We seriously need to talk about this Judicial Security and Privacy Act currently shoved into the NDAA. Let's start with where we're at WRT #Section230
Follow along with me on page 2487: congress.gov/117/bills/hr77
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The bill at issue originally contained an express amendment to 230. That created a ton of backlash from the tech community (rightfully so). The amendment was then cut.
That's why you're hearing folks say "230 is no longer in the NDAA" so it's fine now. That is a bad take.
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It is technically correct that the act no longer *expressly* amends #Section230. However, there remain several 1A concerns, several issues with the notice and takedown process described, and several IMPLICIT conflicts with 230.
I'll flag the main concerns in this thread.
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(1) Vague Takedown Requests:
The statute requires a website to remove any instance of a judge's personal info in response to a written request. The service has 72 hours to act on the request. This is typically referred to as a "notice and takedown" statute like the DMCA.
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However, unlike the DMCA, there are no requirements for how the written request be formed. For example, the DMCA has several requirements in order to form a valid takedown request, (e.g. filed by the rightsholder, specific instances, must be signed under threat of perjury, etc).
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Here, an "at-risk" individual (broad) can file a request about really anything having to do with a judge or an "at-risk individual," and the clock starts for the service.
I cannot stress this enough: we do not want to legitimize this kind of notice and takedown structure.
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(2) Notice & Staydown + Implied Duty To Monitor:
The act also requires websites to keep any violating content down, and imposes a duty to monitor for said content. Compare to the DMCA: a service is only responsible for the specific instance of content at that specific time.
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Under the DMCA, the service is expressly not required to monitor for more instances of violating content, even if the same instance pops up again (the rightsholder would have to file another takedown request).
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Here, under the NDAA, the act implies that the service is on the hook for finding *all* of the violating instances---even if the written request fails to identify them---and keep those instances from popping back up again.
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Absent any language stating otherwise, the statute could also be read to impose a monitoring duty for each instance the service removes. Monitoring duties impose extreme technological burdens on websites.
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In fact, no current intermediary liability law expressly imposes such a duty here in the U.S. So, this would be a major divergence from the status quo.
Again, we *do not* want to normalize this.
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(3) The #Section230 Backdoor
The act provides remedies in the form of an injunction that the requester can use against a website to enforce their written takedown request. If the website violates the injunction, civil remedies are available.
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Section 230 is supposed to preempt civil liability that derives from third party content. So, technically 230 should block the injunction and it should block the civil damages that follow.
This creates a conflict of law.
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When there's a conflict of law, typically the most recently enacted law is the one that preempts. In this case, that would be the NDAA. Hence, we get a secret 230 backdoor without any need to expressly amend.
Today it's information about judges. Tomorrow, who knows.
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So to summarize: the bill creates a vague notice-and-takedown / staydown structure with an implied duty to monitor and conflicts with both Section 230 and the First Amendment.
This is a pretty big deal and more people need to be talking about it.
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. also has an excellent write-up here that specifically calls-out some of the burdens this type of liability framework will create for Internet services: cato.org/blog/latest-ve
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Oh and just one more minor detail:
WHAT JUDGE IS GOING TO RULE AGAINST THE INTERESTS OF ANOTHER JUDGE, SIMULTANEOUSLY RULING AGAINST THEIR OWN INTERESTS?????
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