1H 2021 Quick Links, Part 3 (Content Moderation, Censorship, Privacy, & More)

Content Moderation

* NYT: Inside Twitter’s Decision to Cut Off Trump

* Axios: All the platforms that have banned or restricted Trump so far

* NY Times: What Happened When Trump Was Banned on Social Media

* NY Times: Mark Zuckerberg and Sheryl Sandberg’s Partnership Did Not Survive Trump

* “False Accusation: The Unfounded Claim that Social Media Companies Censor Conservatives.” From the article: “the claim of anti-conservative animus is itself a form of disinformation: a falsehood with no reliable evidence to support it.”

* Buzzfeed: “Mark Changed The Rules”: How Facebook Went Easy On Alex Jones And Other Right-Wing Figures

* Kate Klonick, Inside the Making of Facebook’s Supreme Court

* Technology Review: How Facebook got addicted to spreading misinformation

Online Discrimination

* Vargas v. Facebook, Inc., 2021 WL 214206 (N.D. Cal. Jan. 21, 2021), Lawsuit alleging that Facebook contributed to housing ad discrimination wasn’t properly pled.

* Mejico v. Alba Web Designs, LLC, 2021 WL 280065 (W.D. Va. Jan. 25, 2021): “places of public accommodation subject to the ADA are not limited to physical, brick-and-mortar establishments and instead include commercial websites that offer good and services to the public. Liberally construing the categories of private establishments listed in Title III, the court is satisfied that the Website qualifies as a ‘sales or rental establishment’ and/or a ‘service establishment’ at this stage of the proceedings.”


* NY Times: Google Seeks to Break Vicious Cycle of Online Slander

* American Bar Association Standing Committee on Ethics and Professional Responsibility Formal Opinion 496, January 13, 2021

A negative online review, alone, does not meet the requirements of permissible disclosure in self-defense under Model Rule 1.6(b)(5) and, even if it did, an online response that discloses information relating to a client’s representation or that would lead to discovery of confidential information would exceed any disclosure permitted under the Rule. As a best practice, lawyers should consider not responding to a negative post or review, because doing so may draw more attention to it and invite further response from an already unhappy critic. Lawyers may request that the website or search engine host remove the information. Lawyers who choose to respond online must not disclose information that relates to a client matter, or that could reasonably lead to the discovery of confidential information by another, in the response. Lawyers may post an invitation to contact the lawyer privately to resolve the matter. Another permissible online response would be to indicate that professional considerations preclude a response

* DF Pace v. Baker-White, 2021 WL 963527 (3d Cir. March 15, 2021). “Because Pace has not alleged facts supporting the inference that the PVP defendants “seriously doubted” the appropriateness of publishing his comment along with the prefatory text on the PVP website, he has failed to allege actual malice.” Prior blog post.

* March v. Brinkman, 2021 Iowa Sup. LEXIS 39 (Iowa Supreme Ct. April 16, 2021): “An examination of the specific context of Brinkman’s Facebook comment additionally shows his statements were rhetorical hyperbole rather than assertions of facts. He states “It is because of shit like this that I need to run for mayor!” followed by a grinning emoji, and that Bauer is a “PIECE OF SHIT!!!” before calling him a slumlord. The tone “is pointed, exaggerated, and heavily laden with emotional rhetoric and moral outrage” thus alerting readers that the statements are expressions of personal judgment.”

* Kosor v. Olympia Companies, LLC, 136 Nev. Adv. Op. 83 (Nev. Sup. Ct. Dec. 31, 2020). “Kosor’s Nextdoor.com post qualifies as a public forum for the purposes of anti-SLAPP protections.”

* Same Condition LLC v. Codal Inc., 2021 IL App (1st) 201187 (Ill. Ct. App. June 21, 2021):

assuming arguendo that there is a compelling government interest in prohibiting Same Condition and Kumar from posting online about Codal, the circuit court’s blanket order that they indefinitely refrain from making any additional posts online about Codal was not narrowly tailored to achieve that interest. There is no doubt from Codal’s vantage point that Same Condition and Kumar engaged in a relentless and obnoxious social media campaign against it and Baxi on various platforms, where they not only vocalized their criticisms to the whole world about Codal but also tagged other accounts such as Crain’s Chicago Business and the Chicago Tribune’s business news account. Yet, as upsetting as these posts were to Codal and Baxi, a court may not enjoin a party from criticizing others “even though [they] find[ ] that criticism distressing.”


* NY Times: 5 Reader Comments Just Cost a [Malaysian] News Website $124,000

* NY Times: Nigeria Bans Twitter After President’s Tweet Is Deleted

* Ars Technica: Russia’s Twitter throttling may give censors never-before-seen capabilities

* UK “Online Harms White Paper: Full Government Response to the consultation” (Dec. 2020) and “Draft Online Safety Bill” (note the rebranding of the Online Harms framing). See also my paper, The U.K. Online Harms White Paper and the Internet’s Cable-ized Future.

* Buentello v. Boebert, 2021 WL 2588856 (D. Colo. June 24, 2021): “Representative Boebert’s blocking does not satisfy the requirements of state action. The government does not authorize her to run this Twitter account, and her use of the account does not amount to action on the government’s behalf…. if a public official’s Twitter feed is a public forum, then officials could be liable not only for their own blocking, as is alleged here, but also for choosing to hold a public forum on a platform that itself blocks or chills speech that, while it may violate the platform’s terms of service, is protected by the Bill of Rights.” Quirky opinion.

* Protocol: I helped build ByteDance’s censorship machine


* Some empirical data on the volume and costs of DSRs pursuant to the CCPA

* State v. Casillas, 2020 WL 7759952 (Minn. Supreme Ct. Dec. 30, 2020). Minnesota’s sui generis non-consensual pornography dissemination law survives strict scrutiny:

The nonconsensual dissemination of private sexual images, however, presents a grave threat to everyday Minnesotans whose lives are affected by the single click of a button. When faced with such a serious problem, the government is allowed to protect the lives of its citizens without offending the First Amendment as long as it does so in a narrow fashion. Minnesota Statutes § 617.261 is a representation of this constitutional compromise and adequately balances the fundamental right to free speech with the citizens’ right to health and safety.

* “Bringing Dark Patterns to Light” FTC Workshop Public Comment

* Brown v. Google LLC, 2021 WL 949372 (N.D. Cal. March 12, 2021): “Google did not notify users that Google engages in the alleged data collection while the user is in private browsing mode. Accordingly, Google cannot show that Plaintiffs expressly consented to Google’s collection of data while Plaintiffs were in private browsing mode.”

* Calhoun v. Google LLC, 5:20-cv-05146-LHK (N.D. Cal. March 17, 2021): ” a reasonable user could read Google’s representations to mean that, if the user was not synced, his or her browsing history, cookies, and site data would not be sent to Google.”

* Rodriguez v. Google LLC, 2021 WL 2026726 (N.D. Cal. May 21, 2021):

navigating Google’s user-facing privacy representations is a singularly fragmented affair. On the one hand, this unfortunate reality is to be expected—after all, complex business makes for complex fine print. On the other, it does not follow that Google evades blame for the accompanying fallout. Where, as here, a company’s public-facing statements are legitimately confusing, it is not the public’s fault for being confused.

* Boston Globe: Boston Globe launches ‘Fresh Start’ initiative: People can apply to have past coverage about them reviewed

* Owens v. Centene Corp., 2021 WL 878773 (E.D.N.Y. March 9, 2021). “the Facebook posting from May 10, 2015 bears the Facebook globe icon which signifies unequivocally that it is open to the public.”

* Kolebuck-Utz v. Whitepages Inc., 2021 WL 1575219 (W.D. Wash. April 22, 2021). In a lawsuit over free previews for background reports, the court refuses Whitepages’ motion to dismiss. Very similar to Lukis v. Whitepages.