Brian Fung | @[email protected]

Brian Fung | @[email protected] @b_fung

RT @DSenFloor: .@SenSchumer just FILED CLOTURE on the nomination of Alvaro Bedoya to be a Federal Trade Commissioner — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@NickDegani @bskorup @haroldfeld Ah, right! Of course. — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@NickDegani @haroldfeld Ahh, I see what you're saying. — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@haroldfeld @NickDegani Nick raises an interesting point about state imposition of common carriage, though. What does it take for a state to classify an operator as a common carrier, and do some states regulate as common carriers operators that are *not* considered common carriers at the federal level? — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@NickDegani @haroldfeld I still have an outstanding question about how to think about this! https://t.co/zYgIQdjMFT — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@NickDegani @haroldfeld I think you may have a point in terms of Texas making an attempt to impose common carriage, but whether HB20 constitutes actual common carriage regulation might be up for debate. — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@NickDegani @haroldfeld Wouldn't common carriage for social media platforms mean "just be a dumb pipe for all content" and not what HB20 says, which is "don't discriminate in these specific categories"? (Leaving aside the plaintiffs' chilled-speech allegations.) — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@NickDegani @haroldfeld To the extent society agrees websites should face the same or similar statutory requirements as phone companies, Congress can pass legislation to that effect, or regulators could interpret their legislative mandates differently, but that may not change the underlying 1A reality. — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@NickDegani @haroldfeld I don't believe plaintiffs are suggesting websites have different 1A rights from phone companies, and their argument needn't go that far. They can simply argue that phone companies share the same 1A rights as websites, AND that telcos face additional statutory requirements. — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@NickDegani @haroldfeld I guess what I don't understand is: If Verizon were unburdened by common carriage and thus *could* block calls as you say — but it would not be the 1A giving it the right to block calls — what right would Verizon cite instead to justify blocking the calls? — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@NickDegani @haroldfeld Totally agree the question about whether 1A gives Verizon a right to block calls (separate from common carriage) is a different question. So if you think VZ could block calls absent common carriage but the 1A would not be the source of that right, what could VZ cite instead? — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@haroldfeld @NickDegani The fact he doesn't see that or care to engage with it, and yet drives ahead with the analogy anyway, leaves me wondering whether the opinion will be similarly devoid of nuance. — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@haroldfeld @NickDegani Oldham implies it would be ridiculous if Verizon could cite 1A to block calls. And it would be! But the difference between Twitter and Verizon here is Title II regulation. Oldham says he isn't asking about common carriage, but IMO that is the entire ballgame in this analogy. — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@NickDegani All that would need to change is for regulators to reclassify telephony services. — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@NickDegani Why *isn't* it because of common carriage, though? But for common carrier obligations, couldn't Verizon theoretically block calls, just like how under current rules, Verizon's broadband business could legally block certain traffic? — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@NickDegani Sorry, meant to say "Title II" there. https://t.co/LGLR9NXTNW — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@NickDegani By that logic, Oldham's hypothetical is off-base because Verizon's Title I obligations prevent it from blocking calls. Could it block other content it doesn't like within its broadband business? I think the answer is yes, right? That's the entire NN fight in a nutshell. — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@NickDegani And in this context the FCC decided telephony is Title II and broadband is Title I. — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

@NickDegani Can you expand on that — I'm not sure I ever implied it was an inherent thing. The whole takeaway from the DC Circuit was that the FCC has authority to decide whether an operator is to be treated as a common carrier or not. — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

Just as an aside, this seems to me a direct consequence of the appification of the web and the siloing of information into private warehouses. People really forget that services operate on top of websites! https://t.co/dm3dV52SgY — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

I just… GAHHH — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

Having to literally re-litigate this stuff, poorly, in order to have a hope of reaching the fundamental question of whether Twitter has a First Amendment right to moderate its own platform does not offer reassurance in the 5th Circuit's ability to rule competently in this matter. — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

And here is the exchange on whether Twitter is even a website at all, and if it is, whether it is covered by Section 230. This is insane. The fact that websites like Twitter *are* covered by 230 is the entire reason why there's a whole movement underway to change or repeal 230! https://t.co/oYsspPSWME — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

And here's the exchange on Verizon. As I understand it, the reason Verizon cannot do what Oldham is proposing — and yet Twitter can — is precisely because Verizon has common carrier obligations in its phone business (but not its broadband business!) and Twitter does not. https://t.co/1FCgKxFG5r — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

I'm going back through my audio recording to find some of these amazing exchanges. Here's one in which Judge Oldham needs to be reminded of the 1A limitations on government-compelled speech and also discovers the arbitrary power of private platforms. https://t.co/AqtyB5jaef — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

Whether Twitter's moderation activity is protected by the 1A is the basis for the injunction written by the lower court and that is being challenged before the appellate court. I am amazed that the appellate court barely touched on that question in 40 minutes of argument. — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

Only at the end of the hearing did one of the judges correctly observe that Section 230 is "irrelevant" to the question of whether Twitter is exercising a First Amendment right when it moderates content. — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

On the Verizon point, there was a whole lot of yammering about past net neutrality litigation that should have produced an easy answer to this but somehow they never got there. The answer being, websites are not regarded as common carriers https://t.co/s5KvfvDtnP — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

The hearing has wrapped. It's obviously foolish to predict what the court will do but the questioning seemed to reveal a poor grasp of the basics underlying the case. — PolitiTweet.org

Brian Fung | @[email protected] @b_fung

Another seemed surprised that Twitter could wake up one day and decide to ban all LGBT speech, and then asked why Verizon's phone business, a common carrier, can't decide to block individual phone calls based on the speech expressed in those calls. — PolitiTweet.org