.

Some who have developed ways to bypass blocks were reluctant to share details, aside from generally trying to emulate a Chinese location, fearing those channels would be plugged as well.

Describing to a newspaper the workarounds to access blocked Chinese sites ensures that the workarounds will be blocked, too, one U.S. academic researcher wrote via email. The only thing I can add, without cutting short my own career, is another common sense measure, namely, scrape and cache whatever one discovers the first time around.

Thats turned into standard practice for Impiombato, who has grown paranoid about saving her own copies of everything as government web pages, news releases and social media posts have vanished unexpectedly amid her research.

Sometimes you see the perfect piece of information that you need and then suddenly its gone, she said. You almost have to start from scratch every single time.

Katherine Kaup, a professor at Furman University who studies Chinas ethnic policy, said the countrys changes have forced her and others to consider entirely new research topics and techniques. She has reservations about one day returning to China for field work, and even virtual discussions with people in the country have been dampened by concerns over repercussions for speaking too frankly amid a growing clampdown on dissent.

I sometimes feel like Im in a bad sci-fi movie, she said. The type of research that we used to do is not going to be possible moving forward in the next few years.

Original post:

As China shuts out the world, internet access from abroad gets harder too - Los Angeles Times

from the who-does-this-help? dept

This post analyzes California AB 587, self-described as Content Moderation Requirements for Internet Terms of Service. I believe the bill will get a legislative hearing later this month.

A note about the draft Im analyzing,posted here. Its dated June 6, and its different from theversion publicly posted on the legislatures website(dated April 28). Im not sure what the June 6 drafts redlines compare tomaybe the bill as introduced? Im also not sure if the June 6 draft will be the basis of the hearing, or if there will be more iterations between now and then. Its exceptionally difficult for me to analyze bills that are changing rapidly in secret. When bill drafters secretly solicit feedback, every other constituency cannot follow along or share timely or helpful feedback. Its especially ironic to see non-public activity for a bill thats all aboutmandating transparency. _()_/

Whos Covered by the Bill?

The bill applies to social media platforms that: (A) Construct a public or semipublic profile within a bounded system created by the service. (B) Populate a list of other users with whom an individual shares a connection within the system. [and] (C) View and navigate a list of connections made by other individuals within the system.

This definition of social media has been around for about a decade, and its awful.Critiques I made8 years ago:

First, what is a semi-public profile, and how does it differ from a public or non-public profile? Is there even such a thing as a semi-private or non-public profile?

Second, what does a bounded system mean?The bounded system phrase sounds like a walled garden of some sort, but most walled gardens arent impervious. So what delimits the boundaries the statute refers to, and what does an unbounded system look like?

I also dont understand what constitutes a connection, what a list of connections means, or what it means to populate the connection list. This definition of social media was never meant to be used as a statutory definition, and every word invites litigation.

Further, the legislature shouldbut surely has notrun this definition through a test suite to make sure it fits the legislatures intent. In particular, which, if any, services offering user-generated content (UGC) functionality do NOT satisfy this definition? Though decades of litigation might ultimately answer the question, I expect that the language likely covers all UGC services.

[Note: based on a quick Lexis search, I saw similar statutory language in about 20 laws, but I did not see any caselaw interpreting the language because I believe those laws are largely unused.]

The bill then excludes some UGC services:

The Laws Requirements

Publish the TOS

The bill requires social media platforms to post their terms of service (TOS), translated into every language they offer product features in. It defines TOS as:

a policy or set of policies adopted by a social media company that specifies, at least, the user behavior and activities that are permitted on the internet-based service owned or operated by the social media company, and the user behavior and activities that may subject the user or an item of content to being actioned. This may include, but is not limited to, a terms of service document or agreement, rules or content moderation guidelines, community guidelines, acceptable uses, and other policies and established practices that outline these policies.

To start, I need to address the ambiguity of what constitutes the TOS because its the most dangerous and censorial trap of the bill. Every service publishes public-facing editorial rules, but the published versions never can capture ALL of the services editorial rules. Exceptions include: private interpretations that are not shared to protect against gaming, private interpretations that are too detailed for public consumption, private interpretations that governments ask/demand the services dont tell the public about, private interpretations that are made on the fly in response to exigencies, one-off exceptions, and more.

According to the bills definition, failing to publish all of these non-public policies and practices before taking action based on them could mean noncompliance with the bills requirements. Given the inevitability of such undisclosed editorial policies, it seems like every service always will be noncompliant.

Furthermore, to the extent the bill inhibits services from making an editorial decision using a policy/practice that hasnt been pre-announced, the bill would control and skew the services editorial decisions. This pre-announcement requirement would have the same effect as Floridas restrictions on updating their TOSes more than once every 30 days (the 11th Circuit heldthat restriction was unconstitutional).

Finally, imagine trying to impose a similar editorial policy disclosure requirement on a traditional publisher like a newspaper or book publisher. They currently arent required to disclose ANY editorial policies, let alone ALL of them, and I believe any such effort to require such disclosures would obviously be struck down as an unconstitutional intrusion into the freedom of speech and press.

In addition to requiring the TOSs publication, the bill says the TOS must include (1) a way to contact the platform to ask questions about the TOS, (2) descriptions of how users can complain about content and the social media companys commitments on response and resolution time. (Drafting suggestion for regulated services: We do not promise to respond ever), and (3) A list of potential actions the social media company may take against an item of content or a user, including, but not limited to, removal, demonetization, deprioritization, or banning. I identified 3 dozen potential actions in myContent Moderation Remedies article, and Im sure more exist or will be developed, so the remedies list should be long and Im not sure how a platform could pre-announce the full universe of possible remedies.

Information Disclosures to the CA AG

Once a quarter, the bill would require platforms to deliver to the CA AG the current TOS, a complete and detailed description of changes to the TOS in the prior quarter, and a statement of whether the TOS defines any of the following five terms and what the definitions are: Hate speech or racism, Extremism or radicalization, Disinformation or misinformation, Harassment, and Foreign political interference. [If the definitions are from the TOS, cant the AG just read that?]. Ill call the enumerated five content categories the Targeted Constitutionally Protected Content.

In addition, the platforms would need to provide a detailed description of content moderation practices used by the social media. This seems to contemplate more disclosures than just the TOS, but that definition seemingly already captured all of the services content moderation rules. I assume the bill wants to know how the services editorial policies are operationalized, but it doesnt make that clear. Plus, like Texas open-ended disclosure requirements, the unbounded disclosure obligation ensures litigation over (unavoidable) omissions.

Beyond the open-ended requirement, the bill enumerates an overwhelmingly complex list of required disclosures, which are far more invasive and burdensome than Texas plenty-burdensome demands:

All told, there are 7 categories of disclosures, and the bill indicates that the disclosure categories have, respectively, 5 options, at least 5 options, at least 3 options, at least 5 options, and at least 5 options. So I believe the bill requires that each services reports should include no less than 161 different categories of disclosures (75+75+73+75+75).

Who will benefit from these disclosures? At minimum, unlike the purported justification cited by the 11th Circuit for Floridas disclosure requirements, the bills required statistics cannot help consumers make better marketplace choices. By definition, each service can define each category of Targeted Constitutionally Protected Content differently, so consumers cannot compare the reported numbers across services. Furthermore, because services can change how these define each content category from time to time, it wont even be possible to compare a services new numbers against prior numbers to determine if they are getting better or worse at managing the Targeted Constitutionally Protected Content. Services could even change their definitions so they dont have to report anything. For example, a service could create an omnibus category of incivil content/activity that includes some or all of the Targeted Constitutionally Protected Content categories, in which case they wouldnt have to disclose anything. (Note also that this countermove would represent a change in the services editorial practices impelled by the bill, which exacerbates the constitutional problem discussed below). So who is the audience for the statistics and what, exactly, will they learn from the required disclosures? Without clear and persuasive answers to these questions, it looks like the state is demanding the info purely as a raw exercise of power, not to benefit any constituency.

Remedies

Violations can trigger penalties of up to $15k/violation/day, and the penalties should at minimum be sufficient to induce compliance with this act but should be mitigated if the service made a reasonable, good faith attempt to comply. The AG can enforce the law, but so can county counsel and city DAs in some circumstances. The bill provides those non-AG enforcers with some financial incentives to chase the penalty money as a bounty.

An earlier draft of the bill expressly authorized private rights of action via B&P 17200. Fortunately, that provision got struckbut, unfortunately, in its place theres a provision saying that this bill is cumulative with any other law. As a result, I think the 17200 PRA is still available. If so, this bill will be a perpetual litigation machine. I would expect every lawsuit against a regulated service would add 587 claims for alleged omissions, misrepresentations, etc. Like the CCPA/CPRA, the bill should clearly eliminate all PRAsunless the legislature wants Californians suing each other into oblivion.

Some Structural Problems with the Bill

Although the prior section identified some obvious drafting errors, fixing those errors wont make this a good bill. Some structural problems with the bill that cant be readily fixed.

The overall problem with mandatory editorial transparency. I just wrote awhole paper explaining why mandatory editorial transparency laws like AB 587 are categorically unconstitutional, so you should start with that if you havent already read it. To summarize, the disclosure requirements about editorial policies and practices functionally control speech by inducing publishers to make editorial decisions that will placate regulators rather than best serve the publishers audience. Furthermore, any investigation of the mandated disclosures puts the government in the position of supervising the editorial process, an unhealthy entanglement. I already mentioned one such example where regulators try to validate if the service properly described when it does manual vs. automated content moderation. Such an investigation would necessarily scrutinize and second-guess every aspect of the services editorial function.

Because of these inevitable speech restrictions, I believe strict scrutiny should apply to AB 587 without relying on the confused caselaw involving compelled commercial disclosures. In other words, I dont thinkZauderera recent darling of the pro-censorship crowdis the right test (I will have more to say on this topic). Further, Zauderer only applies when the disclosures are uncontroversial and purely factual, but the AB587 disclosures are neither. The Targeted Constitutionally Protect Content categories all involve highly political topics, not the pricing terms at issue in Zauderer; and the disclosures require substantial and highly debatable exercises of judgments to make the classifications, so they are not purely factual. And even if Zauderer does apply, I think the disclosure requirements impose an undue burden. For example, if 161 different prophylactic just-in-case disclosures dont constitute an undue burden, I dont know what would.

The TOS definition problem. As I mentioned, what constitutes part of the TOS creates a litigation trap easily exploited by plaintiffs. Furthermore, if it requires the publication of policies and practices that justifiably should not be published, the law intrudes into editorial processes.

The favoritism shown to the Targeted Constitutionally Protected Content. The law privileges the five categories in the Targeted Constitutionally Protected Content for heightened attention by services, but there are many other categories of lawful-but-awful content that are not given equal treatment. Why?

This distinction between types of lawful-but-awful speech sends the obvious message to services that they need to pay closer attention to these content categories over the others. This implicit message to reprioritize content categories distorts the services editorial prerogative, and if services get the message that they should manage the disclosed numbers down, the bill reduces constitutionally protected speech. However, services wont know if they should be managing the numbers down. The AG is a Democrat, so hes likely to prefer less lawful-but-awful content. However, many county prosecutors in red counties (yes, California has them) may prefer less content moderation of constitutionally protected speech and would investigate if they see the numbers trending down. Given that services are trapped between these competing partisan dynamics, they will be paralyzed in their editorial decision-making. This reiterates why the bill doesnt satisfy Zauderer uncontroversial prong.

The problem classifying the Targeted Constitutionally Protected Content. Determining what fits into each category of the Targeted Constitutionally Protected Content is an editorial judgment that always will be subject to substantial debate. Consider, for example, how often the Oversight Board has reversed Facebook on similar topics. The plaintiffs can always disagree with the services classifications, and that puts them in the role of second-guessing the services editorial decisions.

Social media exceptionalism. As Benkler et als book Network Propaganda showed, Fox News injects misinformation into the conversation, which then propagates to social media. So why does the bill target social media and not Fox News? More generally, the bill doesnt explain why social media needs this intervention compared to traditional publishers or even other types of online publishers (say, Breitbart?). Or is the states position that it could impose equally invasive transparency obligations on the editorial decisions of other publishers, like newspapers and book publishers?

The favoritism shown to the excluded services. I think the state will have a difficult time justifying why some UGC services get a free pass from the requirements. It sure looks arbitrary.

The Dormant Commerce Clause. The bill does not restrict its reach to California. This creates several potential DCC problems:

Conclusion

Stepping back from the details, the bill can be roughly divided into two components: (1) the TOS publication and delivery component, and (2) the operational disclosures and statistics component. Abstracting the bill at this level highlights the bills pure cynicism.

The TOS publication and delivery component is obviously pointless. Any regulated platform already posts its TOS and likely addresses the specified topics, at least in some level of generality (and an obvious countermove to this bill will be for services to make their public-facing disclosures more general and less specific than they currently are). Consumers can already read those onsite TOSes if they care; and the AGs office can already access those TOSes any time it wants. (Heck, the AG can even set up bots to download copies quarterly, or even more frequently, and I wonder if the AGs office has ever used the Wayback Machine?). So if this provision isnt really generating any new disclosures to consumers, its just creating technical traps that platforms might trip over.

The operational disclosures and statistics component would likely create new public data, but as explained above, its data that is worthless to consumers. Like the TOS publication and delivery provision, it feels more like a trap for technical enforcements than a provision that benefits California residents. Its also almost certainly unconstitutional. The emphasis on Targeted Constitutionally Protected Content categories seems designed to change the editorial decision-making of the regulated services, which is a flat-out form of censorship; and even if Zauderer is the applicable test, it seems likely to fail that test as well.

So if this provision gets struck and the TOS publication and delivery provision doesnt do anything helpful, it leaves the obvious question: why is the California legislature working on this and not the many other social problems in our state? The answer to that question is surely dispiriting to every California resident.

Reposted, with permission, from Eric Goldmans Technology & Marketing Law Blog.

Filed Under: ab 587, california, content moderation, disclosures, internet regulations, terms of service, transparency

Continued here:

California Seems To Be Taking The Exact Wrong Lessons From Texas And Florida's Social Media Censorship Laws - Techdirt