After the United Kingdom began enforcing its sweeping Online Safety Act in April, British regulator Ofcom served violation notices to three notorious sites: 4chan, Gab, and Kiwi Farms, each of which risked multimillion-dollar fines. Late last week, Preston Byrne, a First Amendment lawyer representing them, struck back. Byrne announced he would sue Ofcom in US federal court and added an unusual request. He called on the Trump administration “to invoke all diplomatic and legal levers available to the United States” to protect his clients from the OSA’s reach.
Byrne’s request could put a trio of sites known as hotbeds of violence, harassment, and extremism at the vanguard of the Trump administration’s sweeping new diplomatic mandate: stop foreign countries from using their laws to stifle American speech — especially hate speech — on the internet.
In an interview with The Verge, Byrne said that he’d already been in communications with Congressional offices and administration officials who were following not just this case, but other enforcement incidents he’d flagged in Europe. While the Biden administration didn’t visibly intervene in European investigations into American websites, Byrne claimed that current members of the “U.S. Federal Government” were “very hungry for information, for solid, actionable information, about this… as a free speech activist, I’ve been impressed, I’ve been humbled, I’m immensely grateful to our government, and how they’re responding. I have nothing bad to say about how the government has handled this.”
International internet regulation has expanded as the US political right has gained force online, fueling a backlash against, in particular, the European Union’s Digital Services Act and the UK’s OSA. In February, Vice President J.D. Vance told a shocked crowd at the Munich Security Conference that “in Britain, and across Europe, free speech, I fear, is in retreat,” implicitly threatening to withdraw defense funding — an existential need for the E.U. as Russia’s invasion of Ukraine continued — if they did not relent. Secretary of State Marco Rubio began restricting visas for foreign nationals who enforce laws against American companies for violating content moderation laws and recently began instructing its embassies to begin pushing back against their European counterparts, sending along talking points in a cable sent in August.
And the OSA has faced a rocky rollout in the UK. The law can penalize platforms for not verifying users’ ages before they access pornographic or otherwise “harmful” content, or for failing to remove illegal material. When it took effect in late July, several major U.S. companies — including Reddit, Bluesky, X, and Grindr — were forced to implement age verification systems that haphazardly blocked some or all access for users who didn’t want to hand over an ID or face scan. Wikipedia has expressed concerns it would have to expose anonymous editors and moderators to comply with the OSA, and is currently suing in UK court.
Byrne’s legal goal, if Trump doesn’t intervene, is more aggressive than Wikipedia’s: he wants a US federal court to declare that the OSA is not enforceable on American companies. “Reportedly, they [the U.S. government] have pushed back on the UK on this one issue, but ultimately, it doesn’t matter. Because one lawyer, a solo practitioner working in his free time, armed with the First Amendment, can bring the OSA to a grinding halt at the shoreline of the United States.”
But he and associates are also pushing hard for a backchannel deal, and Byrne told The Verge that he had begun reaching out to members of the administration on behalf of his clients after Trump was elected. “The relevant client and I looked at each other and I said, listen, I think we’ll have a lot easier time contacting some people in the DOJ and saying, ‘Hey, did you know that this is happening and it’s infringing on Americans’ free speech rights?’”
The Verge confirmed that Byrne had made contact with Congressional offices; the State Department did not return a request for comment regarding whether they were in contact with Byrne. Although Byrne said was not in active conversation with the White House or Congress regarding this case (“I wouldn’t call them ‘partners,’ the communication between our legal team and [the government] has been mostly one way”) his clients had been seeing quiet results. Previously, the Biden Administration had been serving notices from Germany to one of Byrne’s clients for violating the online safety law NetzDG, but Byrne argued that they had done so in a way that circumvented the Mutual Legal Assistance Treaty. “When we made contact with the [Trump] government over Ofcom, we disclosed the misuse of the MLAT procedure to serve foreign censorship demands under the Biden Administration,” he continued. “The notices [from Germany] have since stopped.”
The Trump administration’s definition of a “diplomatic solution” might be more aggressive than a lawsuit. In July it raised tariffs on Brazil by 40 percent after Brazilian Supreme Court Justice Alexandre de Morales charged U.S.-based companies and U.S. citizens with legal violations for their social media content; earlier that month, Rumble and Trump Media, the Trump-founded company that owns Truth Social, filed a joint lawsuit alleging that Morales was targeting their users’ American rights to privacy. (Morales’s visa was also revoked by the State Department, as well as those of several other Brazilian judges.)
But Rumble and Truth Social — as well as more mainstream platforms like Reddit, Wikipedia and Bluesky — have less baggage than Byrne’s latest clients. Gab, Kiwi Farms, and 4Chan have reputations as cultivated sources of sexist, racist, and white nationalist content, linked to acts of fatal violence and harassment. Gab, a proudly and openly white nationalist social media site which has long refused to remove antisemitic content from their platform, went temporarily offline in 2018 after a mass shooter used it to announce his attack on the Tree of Life synagogue in Pittsburgh, Pennsylvania. The Kiwi Farms community organizes harassment campaigns — with particular vitriol against transgender people — that have been tied to multiple suicides. 4Chan, the primordial soup of unsavory internet culture, has helped spawn, among other things, mass shootings, QAnon, and Gamergate.
These sites allow their users to post anonymously, and they’re unsurprising targets for Ofcom, whose initial complaint against 4Chan said that the site had failed to offer a risk assessment about its userbase and was not complying with Ofcom “safety duties.” The complaint said 4chan could be subject to the law’s general fine of either £18 million or 10 percent of qualifying worldwide revenue, whichever is greater. Ofcom declined to comment, citing the complaint’s status as an ongoing investigation. (A fourth site, which offers information about methods of suicide, was also targeted; Byrne says he’s been in contact but does not currently represent it.)
Byrne is no stranger to representing lighting-rod, right-wing tech companies in court. Parler and Rumble, two platforms founded as conservative-friendly alternatives to Facebook and YouTube, were among his former clients. “I’ve been saying no to foreign governments for eight years, because I was willing to represent free speech websites,” he told The Verge, and from his perspective, these were simply three more sites whose First Amendment rights were being targeted by Europeans. “The First Amendment allows Americans to talk to foreigners, to grant anonymity to foreigners, and not censor foreigners,” he said. “The First Amendment does not disappear because there is a contrary foreign rule on foreign shores.”
The US government directly defending them, instead of sticking with a safer embattled platform as a poster child, would be a show of force — and if successful, a demonstration that the OSA is toothless against any service with Trump’s backing, no matter how extreme its content. The administration’s protection of American speech abroad would stand in stark contrast with its approach inside the country, where the same State Department that’s pushing back against Europe’s digital laws is also using social media posts to deny and revoke student visa applications, targeting them for posting pro-Palestine content online.
Murky battles over digital sovereignty date back to the dawn of the internet, said Milton Mueller, the head of the Internet Governance Project and a professor at Georgia Tech. In 2000, he notes, the French government sued Yahoo for hosting an auction site that sold Nazi artifacts and was globally accessible — including to users in France, where buying and selling Nazi memorabilia is criminalized. Yahoo, which is based in the U.S., argued that they and their users were protected under America’s First Amendment rights. Eventually, they came to an agreement to simply block the objectionable Nazi content in France, which soon became the prevailing solution to any issue of social media content infringing laws in other countries.
“It was an undermining of the global accessibility of information, and one of the first steps towards the fragmentation of internet content into the territorial jurisdictions of states,” he told The Verge.
In addition to seeking to avoid potential fines posed by the OSA, Byrne wants to break that detente. “None of my clients, including 4chan, will allow themselves to be deputized by a hostile foreign government which wants to censor its own people,” he wrote. “Ofcom has the power, if it wants, to get a court order and serve that order on UK-based ISPs to DNS block 4chan. That is entirely a domestic UK matter for Ofcom and the British courts to decide upon.”
If the suit — or Trump administration intervention — favors 4chan and other Ofcom targets, the result could be a blow against the DSA, OSA, and similar laws.
“I think what makes it most interesting in this case,” Mueller added, “is that the US government, apparently, [would be] backing 4Chan’s rights.”
0 Comments
