Saturday, May 18, 2024

CDA 230 bans Facebook from blocking interoperable tools


CDA 230 bans Facebook from blocking interoperable tools (permalink)

Section 230 of the Communications Decency Act is the most widely misunderstood technology law in the world, which is wild, given that it's only 26 words long!

CDA 230 isn't a gift to big tech. It's literally the only reason that tech companies don't censor on anything we write that might offend some litigious creep. Without CDA 230, there'd be no #MeToo. Hell, without CDA 230, just hosting a private message board where two friends get into serious beef could expose to you an avalanche of legal liability.

CDA 230 is the only part of a much broader, wildly unconstitutional law that survived a 1996 Supreme Court challenge. We don't spend a lot of time talking about all those other parts of the CDA, but there's actually some really cool stuff left in the bill that no one's really paid attention to:

One of those little-regarded sections of CDA 230 is part (c)(2)(b), which broadly immunizes anyone who makes a tool that helps internet users block content they don't want to see.

Enter the Knight First Amendment Institute at Columbia University and their client, Ethan Zuckerman, an internet pioneer turned academic at U Mass Amherst. Knight has filed a lawsuit on Zuckerman's behalf, seeking assurance that Zuckerman (and others) can use browser automation tools to block, unfollow, and otherwise modify the feeds Facebook delivers to its users:

If Zuckerman is successful, he will set a precedent that allows toolsmiths to provide internet users with a wide variety of automation tools that customize the information they see online. That's something that Facebook bitterly opposes.

Facebook has a long history of attacking startups and individual developers who release tools that let users customize their feed. They shut down Friendly Browser, a third-party Facebook client that blocked trackers and customized your feed:

Then in in 2021, Facebook's lawyers terrorized a software developer named Louis Barclay in retaliation for a tool called "Unfollow Everything," that autopiloted your browser to click through all the laborious steps needed to unfollow all the accounts you were subscribed to, and permanently banned Unfollow Everywhere's developer, Louis Barclay:

Now, Zuckerman is developing "Unfollow Everything 2.0," an even richer version of Barclay's tool.

This rich record of legal bullying gives Zuckerman and his lawyers at Knight something important: "standing" – the right to bring a case. They argue that a browser automation tool that helps you control your feeds is covered by CDA(c)(2)(b), and that Facebook can't legally threaten the developer of such a tool with liability for violating the Computer Fraud and Abuse Act, the Digital Millennium Copyright Act, or the other legal weapons it wields against this kind of "adversarial interoperability."

Writing for Wired, Knight First Amendment Institute at Columbia University speaks to a variety of experts – including my EFF colleague Sophia Cope – who broadly endorse the very clever legal tactic Zuckerman and Knight are bringing to the court.

I'm very excited about this myself. "Adversarial interop" – modding a product or service without permission from its maker – is hugely important to disenshittifying the internet and forestalling future attempts to reenshittify it. From third-party ink cartridges to compatible replacement parts for mobile devices to alternative clients and firmware to ad- and tracker-blockers, adversarial interop is how internet users defend themselves against unilateral changes to services and products they rely on:

Now, all that said, a court victory here won't necessarily mean that Facebook can't block interoperability tools. Facebook still has the unilateral right to terminate its users' accounts. They could kick off Zuckerman. They could kick off his lawyers from the Knight Institute. They could permanently ban any user who uses Unfollow Everything 2.0.

Obviously, that kind of nuclear option could prove very unpopular for a company that is the very definition of "too big to care." But Unfollow Everything 2.0 and the lawsuit don't exist in a vacuum. The fight against Big Tech has a lot of tactical diversity: EU regulations, antitrust investigations, state laws, tinkerers and toolsmiths like Zuckerman, and impact litigation lawyers coming up with cool legal theories.

Together, they represent a multi-front war on the very idea that four billion people should have their digital lives controlled by an unaccountable billionaire man-child whose major technological achievement was making a website where he and his creepy friends could nonconsensually rate the fuckability of their fellow Harvard undergrads.

(Image: D-KuruMinette LontsieCC BY-SA 4.0, modified)