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HomeMy WebLinkAboutItem 13b - Voting Delegates for 2020 League of California Cities Annual ConferenceAppoint Voting Delegates for the 2020 League of California Cities Annual Conference August 18, 2020 Page 3 of 3 DATE: September 15, 2020 TO: Honorable Mayor and City Council FROM: Dominic Lazzaretto, City Manager By: Michael Bruckner, Deputy City Manager Sam Pedersen, Admin Intern SUBJECT: DESIGNATE COUNCIL MEMBER CHENG AS THE VOTING DELEGATE AND CITY MANAGER LAZZARETTO AS THE ALTERNATE VOTING DELEGATE FOR THE 2020 LEAGUE OF CALIFORNIA CITIES ANNUAL CONFERENCE AND EXPO AND PROVIDE DIRECTION ON RESOLUTION NO. 1 Recommendation: Approve and Provide Direction SUMMARY The League of California Cities (“League”) Annual Conference and Expo is scheduled for October 7-9, 2020. Due to the ongoing COVID-19 pandemic, the conference has been transitioned to a virtual format. An important part of the Conference is the Annual General Assembly Meeting that will take place at 11:00 a.m. on Friday, October 9. Consistent with League bylaws, a City’s Voting Delegate and up to two Alternates must be designated by the City Council to consider and take action on any resolutions that establish League policy. At this time, Council Member Cheng is registered to attend the conference. City Manager Lazzaretto may also attend if needed. Included in this year’s policy agenda is the consideration of a single resolution. Resolution No. 1 was sponsored by the City of Cerritos and calls on Congress to amend Section 230 of the Federal Communications Decency Act of 1996 (“Section 230”) to limit immunity provided to online platforms where their forums facilitate the promotion of criminal activity. Ultimately, the policy objectives proposed under this Resolution would incentivize social media companies to establish and implement a reasonable program to identify and remove content that solicits criminal activity. The recommended action is to recommend that the voting delegate vote to Approve Resolution No. 1. Appoint Voting Delegates for the 2020 League of California Cities Annual Conference September 15, 2020 Page 2 of 4 Therefore, it is recommended that the City Council: 1. Designate Council Member Cheng as the Voting Member and City Manager Lazzaretto as the Alternate; and 2. Recommend the Voting Member or Alternate vote in support of Resolution No. 1. DISCUSSION In order to vote on behalf of the City of Arcadia at the Annual General Assembly Meeting, the City Council must select, by official action, a Voting Delegate and up to two Alternate Voting Delegates, and provide evidence of such action to the League by Wednesday, September 30, 2020. Once the Voting Delegate and Alternate Voting Delegate have been approved, staff will forward the Voting Delegate/Alternate form to the League (see Attachment No. 1). Due to the ongoing COVID-19 pandemic, the conference has been transitioned to a virtual format. The Delegate and Alternate Delegate(s) will receive information via email on how to access the virtual conference in the days leading up to the event. While it will be left to the Voting Delegate to consider the actual Resolutions at the General Assembly Meeting, the Arcadia City Council has chosen in years past to provide some initial thoughts and general direction to the Voting Delegate prior to the meeting to help guide their deliberations. This year, a single Resolution has been introduced for consideration by the Annual Conference and referred to the League policy committees (Attachment No. 2). Resolution No. 1: Amendment to Section 230 of the Communications Decency Act of 1996 Requiring Social Media Companies to Remove Materials Which Promote Criminal Activities Sponsored by the City of Cerritos, the intent of Resolution No. 1 is to address the use of social media platforms for posting information that leads followers to meet and commit crimes, and to also hold these platforms and the persons who post said information civilly and criminally accountable for all costs incurred by the local jurisdictions where the crimes occurred. At its core, the existing Section 230 provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by third-party users. This protects websites from lawsuits if a user posts something illegal, although there are exceptions for copyright violations, sex work-related material, and violations of federal criminal law. Protections from Section 230 have come under increased scrutiny Appoint Voting Delegates for the 2020 League of California Cities Annual Conference September 15, 2020 Page 3 of 4 recently as Congress examines the influence technology companies hold on political discourse and hate speech. Setting aside Section 230, there are Constitutional issues to consider should there be an attempt to implement such a Resolution into statute. The First Amendment prohibits government from restricting most forms of speech, which would include proposals to force tech companies to moderate content. While “illegal” types of speech enjoy limited or no First Amendment protection, the line for delineating between “legal” and “illegal” speech is very difficult to determine. Consequently, one would expect online platforms to push back on whether there is a Constitutionally feasible way for them to identify protected speech versus unprotected speech, or whether there is a feasible way to define, “content which solicits criminal activity.” With respect to the Fourth Amendment, online platforms may argue that requiring them to, “provide law enforcement information that will assist in the identification and apprehension of persons who use the services of the platform to solicit and to engage in criminal activity,” turns them into government actors that search users’ accounts without a warrant based on probable cause, in violation of the Fourth Amendment. While there is certainly an argument to substantiate concerns around censorship, the use of social media as a tool for organizing violence is equally concerning. Any changes to Section 230 will surely result in legal action to stave off violations of the First and Fourth Amendments. Ultimately, the policy objectives proposed under this Resolution would incentivize social media companies to establish and implement a reasonable program to identify and remove content that solicits criminal activity. Furthermore, action to protect businesses and individuals in Arcadia from criminal activity is in the City’s best interest. Resolution No. 1 calls for limiting immunity provided to online platforms under Section 230, not eliminating immunity altogether. Therefore, it is recommended that the City Council supports Resolution No. 1. ENVIRONMENTAL ANALYSIS The proposed action does not constitute a project under the California Environmental Quality Act (“CEQA”), and it can be seen with certainty that it will have no impact on the environment. Thus, this matter is exempt under CEQA. FISCAL IMPACT There is no direct impact to the General Fund by taking a position on this Resolution. Appoint Voting Delegates for the 2020 League of California Cities Annual Conference September 15, 2020 Page 4 of 4 RECOMMENDATION It is recommended that the City Council take the following actions: 1. Designate Council Member Cheng as the Voting Member and City Manager Lazzaretto as the Alternate; and 2. Recommend that the Voting Member or Alternate vote in support of Resolution No. 1. Attachment No. 1 - 2020 Annual Conference Voting Delegate/Alternate Form Attachment No. 2 - 2020 Annual Conference Resolutions Packet 1400 K Street, Suite 400, Sacramento, CA 95814-3916 | www.cacities.org | (916) 658-8200 June 30, 2020 TO: Mayors, City Managers and City Clerks RE: DESIGNATION OF VOTING DELEGATES AND ALTERNATES League of California Cities Annual Conference & Expo – October 7 – 9, 2020 The League’s 2020 Annual Conference & Expo is scheduled for October 7 – 9. An important part of the Annual Conference is the Annual Business Meeting (during General Assembly) on Friday, October 9. At this meeting, the League membership considers and takes action on resolutions that establish League policy. In order to vote at the Annual Business Meeting, your city council must designate a voting delegate. Your city may also appoint up to two alternate voting delegates, one of whom may vote in the event that the designated voting delegate is unable to serve in that capacity. Please complete the attached Voting Delegate form and return it to the League’s office no later than Wednesday, September 30. This will allow us time to establish voting delegate/alternate records prior to the conference. Please note the following procedures are intended to ensure the integrity of the voting process at the Annual Business Meeting. These procedures assume that the conference will be held in- person at the Long Beach Convention Center as planned. Should COVID-19 conditions and restrictions prohibit the League from holding an in-person conference, new procedures will be provided. •Action by Council Required. Consistent with League bylaws, a city’s voting delegate and up to two alternates must be designated by the city council. When completing the attached Voting Delegate form, please attach either a copy of the council resolution that reflects the council action taken, or have your city clerk or mayor sign the form affirming that the names provided are those selected by the city council. Please note that designating the voting delegate and alternates must be done by city council action and cannot be accomplished by individual action of the mayor or city manager alone. •Conference Registration Required. The voting delegate and alternates must be registered to attend the conference. They need not register for the entire conference; they may register for Friday only. Conference registration will open by the end of July at www.cacities.org. In order to cast a vote, at least one voter must be present at the Business Meeting and in possession of the voting delegate card. Voting delegates and alternates need to pick up their conference badges before signing in and picking up the voting delegate card at the Voting Delegate Desk. This will enable them to receive the Council Action Advised by August 31, 2020 Attachment No. 1 1400 K Street, Suite 400, Sacramento, CA 95814-3916 | www.cacities.org | (916) 658-8200 special sticker on their name badges that will admit them into the voting area during the Business Meeting. • Transferring Voting Card to Non-Designated Individuals Not Allowed. The voting delegate card may be transferred freely between the voting delegate and alternates, but only between the voting delegate and alternates. If the voting delegate and alternates find themselves unable to attend the Business Meeting, they may not transfer the voting card to another city official. • Seating Protocol during General Assembly. At the Business Meeting, individuals with the voting card will sit in a separate area. Admission to this area will be limited to those individuals with a special sticker on their name badge identifying them as a voting delegate or alternate. If the voting delegate and alternates wish to sit together, they must sign in at the Voting Delegate Desk and obtain the special sticker on their badges. The Voting Delegate Desk, located in the conference registration area of the Long Beach Convention Center, will be open at the following times: Wednesday, October 7, 8:00 a.m. – 6:00 p.m.; Thursday, October 8, 7:00 a.m. – 4:00 p.m.; and Friday, October 9, 7:30 a.m.–11:30 a.m.. The Voting Delegate Desk will also be open at the Business Meeting on Friday, but will be closed during roll calls and voting. The voting procedures that will be used at the conference are attached to this memo. Please share these procedures and this memo with your council and especially with the individuals that your council designates as your city’s voting delegate and alternates. Once again, thank you for completing the voting delegate and alternate form and returning it to the League’s office by Wednesday, September 30. If you have questions, please call Darla Yacub at (916) 658-8254. Attachments: • Annual Conference Voting Procedures • Voting Delegate/Alternate Form 1400 K Street, Suite 400, Sacramento, CA 95814-3916 | www.cacities.org | (916) 658-8200 CITY:________________________________________ 2020 ANNUAL CONFERENCE VOTING DELEGATE/ALTERNATE FORM Please complete this form and return it to the League office by Wednesday, September 30, 2020. Forms not sent by this deadline may be submitted to the Voting Delegate Desk located in the Annual Conference Registration Area. Your city council may designate one voting delegate and up to two alternates. In order to vote at the Annual Business Meeting (General Assembly), voting delegates and alternates must be designated by your city council. Please attach the council resolution as proof of designation. As an alternative, the Mayor or City Clerk may sign this form, affirming that the designation reflects the action taken by the council. Please note: Voting delegates and alternates will be seated in a separate area at the Annual Business Meeting. Admission to this designated area will be limited to individuals (voting delegates and alternates) who are identified with a special sticker on their conference badge. This sticker can be obtained only at the Voting Delegate Desk. 1. VOTING DELEGATE Name: Title: 2. VOTING DELEGATE - ALTERNATE 3. VOTING DELEGATE - ALTERNATE Name: Name: Title: Title: PLEASE ATTACH COUNCIL RESOLUTION DESIGNATING VOTING DELEGATE AND ALTERNATES. OR ATTEST: I affirm that the information provided reflects action by the city council to designate the voting delegate and alternate(s). Name: ____________________________________ Email _________________________________ Mayor or City Clerk___________________________ Date____________ Phone________________ (circle one) (signature) Please complete and return by Wednesday, September 30, 2020 League of California Cities FAX: (916) 658-8240 ATTN: Darla Yacub E-mail: dyacub@cacities.org 1400 K Street, 4th Floor (916) 658-8254 Sacramento, CA 95814 1400 K Street, Suite 400, Sacramento, CA 95814-3916 | www.cacities.org | (916) 658-8200 Annual Conference Voting Procedures 1. One City One Vote. Each member city has a right to cast one vote on matters pertaining to League policy. 2. Designating a City Voting Representative. Prior to the Annual Conference, each city council may designate a voting delegate and up to two alternates; these individuals are identified on the Voting Delegate Form provided to the League Credentials Committee. 3. Registering with the Credentials Committee. The voting delegate, or alternates, may pick up the city's voting card at the Voting Delegate Desk in the conference registration area. Voting delegates and alternates must sign in at the Voting Delegate Desk. Here they will receive a special sticker on their name badge and thus be admitted to the voting area at the Business Meeting. 4. Signing Initiated Resolution Petitions. Only those individuals who are voting delegates (or alternates), and who have picked up their city’s voting card by providing a signature to the Credentials Committee at the Voting Delegate Desk, may sign petitions to initiate a resolution. 5. Voting. To cast the city's vote, a city official must have in his or her possession the city's voting card and be registered with the Credentials Committee. The voting card may be transferred freely between the voting delegate and alternates, but may not be transferred to another city official who is neither a voting delegate or alternate. 6. Voting Area at Business Meeting. At the Business Meeting, individuals with a voting card will sit in a designated area. Admission will be limited to those individuals with a special sticker on their name badge identifying them as a voting delegate or alternate. 7. Resolving Disputes. In case of dispute, the Credentials Committee will determine the validity of signatures on petitioned resolutions and the right of a city official to vote at the Business Meeting. Annual Conference Resolutions Packet 2020 Annual Conference Resolutions October 7 – 9, 2020 Attachment No. 2 INFORMATION AND PROCEDURES RESOLUTIONS CONTAINED IN THIS PACKET: The League bylaws provide that resolutions shall be referred by the president to an appropriate policy committee for review and recommendation. Resolutions with committee recommendations shall then be considered by the General Resolutions Committee at the Annual Conference. This year, one resolut ion has been introduced for consideration at the Annual Conference and referred to League policy committees. POLICY COMMITTEES: Two policy committees will meet virtually at the Annual Conference to consider and take action on the resolution referred to them. The committees are: Governance, Transparency & Labor Relations and Public Safety. These committees will meet virtually on Tuesday, September 29, with the Governance, Transparency and Labor Relations Policy Committee meeting from 9:30 – 11:30 a.m. and the Public Safety Policy Committee meeting from 1:00 – 3:00 p.m. The sponsor of the resolution has been notified of the t ime and location of the meeting. GENERAL RESOLUTIONS COMMITTEE: This committee will meet virtually at 1:00 p.m. on Thursday, October 8, to consider the reports of the policy committees regarding the resolutions. This committee includes one representative from each of the League’s regional divisions, functional departments and standing policy committees, as well as other individuals appointed by the League president. GENERAL ASSEMBLY: This meeting will be held virtually at 11:00 a.m. on Friday, October 9. PETITIONED RESOLUTIONS: For those issues that develop after the normal 60-day deadline, a resolution may be introduced at the Annual Conference with a petition signed by designated voting delegates of 10 percent of all member cities (48 valid signatures required) and presented to the Voting Delegates Desk at least 24 hours prior to the time set for convening the Annual Business Meeting of the General Assembly. This year, that deadline is 12:30 p.m., Thursday, October 8. Any questions concerning the resolutions procedures may be directed to Meg Desmond at the League office: mdesmond@cacities.org or (916) 658-8224 1 GUIDELINES FOR ANNUAL CONFERENCE RESOLUTIONS Policy development is a vital and ongoing process within the League. The principal means for deciding policy on the important issues facing cities is through the League’s seven standing policy committees and the board of directors. The process allows for timely consideration of issues in a changing environment and assures city officials the opportunity to both initiate and influence policy decisions. Annual conference resolutions constitute an additional way to develop League policy. Resolutions should adhere to the following criteria. Guidelines for Annual Conference Resolutions 1. Only issues that have a direct bearing on municipal affairs should be considered or adopted at the Annual Conference. 2. The issue is not of a purely local or regional concern. 3. The recommended policy should not simply restate existing League policy. 4. The resolution should be directed at achieving one of the following objectives: (a) Focus public or media attention on an issue of major importance to cities. (b) Establish a new direction for League policy by establishing general principals around which more detailed policies may be developed by policy committees and the board of directors. (c) Consider important issues not adequately addressed by the policy committees and board of directors. (d) Amend the League bylaws (requires 2/3 vote at General Assembly). 2 KEY TO ACTIONS TAKEN ON RESOLUTIONS Resolutions have been grouped by policy committees to which they have been assigned. Number Key Word Index Reviewing Body Action 1 2 3 1 - Policy Committee Recommendation to General Resolutions Committee 2 - General Resolutions Committee 3 - General Assembly GOVERNANCE, TRANSPARENCY & LABOR RELATIONS POLICY COMMITTEE 1 2 3 1 Amendment to Section 230 of The Communications Decency Act of 1996 PUBLIC SAFETY POLICY COMMMITTEE 1 2 3 1 Amendment to Section 230 of The Communications Decency Act of 1996 3 KEY TO ACTIONS TAKEN ON RESOLUTIONS (Continued) Resolutions have been grouped by policy committees to which they have been assigned. KEY TO REVIEWING BODIES KEY TO ACTIONS TAKEN 1. Policy Committee A Approve 2. General Resolutions Committee D Disapprove 3. General Assembly N No Action R Refer to appropriate policy committee for study ACTION FOOTNOTES a Amend+ * Subject matter covered in another resolution Aa Approve as amended+ ** Existing League policy Aaa Approve with additional amendment(s)+ *** Local authority presently exists Ra Refer as amended to appropriate policy committee for study+ Raa Additional amendments and refer+ Da Amend (for clarity or brevity) and Disapprove+ Na Amend (for clarity or brevity) and take No Action+ W Withdrawn by Sponsor Procedural Note: The League of California Cities resolution process at the Annual Conference is guided by the League Bylaws. A helpful explanation of this process can be found on the League’s website by clicking on this link: Resolution Process. 4 1. A RESOLUTION OF THE GENERAL ASSEMBLY OF THE LEAGUE OF CALIFORNIA CITIES CALLING FOR AN AMENDMENT OF SECTION 230 OF THE COMMUNICATIONS DECENCY ACT OF 1996 TO REQUIRE SOCIAL MEDIA COMPANIES TO REMOVE MATERIALS WHICH PROMOTE CRIMINAL ACTIVITIES Source: City of Cerritos Concurrence of five or more cities/city officials Cities: City of Hawaiian Gardens, City of Lakewood, City of Ontario, City of Rancho Cucamonga, City of Roseville Referred to: Governance, Transparency and Labor Relations and Public Safety Policy Committees WHEREAS, local law enforcement agencies seek to protect their communities’ residents, businesses, and property owners from crime; and WHEREAS, increasingly, criminals use social media platforms to post notices of places, dates and times for their followers to meet to commit crimes; and WHEREAS, Section 230 of the Communications Decency Act of 1996 currently provides online platforms (including social media platforms) immunity from civil liability based on third -party content and for the removal of content; and WHEREAS, in the 25 years since Section 230’s enactment, online platforms no longer function simply as forums for the posting of third-party content but rather use sophisticated algorithms to promote content and to connect users; and WHEREAS, the United States Department of Justice, in its June 2020 report, “Section 230 — Nurturing Innovation or Fostering Unaccountability?,” concluded the expansive interpretation courts have given Section 230 has left online platforms immune from a wide array of illicit activity on their services, with litt le transparency or accountability, noting it “makes little sense ” to immunize from civil liability an online platform that purposefully facilitates or solicits third -party content or activity that violates federal criminal law; and WHEREAS, current court precedent interpreting Section 230 also precludes state and local jurisdictions from enforcing criminal laws against such online platforms that, while not actually performing unlawful activities, facilitate them; and WHEREAS, amendment of Section 230 is necessary to clarify that online platforms are not immune from civil liability for promoting criminal activities; and NOW, THEREFORE, BE IT RESOLVED at the League General Assembly, assembled at the League Annual Conference on October 9, 2020 in Long Beach, California, that the League calls upon the U.S. Congress to amend Section 230 of the Communications Decency Act of 1996 to condition immunity from civil liability on the following: 5 1. Online platforms must establish and implement a reasonable program to identify and take down content which solicits criminal activity; and 2. Online platforms must provide to law enforcement information which will assist in the identification and apprehension of persons who use the services of the platform to solicit and to engage in criminal activity; and 3. An online platform that willfully or negligently fails in either of these duties is not immune from enforcement of state and local laws which impose criminal or civil liability for such failure. 6 Background Information to Resolution Source: Los Angeles County Division Background: Social media platforms are now used as a primary means of communication, including by criminals who use them to advertise locations, dates, and times where the criminal acts will take place. Such communications, because they occur online, render the online platform immune from any civil liability for the costs incurred by law enforcement agencies that respond under Section 230 of the Communications Decency Act of 1996. Immunity from civil liability extends even to injunctive relief, thus preventing local governments from merely seeking an injunction against the online platform to have such a post removed. The City of Cerritos supports the rights of free speech and assembly guaranteed under the First Amendment, but believes cities should have the ability to hold social media companies liable for their role in promoting criminal acts. Recently, the City suffered thousands of dollars in damages to respond to online threats that the Cerritos Mall would be looted. Anonymous posts on Instagram.com invited followers to “work together to loot Cerritos [M]all” only several days after the Lakewood Mall had been looted, causing thousands of dollars in damages. The posts were made under the names “cerritosmalllooting” and “cantstopusall,” among others. The City of Cerritos had no choice but to initiate response to protect the Mall and the public from this credible threat. At the same time local governments face historic shortfalls owing to the economic effects of COVID-19, the nation’s social media platforms are seeing a record rise in profits. The broad immunity provided by Section 230 is completely untenable. Online platforms should be held responsible—and liable—for the direct harm they facilitate. Local governments are in no position to bear the costs of the crimes facilitated by these companies alone. Congress is currently reviewing antitrust legislation and by extension, Section 230’s immunity provisions. The League urges Congress to amend Section 230 to limit the immunity provided to online platforms when they promote criminal activity to provide local governments some measurable form of relief. 7 League of California Cities Staff Analysis on Resolution No. 1 Staff: Charles Harvey, Legislative Representative Bijan Mehryar, Legislative Representative Caroline Cirrincione, Policy Analyst Johnnie Piña, Policy Analyst Committees: Governance, Transparency and Labor Relations Public Safety Summary: This resolution states that the League of California Cities should urge Congress to amend Section 230 of the federal Communications Decency Act of 1996 (CDA) to limit the immunity provided to online platforms where their forums enable criminal activity to be promoted. Ultimately, the policy objectives proposed under this resolution, if enacted, would incentivize social media companies to establish and implement a reasonable program to identify and remove content that solicits criminal activity. Background: The City of Cerritos is sponsoring this resolution in reaction to events whereby persons, using social media platforms to coordinate locations, dates, and times for their planned criminal activity, have committed acts of looting and vandalism resulting in both actual economic harm for targeted businesses, and pecuniary loss to cities who used resources to prevent such acts from occurring when such plans are discovered. For example, just days after the Lakewood Mall had been looted, the City of Cerritos uncovered online communications via social media that persons were planning to target the nearby Cerritos Mall. Consequently, the city felt compelled to undertake measures to protect the Cerritos Mall, costing the city thousands of dollars to guard against what officials believed to be a credible threat. Staff Comments: Overview: While there is certainly an argument to substantiate concerns around censorship, the use of social media as a tool for organizing violence is equally disturbing. Throughout much of the 2020 Summer, there have been many reports of looting happening across the country during what were otherwise mostly peaceful demonstrations. Combined with the speculation of who is really behind the looting and why, the mayhem has usurped the message of peaceful protestors, causing a great deal of property damage in the process. Likewise, these criminal actions have upended the livelihood of some small business owners, many of whom were already reeling in the wake of the COVID-19 pandemic. 8 While social media allows people to connect in real time with others all over the world, organized illegal activity using social media is made easier by the anonymous nature of virtual interactions. Nation’s Reaction to the Murder of George Floyd: Shortly after the senseless killing of George Floyd by law enforcement on May 26, 2020, civil unrest began as local protests in the Minneapolis–Saint Paul metropolitan area of Minnesota before quickly spreading nationwide to more than 2,000 cities and towns across the United States, and in approximately 60 countries in support of the Black Lives Matter movement. Protests unfolded across the country throughout the entire month of June and into July, and persisted in a handful of cities such as Portland and Seattle into the month of August . Although the majority of protests were peaceful, some demonstrations in cities escalated into riots, looting, and street skirmishes with police. While much of the nation’s focus has been on addressing police misconduct, police brutality, and systemic racism, some have used demonstrators’ peaceful protests on these topics as opportunities to loot and/or vandalize businesses, almost exclusively under the guise of the “Black Lives Matter” movement. It has been uncovered that these “flash robs”1 were coordinated through the use of social media. The spontaneity and speed of the attacks enabled by social media make it challenging for the police to stop these criminal events as they are occurring, let alone prevent them from commencing altogether. As these events started occurring across the country, investigators quickly began combing through Facebook, Twitter, and Instagram seeking to identify potentially violent extremists, looters, and vandals and finding ways to charge them after — and in some cases before — they sow chaos. While this technique has alarmed civil liberties advocates, who argue the strategy could negatively impact online speech, law enforcement officials claim it aligns with investigation strategies employed in the past. Section 230 and other Constitutional Concerns At its core, Section 230(c)(1) of the CDA provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by third-party users. Essentially, this protects websites from lawsuits if a user posts something illegal, although there are exceptions for copyright violations, sex work-related material, and violations of federal criminal law. Protections from Section 230 have come under more recent scrutiny on issues related to hate speech and ideological biases in relation to the influence technology companies can hold on political discussions. Setting aside Section 230, there are some potential constitutional issues one could raise, should there be an attempt to implement such a resolution into statute. 1 The “flash robs” phenomenon—where social media is used to organize groups of teens and young adults to quickly ransack and loot various retail stores—began to occur sporadically throughout the United States over the past ten years. 9 In the United States, the First Amendment prohibits the government from restricting most forms of speech, which would include many proposals to force tech companies to moderate content. While “illegal” types of speech enjoy limited or no First Amendment protection, the line for delineating between “legal” and “illegal” speech is very difficult to determine. Consequently, one would expect online platforms to push back on whether there is a constitutionally feasible way for them to “identify” protected speech versus unprotected speech, or whether there is a feasible way to define “content which solicits criminal activity.” A law requiring companies to moderate content based on the political viewpoint it expresses, for example, would likely be struck down as unconstitutional. Nonetheless, private companies can create rules to restrict speech if they so choose. Online platforms sometimes argue they have constitutionally-protected First Amendment rights in their “editorial activity,” and therefore, it violates their constitutional rights to require them to monitor (i.e., “identify and take down”) content that may be protected under the First Amendment. They may also argue, along the same lines, that the government may not condition the granting of a privilege (i.e., immunity) on doing things that amount to a violation of their first amendment rights. This is why Facebook and Twitter ban hate speech and other verifiably false information, for example, even though such speech is permitted under the First Amendment. With respect to privacy and the Fourth Amendment, online platforms may argue that requiring them to “provide to law enforcement information that will assist in the identification and apprehension of persons who use the services of the platform to solicit and to engage in criminal activity,” turns them into government actors that search users’ accounts without a warrant based on probable cause, in violation of the Fourth Amendment. Industry Perspective Unsurprisingly, industry stakeholders have strong opinions for what such changes could mean for their respective business models. For instance, a Facebook spokesperson recently noted in a Fortune article that, “By exposing companies to potential liability for everything that billions of people around the world say, this would penalize companies that choose to allow controversial speech and encourage platforms to censor anything that might offend anyone.” The article acknowledges that in recent years, both political parties have put social media companies under increased scrutiny, but they are not unified in their stated concerns. While Republicans accuse the companies of unfairly censoring their post, Democrats complain that these companies fail to do enough to block misinformation, violent content, and hate speech. The article concludes that there is no way companies like Facebook and Twitter could operate without Section 230, and that the removal of this section would thereby “eliminate social media as we know it.” Recent Federal Action on Social Media The President recently issued an Executive Order on Preventing Online Censorship. In it, he notes the following: 10 “The growth of online platforms in recent years raises important questions about applying the ideals of the First Amendment to modern communications technology. Today, many Americans follow the news, stay in touch with friends and family, and share their views on current events through social media and other online platforms. As a result, these platforms function in many ways as a 21st century equivalent of the public square. Twitter, Facebook, Instagram, and YouTube wield immense, if not unprecedented, power to shape the interpretation of public events; to censor, delete, or disappear information; and to control what people see or do not see.” Ultimately the President implores the U.S. Attorney General to develop a proposal for federal legislation that “would be useful to promote the policy objectives of this order.” The President is not subtle in communicating his desire to ultimately see legislation heavily slanted toward the preservation of free speech on social media, which some interpret as a maneuver to preempt Twitt er and Facebook from regulating speech they otherwise deem as hateful or demonstrably false. Considerations for Congress Courts have generally construed Section 230 to grant internet service providers broad immunity for hosting others’ content. Many have claimed that Section 230’s immunity provisions were critical to the development of the modern internet, and some continue to defend Section 230’s broad scope. But simultaneously, a variety of commentators and legislators have questioned whether those immunity provisions should now be narrowed, given that the internet looks much different today than it did in 1996 when Section 230 was first enacted. One way for Congress to narrow Section 230’s liability shield would be to create additional exceptions, as it did with FOSTA and SESTA2. If a lawsuit does not fall into one of the express exceptions contained in Section 230(e)3, courts may have to engage in a highly fact-specific inquiry to determine whether Section 230 immunity applies: Section 230(c)(1) immunity will be inapplicable if the provider itself has developed or helped to develop the disputed content, while Section 230(c)(2) immunity may not apply if a service provider’s decision to restrict access to content was not made in good faith. Date Storage and Usage Considerations for Cities Section 2 of the conditions the resolution applies to civil immunity requires that online platforms provide relevant information to law enforcement to assist in the identification and apprehension of persons who use the services of the platform to solicit and to engage in criminal activity. This section would most likely require the development of new procedures and protocols that govern law enforcements usage and retention of such information. Those new policies and procedures would undoubtedly raise privacy concerns depending on how wide the latitude is for law 2 The Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA) create an exception to Section 230 that means website publishers would be responsible if third parties are found to be posting ads for prostitution — including consensual sex work — on their platforms. 3 Section 230(e) says that Section 230 will not apply to: (1) federal criminal laws; (2) intellectual property laws; (3) any state law that is “consistent with” Section 230; (4) the Electronic Communications Privacy Act of 1986; and (5) civil actions or state prosecutions where the underlying conduct violates federal law prohibiting sex trafficking. 11 enforcement to request such information. In those circumstances cities could end up themselves incurring new liability for the governance of data that could either violate certain privacy rules o r increase their data governance costs. Fiscal Impact: Unlike the costly resources needed to support or oppose a ballot measure, a federal resolution from the League of California Cities that simply urges Congress to undertake certain action should have a negligible fiscal impact, if any monetary impact at all. Regarding cities, if social media had no immunity for its failure to police content that solicits criminal activity, then an individual city could theoretically save thousands if not millions of dollars, depending on its size and other subjective circumstances. Collectively, cities across the country could potentially save at least hundreds of millions between redress for actual economic harm suffered and/or the cost of preventative measures taken to stop criminal activity from occurring in the first place. Conversely, if social media platforms were to shut down, due to an inability to comply with a policy requirement to regulate speech on the internet, it is unclear on how cities might be impacted from a fiscal standpoint. Existing League Policy: Public Safety: Law Enforcement The League supports the promotion of public safety through: • Stiffer penalties for violent offenders, and • Protecting state Citizens’ Option for Public Safety (COPS) and federal Community Oriented Police Services (COPS) funding and advocating for additional funding for local agencies to recoup the costs of crime and increase community safety. Violence The League supports the reduction of violence through strategies that address gang violence, domestic violence, and youth access to tools of violence, including but not limited to firearms, knives, etc. The League supports the use of local, state, and federal collaborative prevention and intervention methods to reduce youth and gang violence. Governance, Transparency & Labor Relations: Private Sector Liability The League will work closely with private sector representatives to evaluate the potential for League support of civil justice reform measures designed to improve the business climate in California. These measures should be evaluated on a case-by-case basis through the League police process. 12 Questions to Consider: Many cities obviously believe that creating civil liability for social media platforms—due to their role in providing the communication mediums for those who organize looting attacks— is key to deterring this organized criminal activity. If such a change was actually passed by Congress, it would force social media to essentially police every conversation on stakeholders’ respective platforms, putting immense pressure on the industry to make subjective determinations about what conversations are appropriate and what are unacceptable. At the end of the day, there are a few questions to consider in assessing this proposed resolution: 1) What would this resolution’s impact be on free speech and government censorship? 2) What are the expectations for cities when they receive information from a social media platform about a potentially credible threat in their respective communities? Does a city become liable for having information from a social media platform and the threat occurs? 3) What would the costs be to develop and maintain new data governance policies, including data infrastructure, to store this information? 4) What is the role of the League in engaging in issues relating to someone’s privacy? Support: The following letters of concurrence were received: City of Hawaiian Gardens City of Lakewood City of Ontario City of Rancho Cucamonga City of Roseville 13 LETTERS OF CONCURRENCE Resolution No. 1 Amendment to Section 230 of the Communications Decency Act of 1996 14 15 16 17 18 19