Exclusive Interview on Internet Censorship with Josh Smith of Halen Industries

Discussing one lawyer's Social Media Anti-Censorship Act proposal (SMACA).


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Anime Right News (ARN Internet censorship is a hot topic again with the purging of Gab from the internet. A month ago I had the opportunity to sit down with Josh Smith of Halen Industries (@HalenIndus) who has a proposal for a piece of legislation to solve the problem. Concepts of an ‘Internet Bill of Right’ or ‘Nationalizing Social Media’ are already circulating within the dissident right so I’m aptly skeptical that what he is bringing to the table has all the answers but let’s hear him out. The interview below is provided light edited (redacted ‘ums’ and ‘ohs’).

Interview On #SMACA

ARN: I got, what do you call this thing? Your proposal, right?

@HalenIndus: Right mhmm

ARN: I think the case is pretty clear that something is necessary, right? This social media censorship, it’s the main topic for a lot of right-wing pundits right now. The question is then about what should be done specifically. And I’m reading your proposal and it seems more like these are the goals for something to do but to me it’s uh… there’s no… where’s the meat in it, you know? What are you going to do to get these people to comply?

@HalenIndus: Well, compliance is actually the easy part. The fine is set high enough that these companies are not going to want agency enforcement. I mean obviously, the FCC is well placed to act as the enforcement arm for this. And these companies aren’t going to want that kind of enforcement so really the way in which these companies avoid any kind of enforcement is they just have to do less. They have just not censor…

ARN: Right

@HalenIndus: … lawful speech. That’s not hard to do. It’s not hard to just sort of refuse to do something. You know what I mean? It’s not hard to not do something. So for example, if these companies are presented with a situation where something is sort of on the line so to speak. There is content where, well we’re not sure if it’s, you know it’s really sort of borderline. You know you just don’t know. Just don’t censor it. Because if you’re wrong it’ll cost you. So err on the side of caution. And really it doesn’t require a sort of active enforcement by the FCC. They don’t have to like you know constantly monitor for compliance because if somebody is censored wrongly they’re going to complain about it.

ARN: Yeah… okay, I follow you on that.

@HalenIndus: So really it’s not much different than what agencies normally do. It could be taken care of. Investigation and enforcement in this particular context is pretty easy because if we’re talking about content that somebody has complained has been wrongfully censored. The only question is going to be “what is the content?” and the analysis of whether it’s lawful speech or not - and that’s very easily obtainable.

ARN: Okay well the follow up to that then is this. What you’re saying is not ambiguous for hard censorship like when things are deleted and no one can see something. But what we’ve been seeing is this kind of soft censorship in the form of shadowbans. Where is there oversight for something like that? Do you imagine having routine audits of their source code? Or how do you know?

@HalenIndus: I don’t think that’s necessary. Let me put it this way. The fine, as I have it written, would be $500,000 per instance of censorship. If a million people are shadow banned that’s 500,000 times a million. So if they want to try it once it’ll bankrupt them. So I wouldn’t recommend it if I were them. What they do is they will stay compliant. If they want to take that risk all that has to happen is one investigation and if they get busted that’s going be it and I have no problem with that. It’s not like I want to destroy these companies but all they need to do to avoid that was simply not engage in pernicious censorship.

ARN: Right, it’s less work for them. So why would they do it?

@HalenIndus: Exactly. So when it comes to shadow banning if someone realizes what’s going on and makes a complaint to the FCC and the FCC considers it worthy of investigation well that’s really going to be it for these companies. It would be a very risky thing to be engaging in that of soft censorship as you call it.

ARN: Okay. Now it’s not just the news that has taken notice to this. They’ve had some heads of these social media companies testify in Congress. Do you think there’s any congressman or senator that has a sense for this? Or are they all just kinda older people that aren’t really savvy with tech and don’t understand what’s really going on here?

@HalenIndus: The latter. They are really out of touch. They’re out of touch on most issues generally speaking. Throw tech into the mix and well now they’re in another solar system. To the extent that they have any understanding of it is superficial at best. For example in the hearings with Jack Dorsey, he just ran circles around them because they don’t know what’s going on. They were ill prepared but I don’t think they would have done well even if they were well prepared. This is just not something they are generally knowledgeable about. But that said, look at how they were looking at this shadow banning thing. They were talking about shadow banning like it was some new-fangled thing that hasn’t been around for years already. They talk about it like it’s the only thing that’s been happening. No, these social media companies have been censoring people for years. This shadow banning with quality filters is one of the newer manifestations of that. It is not the beginning of censorship. That’s why when you see these people talking about PragerU getting censored and they say “first they came for PragerU”. No. They didn’t first come for PragerU. They’ve been censoring people for years. We have huge lists of people that have been censored.

ARN: PragerU is more “on their radar”, right? That’s why they get wind of it.

@HalenIndus: Yeah. All this stuff has been happening to the right for years now and none of them ever even noticed it. How are these people that obtuse about this going on? The reality is even if it was unintentional that they’re that obtuse, it’s still inexcusable. They should know what’s going on to people on the right and not just be aware of the very mainstream people like PragerU.

ARN: Okay, I get the point here. Now onto spreading…

@HalenIndus: I don’t think I answered your question actually. Your question was “Is there anyone in congress knowledgeable about this?”  

ARN: Sure.

@HalenIndus: Okay, so the ones that were shadow banned are probably the most knowledgeable. And they’re probably the most interested because these people only seem to be interested when it personally affects them. They have what I like to call the PragerU syndrome. Which is when you only care about censorship when it affects you and no other time.

ARN: Sure, sure. Now onto promotion of this. Why promote SMACA through your personal twitter account instead of creating a new account focused around SMACA and a hashtag that’s all branded specifically for this type of campaign?

@HalenIndus: I’m doing that. I have plans to do that in the next…

ARN: Oh okay.

@HalenIndus: Yeah, we’re going to get the website up and running first. And then starting an SMACA twitter account is on the ToDo list. Yes, that will be happening.

ARN: Yeah, yeah. And I ask this just because of your alias… I don’t know how many people are familiar with this but some members of Anime Right News told me that you were affiliated with Paul Nehlen. And you could speak to that but also how is SMACA different than the legislation that Nehlen was going to promote “Shall Not Censor”? Is this the second iteration of that or is this the same thing?

@HalenIndus: It’s just rebranded.

ARN: Got it.

@HalenIndus: For obvious reasons.

ARN: Right, right.

@HalenIndus: But yes this did have its roots in “Shall Not Censor” because Paul Nehlen was the one who took it on first. But it has always been my brainchild.

ARN: Do you think it’s baggage to be promoting this on an account that has been affiliated with him? I don’t care – I don’t think anyone at Anime Right News cares. But if someone gets wind of that…

@HalenIndus: No, because ultimately the people that are going to quote “get wind of that”, like ADL and SPLC, they would already recognize this. As soon as it goes mainstream they are going to know what its roots were. These are two organizations that have billions of dollars combined and resources. They have armies of employees and volunteers to track basically everything that we all do. They would be instantly familiar with SMACA as having previously been “Shall Not Censor”. And they are going to call attention to that.

ARN: Interesting. Do they have copies of what would be the “source text” of both of these legislations and be able to identify the similarity?

@HalenIndus: Yeah, they have people that are just assigned to follow specific people. So they would know right away. They would just know because these people are just obsessed with everything that we do.

ARN: Interesting.

@HalenIndus: Yeah, you can’t fool these people. And we shouldn’t try. We don’t have to fool them. We have nothing to apologize for or be embarrassed about. And these people are going to say “ooh Nazis” anyway no matter what. They are going to call everyone Nazis and that’s just what they do. We have unique leverage in that regard.

ARN: How is that leverage? Let’s pick at that. What do you mean by leverage?

@HalenIndus: What I mean is that other factions of the right, because this is the only viable solution, can’t say they’re not going to listen because they don’t like us. “We don’t listen to Nazis” or something. They can do that but they’ll just end up getting censored off the internet just the same as us. If they want to not be censored off social media they need to go through us because we have the solution and they don’t. So it gives us leverage.

ARN: I see. Do you think there is anyone else drafting a comparable piece of legislation?

@HalenIndus: No, because there is no one else that would come up with this other than me. And the reason for that… you haven’t seen it yet and I the first in the world to come up with it. Why is that? It’s really quite simple. People say, “you really think that no one else will come up with that?” Yes, I genuinely think that and here’s why. In order to be able to come up with something like SMACA, you have to have really hardcore subject matter expertise in two specific areas that you are generally not going to find anyone that has a combination of both of those. Specifically law. You have to have a very fine entuned legal mind to be able to understand and structure something like SMACA. To be able to come up with what it’s going to look like. A lot of people are lawyers and there are a lot of smart lawyers but you also need this other subject matter area which really narrows it down to me. Which is that you have to be obsessed with social media censorship over the years. Censorship has happened to me for years. I’ve wanted to do something to fix it for years because I did not like that it was something they could do and we were powerless to do anything about it. And so I have been following it very closely. I know the subject matter inside and out. And that is something that others simply don’t have. They’re not going to have the combination of the legal expertise and the interest in this niche area. And that’s why nobody has come up with this so far. We have is all these people that are complaining about censorship and a lot of them are very smart people. It’s just that they don’t know what to do. They don’t know what the solution looks like. So they’re sort of paralyzed on this complaining step if you will. Complaining would be step one and the solution would be step two. They’re stuck on step one. They’re paralyzed there because they don’t know what the solution looks like so they just keep on complaining louder and louder. We need to move them from step one to step two. And the way that we do that is by showing them SMACA. Because they’ll see it and say, “oh right. Oh, that’s what we need to do.”

ARN: Is SMACA in the final draft now? Or are you still working on it?

@HalenIndus: I’ve drafted legislation that I’ve taken a stab at. The thing is that draft legislation is a very specialized skill that people devote their entire careers to. Those people work in Congress. And basically, my draft of it would be considered very rough by their standards. And ultimately a congressman can hand a proposal to these drafters and say, “here, we need you to turn this into a statute.” And they’ll know how to do that. That’s not the hard part. We can assume for our purposes that we can hand these people the proposal and they could, without making any material changes, turn it into statutory form. The reason why you’re not seeing that is for strategic reasons. Number one, when you try to turn what you see in the proposal into a statute what ends up happening is that it becomes very lengthy and complex. Because you can’t express… For example, shadow banning. When we say shadow banning we know what we mean.

ARN: It’s a colloquial term.

@HalenIndus: Yes. When you try to put that into a statutory form it requires very specific definitions and everything like that. It becomes very long, very complicated, and it is not normie friendly. People’s eyes would glaze over very quickly. They wouldn’t even know they’re looking at SMACA if they were to read draft legislation because it doesn’t resemble anything that we’re used to talking about. There’s a ton of legalizing involved. Things are explained in a very long-winded way. This happens a lot. There are times when I’m reading a statute and I’ll just be like, “Wow.” You’ll read the statue and it actually does something very important but you won’t even realize that’s provision that does it because of the indirect way that it’s worded.

ARN: That’s interesting. Some of our readers might be thinking, “well I want to know the specifics.” We hear ‘the devil’s in the details’. To get a gist for how much minutia is put into these things, do you think there’s a resource that I could direct people to for an example of a statute that has been written already?

@HalenIndus: You know it’s hard to think of one off the top of my head. Let me think here for a second and see if anything comes to mind… (pause). If you just look for example at Section 230 of the Communications Decency Act. I’ll bring that up on my device here, one second… Now with Section 230, it is a provision that basically allows these companies to censor whatever they want. They have absolute discretion to censor. That’s the effect of it. But when you read it you wouldn’t really know that that is what it does. And here’s why… let me try to… no that’s… okay… oops… let’s see… here we are… Section 230 of the CDA is 47 US C230; which is a 1996 law. At the time there were no social media so at the time it seemed like a very good idea and it is a good idea in theory. The idea is you don’t want these companies to spend all of their resources on censorship so it immunizes these companies from what the 3rd parties post on them.

ARN: This was post-Napster, right? Because Napster went under before this was out?

@HalenIndus: Let’s see 1996.

ARN: I’m pretty sure they got sued into oblivion.

@HalenIndus: Oh you know that was because of intellectual property laws. Intellect property claims were exempt from Section 230.

ARN: Mmmm

HalenIndus: There are only two exceptions to the general immunity grant that 203 includes: Federal criminal charges and intellectual property claims. Everything else is completely free. So that was probably why.

ARN: Never mind then.

@HalenIndus: So if we look at the actual provision it basically says that these people are totally immune. The phrasing is this, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” That itself right there. That one paragraph or that one sentence is an enormous grant of immunity.

ARN: Yeah… how long do you think they spent making that one sentence?

@HalenIndus: Well, it depends on how smart the draftsmen were.

ARN: Maybe they got lucky the first try.

@HalenIndus: You have to go through it a few times and you also have to make sure you square it with other languages in other federal statutes. And that’s something for example that I’m sure I haven’t done thoroughly because there’s a lot of places in the US code that you’re going to have to look to in order to make sure that your language is internally consistent. So it’s just something that we’re familiar with. The problem that we will run into will not be that we don’t have the people that can draft this up for us. The problem will be getting Congress to want to pass this. That’s the fight that we need to focus on. The fine details, we don’t need to worry about that. That’s easily taken care of.

ARN: Okay. How many people are you working with to get the message out there? What’s the strategy here? Is it just to move up the food chain of different promoters on social media to get the word out?

@HalenIndus: Yeah and also we have some (inaudible) in other ways too. You know, using some contacts that I have… trying to get in contact with legislators and such. The thing is here, we don’t really need to sell the masses on it because as it turns out, well number one it’s the only solution. It’s the only viable way to fix this problem. There’s no other way. And people are so angry about this at this point. They are so desperate for a solution and rightly so. As long as our leaders tell them, “This is the solution. This will fix the problem. You will be pleased with this solution.” They will go for it.

ARN: Now, what is it about what you have that makes it ‘the solution’? People hear phrasing like that and they get skeptical.

@HalenIndus: Yeah. Well, we like to think “There are other solutions. There’s got to be some other way.” And a lot of times there are other ways to do things. Just not this time. And it depends what the other options are. I can go through them and tell you why. There is a finite number of options.

ARN: Let me try to concisely summarize what is that you are proposing here. Fine them if they censor someone in any format.

@HalenIndus: Yes, it flatly prohibits censorship of lawful speech on major social media platforms.

ARN: So it’s pretty straightforward.

@HalenIndus: Yes. It extends to other various aspects. It prohibits censorship of lawful speech on major social media platforms. And that’s what’s spelled out in the summary. For example, verification is something that’s covered because content-based verification decisions would be censorship. We can’t have that.

ARN: Alright, last question about the legislation. Why have a stipulation for a threshold for application of the law?

@HalenIndus: Because we only care about the major platforms. We don’t really care what the smaller platforms are doing. Ultimately if people want to have their style of experience with all their hate speech terms of service, they can have that. They just have to go to a smaller platform for that. They can’t have it on larger platforms that everyone uses because that’s not consistent with these platforms being the de facto public square.

ARN: Sure, sure. How do you determine the threshold? I see in your proposal you have a proportion of market share but how do you quantify that?

@HalenIndus: The way this works is we’ll go with a minimum threshold of two hundred million monthly active users. Which basically will include Facebook, Twitter, Instagram, and YouTube.

ARN: I see. So that’s way higher than any of the non-major players.

@HalenIndus: Exactly. If you get that number too low so it gets to encompass some of these other platforms, these other platforms would be logistically difficult to subject to SMACA. For example, Pinterest or Reddit. It becomes difficult to make SMACA work on a lot of these platforms. I’m not saying it would be impossible. I’m just saying it would be difficult and it’s really not worth it.

ARN: That thing about applying it to a place like Reddit is that it is archetypally different. Each subreddit is like its own ecosystem.

@HalenIndus: Exactly. It doesn’t really square well with what SMACA is trying to accomplish. So, fortunately, it works out that if you set the number to two hundred million it basically excludes all of those and includes that platforms that we really care about.

ARN: Do you think Facebook groups would be exempt from SMACA since they have a smaller scope compared to a larger platform?

@HalenIndus: Let me think about that for a second… No, the groups would be exempt because under the definitions they are not a major social media platform because they are not public in nature. The part of the platform that is public is the one we are talking about here. Things like groups and stuff really can’t have something like SMACA applied because it really wouldn’t compute. Again it’s basically like groups are a smaller platform that exists. It would be no different than any other sort of platform that isn’t subject to SMACA. Or a private message board or something. It doesn’t affect private message boards or private chats, things like that. In the latest version of the proposal, those things are specifically added. It won’t apply to smaller message boards and forums and stuff like that.

ARN: What’s the story behind your avatar? What’s that from?

@HalenIndus: That’s from Squidbillies, which is a show on Adult Swim.

ARN: Great. Well, I think that’s comprehensively everything I wanted to ask. Now I got to ask you since we’re the Anime Right here: Favorite Anime?

@HalenIndus: Well I personally don’t watch anime but you know, I think it’s definitely an art and there’s a lot of people that like it and I’m sure there’s a lot to it. I see a lot of people who make fun of it or something like that. Look, it’s a form of art and it’s something a lot of people like. I’m sure it has a very rich culture and history behind it.




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3 Comments

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  1. I have 2 worries about something like this. First how this effected niche sites. I would want the ability to ban people insulting our hobby. Imposing a cap of 200 million is pretty generous. Remember that there are only like a billion English speakers on the internet. The other concern I have is if you had a site with an anime board and a 3DPD board. If someone posts 3DPD on the anime board, it should be deleted According to what I found on the SMACA site, unfortunately this would not be allowed to be deleted from my understanding.Without being able to see a draft of the act, I am afraid I can not support this yet. Removing the ability of me to have law and order on a site I run is not acceptable.
    The link to the summary in this article has been censored **ironically**.

    1. nah, niche or not fuck it. Everything that is legal should be allowed. Insult away. I’d rather have all free speech than none at all. Ban bannings across the board.

      1. How about this situation which I am sure would come up. The company I currently work for offers a platform for kids to talk to each other. Since there are kids present we forbid swearing. If our site got big enough to be targeted by SMACA we would have to pay half of a million dollars every time we deleted a post with a swear word in it. It would also be a half a million dollar fine for taking down a post where someone tells another kid to kill them self.
        Where SMACA and I diverge is on the point of sites being able to impose explicit and well defined rules on their users.

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