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With Basically Zero Press Coverage At All, California Assembly Passes Its Own Version Of FOSTA

DATE POSTED:September 25, 2023

It is quite incredible to me how, over the last five years or so, the California legislature has pushed over a dozen absolutely horrific, dangerous (and often unconstitutional) laws to completely undermine the very principles of an open internet… and it gets basically no attention at all.

Last year, it felt like we at Techdirt were the only news site covering a slate of absolutely horrific bills. And, of the two that got through, AB 2273 (the “age appropriate design code”) and AB 587 (the social media “transparency” bill) are both facing constitutional challenges, with 2273 already being declared obviously unconstitutional under the 1st Amendment.

The California legislature could have saved itself a lot of nonsense and trouble if it had just listened to us last year when we highlighted the problems with both bills.

I’m not sure the media anywhere covered either of those bills in detail, whereas on Techdirt, we had many, many, many articles highlighting all of the problems with both bills.

This year, we’ve been covering even more bills, including SB 680 (on “social media addiction,” which is just a rewrite of a different bill from last year that didn’t pass) and AB 1394, which can be described as a kind of mini-California FOSTA, in which there is a private right of action, allowing anyone to sue social media companies for any child sexual abuse material (CSAM) that shows up on their platforms. Thankfully, SB 680 didn’t move forward. But 1394 did.

As we explained a few weeks ago, this bill gets everything exactly backwards, and will make the problems of CSAM on websites inevitably worse. I won’t go through all of the arguments all over again, but I’ll just highlight the most egregious: the law puts liability on websites for “knowingly” aiding and abetting CSAM on their platforms. The 1st Amendment requires that knowingly standard, but what you’ve now done is create very strong incentives for websites to stop fighting CSAM. Because if they’re fighting it, they are admitting they know that it happens, and that puts them in liability because of this stupid, stupid bill.

It’s a dangerous bill. We’ve already seen how a similar system works in FOSTA around “sex trafficking,” which resulted in the shutting down of all sorts of vital resources for sex workers. And now, with 1394, you can expect that all sorts of vital assets to help the victims of CSAM are about to shut down as well.

So, of course, California passed the bill, and Gavin Newsom is expected to sign it any day now. Great job California: you just made it harder to fight CSAM. I hope Newsom and bill sponsors Buffy Wicks and Heath Flora are proud of this disastrous bill.

And, yet, this bill got basically no media attention at all. We wrote our article about it. John Perrino, from the Stanford Internet Observatory, wrote an article at Tech Policy Press noting that “nobody seems to be talking about” this bill, which could have huge ramifications for the internet.

We’re just one tiny media site on the internet with basically no budget. Contrary to the claims of some rather annoyingly wrong people, we’re not funded by “big tech” and we’re not “big tech lobbyists.” Indeed, I’d prefer that we returned to a world of highly competitive, decentralized “little” or even “personal” tech over “big tech” any day. But these kinds of bills are going to make that impossible.

The media critique of these bills shouldn’t fall on our overworked shoulders. And yet it does. And that makes me feel like we failed with this one. We wrote the one article about it and it seems like it wasn’t nearly enough to raise the alarm before this bill got passed. Gavin Newsom could still veto it, but everyone tells me that he’s eager to sign it, just like he was eager to sign the Age Appropriate Design Code that just got declared unconstitutional.

And that’s because when it got declared unconstitutional there’s no one in the media in Sacramento to go back to Newsom and ask him: “Hey, why did you sign that obviously unconstitutional bill that Techdirt called out as unconstitutional?” Instead, everyone forgets that Newsom not only eagerly signed the bill, but literally begged NetChoice not to sue over the bill, even though a judge has properly called out the myriad problems with the bill.

When we let politicians like Buffy Wicks and Gavin Newsom keep passing and signing unconstitutional problematic bills, and never go back and ask them why they did so — especially when the problems of those bills were not just clear, but clearly highlighted by some of us — we simply encourage more of the same nonsense, and a quicker demise to the open web.

And that only works to “big tech’s” advantage. Google and Meta have buildings full of lawyers. They really don’t care about these bills. They can handle them. These laws create larger problems for everyone else instead, and leave Google and Meta in control over the the internet, rather than letting us take back our own internet.