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May 2019
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Section 230 Keeps The Internet Open For Innovation

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Sex-trafficking victims in California are suing Salesforce, claiming the company helped the now-defunct website Backpage, a classified ads website, in enabling prostitution. Whatever your view on the harm to the plaintiffs, this suit could hurt American innovation. By holding Salesforce accountable for the actions of its customer, the suit opens the door for other innovators to be held responsible when users post illegal content - a dangerous precedent in today's internet era.The question of who is responsible for online content is a difficult issue. Intermediary liability protection is the common-sense idea that internet platforms are not responsible for content posted by users. Enshrined in Section 230 of the 1996 Communications Decency Act, this law allowed American companies to be the innovators of the internet. In fact, the internet as we know it functions because of Section 230. Without Section 230, any site hosting user-generated content would have to screen every submission to avoid lawsuits.On a practical basis, doing this in real time would be impossible due to the sheer amount of content created: Twitter alone hosts 350,000 tweets per minute; 200 billion tweets per year. Similarly, YouTube would be liable for any of the content its 1.9 billion monthly users might upload. If any single user post could lead to legal action against the social media platform, that platform would shut down.Today's internet experience would be virtually impossible.And so Section 230, the cornerstone of today's innovative internet, was considered inviolable - until 2018, when Congress was approached by groups representing victims of sex trafficking (and quietly backed by Hollywood studios, the hotel industry and others who saw the chance to weaken online competitors that were taking their customers and disrupting their businesses). While some groups advocating for sex-trafficking victims opposed it, many of these proponents pushed FOSTA/SESTA into law, which allows trial lawyers to sue social media sites that facilitate sex trafficking - and, although undoubtedly well-intentioned, the bill takes aim at Section 230.Though (oddly), the Salesforce lawsuit doesn't invoke FOSTA/SESTA, the law's hastily written language was so broad and vague it could potentially impose liability to any website with a comments section. And immediately, internet services began pulling down popular forums featuring consumer-generated content. Other websites eliminated sections or imposed broad filters. Congress made the internet experience less rich for users and more difficult for entrepreneurs, all while doing very little to protect actual victims of sex trafficking.For all the damage done to free speech online, FOSTA/SESTA has had little upside. Backpage was seized by the FBI before the bill was signed into law, proving that FOSTA/SESTA was not necessary to take down wrongdoers. More, FOSTA/SESTA forced sex traffickers underground, making it harder for authorities to identify and rescue victims.Fortunately, our nation knows how to choose freedom over fear and innovation over regulation. Consider the successful SOPA/PIPA protests of 2012, which pushed back against overbroad copyright laws that would have crushed the burgeoning digital economy. Thanks to the protests, websites with user-generated content continue to flourish today.Section 230 is the legal foundation of the internet - not a shield for criminal liability. But it remains an important protection to encourage entrepreneurs and innovators to start internet businesses. We can't allow misguided rulemaking and ruinous litigation to discourage that. We must keep the internet open for innovation.Gary Shapiro is president and CEO of the Consumer Technology Association (CTA), the U.S.trade association representing more than 2,200 consumer technology companies, and a NewYork Times best-selling author. He is the author of the new book, Ninja Future: Secrets toSuccess in the New World of Innovation. His views are his own.

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DC Legislators Push FOIA Amendment That Would Shield Government Emails From FOIA Requesters

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Buried at the bottom of Washington, D.C.'s 2020 budget report [PDF] is a gift to legislators who value opacity. The so-called "Freedom of Information Clarification Amendment" would make it much more difficult for requesters to obtain the documents they're seeking.The amendment to the district's FOIA law would require requesters to know exactly what documents they're seeking when they request them. It's a nearly-impossible bar to hurdle -- one that turns FOIA requests into games of Battleship.

“Reasonably describing” means describing with particularity the public records requested by including the names of the sender and recipient, a timeframe for the search, and a description of the subject matter of the public record or search terms to allow a public body to conduct a search and review within the time prescribed pursuant to section 202(c).”.
What this means is requesters seeking communications would need to know both the sender and recipient of emails they've never seen or the agency can reject the request entirely. The legislator pushing this says it will stop "fishing expeditions." But requests are sometimes necessarily "fishing expeditions" because requesters are working blind. They don't have access to these communications and have no way of knowing how many parties discussed the subject at hand. If this passes, D.C. government agencies will be pressing the "reject" button with increased frequency.If there's anything transparent here, it's the self-interest of the legislators pushing the amendment. One member of the D.C. Council -- a Democrat like the councilmember who wrote the amendment -- has been the subject of unflattering news coverage based on FOIA requests.
In March, for example, The Washington Post reported that D.C. Council Member Jack Evans (D-Ward 2) had repeatedly sent business proposals to potential employers in which he offered his connections and influence as the city’s longest-serving lawmaker and chairman of the Washington Metropolitan Area Transit Authority. Evans made those pitches using his government email account, and journalists obtained them through the District’s FOIA law.[...]Last year, journalist Jeffrey Anderson, also using documents obtained through FOIA, reported that Evans’s son was offered an internship by a digital-sign company that would have benefited from legislation Evans advanced at the council.
Legislators' own dishonest dealings have often resulted in calls to change public records rules to provide more opacity. Claims are made about "fishing expeditions" and protecting the private lives of legislators but, in reality, the real goal is protecting government employees from the people they serve.

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