The coming battle for control of the Internet

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LEGAL BRIEF By Max Stul Oppenheimer, Esq. The Supreme Court is not required to explain itself. It decides cases by majority vote, and it is up to the
[See the full post at: The coming battle for control of the Internet]

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abbodi86, SueW, wdburt1, werner, MHCLV941

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That was a good read.

I have always wondered what is the status of of a Twitter feed from governmental agency and/or a government official tweeted under the color of the officials official duties. There is a lot of interesting work for attorneys and advocates as to when a Twitter release constitutes an Official Governmental Record and fall under the various record retention schedules mandated by law and regulation and also the Freedom of Information Act if they are subsequently deleted. Deleting a tweet could have significant ramifications for record keeping and any pending or future litigation, especially in controversial or sensitive matters.

Unfortunately, the legal aspects of tech are usually not effectively addressed at the legislative levels of government until it becomes controversial. By the time they are, the massive influence of money and the technology industry is difficult to counter.

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rc primak

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A question that perhaps must be considered here is this: Is the use of Tweeter, or Facebook, or Instagram, etc. a matter of necessity or a matter of preference?

For example the US Postal Service (another common carrier, by the way) has been set up, as mandated in the US Constitution, to satisfy the real public need of carrying individuals’ and their organization’s, businesses’,  etc. documents, letters, parcels, and more, ideally in a timely, discreet and safe fashion, from anyone to any one, from any place to any destination the items are addressed to.

But just how necessary is to use Tweeter to communicate one’s thoughts, particularly to a wider audience? And how does this benefit the public interest? I think that this is not a simple question and I don’t believe I can answer it here, but I think it is a good question and probably a basic one worth thinking about, nonetheless.

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CADesertRat, rc primak

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Is your use of “Tweeter” tongue in cheek? Regardless, I like it..

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What about a middle ground?   Twitter retains ultimate control over whether someone is allowed to have (or keep) an account, as determined by Twitter’s published rules (“no reason” would not be acceptable).  However, if the account holder is posting in his/her/their official capacity, that person would not be able to block someone else from posting.   Twitter could, however, block a respondent if that person did not adhere to Twitter’s published terms of service.

For example, a government official who posted a call to storm the Congress using his/her/their official account could have that account blocked (assuming doing so violated Twitter’s term of service).   That official could not block someone from posting that the official was a traitor.  However, if that post violated Twitter’s terms of service, Twitter could block the person from posting to the official’s account or kick the person off Twitter altogether.

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Bill C. wrote:

when a Twitter release constitutes an Official Governmental Record and fall under the various record retention schedules mandated by law and regulation and also the Freedom of Information Act if they are subsequently deleted.

WOW!!  That’s a whole new kettle of fish!!   I often wondered whether Trump’s tweets telling the DoD do to something, like refusing enlistment to LGBTQ people constituted a legal order.

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Not a legal order, I think, but nevertheless a public act by a public official and so, a matter of public record. As to calling for the storming of Congress, under circumstances such as the ones in DC on January sixth this year: that I believe is not constitutionally protected speech and falls under the category of seditious speech (*). It could well be that by helping divulge such message, those at Twitter might be considered accomplices.

(*) “Seditious speech is speech directed at the overthrow of government. It includes speech attacking basic institutions of government, including particular governmental leaders. Its criminalization dates back at least as far as the Alien and Sedition Act.” (Wikipedia.)

[Moderator Edit] removed html code

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OscarCP wrote:

A question that perhaps must be considered here is this: Is the use of Tweeter, or Facebook, or Instagram, etc. a matter of necessity or a matter of preference?

None are not necessities/essential like for example : Electricity, Internet, Privacy, Net neutrality..

I don’t use any “social” media.

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OscarCP wrote:

Not a legal order, I think,

I wouldn’t think so either, but that’s why some lawyers get really rich!   

Here’s a real twist: if Twitter (or FaceBook or ???) supports accounts for government officials, it becomes required to follow and support that level of government’s policy for retention of records.  That would solve the whole thing: Twitter et al would probably drop official accounts like hot rocks.

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OscarCP

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MHCLV941: “I often wondered whether Trump’s tweets telling the DoD do to something, like refusing enlistment to LGBTQ people constituted a legal order.”

As to that being a legal order: I did not mean to write when answering your comment that it would be an illegal order,  but rather that it would be not as much an order as an expression of the desire and intention of the then President to see certain changes in DoD policy. Not an order, legal or otherwise, because I doubt even a President can order, just like that, the immediate repeal of any officially recognized legal rights of citizens.

“Twitter et al would probably drop official accounts like hot rocks.”

And that would be real progress.

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Alex5723 wrote:

I don’t use any “social” media.

Indeed!  I’ve yet to encounter anything as anti-social as a lunchroom full of employees with their faces buried in their phones and oblivious to everyone else in the room.

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RockE, SueW, CADesertRat, rick41, rc primak, Susan Bradley

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Isn’t that the truth

Susan Bradley Patch Lady/Prudent patcher

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Does that also apply if you are checking for updates on askwoody.com instead of social media?

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For many of us, I suspect that AskWoody forums could be considered work-related. That it is also enjoyable is a side benefit, not a problem. 

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Twitter and Facebook are not “necessities”. They are also not the only options when a user doesn’t like their terms of service or their enforcement of their clearly posted rules of conduct. I see no reason to treat these platforms as Common Carriers.

Cable TV companies in most communities have limited monopolies or even total monopolies. That leaves no reasonable alternatives to them for the delivery of these services. That’s almost the very definition of a Common Carrier.

Does anyone here use Mastodon, an Open Source and decentralized alternative to Facebook?

-- rc primak

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rc primak wrote:

They are also not the only options when a user doesn’t like their terms of service or their enforcement of their clearly posted rules of conduct

Yes, they are (and WhatsApp) the only options if you check what your family, friend, business contacts… are using.

There are “alternatives” but with neglected user base.

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rc primak

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I think that the case can be made that these social networks are not necessities, because alternative ones can be set up easily, at least from a technical point of view, since doing that would not require having, first of all, to build the actual, large physical infrastructure, as for telephones or cable, if someone cared to do that. The Internet is already up and running and available.

Anything from bulletin boards to blogs, old fashioned as these might be, could already cover most necessary communications between family members, people interested in a particular issue, or issues (e.g. “AskWoody”), distributing cat videos, etc.

“Necessity” = “Definitely needed “, “Preference” = “It can be done in other ways, if one actually wants to do it, but the world will keep on turning if one does not.”

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rc primak

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Here is a case of free speech over the Internet and who, other than the author of a message, might have a say about it, that Justice Thomas might be also ruminating about, now that it is well on its way to himself and the other six members of the US Supreme Court:

A cheerleader from Pennsylvania, then a teenager aged 14 and now an adult at 18, was suspended for a year from cheerleading as punishment for a virulent, finger-raised rant on Snapchat against coaches and other persons of significance in her case, that she made after not being chosen for the varsity team.
She, or rather her lawyer, brought the case to court as a freedom of speech one and based it mainly on a 1969 US Supreme Court ruling in an important case about school students’ right to free expression. Now her case is up for consideration by, once more, the US Supreme Court.

https://www.bbc.com/news/world-us-canada-56886687

” [High school] Pupils’ speech is protected by a landmark Supreme Court case from 1969, Tinker vs Des Moines Independent Community School District, when pupils wore black armbands to protest against the Vietnam War.

The court in that case ruled that pupils’ speech was protected as long as it didn’t cause “material and substantial” disruption to the school.”

(I have to say that I think this case, back in 1969, was just a little, tiny bit more momentous than the cheerleader’s, but probably that is just me.)

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Personally, I don’t use “Social Media” ( FaceBook, Twitter, Instagram, etc. ). I use simple means to contact my friends & family, a simple text message or phone call or email will suffice for me although I’m sure that my cell carrier and google will have a record of everything I’ve said on any form of communication but so far haven’t banned me, LOL.

By using any of the Social Media platforms ( at least in these current times ) requires you to accept their TOS which they use quite willfully as a hammer to change the political landscape etc. which affects us all. Just my 2 cents worth.

Don't take yourself so seriously, no one else does
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Hmm.  Public accommodations must provide their services without discrimination, which if I understand correctly, means they cannot refuse to serve someone because of their identity, affiliations or professed beliefs.

They can and do, however, refuse service to plenty of people due to bad behavior.  A hotel will certainly kick someone out if they’re trashing the place, blatantly breaking the law, and/or disturbing other guests.

If we treated Twitter and other social media platforms similarly, would they not have the same right to refuse service to ill-behaved, disruptive, law-breaking and possibly even dangerous users?

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AmbularD: “If we treated Twitter and other social media platforms similarly, would they not have the same right to refuse service to ill-behaved, disruptive, law-breaking and possibly even dangerous users?”

There are, somewhat relevant to this, certain Website-moderating rules, such as those known as the “Catalina Rules” (google then to see what they are like) that lay down principles of “good moderating” covering issues such as blacklisting, the blocking and deleting of posted comments, issues that are more or less analogous to what is now being discussed. So, in my opinion, the moderating of users’ posted content by the owners of social networks could well be made according to rules similar to at least some of those; this is not a totally unexplored territory.

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I think you may have renamed the “Catalina Rules”, since Google doesn’t know them.

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b: And right you are! It is the “Santa Clara Principles” :

https://santaclaraprinciples.org/

I suppose that the principles that are supposed to rule the behavior of good moderators, when at work as such, are named after Saint Clare of Assisi, a follower of Francis of Assisi. In Italy, in the Middle Ages, she founded a nun’s order and wrote the guiding principles of the order, including the way its members should behave. That is still remembered, because these were the first rules of life in a religious order written by a woman.

https://en.wikipedia.org/wiki/Clare_of_Assisi

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OscarCP wrote:

an expression of the desire and intention of the then President to see certain changes in DoD policy. Not an order, legal or otherwise,

The Chairman Of The Joint Chiefs, when asked about the tweets, said “that “no modifications” would be made to the existing military policy until the White House issued formal guidance on the meaning of the announcement”.  (The Atlantic, JANUARY 13, 2019),

Trump did get around to issuing written orders to DoD on the matter.  That it was later blocked as a result of a lawsuit is another matter.

As for the legality of such an order, it’s murky at best because most LGBTQ policies from “don’t ask, don’t tell” forward were never included in any federal law.

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OscarCP

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I liked to read the idea of carrying the content only. It made me think about the current situation issue with big techs.

With algorithms propagating content they deem of interest to like minded people and selectively showing posts from their friends based on some algorithm, they are effectively indirectly controlling the content. If Bing hides routersecurity.org at the 101th page of search results while Google puts it first, it is controlling content doing indirectly as effectively as what hiding the search result would do directly. If Facebook shows you all kind of content related to your interests based on their AI, it is not just passively passing content, it shapes it. Yes, you can look at all the posts of your 1000 friends individually, but it is not practical. The scary part is that AI is often at least in part black box. You feed something to it and you don’t know why things that get out do get out. In that sense, you could say the companies that use them are neutral, but the black box propagates bias of what is fed into it so they use a biased system. People who knows how to use this to their advantage can maybe game the system. But then, we are back to the starting point because is the big tech responsible for that part they don’t understand? Are the people themselves gaming the system responsible? Such a complex question!

Allowing access to everyone’s posts in one thing, but when you start curating algorithmically, you enter another territory and this is where it gets quite grey.

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doriel

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“To err is human.  To really foul things up requires a computer (the bigger, the better)”

These are really two sides of the same coin.   Back when things were (relatively) simpler, Google’s claim to fame was putting the results most relevant to one’s search first.   When the research was more factual (What mountain buried Pompei?, How do I share a printer in a workgroup?), that was a real boon.

The issue you raise is exactly the same thing.   Google (or Bing or DuckDuckGo) can’t tell a “real” fact from an “alternative” fact.   Someone who’s looking for information about the 2020 presidential election being stolen will very soon never see a result that says the election was not stolen.

It is indeed very complex and very important but also probably damn near impossible to solve.  Any proposed solution would be wide open to charges of bias from anyone who didn’t agree with it.

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Its all about changing people mind in the correct direction. By small steps “big techs” can change your mind. This includes blocking certain information. No suggestions about one of the biggest frauds in recent years? Of course there is no “unified” true to every question, but this seems suspicious.

And DuckDuckGo can suugest results, that Google cant? I dont believe a single word from “big techs” anymore, they just want their own profit, people interests are on the third place, first is money, second is money too.

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Google search results are not much different from DuckDuckGo’s.

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doriel

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It seems like its personalised, my suggestions are not present in Google when I type the sencence you did.

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I think what matters most here is what the top “hits” are like, those at the beginning of page one of the returns from a search: are they relevant in any way to the person doing the search? In my case, not really. If you squint at them long enough, you might see a pattern that somehow, maybe, is about your own preferences. But people also saw canals in Mars, looking through telescopes, for decades and decades, that were not there. So, based on my own many years of googling experience, I must conclude that, if Google “has my number”, it is the wrong number. Many of the top “hits” I get are for “.com” URLs of people trying to sell me things I don’t even remotely want or care to have. So Google is trying, but missing the target by miles. How say ye?

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