Name: The Online Content Policy Modernization Act Is an Unconstitutional Mess
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The Online Content Policy Modernization Act Is an Unconstitutional Mess

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Email updates on news, actions,and events in your area.DEEPLINKS BLOGShare ItEFF is standing with a huge coalition of organizations to urge Congress to oppose the Online Content Policy Modernization Act (OCPMA, ). Introduced by Sen. Lindsey Graham (R-SC), the OCPMA is yet another of this year’s flood of misguided attacks on Internet speech (). The bill would make it harder for online platforms to take common-sense moderation measures like removing spam or correcting disinformation, including disinformation about the upcoming election. But it doesn’t stop there: the bill would also upend longstanding balances in copyright law, subjecting ordinary Internet users to up to $30,000 in fines for everyday activities like sharing photos and writing online, without even the benefit of a judge and jury.The OCPMA combines two previous bills. The first—the Online Freedom and Viewpoint Diversity Act ()—undermines Section 230, the most important law protecting free speech online. Section 230 enshrines the common-sense principle that if you say something unlawful online, you should be the one held responsible, not the website or platform where you said it. Section 230 also makes it clear that platforms have liability protections for the decisions they make to moderate or remove online speech: platforms are free to decide their own moderation policies however they see fit. The OCPMA would flip that second protection on its head, shielding only platforms that agree to confine their moderation policies to a narrowly tailored set of rules. As :This narrowing would create a strong disincentive for companies to take action against a whole host of disinformation, including inaccurate information about where and how to vote, content that aims to intimidate or discourage people from casting a ballot, or misleading information about the integrity of our election systems. S.4632 would also create a new risk of liability for services that “editorialize” alongside user-generated content. In other words, sites that direct users to voter-registration pages, that label false information with fact-checks, or that provide accurate information about mail-in voting, would face lawsuits over the user-generated content they were intending to correct.It's easy to see the motivations behind the Section 230 provisions in this bill, but they simply don’t hold up to scrutiny. This bill is based on the flawed premise that social media platforms’ moderation practices are rampant with bias against conservative views; while a popular meme in some right-wing circles, this view doesn’t hold water. There are serious problems with platforms’ moderation practices, but the problem isn’t the liberal silencing the conservative; . Besides, it’s absurd to suggest that the situation would somehow be improved by putting such severe limits on how platforms moderate; the Internet is a better place when , .The government forcing platforms to adopt a specific approach to moderation is not just a bad idea; in fact; it’s unconstitutional. As :The First Amendment prohibits Congress from directly interfering with intermediaries’ decisions regarding what user-generated content they host and how they moderate that content. The OCPM Act seeks to coerce the same result by punishing services that exercise their rights. This is an unconstitutional condition. The government cannot condition Section 230’s immunity on interfering with intermediaries’ First Amendment rights.Sen. Graham has also used the OCPMA as his vehicle to bring back the CASE Act, a 2019 bill that would have created a new tribunal for hearing “small” ($30,000!) copyright disputes, putting everyday Internet users at risk of . This tribunal would exist within the Copyright Office, not the judicial branch, and it would lack important protections like the right to a jury trial and registration requirements. As we explained last year, , with copyright owners or their agents sending notices en masse to users for sharing memes and transformative works. When Congress was debating the CASE Act last year, its proponents laughed off concerns that the bill would put everyday Internet users at risk, clearly not understanding what a $30,000 fee would mean to the average family. As :The copyright small claims dispute provisions in S. 4632 are based upon S. 1273, the Copyright Alternative in Small-Claims Enforcement Act of 2019 (“CASE Act”), which could potentially bankrupt millions of Americans, and be used to target schools, libraries and religious institutions at a time when more of our lives are taking place online than ever before due to the COVID-19 pandemic. Laws that would subject any American organization or individual — from small businesses to religious institutions to nonprofits to our grandparents and children — to up to $30,000 in damages for something as simple as posting a photo on social media, reposting a meme, or using a photo to promote their nonprofit online are not based on sound policy.The Senate Judiciary Committee plans to consider the OCPMA soon. This bill is far too much of a mess to be saved by amendments. We urge the Committee to reject it.Share ItFormer EFF intern Shashank Sirivolu contributed to this blog post. Social media users who have sued companies for deleting, demonetizing, and otherwise moderating their content have tried several arguments that this violates their constitutional rights. 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It is defined by real life experiences and perspectives, and whilst drill rappers often document gang-related conflict and anti-establishment narratives in their lyrics and music videos, the rap genre is a crucial mouthpiece of...Even in the face of strong public protest over a set of proposed revisions to criminal laws that infringe Indonesians’ free expression rights, the Indonesian Ministry of Law and Human Rights last month that threatens to further...The U.S. (OFAC)'s of “Tornado Cash” as an entity on the raises important questions that are being discussed around the world. OFAC explained its sanction by saying “Tornado Cash (Tornado) is a virtual currency ...Even if you think that online intermediaries should be more proactive in detecting, deprioritizing, or removing certain user speech, the requirements on intermediaries to review all content before publication—often called “general monitoring” or “upload filtering”—raises serious human rights concerns, both for freedom of expression and for privacy.General monitoring is problematic...Government involvement in content moderation raises serious human rights concerns in every context, and these concerns are further troubling when the involvement originates with law enforcement. We recently filed a with the Meta Oversight Board urging it to treat this issue seriously.When sites cooperate with government agencies, it...Students should not have to fear expulsion for expressing themselves on social media after school and off-campus, but that is just what happened to the plaintiff in C1.G v. Siegfried. Last month, the Tenth Circuit Court of Appeals ruled the student’s expulsion violated his First Amendment rights.The UK government has had to revise its into a proposal that wouldn’t harm users’ basic rights. It has failed to do so, and the bill should be scrapped. The current bill is a threat to free expression, and it undermines...Share It

Email updates on news, actions,and events in your area.DEEPLINKS BLOGShare ItEFF is standing with a huge coalition of organizations to urge Congress to oppose the Online Content Policy Modernization Act (OCPMA, ). Introduced by Sen. Lindsey Graham (R-SC), the OCPMA is yet another of this year’s flood of misguided attacks on Internet speech (). The bill would make it harder for online platforms to take common-sense moderation measures like removing spam or correcting disinformation, including disinformation about the upcoming election. But it doesn’t stop there: the bill would also upend...

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Elliot Harmon

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The Online Content Policy Modernization Act Is an Unconstitutional Mess

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