The Battle Over Section 230 Begins (Update)

Rep. Jackie Speiers has announced her intention to introduce a bill in Congress to criminalize revenge porn, as predicted. Via US News & World Reports:

The war against “revenge porn” is about to enter Congress.

Rep. Jackie Speier, D-Calif., is preparing to introduce legislation to criminalize the non-consensual online dissemination of lewd content by jilted lovers and hackers, her office confirms to U.S. News.

This is the big prize to the crusaders, as it accomplishes what state law cannot:

Most websites hosting revenge porn, however, cannot be forced to remove the content because Section 230 of the federal Communications Decency Act grants Internet companies legal immunity if third-party content doesn’t violate federal copyright or criminal law.

University of Miami law professor Mary Anne Franks, an advocate for victims of revenge porn and a board member of the Cyber Civil Rights Initiative, is helping to draft the legislation.

If disseminating “revenge porn” becomes a federal crime, websites “wouldn’t be able to raise the special Section 230 defense that intermediaries are sometimes able to raise with regard to other unlawful activity,” Franks tells U.S. News.

Search engines and website that host third-party content might be required to remove or block access to revenge porn if its distribution becomes a federal crime, as is already done with child pornography and copyright violations.

Ironically, Franks just posted another of her vapid ad hominem tumblr attacks on Mike Masnick and Tim Cushing of Techdirt for lying about her purpose of circumventing Sec. 230 protection (and calling me a “pervert blogger” for fun in the process, though she passive-aggressively fails to name me, but links back here with a proxy link so I don’t get the Google juice from her 12 readers).

While lawyers (except the few Franks’ true believers) are unlikely to fall for such shenanigans, it creates confusion for others, who are constrained to rely on others for legal analysis.  It’s a tactic of desperation, but it’s effective in confusing the ignorant. And shameless advocates will do whatever it takes to win their cause, even if it requires them to wallow in the gutter.

The confusion sown by the rhetoric of the anti-revenge porn advocates is apparent in this Gawker article by Michelle Dean:

With Rep. Jackie Speier’s announcement yesterday that she intends to introduce a federal bill criminalizing “revenge porn” into the house in the month, people were asking the same question they often ask about revenge porn: Why isn’t this already illegal?

The short answer is that law enforcement often doesn’t take it seriously. There are existing laws against harassment, but even victims of ordinary harassment have always had a hard time getting the authorities to pay attention. And anecdotal evidence suggests that the cops tend to presume that harassment laws don’t apply to the behavior of the kind of people who contribute to websites like Is Anyone Up, You Got Posted, and myex.com (“It’s just online”).

That’s the pitch of advocates, which is not merely anecdotal, but a strawman.  The problem is that non-lawyers lack the knowledge and experience to appreciate that criminalizing speech presents massive constitutional issues.  While the Franks camp is working full-time on trying to push their agenda, there is no organized opposition per se, and it’s left to organizations that support civil liberties, like the ACLU and the EFF, together with a few blawgers, to note the problems.  In return, we suffer Franks’ name-calling and attacks. So be it.

While the issues raised by state laws are bad enough, this federal law elevates the problem to a level that may well fundamentally alter the nature of the internet.  Conceptually, the point is that third-party hosts, ranging from Google to Twitter to blogs and everything in between, which now enjoy the safe harbor of Section 230, would become criminally liable for what is uploaded by others.

Other than commercial porn websites, this creates a massive incentive for hosts to censor the internet of all provocative images.  After all, how would Google know if the person in an image consents to its display?  Why would Google want to risk its own criminal culpability so some yahoo in Iowa can post a nude picture?  Google loves you, but not enough to go to prison for you.

But the spin is that this will only impact the bad dudes, the Hunter Moore’s who run the websites that gave rise to this fury:

As Mary Anne Franks, a University of Miami law professor who is working on the Speier bill, wrote to me in an email:

… online entities protected by Section 230 of the Communications Decency Act are provided with a special defense against state criminal laws, but not against federal criminal laws (or federal copyright laws, for that matter). A federal law means that a revenge porn site claiming to merely provide a platform for angry exes to upload sexually explicit images of their former partners will not be able to hide behind Section 230.

Had Franks been a lawyer, she might be more reluctant to proffer such a flagrantly deceptive pitch.  A federal law means that all websites, all services, all apps, every third-party host, not just a “revenge porn site claiming to merely provide a platform for angry exes,” will be required to censor or suffer prosecution.  She left that part out. Oops.

This isn’t about a takedown regime, like a DMCA notice, with ensuing damages, but criminalizing content.  It’s scorched earth for images, but by wrapping it up in the rhetoric of revenge porn, non-lawyers fail to recognize that it applies to everyone.  This won’t escape notice by Google, Facebook and Twitter, who aren’t in the business of defending the First Amendment rights of their users at the risk of their own criminal liability.

So the emotional appeal, the intellectual dishonesty, the facile anecdotes and the vilification of anyone who disagrees will persist in the hopes that politicians will see this as the new “get tough” mechanism to appeal to the masses.  When the smoke clears, it may well mean the end of revenge porn (unless it offshores), but it may also mean the end of the safe harbor that protects the full panoply of content protected by the First Amendment on the internet.

Meet the future, Cleansed, sanitized and wonderful.  I expect to be Godwinized any moment now.  But somebody has to suffer the slings and arrows of outrageous women.

Update:  This post apparently struck a chord with Mary Anne Franks, who twitted this gem:

FranksTwit

So now I’m not merely a “pervert,” but I “tried to solicit #revengeporn.”  How so, you ask?  Because of the title to this post: New York to Revenge Porn: Any Selfies of Lawprof Mary Anne Franks?  And if there was any doubt as to Franks’ integrity, now you know.

 

 

 

 

43 comments on “The Battle Over Section 230 Begins (Update)

  1. Anon Lawprof

    Ms. Franks has no future in the legal academy. Despite Prof. Citron’s efforts to excuse Franks’ reprehensible antics as youthful exuberance, it has not gone unnoticed. She has forsaken any credibility as a scholar, and aside from the possible comfort she may find from radical feminists and a job at a non-tier law school, her future is dead.

    I hope she enjoys her 15 minutes of fame. It will be the high point of her career, to the extent she has one after this.

    1. SHG Post author

      It would be wonderful if those in the legal academy who recognized the damage being done by this misguided quest took a stand to prevent it, before the damage is done. While it’s one thing to say that Franks has destroyed her reputation, consider the damage she could cause. A lot of innocent people will be hurt, and if this federal crime goes through, the impact on the internet could be disastrous.

      It’s time to come out of the shadows. I can’t do all the heavy lifting here.

  2. Wheeze The People™

    “*cough*, *cough*, *wheeze*; Mary Anne, bring me my damn inhaler!! I’m having an episode . . .”

    1. SHG Post author

      Inhaler or impaler? I would hate to misapprehend your meaning because of an inadvertent typo.

      1. Wheeze The People™

        Me?? I only need an inhaler when my asthma acts up, typically in response to increases to the entropy of our constitution as well as the atrophy of our freedoms. Mary Anne is doing just fine wielding her impaler, thank you very much . . .

  3. Jack

    I really doubt this is going to go anywhere in congress. State laws are one thing, but the Googles, Facebooks, and Twitters of the world have a huge warchest, an army of lobbyists and lawyers, and a hefty amount of political clout. I’m pretty sure they can spot a challenge to their best friend section 230 when they see one. I would imagine if this gathers any momentum nationally and poses a real challenge, it will be snuffed out. For them to support, or even sit idly by, seems monumentally stupid.

    While Franks may have some credibility amongst a few bottom feeding politicians, those same supporters will scatter like cockroaches when the tech companies decide to put on their stomping boots.

    I would imagine they don’t want to lift a finger until the last possible moment since getting mixed up in a revenge porn stupid-slinging contest is bad for business, but not as bad as losing section 230.

    1. SHG Post author

      You may very well be right, though the superficial appeal of the criminalizing revenge porn is strong with shallow thinkers who have few vehicles left to prove to their constituents that they’re tough on crime. And it would be unfortunate if it takes an army of lobbyists to kill what should be dead of its own weight. Of course, it would be far more unfortunate for everyone if it passed.

  4. She

    I’m a supporter of the revenge porn laws, but Mary Anne Franks’ comments about you are absurd, and call into serious question her honesty. If she can be this dishonest and, frankly, disgusting in attacking you, then she cannot be trusted as a spokesperson for the cause. I am deeply disappointed in her. She owes you an apology.

    1. SHG Post author

      Regardless of how one feels about these laws, and I am obviously against them in their current state, it occurred to me a while back that Franks may be the worst thing that could happen to the cause of ending revenge porn because of her intellectual dishonesty.

      I am very much against revenge porn (as was made clear from the outset), but not at the expense of innocent people or the First Amendment. Yet I (and others who have challenged these laws like Mike Masnick) have been the target of Franks’ attacks and lies because she has knows that she is intellectually and legally bankrupt. Some leader you got there.

  5. John Jenkins

    This reaction from Professor Franks is really baffling to me. If she feels that your criticisms of the law are erroneous, she should have the legal training to lay out why. If she feels that your arguments are ad hominems and not substantive, she should be able to demonstrate that fact as well. If she knows that your criticisms are well-founded, then the best thing she can do is simply ignore them, and encourage her supporters to ignore them, too. [NB: I am not saying this is the way to truth, I am saying it is how she would ostensibly “win” if enough people can be persuaded to just ignore the flaws in the argument based on an emotional appeal].

    None of those, however, explains why she would suddenly decide to engage in what to me is clearly defamation, unsupported by the facts. By going over-the-top and encouraging people to read what you actually wrote, she is over-promising and under-delivering. When the readers get done and see that what they read just does not substantiate the accusations, Prof. Franks’s credibility is shot all to hell. It is baffling because it makes no sense. By just banging on the emotional keyboard and ignoring you, she is entirely likely to get what she wants [again, irrespective of the merits]. But by doing this, she makes herself radioactive.

    Can anyone explain why?

    1. SHG Post author

      This is what comes when passion exceeds grasp. What I wonder is why a more mature mind like Danielle Citron doesn’t rein her in. Franks is clearly not intellectually ready for prime time.

      1. SHG Post author

        The methodology of attack has certainly served them well in silencing other academics, who don’t want to be tarred as misogynists, perverts, racists or whatever name she’ll hurl at them.

  6. non-law prof

    I’m losing all my sympathy with the pro-crim folks on the revenge porn issue. The end of criminalizing an ambiguous “this” seems to trump all concerns with the means, legal or argumentative. MA Franks’ tweet was short on context, high on insinuation, and it totally missed conveying your joke (which was a joke, not a serious proposition). I’m not sure I’d have titled your blog post that way, but hey, the post was clearly on the topic of revenge porn criminalization and blogs gotta be catchy I guess. I can’t fault a blogger for that. Even though she eventually scrambled to post a screen shot of your blog, her rather mean argumentative disposition already showed through. I’m all for argument, but I’m not for posting something like that to her followers that is so readily taken out of context. Academics don’t argue like that, at least the ones I know don’t. I’d hope she’d apologize to you, SHG, but I wouldn’t hold my breath.

    1. SHG Post author

      Apologize? I’m more worried that she’s going to fire bomb my office. I generally avoid the word “unhinged,” but I think this would be an excellent time to use it.

      1. Scott Jacobs

        Disturbingly, firebombing would actually not be the worst thing I suspect she would do.

        She is, clinically speaking, bug-fuck nuts.

  7. She

    While I do not find your attempts at humor funny, and feel that they are clearly misogynistic, I do realize that they are insensitive attempts at humor and are not to be taken seriously. By trying to suggest they are serious, Mary Anne is being deceitful. So yes, she is being intellectually dishonest and is baselessly attacking you. That’s as far as I’m prepared to go.

    1. SHG Post author

      Humor is a fairly personal thing, and I completely understand that my sense of humor and yours might not jive. But humor is still humor, whether someone finds it funny or not. What it is not is a reason to attack someone as if it was said seriously.

  8. Charlesmorrison

    I think she’s cyber stalking you. It must be the new cowboy outfit. If she can claim “virtual sexual assault” is a real thing (as was quoted in the linked post), then I get to redefine “stalking.”

    It’s actually kinda fun to make up laws, once you get going. I’ll be pushing for a bill to protect you as soon as I can. No promises, though. Hang in there until then. I trust you’ll have the inner strength to deal with this until congress puts a stop to her speech on the web.

    1. SHG Post author

      Her use of language does have a certain humpty dumpty quality to it. But I’ll hang tough.

  9. Scott Jacobs

    If I were her colleagues, I would be less concerned with whatever damages she is doing to her credibility, and more concerned with the damage she was doing to the school’s credibility…

    I mean, CU didn’t fire Ward Churchill because he was making himself look like a moron, but because he was making THEM look like morons…

    1. SHG Post author

      From what I’m told, her law school is thrilled with all the press she gets, and is deeply involved in promoting her so that she gets more. Until it collapses around her and the school, it won’t change, even though most of the legal academy is ashamed of her conduct.

  10. bill

    Slightly OT but thought some might find it interesting. Mary Anne seems to have a DoNotLink fetish (based on how much care she takes not to send any traffic your direction). Her site doesn’t have enough traffic to even register on Alexa, by comparison, the site she works so hard to avoid sending traffic to is ranked just under 80,000 in the entire US. Who is she kidding with that?

    1. SHG Post author

      I’m not a fan of Alexa, as their metrics are enhanced by things I deliberately avoid. In order to thwart spam and brute force attacks, I’ve banned most of Asian IPs, for example. But her donotlink “fetish” (great description) is absurdly funny, as if she might possibly contribute to my google pagerank.

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  12. geezerette

    @ SHG: Feminists have NO sense of humor. I am a female and I have never seen any evidence of humor.

    @ SHE: I find SHG’s comments very clever and amusing. I admit that I am misogynistic toward feminists. It seems that a feminist can never comment without being insulting or by name calling. Why cannot a feminist, ANY feminist, disagree with a position by rationally explaining her reasons for opposition? Did nothing in SHG’s article give you any new thought at all? Have you never heard of unintended consequences?

  13. Anon Lawprof

    While she doesn’t mention you (apparently, you are “he who must not be named”), I believe this update to Franks’ post is about you:

    UPDATE 5/8/14: The blogger who was the source of this particular Techdirt error (and who knows how many others) regarding the Arizona law has still not corrected his post. Perhaps he just hasn’t had time between all the pearl-clutching and English language-mangling he’s been doing on Twitter lately (if only someone would tell him that the definition of “ad hominem attack” is not “accurate description of a person’s actual offensive behavior”!). Or perhaps he’s finally dropped all pretense of “critique” and and embraced the full-on propaganda mode that suits him so much better.

    I can’t begin to explain this incoherent train wreck. It appears you have pushed her off the deep end. What a total disgrace.

    1. SHG Post author

      Pearl-clutching? I believe that’s sexist. Her bizarre claims might be chalked up to her immaturity, but even a young law professor should be expected to have some grasp of logic. Franks appears to have lost all grasp of reality. Her integrity has long since been blown. A very sad waste.

      1. Scott Jacobs

        You know, I had wondered who was writing the motions for Kimberlin…

        It is all starting to make sense now.

        1. SHG Post author

          It’s really beyond belief. And they let this nutjob near students. And legislators.

          1. Scott Jacobs

            One could hope that law students, having already passed through one level of higher education, would be less likely to be harmed and damaged by such instruction…

            One could hope, that is, if one were an idiot.

            1. SHG Post author

              I’ve heard from a number of law professors who have become increasingly disturbed by her irrationality and inappropriate behavior. As my pal, Bennett, says, if they won’t put their name to it and come out publicly, they don’t count. He’s right. But I suspect that as she spirals deeper into the abyss, and continues to flagrantly misrepresent, she will push them to come out against her more than I ever could. She apparently has no clue how bizarre and incredible she’s made herself.

      2. Anon Lawprof

        On twitter, I see that she continues to harp on her claim that you’re a pervert. Perhaps there is a way you could give her “facts” an airing so that we can all see whether she can move past it and address the substantive arguments?

        She has avoided and deflected all substance by responding with her attacks on you. If you were to air her grievances, she would have no excuse for continuing her attacks, and then she would be forced to either put up or shut up. I doubt, though, that is capable of either.

        1. SHG Post author

          A handful of people have asked me about this, wondering if there is something I can do to put a stop to Franks’ attacks in the hope that she will address substantive issues. This is problematic, as I have no control over Franks, she certainly thinks this playing the victim tack is better for her than addressing issues, and her history of deflecting substance and lying about it was there long before she started attacking me.

          The other question is why I should bother. Anyone who would find her attacks persuasive isn’t worthy of concern.

          1. Scott Jacobs

            A kickstarter or gofundme to raise money for donation to a charity like the Center for Missing and Exploited Children or some such, to fund a debate between you at her school.

            She could only say no if she likes children being exploited, or doesn’t think her arguments can stand up to honest and serious debate.

            Assuming, of course, you would feel it worth the time and effort. Forgive me if I speak out of turn.

            1. SHG Post author

              She had a bit of a debate with Marc Randazza and Lee Rowland. It was a substantive blood bath, but she’s a bore to listen to. The airing needs to be public. The last thing she appears to want is to open herself to public challenge.

          2. Anon Lawprof

            As much as that’s obvious to anyone following along, there are many who have not, who hear her hysterical accusations and, even if not quite credible, still assume she can’t be that batshit crazy that they are bizarrely lacking in foundation. Your call, but don’t overestimate the intelligence of people anymore than Franks underestimates it.

  14. CWH

    “Pearl clutching”??? “Phrase is most often used by liberal and/or feminist and/or race-discussion sites to dismiss someone as being prudish, uptight, or otherwise too conservative in their thinking.” Yeah, that seems to fit you to a T.

    It would certainly behoove the young professor to chose correct and appropriate language instead of words might resonate only with her died in the wool followers (who probably do not know, any more than I did before I looked it up, the use and meaning of the phrase). FWIW, it seems to me that proposed laws like this are just further “law/tree-cutting” of the type that Sir Thomas More would criticize (see 1st quote).

    1. Brett Middleton

      You actually had to look that up? Man, now I do feel old. Apparently you weren’t raised on a diet of old B&W movies and TV shows where all the women wore pearl necklaces and would clutch at them when in the throes of shock. You could say the phrase is a meme from a time before “meme” was a word, so the idea behind the phrase was understood automatically.

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