Step by Step : September 2020

EXPOSED:

HOW WE CAN STOP BIG TECH CENSORSHIP?

We all know censorship is a problem, but we need to stop thinking about what they are restricting and consider what information they are advancing.

On August 22nd 2018 I filed a Federal Lawsuit against Facebook for Fraud, Extortion, Unfair Competition and Tortious interference. They took everything from me, not because I did anything wrong, but because I wasn't valuable to them. (Politically, economically, ideologically)

I tried to warn everyone that the problems would grow and grow. It was inevitable because no one is holding them accountable for their wanton and willful misconduct. Now the time has arrived to do something about it. Everyone can see that there is a coordinated attack on information and political opinion. However, what is less known, is that there is hope. Their (big tech) conduct is NOT legally protected by the Communications Decency Act section 230. The courts have just messed up the interpretations of the law itself, but I aim to fix it in the Supreme Court.

Most of us talk about Facebook being a platform or a publisher. I'm going to try and explain where the confusion starts and stops. They are both and I'll explain why. The first aspect of the CDA 230C is "Good Samaritan" protections. A service provider must act in Good Faith when it takes any action or even when it doesn't act. This is important because the courts have misunderstood the next section of the law but ill explain that in a second. "Good Samaritan" is important because it applies to their motivation. CA Good Samaritan law says any action or omission of action must be done in good faith, not for (compensation) MONEY, without gross negligence or wanton and willful misconduct meaning deliberate misconduct! Do you think what Big Tech is doing is deliberate? Yeah me too.

So, if the sites, like Facebook, are acting with willful misconduct (which we know that they are) they do not get ANY legal protections from the CDA because they aren't a "Good Samaritan". The courts have missed this understanding almost universally but they did catch it in the one case of Enigma vs. Malwarebytes. The courts found, in that specific case, that a service provider that acts for an "anti-trust animus" loses immunity. In other words if the site acts in bad faith it is on the hook.

The next section of the CDA, section 230C(1) has been really misunderstood by the courts and currently what I am fighting now. Facebook claimed they have 230 C(1) immunity in my case because I am purportedly "treating Facebook as THE publisher or speaker of the content provider by another content provider". The "another" in this case is my own content! Notice that I capitalized "THE"? The courts made a minor grammatical mistake which has massive impact on the application of CDA immunity. The 9th Circuit said "immunity from liability exists for (1.) [a service provider] (2.) whom seeks a plaintiff to treat... as "A" publisher or speaker".

Do you see the difference? James Madison once argued that the word "the" was important when discussing "the Right to free speech" because "the" is the designator that implies it already existed. Here the courts have confused "a publisher" which could be any publishing action taken at any time with "the publisher" which is the specific publisher who ALREADY published the information. I am not treating Facebook as myself for my own publishing actions but instead as "a publisher" and more so as "a content provider" for their own publishing actions as "a publisher" not "the pubisher".

The distinction is small but currently the courts believe FB can not be treated as "a publisher for literally anything they do when the correct understanding is they can't be held responsible for the actions of another publisher. If the Supreme Court fixes this mistake, the courts will no longer grant immunity under 230 C(1) if the service provider takes any editorial actions at all. In other words the site must once again be a passive hosting platform and not acting upon or manipulating content.

But... Facebook can actually be a publisher in one scenario. 230 C(2) allows a service provider to make publishing decisions to "restrict materials" if done "voluntarily and in good faith". Remember "Good Samaritan"? Here is where they must act in good faith as a Good Samaritan. The courts missed something though. 230 C(1) says nothing about good faith or voluntary actions, so the courts think that the service provider can be "a publisher" doing whatever it wants because they have no measure of good faith in 230 C(1) like they do in 230 C(2).

Guess what?? Good Samaritan applies to ALL of section C including 230 C(1), so that means, even though C(1) doesn't say good faith, it still means they must act in good faith regardless. Back to discussing C(2) protections. Everyone is angry because it is clear FB and other big tech for that matter is taking down lawful content. You may be thinking that the First Amendment protects speech. Conversely, others think a private company can do whatever they want when removing content. You would both be wrong.

230 C(2) says the service provider can restrict materials "even if they are Constitutionally protected". No First Amendment applies here but then the question is, can they do anything they want OR make up any Community Standard rules they want to apply, simply because they are a private company? NO they can't do that either.

Imagine if they made a rule that said they can take down or ban any content they want from say black people or women or the disabled or maybe Jews? We all know that would be discrimination and it's illegal. The CDA should not protect the service provider in that case because it is clear willful misconduct right? Well, so is fraud, extortion, unfair competition, and tortious interference. The courts have failed to recognize that those illegal actions are not protected under any circumstances whether they are or are not a publisher. Removing content for their own economic, ideological or political benefit has nothing to do with free speech but all to do with illegal activity.

Another point to understand is that 230 C(2) says restrict "materials". In other words they can block or screen content but materials has nothing to do with people. Restricting someone from the site or restricting services for example are not technically materials. So what's protecting those discriminatory actions? Again the courts dropped the ball.

Now, I need to go back to 230 C(1) to explain another issue. Laws can not be redundant. The Supreme Court has held that we "must avoid redundancies and duplications whenever possible and that every word is important". Well "the" vs. " a" publisher is important here because if they can not be treated as "a publisher" and restricting materials is a publisher's action then 230 C(1) makes 230 C(2) redundant because 230 C(1) would already protect them as "a publisher". What does that mean? It means that 230 C(1) can not be "a publisher" because it creates a duplication. If it is correctly interpreted as "the publisher" then 230 C(1) is a different protection when the site didn't take the actions to publish and 230 C(2) is when they did take the actions to publish or more so depublish materials.

So what about all the other publishing actions these sites are taking? For example in my case Facebook unpublished my content then solicited my content to anther provider who pays them more then promised to make my content available only if I was no longer the owner. If they try to claim they took my content down because it was offensive then what changed when it was in the hands of the other company? Sounds fair doesn't it? NOPE. Facebook's excuse is that they didn't create the content therefore their active involvement (publiahing) is irrelevant because they can't be treated as "a" publisher, well then what about the bad faith restrictions of my content? That's a publishing action. They didn't argue 230 C(2) protections because 230 C(1) is already protecting all of their publishings actions to restrict content, manipulate content, solicit content or even develop content just like any other publisher would do. Get it? If they can't be a publisher and restricting content is part of being a publisher, than what's the point of having 230 C(2) if the can't be treated as a publisher under 230 C(1)? 230 C(2) is redundant in that case.

So far we know 230 C says they must act as a Good Samaritan and the motivation matters, 230 C(1) says they can't be held responsible for the actions of another and 230 C(2) says they can't be held accountable for their own actions to restrict offensive content (assuming they acted as a good samaritan) then what about publishing actions like "increasing the distribution" of content. Where is that protected? It's not. Restriction of materials is protected but the advancement of materials is not! The actual term for the advancement of information (which can be entirely created and published by "another") is the development of information.

Choosing to promote, prioritize, advance, boost or increase the availability or usability of information is by definition "development". Go look it up in Websters dictionary if you don't believe me. Remember that argument about whether Facebook is a publisher or a platform? Well, they are both but it's ok. 230 C(2) allows them to be a publisher when restricting materials but it DOES NOT allow for any other editorial conduct. Think of it this way...

A writer can create a story. The writer posts the story to a bulletin board where the reader can read that story directly. The service provider provides the bulletin board but does not choose what's on it. The service provider can take only one action and that is to take down a writer's story if it is offensive (again if it is acting as a good samaritan in good faith and not for example, being paid to take content down or because it disagrees with the writer's politics). The service provider is not allowed to put any content back on the board, and it is certainly not allowed to manipulate or modify the content on the board other than to remove it. That's clearly not what FB is doing.

Let's consider Sponsored ads for a moment. Facebook takes money to increase the availability of content which we know is be definition development and they take responsibility for the "placement" of that content per Mark Zuckerberg's testimony before Congress. That information goes into the Newsfeed because FB's advertising business model is unique in that it doesn't do banner ads. Advertisers pay Facebook for development of their information that DIRECTLY DISPLACES other user's content like you and me in the Newsfeed. Uh ohhh FB... you just got caught red handed.

Did you see the latest update about the Oct 1st change that says you agree to be shown ads. Yeah, that's because they are directly responsible for displacing users and what you chose to see, which is one of the many lies Facebook promised users.

So what exactly is the harm of being a developer? Development of information is when a service provider is acting as "a publisher", it is editorial conduct and this where the correct 230 C(1) distinction becomes really important. If they can't be treated as "a publisher" then all of their actions to develop information are also protected under 230 C(1) right, because they can'tbe treated as "a publisher"? WRONG.

The last section we have to understand is not the protections section of the CDA. It is the definitions section. 230 F(3) gives us the legal definition of an "Information Content Provider". A web provider can be both a service provider and content provider at the same time but if a service provider becomes a content provider the courts held that "immunity shall be lost". In other words if Facebook is acting as a Content provider which is also "a publisher", it has NO CDA PROTECTIONS for its editorial conduct. Again, the ONLY active editorial conduct the CDA was intended to protect is the good faith restrictions of offensive content.

Ok.... are you ready for it? The legal definition of an Information Content Provider is "any person or entity responsible in whole or in part for the creation or development or information provided online". Music plays: dun dun dun...!

Let's pull this apart. We know every word of the law is important because the Supreme Court said so, thus the pertinent parts are "any entity responsible in part for the development of information." Facebook is an entity who is responsible for the placement and increasing the distribution of advertiser's content which displaces user's content for their own compensation. Facebook's advertising is clearly responsible for the development of information provided by another at the very least "in part". Now you may be thinking, but they didn't publish that content. Another user published it. You are correct they didn't publish it, that was done by "the publisher".

Facebook didn't create that information, they didn't publish that information but they developed the information which transforms them into a content provider. They can be held accountable for their own actions to manipulate content.

Did you notice I said creation OR development? Remember that every word is important, including the word OR? The two functions are different. Creation has an element of bringing content into existence. The writer or the publisher creates and provides the content online. Then Facebook always claims "we didn't create the content" so we can't be treated as the one who did. No they didn't create it and they aren't "the publisher". However, when the site decided to manipulate the content it becomes "a publihser". If they are restricting content its protected but if they are developing the content, well then they are a content provider and they should be held legally liable for their own actions. See how it works now?

Here is another example for the politically concerned. Fact Checkers are the creators of information. Facebook is not "the publisher" of the fact checker's information but instead Facebook is "a publisher" who is responsible in part for developing fact checked information. Facebook identifies what should be fact checked, pays a company to rate it false and provide more context which Facebook then applies to a user's content. How could you nit say they responsible at least in part for the advancement of Fact Checkers information?

So, if 230 C(1) means "a publisher" it would also swallow the definition of development made in 230 F(3) but it would also swallow the definition of creation as well because they couldn't be treated as a publisher and crration is a publisher's function. If the court is right about being "a publisher" then Facebook can not be held liable for anything even if they actually created, published and developed the content entirely by themselves which they have also done. Have you ever seen content that Facebook has placed in the Newsfeed like request a ballot for example. Well that is displacing user's content as well.

So what does all this mean? Development has no element of creation. Manipulation of content for economic, political or ideological motivations means Facebook is not acting as a Good Samaritan in good faith for the betterment of children. (Oh yeah the CDA was actually enacted to protect children from harm. I guess hashtag save the children is somehow harmful to children?) Facebook and other big tech companies are developing the winners and ideas that they consider valuable while fraudulently restricting anything they disagree with or want to devalue.

Their active wanton and wilful development makes them (by 230 F(3) legal definition) an information content provider that should have ZERO immunity, since their ENTIRE advertising program displaces users for their own monetary benefit. Oops, the secret is out. Facebook is a DIRECT competitor of ALL its users in the Newsfeed and taking money to remove YOUR content. That's not acting as Good Samaritan is it?

So all is not lost. The Supreme Court could fix this very easily. This decision is likely the most important decision in modern history because if they can't be treated as "a publisher" they can run roughshod over content. If they are prevented from developing content and 230 C(1) is clarified as "the publisher " then Facebook's economic, political and ideological motivations get gutted out of their actions or they will continue to get sued into submission

All this comes down to is sorting out the mess that the CA courts have made of the CDA interpretation.

People need to understand how the CDA really works, if we plan to horse collar big tech's clear abuse. The Supreme Court can fix the problem very easily. If the distinction is drawn between a publisher and the publisher is made in 230 C(1) it goes back to being what it was supposed to mean which is that the service provider can not be held responsible for the actions of another. It also separates the function of C(1) and C(2) properly. 230 C(2) allows only the restriction of offensive content, not lawful content. Good Samaritan needs to be applied to everything a service provider does regardless of whether they acted or omitted action. And lastly the broad understanding of development needs to be equally as broad as objectionable content. If the site is actively advancing content or manipulating it in any way and not acting as a passive host or bulletin board then they instantly lose legal immunity. Imagine what happens when a site can't manipulate which content is prioritized? IT FIXES EVERYTHING!

Send this to everyone you know. Congressman and lawyers everywhere need to fully understand this. We can stop them but we need to pressure the Supreme Court to act fast. We will be filing our petition for writ of certiorari in the Supreme Court by October 19th. After that, it is in the Court's and God's hands. It's time to hold these companies accountable for their own illegal actions.