⏩ The new internet, imagined by top lawyers
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This week: Lawyers dish on what Section 230 reforms means to them and their interests and a study shows a rise in partisanship among federal court decisions. Plus, California gets neutral.
The feeling that the internet is due for major change is hanging in the air thicker than ever.
Section 230, the late 90s law that protects companies from speech made by users on their platforms, is a hot topic among lawmakers. We’ve shared stories about why politicians want to make changes and what those changes could be.
But here’s something else: a sampling of what lawyers believe Section 230 reform would mean, for better or worse, as told to The Verge.
Laurent Crenshaw, Patreon: “If we had to proactively take steps to identify and monitor, validate, and verify that content prior to posting, it would be incredibly difficult for (Patreon) to exist.
Even little tweaks, like when they talk about removing language around “otherwise objectionable” content, which really is what gives platforms the ability to have their own moderation guidelines — it’s just incredibly concerning.”
Katie Jordan, The Internet Society: “It’s also about the underlying infrastructure and the intermediaries that move content and data from one place to another, whether it’s cloud providers, domain name registries, email servers, things like that. If cloud providers get wrapped up in this conversation about pulling back intermediary liability protection, then by default, they’re going to have to reduce privacy and security practices because they’ll have to look at the content they’re storing for you, to know if they’re breaking the law.”
Carrie Goldberg, victims’ rights attorney: “If you harm your users, you should be sued, no matter how big or small. The solution for small platforms is to honor the people using your product and make it safe. In no other industry is liability for harms based on the size of the business. My law firm of 13 employees can be sued just as easily for harms we cause as a law firm with 2000 employees. My solution is to honor and cherish my clients and not harm them.”
Federal judges have always been appointed by ruling political parties. But for decades it seemed they largely stayed above the partisan fray.
That has changed, according to a new study by William & Mary law professors Neal Devins and Allison Orr Larsen.
They looked at 950 en banc cases, dating back to the 1960s: There were almost no patterns of partisan splits among judges at each level or obvious partisan reversals of lower court decisions. This was as true in the ‘60s and ‘70s as it was in the ‘80s and ‘90s, after Reagan introduced a more conservative strand of judges.
Then, Trump got involved: He appointed 226 federal judges in four years, about 50 more than our last one-term president, George H.W. Bush. Of the 226, 54 were appeals court judges.
And everything changed: Devins and Larsen found that 35% of en banc decisions between 2018 and 2020 “involved either a partisan reversal or partisan split.”
There was partisanship by judges from both parties
They found in the study that Democratic-appointed judges and Republican-appointed judges were about as likely to create the partisan reversals or splits in en banc cases.
These cases are still fairly rare. En banc decisions, which involve the entire body of judges of a given court, happen in only about .20% of cases.
The study’s authors were unsure whether the increased partisanship will be a blip or the beginning of a trend. The last few weeks, several appeals court judges have announced they’ll be going into retirement, opening up positions for Biden appointments.
Add California to the list of states considering their own tech-related laws. And, where other places want to charge taxes to tech companies, the Golden State is getting close to mandating a neutral internet.
The movement dates back to 2018: In response to the Trump administration eliminating net neutrality, California created its own Open Internet law. Last week, a federal judge ruled against internet companies who wanted to block California.
The opposition was about state vs. federal law: AT&T, Verizon, Comcast and other corporations suggested Cali was pre-empting the feds. They were against it because they feared net neutrality could increase their operating costs and reduce competition. Advocates just want every entity to get an equal shake on the internet and not have to pay for so-called “fast lanes.”
Plenty of other states had been watching
And given the judge’s ruling, they may introduce net neutrality laws of their own.
The Biden administration favors net neutrality and may bring it back on the national level. But California’s law may give an extra layer of protection when other administrations don’t.
💌 What else we’re forwarding
Total hires at Big Law are trending down: The headcounts at 140 of 200 top law firms were either flat or down by the end of 2020 compared to the beginning of the year.
Just a tiny $650m lawsuit loss for Facebook: Zuck’s company just lost a class action suit over privacy in Illinois.
🎧 Music we’re working to
Today we’re working to Porya Hatmi, an Iranian sound designer. His compositions explore the balance between electronics and environmental sounds, utilizing processed acoustic and electronic sources and field recordings. This 2014 album Arrivals and Departures is fully ambient and great for deep work.
Arrivals and Departures - Porya Hatami (60m)
Have a really nice Wednesday.