This is encouraging, if the Supreme Court can catch up to reality:
The U.S. Court of Appeals for the 9th Circuiton Friday reversed an earlier decision in Rosemarie Vargas, et al v. Facebook, Inc. that the social media giant could not be held liable for discrimination over allegations it excluded housing ads from a user based on their protected classes.
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Section 230 has long shielded platforms from lawsuits for hosting third-party content and making “good faith” efforts to moderate noxious material posted by users.
But the court ruled that, if true, the plaintiffs’ claims “challenge Facebook’s conduct as a co-developer of content and not merely as a publisher of information provided by another information content provider.”
After Supreme Court losses, Section 230 critics notch a notable win – The Washington Post
For too long, the courts have allowed companies to avoid responsibility for their actions under the guise of section 230. If you put your hands on content to steer or modify the content that users put on your system for any other purpose than enforcing your terms of service, then you have created a product and should be liable for its outcomes. In this case, the allegation is that the advertisement algorithm produces discriminatory results. Meta argues that because the underlying content is created by users, it is protected by section 230.
Common sense tells you that is nonsense. If, and this still needs to be proven in a trial, the algorithm allowed or facilitated discriminatory advertisement plans (i.e., not showing housing adds to non-whites), then obviously they should be held liable. If a realtor was told not to show a house by the current owners to Hispanics and then refused to show the house to Hispanics, they would be liable for discriminatory practices even though the order came from the homeowners. The idea that because the order originates on the internet somehow changes the realtor’s (in this case, Meta) responsibility is stupid on its face.
There is nothing magical about content on the internet. There is nothing special about products that are born on a server. Making companies responsible for the impacts of their products would not destroy the internet, whatever the fear mongering would have you believe. An algorithm that is designed to drive engagement is not the same thing as moderation. But we have allowed tech companies and the courts to wall internet companies off from all responsibilities. As a result, we have an internet that is a cesspool of hate, discrimination, incitements to violence, and products that harm people by their very design.
It does not have to be this way. We can and should demand that basic product liability be extended to internet companies, the same way there are extended to all other companies in our society. They aren’t special, and they do not deserve to be allowed to profit on our misery and their carelessness.
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