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When Elon Musk announced his offer to buy Twitter for more than $40 billion, he told the public his vision for the social media site was to make sure it’s “an inclusive arena for free speech.”

Musk’s actions since closing the deal last year have illuminated how he sees the balance internet platforms must strike in protecting free expression versus user safety. While he’s lifted restrictions on many previously-suspended accounts including former President Donald Trump’s, he’s also placed new limitations on journalists’ and others’ accounts for posting publicly available flight information he’s equated to doxxing.

The saga of Musk’s Twitter takeover has underscored the complexity of determining what speech is truly protected. That question is particularly difficult when it comes to online platforms, which create policies that impact wide swaths of users from different cultures and legal systems across the world.

This year, the U.S. justice system, including the Supreme Court, will take on cases that will help determine the bounds of free expression on the internet in ways that could force the hand of Musk and other platform owners who determine what messages get distributed widely.

The boundaries they will consider include the extent of platforms’ responsibility to remove terrorist content and prevent their algorithms from promoting it, whether social media sites can take down messaging on the basis of viewpoint and whether the government can impose online safety standards that some civil society groups fear could lead to important resources and messages being stifled to avoid legal liability.

“The question of free speech is always more complicated than it looks,” said David Brody, managing attorney of the Digital Justice Initiative at the Lawyers’ Committee for Civil Rights Under the Law. “There’s a freedom to speak freely. But there’s also the freedom to be free from harassment to be free from discrimination.”

Brody said whenever the parameters of content moderation get tweaked, people need to consider “whose speech gets silenced when that dial gets turned? Whose speech gets silenced because they are too fearful to speak out in the new environment that is created?”

Tech’s liability shield under threat

Facebook’s new rebrand logo Meta is seen on smartpone in front of displayed logo of Facebook, Messenger, Intagram, Whatsapp and Oculus in this illustration picture taken October 28, 2021.

Dado Ruvic | Reuters

Section 230 of the Communications Decency Act has been a bedrock of the tech industry for more than two decades. The law grants a liability shield to internet platforms that protects them from being held responsible for their users’ posts, while also allowing them to decide what stays up or comes down.

But while industry leaders say it’s what has allowed online platforms to flourish and innovate, lawmakers on both sides of the aisle have increasingly pushed to diminish its protections for the multi-billion dollar companies, with many Democrats wanting platforms to remove more hateful content and Republicans wanting to leave up more posts that align with their views.

Section 230 protection makes it easier for platforms to allow users to post their views without the companies themselves fearing they could be held responsible for those messages. It also gives the platforms peace of mind that they won’t be penalized if they want to remove or demote information they deem to be harmful or objectionable in some way.

These are the cases that threaten to undermine Section 230’s force:

  • Twitter v. Taamneh: This Supreme Court case doesn’t directly involve Section 230, but its outcome could still impact how platforms choose to moderate information on their services. The case, which will be heard by the Supreme Court in February, also brought under the ATA, deals with the question of whether Twitter should have taken more aggressive moderating action against terrorist content because it moderates posts on its site. Jess Miers, legal advocacy counsel at the tech-backed group for Chamber of Progress, said a ruling against Twitter in the case could create an “existential question” for tech companies by forcing them to rethink whether monitoring for terrorist content at all creates legal knowledge that it exists, which could later be used against them in court.
  • Challenges to Florida and Texas social media laws: Another set of cases deals with the question of whether services should be required to host more content of certain kinds. Two tech industry groups, NetChoice and the Computer & Communications Industry Association, filed suit against the states of Florida and Texas over their laws seeking to prevent online platforms from discriminating on their services based on viewpoint. The groups argue that the laws effectively violate the businesses’ First Amendment rights by forcing them to host objectionable messages even if they violate the company’s own terms of service, policies or beliefs. The Supreme Court has yet to decide if or when to hear the cases, though many expect it will take them up at some point.
  • Tech challenge to California’s kids online safety law: Separately, NetChoice also filed suit against California for a new law there that aims to make the internet safer for kids, but that the industry group says would unconstitutionally restrict speech. The Age-Appropriate Design Code requires internet platforms that are likely to be accessed by kids to mitigate risks to those users. But in doing so, NetChoice has argued the state imposed an overly vague rule subject to the whims of what the attorney general deems to be appropriate. The group said the law will create “overwhelming pressure to over-moderate content to avoid the law’s penalties for content the State deems harmful,” which will “stifle important resources, particularly for vulnerable youth who rely on the Internet for life-saving information.” This case is still at the district court level.

The tension between the cases

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The variety in these cases involving speech on the internet underscores the complexity of regulating the space.

“On the one hand, in the NetChoice cases, there’s an effort to get platforms to leave stuff up,” said Jennifer Granick, surveillance and cybersecurity counsel at the ACLU Speech, Privacy, and Technology Project. “And then the Taamneh and the Gonzalez case, there’s an effort to get platforms to take more stuff down and to police more thoroughly. You kind of can’t do both.” 

If the Supreme Court ultimately decides to hear arguments in the Texas or Florida social media law cases, it could face tricky questions about how to square its decision with the outcome in the Gonzalez case.

For example, if the court decides in the Gonzalez case that platforms can be held liable for hosting some types of user posts or promoting them through their algorithms, “that’s in some tension with the notion that providers are potentially liable for third-party content,” as the Florida and Texas laws suggest, said Samir Jain, vice present of policy at the Center for Democracy and Technology, a nonprofit that has received funding from tech companies including Google and Amazon.

“Because if on the one hand, you say, ‘Well, if you carry terrorist-related content or you carry certain other content, you’re potentially liable for it.’ And they then say, ‘But states can force you to carry that content.’ There’s some tension there between those two kinds of positions,” Jain said. “And so I think the court has to think of the cases holistically in terms of what kind of regime overall it’s going to be creating for online service providers.”

The NetChoice cases against red states Florida and Texas, and the blue state of California, also show how disagreements over how speech should be regulated on the internet are not constrained by ideological lines. The laws threaten to divide the country into states that require more messages to be left up and others that require more posts to be taken down or restricted in reach.

Under such a system, tech companies “would be forced to go to any common denominator that exists,” according to Chris Marchese, counsel a NetChoice.

“I have a feeling though that what really would end up happening is that you could probably boil down half the states into a, ‘we need to remove more content regime,’ and then the other half would more or less go into, ‘we need to leave more content up’ regime,” Marchese said. “Those two regimes really cannot be harmonized. And so I think that to the extent that it’s possible, we could see an internet that does not function the same from state to state.”

Critics of the California law have also warned that in a period when access to resources for LGBTQ youth is already limited (through measures like Florida’s Parental Rights in Education law, also referred to by critics as the Don’t Say Gay law limiting how schools can teach about gender identity or sexual orientation in young grades), the legislation threatens to further cut off vulnerable kids and teens from important information based on the whims of the state’s enforcement.

NetChoice alleged in its lawsuit against the California law that blogs and discussion forums for mental health, sexuality, religion and more could be considered under the scope of the law if likely to be accessed by kids. It also claimed the law would violate platforms’ own First Amendment right to editorial discretion and “impermissibly restricts how publishers may address or promote content that a government censor thinks unsuitable for minors.”

Jim Steyer, CEO of Common Sense Media, which has advocated for the California law and other measures to protect kids online, criticized arguments from tech-backed groups against the legislation. Though he acknowledged critiques from outside groups as well, he warned that it’s important not to let “perfect be the enemy of the good.”

“We’re in the business of trying to get stuff done concretely for kids and families,” Steyer said. “And it’s easy to make intellectual arguments. It’s a lot tougher sometimes to get stuff done.”

How degrading 230 protections could change the internet

A YouTube logo seen at the YouTube Space LA in Playa Del Rey, Los Angeles, California, United States October 21, 2015.

Lucy Nicholson | Reuters

Although the courts could rule in a variety of ways in these cases, any chipping away at Section 230 protections will likely have tangible effects on how internet companies operate.

Google, in its brief filed with the Supreme Court on Jan. 12, warned that denying Section 230 protections to YouTube in the Gonzalez case “could have devastating spillover effects.”

“Websites like Google and Etsy depend on algorithms to sift through mountains of user-created content and display content likely relevant to each user,” Google wrote. It added that if tech platforms were able to be sued without Section 230 protection for how they organize information, “the internet would devolve into a disorganized mess and a litigation minefield.”

Google said such a change would also make the internet less safe and less hospitable to free expression.

“Without Section 230, some websites would be forced to overblock, filtering content that could create any potential legal risk, and might shut down some services altogether,” General Counsel Halimah DeLaine Prado wrote in a blog post summarizing Google’s position.That would leave consumers with less choice to engage on the internet and less opportunity to work, play, learn, shop, create, and participate in the exchange of ideas online.”

Miers of Chamber of Progress said that even if Google technically wins at the Supreme Court, it’s possible justices try to “split the baby” in establishing a new test of when Section 230 protections should apply, like in the case of algorithms. A result like that would effectively undermine one of the main functions of the law, according to Miers, which is the ability to swiftly end lawsuits against platforms that involve hosting third-party content.

If the court tries to draw such a distinction, Miers said, “now we’re going to get in a situation where every case plaintiffs bringing their cases against internet services are going to always try to frame it as being on the other side of the line that the Supreme Court sets up. And then there’s going to be a lengthy discussion of the courts asking, well does Section 230 even apply in this case? But once we get to that lengthy discussion, the entire procedural benefits of 230 have been mooted at that point.”

Miers added that platforms could also opt to display mostly posts from professional content creators, rather than amateurs, to maintain a level of control over the information they could be at risk for promoting.

The impact on online communities could be especially profound for marginalized groups. Civil society groups who spoke with CNBC doubted that for-profit companies would spend on increasingly complex models to navigate a risky legal field in a more nuanced way.

“It’s much cheaper from a compliance point of view to just censor everything,” said Brody of the Lawyers’ Committee. “I mean, these are for-profit companies, they’re going to look at, what is the most cost-effective way for us to reduce our legal liability? And the answer to that is not going to be investing billions and billions of dollars into trying to improve content moderation systems that are frankly already broken. The answer is going to be, let’s just crank up the dial on the AI that automatically censors stuff so that we have a Disneyland rule. Everything’s happy and nothing bad ever happens. But to do that, you’re going to censor a lot of underrepresented voices in a way that is really going to have outsized censorship impacts on them.” 

The Supreme Court of the United States building are seen in Washington D.C., United States on December 28, 2022.

Celal Gunes | Anadolu Agency | Getty Images

The idea that some business models will become simply too risky to operate under a more limited liability shield is not theoretical.

After Congress passed SESTA-FOSTA, which carved out an exception for liability protection in cases of sex trafficking, options to advertise sex work online became more limited due to the liability risk. While some might view that as a positive change, many sex workers have argued it removed a safer option for making money compared to soliciting work in person.

Lawmakers who’ve sought to alter Section 230 seem to think there is a “magical lever” they can pull that will “censor all the bad stuff from the internet and leave up all the good stuff,” according to Evan Greer, director of Fight for the Future, a digital rights advocacy group.

“The reality is that when we subject platforms to liability for user-generated content, no matter how well-intentioned the effort is or no matter how it’s framed, what ends up happening is not that platforms moderate more responsibly or more thoughtfully,” Greer said. “They moderate in whatever way their risk-averse lawyers tell them to, to avoid getting sued.”

Jain of CDT pointed to Craigslist’s decision to take down its personal ads section altogether in the wake of SESTA-FOSTA’s passage “because it was just too difficult to sort of make those fine-grained distinctions” between legal services and illegal sex trafficking.

“So if the court were to say that you could be potentially liable for quote, unquote, recommending third-party content or for your algorithms displaying third-party content, because it’s so difficult to moderate in a totally perfect way, one response might be to take down a lot of speech or to block a lot of speech,” Jain said.

Miers fears that if different states enact their own laws seeking to place limits on Section 230 as Florida and Texas have, companies will end up adhering to the strictest state’s law for the rest of the country. That could result in restrictions on the kind of content most likely to be considered controversial in that state, such as resources for LGBTQ youth when such information isn’t considered age-appropriate, or reproductive care in a state that has abortion restrictions.

Should the Supreme Court end up degrading 230 protections and allowing a fragmented legal system to persist for content moderation, Miers said it could be a spark for Congress to address the new challenges, noting that Section 230 itself came out of two bipartisan lawmakers’ recognition of new legal complexities presented by the existence of the internet.

“Maybe we have to sort of relive that history and realize that oh, well, we’ve made the regulatory environment so convoluted that it’s risky again to host user-generated content,” Miers said. “Yeah, maybe Congress needs to act. ” 

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How Elon Musk’s plan to slash government agencies and regulation may benefit his empire

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How Elon Musk’s plan to slash government agencies and regulation may benefit his empire

Elon Musk’s business empire is sprawling. It includes electric vehicle maker Tesla, social media company X, artificial intelligence startup xAI, computer interface company Neuralink, tunneling venture Boring Company and aerospace firm SpaceX. 

Some of his ventures already benefit tremendously from federal contracts. SpaceX has received more than $19 billion from contracts with the federal government, according to research from FedScout. Under a second Trump presidency, more lucrative contracts could come its way. SpaceX is on track to take in billions of dollars annually from prime contracts with the federal government for years to come, according to FedScout CEO Geoff Orazem.

Musk, who has frequently blamed the government for stifling innovation, could also push for less regulation of his businesses. Earlier this month, Musk and former Republican presidential candidate Vivek Ramaswamy were tapped by Trump to lead a government efficiency group called the Department of Government Efficiency, or DOGE.

In a recent commentary piece in the Wall Street Journal, Musk and Ramaswamy wrote that DOGE will “pursue three major kinds of reform: regulatory rescissions, administrative reductions and cost savings.” They went on to say that many existing federal regulations were never passed by Congress and should therefore be nullified, which President-elect Trump could accomplish through executive action. Musk and Ramaswamy also championed the large-scale auditing of agencies, calling out the Pentagon for failing its seventh consecutive audit. 

“The number one way Elon Musk and his companies would benefit from a Trump administration is through deregulation and defanging, you know, giving fewer resources to federal agencies tasked with oversight of him and his businesses,” says CNBC technology reporter Lora Kolodny.

To learn how else Elon Musk and his companies may benefit from having the ear of the president-elect watch the video.

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Why X’s new terms of service are driving some users to leave Elon Musk’s platform

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Why X's new terms of service are driving some users to leave Elon Musk's platform

Elon Musk attends the America First Policy Institute gala at Mar-A-Lago in Palm Beach, Florida, Nov. 14, 2024.

Carlos Barria | Reuters

X’s new terms of service, which took effect Nov. 15, are driving some users off Elon Musk’s microblogging platform. 

The new terms include expansive permissions requiring users to allow the company to use their data to train X’s artificial intelligence models while also making users liable for as much as $15,000 in damages if they use the platform too much. 

The terms are prompting some longtime users of the service, both celebrities and everyday people, to post that they are taking their content to other platforms. 

“With the recent and upcoming changes to the terms of service — and the return of volatile figures — I find myself at a crossroads, facing a direction I can no longer fully support,” actress Gabrielle Union posted on X the same day the new terms took effect, while announcing she would be leaving the platform.

“I’m going to start winding down my Twitter account,” a user with the handle @mplsFietser said in a post. “The changes to the terms of service are the final nail in the coffin for me.”

It’s unclear just how many users have left X due specifically to the company’s new terms of service, but since the start of November, many social media users have flocked to Bluesky, a microblogging startup whose origins stem from Twitter, the former name for X. Some users with new Bluesky accounts have posted that they moved to the service due to Musk and his support for President-elect Donald Trump.

Bluesky’s U.S. mobile app downloads have skyrocketed 651% since the start of November, according to estimates from Sensor Tower. In the same period, X and Meta’s Threads are up 20% and 42%, respectively. 

X and Threads have much larger monthly user bases. Although Musk said in May that X has 600 million monthly users, market intelligence firm Sensor Tower estimates X had 318 million monthly users as of October. That same month, Meta said Threads had nearly 275 million monthly users. Bluesky told CNBC on Thursday it had reached 21 million total users this week.

Here are some of the noteworthy changes in X’s new service terms and how they compare with those of rivals Bluesky and Threads.

Artificial intelligence training

X has come under heightened scrutiny because of its new terms, which say that any content on the service can be used royalty-free to train the company’s artificial intelligence large language models, including its Grok chatbot.

“You agree that this license includes the right for us to (i) provide, promote, and improve the Services, including, for example, for use with and training of our machine learning and artificial intelligence models, whether generative or another type,” X’s terms say.

Additionally, any “user interactions, inputs and results” shared with Grok can be used for what it calls “training and fine-tuning purposes,” according to the Grok section of the X app and website. This specific function, though, can be turned off manually. 

X’s terms do not specify whether users’ private messages can be used to train its AI models, and the company did not respond to a request for comment.

“You should only provide Content that you are comfortable sharing with others,” read a portion of X’s terms of service agreement.

Though X’s new terms may be expansive, Meta’s policies aren’t that different. 

The maker of Threads uses “information shared on Meta’s Products and services” to get its training data, according to the company’s Privacy Center. This includes “posts or photos and their captions.” There is also no direct way for users outside of the European Union to opt out of Meta’s AI training. Meta keeps training data “for as long as we need it on a case-by-case basis to ensure an AI model is operating appropriately, safely and efficiently,” according to its Privacy Center. 

Under Meta’s policy, private messages with friends or family aren’t used to train AI unless one of the users in a chat chooses to share it with the models, which can include Meta AI and AI Studio.

Bluesky, which has seen a user growth surge since Election Day, doesn’t do any generative AI training. 

“We do not use any of your content to train generative AI, and have no intention of doing so,” Bluesky said in a post on its platform Friday, confirming the same to CNBC as well.

Liquidated damages

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The Pentagon’s battle inside the U.S. for control of a new Cyber Force

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The Pentagon's battle inside the U.S. for control of a new Cyber Force

A recent Chinese cyber-espionage attack inside the nation’s major telecom networks that may have reached as high as the communications of President-elect Donald Trump and Vice President-elect J.D. Vance was designated this week by one U.S. senator as “far and away the most serious telecom hack in our history.”

The U.S. has yet to figure out the full scope of what China accomplished, and whether or not its spies are still inside U.S. communication networks.

“The barn door is still wide open, or mostly open,” Senator Mark Warner of Virginia and chairman of the Senate Intelligence Committee told the New York Times on Thursday.

The revelations highlight the rising cyberthreats tied to geopolitics and nation-state actor rivals of the U.S., but inside the federal government, there’s disagreement on how to fight back, with some advocates calling for the creation of an independent federal U.S. Cyber Force. In September, the Department of Defense formally appealed to Congress, urging lawmakers to reject that approach.

Among one of the most prominent voices advocating for the new branch is the Foundation for Defense of Democracies, a national security think tank, but the issue extends far beyond any single group. In June, defense committees in both the House and Senate approved measures calling for independent evaluations of the feasibility to create a separate cyber branch, as part of the annual defense policy deliberations.

Drawing on insights from more than 75 active-duty and retired military officers experienced in cyber operations, the FDD’s 40-page report highlights what it says are chronic structural issues within the U.S. Cyber Command (CYBERCOM), including fragmented recruitment and training practices across the Army, Navy, Air Force, and Marines.

“America’s cyber force generation system is clearly broken,” the FDD wrote, citing comments made in 2023 by then-leader of U.S. Cyber Command, Army General Paul Nakasone, who took over the role in 2018 and described current U.S. military cyber organization as unsustainable: “All options are on the table, except the status quo,” Nakasone had said.

Concern with Congress and a changing White House

The FDD analysis points to “deep concerns” that have existed within Congress for a decade — among members of both parties — about the military being able to staff up to successfully defend cyberspace. Talent shortages, inconsistent training, and misaligned missions, are undermining CYBERCOM’s capacity to respond effectively to complex cyber threats, it says. Creating a dedicated branch, proponents argue, would better position the U.S. in cyberspace. The Pentagon, however, warns that such a move could disrupt coordination, increase fragmentation, and ultimately weaken U.S. cyber readiness.

As the Pentagon doubles down on its resistance to establishment of a separate U.S. Cyber Force, the incoming Trump administration could play a significant role in shaping whether America leans toward a centralized cyber strategy or reinforces the current integrated framework that emphasizes cross-branch coordination.

Known for his assertive national security measures, Trump’s 2018 National Cyber Strategy emphasized embedding cyber capabilities across all elements of national power and focusing on cross-departmental coordination and public-private partnerships rather than creating a standalone cyber entity. At that time, the Trump’s administration emphasized centralizing civilian cybersecurity efforts under the Department of Homeland Security while tasking the Department of Defense with addressing more complex, defense-specific cyber threats. Trump’s pick for Secretary of Homeland Security, South Dakota Governor Kristi Noem, has talked up her, and her state’s, focus on cybersecurity.

Former Trump officials believe that a second Trump administration will take an aggressive stance on national security, fill gaps at the Energy Department, and reduce regulatory burdens on the private sector. They anticipate a stronger focus on offensive cyber operations, tailored threat vulnerability protection, and greater coordination between state and local governments. Changes will be coming at the top of the Cybersecurity and Infrastructure Security Agency, which was created during Trump’s first term and where current director Jen Easterly has announced she will leave once Trump is inaugurated.

Cyber Command 2.0 and the U.S. military

John Cohen, executive director of the Program for Countering Hybrid Threats at the Center for Internet Security, is among those who share the Pentagon’s concerns. “We can no longer afford to operate in stovepipes,” Cohen said, warning that a separate cyber branch could worsen existing silos and further isolate cyber operations from other critical military efforts.

Cohen emphasized that adversaries like China and Russia employ cyber tactics as part of broader, integrated strategies that include economic, physical, and psychological components. To counter such threats, he argued, the U.S. needs a cohesive approach across its military branches. “Confronting that requires our military to adapt to the changing battlespace in a consistent way,” he said.

In 2018, CYBERCOM certified its Cyber Mission Force teams as fully staffed, but concerns have been expressed by the FDD and others that personnel were shifted between teams to meet staffing goals — a move they say masked deeper structural problems. Nakasone has called for a CYBERCOM 2.0, saying in comments early this year “How do we think about training differently? How do we think about personnel differently?” and adding that a major issue has been the approach to military staffing within the command.

Austin Berglas, a former head of the FBI’s cyber program in New York who worked on consolidation efforts inside the Bureau, believes a separate cyber force could enhance U.S. capabilities by centralizing resources and priorities. “When I first took over the [FBI] cyber program … the assets were scattered,” said Berglas, who is now the global head of professional services at supply chain cyber defense company BlueVoyant. Centralization brought focus and efficiency to the FBI’s cyber efforts, he said, and it’s a model he believes would benefit the military’s cyber efforts as well. “Cyber is a different beast,” Berglas said, emphasizing the need for specialized training, advancement, and resource allocation that isn’t diluted by competing military priorities.

Berglas also pointed to the ongoing “cyber arms race” with adversaries like China, Russia, Iran, and North Korea. He warned that without a dedicated force, the U.S. risks falling behind as these nations expand their offensive cyber capabilities and exploit vulnerabilities across critical infrastructure.

Nakasone said in his comments earlier this year that a lot has changed since 2013 when U.S. Cyber Command began building out its Cyber Mission Force to combat issues like counterterrorism and financial cybercrime coming from Iran. “Completely different world in which we live in today,” he said, citing the threats from China and Russia.

Brandon Wales, a former executive director of the CISA, said there is the need to bolster U.S. cyber capabilities, but he cautions against major structural changes during a period of heightened global threats.

“A reorganization of this scale is obviously going to be disruptive and will take time,” said Wales, who is now vice president of cybersecurity strategy at SentinelOne.

He cited China’s preparations for a potential conflict over Taiwan as a reason the U.S. military needs to maintain readiness. Rather than creating a new branch, Wales supports initiatives like Cyber Command 2.0 and its aim to enhance coordination and capabilities within the existing structure. “Large reorganizations should always be the last resort because of how disruptive they are,” he said.

Wales says it’s important to ensure any structural changes do not undermine integration across military branches and recognize that coordination across existing branches is critical to addressing the complex, multidomain threats posed by U.S. adversaries. “You should not always assume that centralization solves all of your problems,” he said. “We need to enhance our capabilities, both defensively and offensively. This isn’t about one solution; it’s about ensuring we can quickly see, stop, disrupt, and prevent threats from hitting our critical infrastructure and systems,” he added.

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