CC 2020-09-08_11b LOCC Voting Delegates
MEMORANDUM
TO: CITY COUNCIL
FROM: WHITNEY MCDONALD, ACTING DEPUTY CITY MANAGER
BY: JESSICA MATSON, DEPUTY CITY CLERK
SUBJECT: CONSIDERATION OF APPOINTMENT OF VOTING DELEGATES FOR
THE VIRTUAL LEAGUE OF CALIFORNIA CITIES ANNUAL
CONFERENCE AND DIRECTION REGARDING THE ANNUAL
CONFERENCE RESOLUTION
DATE: SEPTEMBER 8, 2020
SUMMARY OF ACTION:
Appointment of a voting delegate and alternate to act on one (1) Resolution at the League
of California Cities Annual Conference relating to an amendment to the Communications
Decency Act of 1996.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
The cost for a Member City delegate to attend the League of California Cities Annual
Conference virtually is $50. Funding is included in the FY 2020-21 Budget for members
of the City Council to attend the Annual Conference. No additional costs are associated
with appointment of a voting delegate and alternate for the Annual Conference.
RECOMMENDATION:
It is recommended the City Council: 1) appoint one Council Member as the voting
delegate and one Council Member as the alternate voting delegate for the virtual League
of California Cities Annual Conference; and 2) provide direction to the voting delegates
regarding a City position on the League of California Cities Resolution concerning an
amendment to the Communications Decency Act of 1996.
BACKGROUND:
This year's League of California Cities (League) Annual Conference is scheduled to take
place virtually on October 7-9, 2020. One important activity of the Conference is the
annual business meeting, to be held on Friday, October 9, when the membership takes
action on Conference Resolutions. Annual Conference Resolutions guide the League and
its members in their efforts to improve the quality, responsiveness and vitality of local
Item 11.b. - Page 1
CITY COUNCIL
CONSIDERATION OF APPOINTMENT OF VOTING DELEGATES FOR THE LEAGUE
OF CALIFORNIA CITIES ANNUAL CONFERENCE AND DIRECTION REGARDING
THE ANNUAL CONFERENCE RESOLUTION
SEPTEMBER 8, 2020
PAGE 2
government in California. League bylaws state that “any official of a Member City may,
with the approval of the City Council, be designated the City’s voting delegate or alternate
delegate to any League meeting.”
ANALYSIS OF ISSUES:
Designated voting delegates (or their alternates) registered to attend the Annual
Conference constitute the League's General Assembly. As of the production of this
report, Mayor Pro Tem Keith Storton, Council Member Jimmy Paulding, and Acting
Deputy City Manager Whitney McDonald are the City of Arroyo Grande representatives
registered to attend the virtual Conference.
This year, the following Resolution will be considered by the League’s Annual Conference
General Assembly:
1. Resolution 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.
The Resolution, including background information and League staff analysis, are attached
for the Council’s review (Attachment 2).
It is recommended that the Council appoint a voting delegate and an alternative to
represent the City at the League’s 2020 General Assembly. It is further recommended
that Council consider and provide direction to the City’s delegates regarding the
Resolution to be considered by the General Assembly.
ALTERNATIVES:
The following alternatives are provided for the Council's consideration:
1. Appoint one (1) Council Member as the voting delegate and one (1) Council
Member as the alternate voting delegate for the League of California Cities Annual
Conference, and provide direction to the voting delegates regarding a City position
on the League of California Cities Resolution; or
2. Provide other direction.
ADVANTAGES:
Participation in the General Assembly enables the City to have an impact on issues that
are important to city government and that guide the League’s’ activities, and assists the
League in its efforts by ensuring its direction is representative of all member cities, and
helps the City to obtain support for Resolutions that may be proposed by the City or may
be important to the City in the future.
Item 11.b. - Page 2
CITY COUNCIL
CONSIDERATION OF APPOINTMENT OF VOTING DELEGATES FOR THE LEAGUE
OF CALIFORNIA CITIES ANNUAL CONFERENCE AND DIRECTION REGARDING
THE ANNUAL CONFERENCE RESOLUTION
SEPTEMBER 8, 2020
PAGE 3
DISADVANTAGES:
No disadvantages have been identified.
ENVIRONMENTAL REVIEW:
No environmental review is required for this item.
PUBLIC INFORMATION AND COMMENTS:
The Agenda was posted in accordance with Government Code Section 54954.2.
Attachments:
1. League of California Cities Memorandum Regarding Voting Delegates and
Alternates
2. League Annual Conference Resolutions Packet
Item 11.b. - Page 3
LEAGUE OF CALIFORNIA CITIES
Council Action Advised by August 31, 2020
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 inperson 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 delegateand 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 affirmingthat 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 c_ity manager alone.
•Conference Registration Required. The voti�g delegate and alternates must beregistered to attend the conference. They need not register for the entire conference; theymay 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 thevoting delegate card at the Voting Delegate Desk. This will ·enable them to receive the
ATTACHMENT 1
Item 11.b. - Page 4
Item 11.b. - Page 5
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 obtainthe 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
Item 11.b. - Page 6
LEAGUE
OF CALIFORNIA
CITIES II CITY ______ _
2020 ANNUAL CONFERENCE
. VOTING DELEGATE/ALT.ERNATE FORM
Please:cornplete this form and return it tQ 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 Conferem::e 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
ATTN: Darla Yacub
1400 K Street, 4 th Floor
Sacramento, CA 95814
FAX: (916) 658-8240
E-mail: dyacub@cacities.org
; (916) 658-8254
II
Item 11.b. - Page 7
LEAGUE
OF CALIFORNIA
CITIES
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 admitt,ed 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 q_esignated area. Admission will be iimited 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~ -theCredent{als 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 2
Item 11.b. - Page 8
\__ ~F~*~~~
-CITIES
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 Item 11.b. - Page 9
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 Item 11.b. - Page 10
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 Item 11.b. - Page 11
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 Item 11.b. - Page 12
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 Item 11.b. - Page 13
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 Item 11.b. - Page 14
Background Information to Resolution
Source: City of Cerritos
Background:
Social media platforms are now used as a pr imary means o f communication, including by
criminals who use them to advertise locations, dates, and times where the criminal acts will take
place. Such co mmunications, 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, t hus pr even ting local go vernments 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 t he ability t o ho ld social media companies liable for
their role in promoting criminal acts. Recently, the City suffered thousands of do llars 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 alo ne.
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 act ivity to provide local governments some
measurable form of relief.
7 Item 11.b. - Page 15
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 Item 11.b. - Page 16
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 Item 11.b. - Page 17
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 Item 11.b. - Page 18
“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 Item 11.b. - Page 19
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 Item 11.b. - Page 20
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 Item 11.b. - Page 21
LETTERS OF CONCURRENCE
Resolution No. 1
Amendment to Section 230 of the Communications
Decency Act of 1996
14 Item 11.b. - Page 22
15Item 11.b. - Page 23August 7, 2020 John Dunbar, President jdunbar@yville.com League of California Cities 1400 K Street, Suite 400 Sacramento, CA 95814 Dear President Dunbar: "Our Youth -Our Future" On August 3, 2020, the Cerritos City Council approved to sponsor a Resolution of the City Council of the City of Cerritos Submitting to the League of California Cities General Assembly a Proposed Resolution Regarding Support of Legislation Related to Social Media Platform Accountability for Promotion of Criminal Acts. This proposed resolution with the required background information will be submitted to the League of California Cities for consideration by the General Assembly at the Annual Conference on October 9, 2020. (Attachments 1 and 2) The intent of the resolution is to address the use of social medial 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. The public safety efforts in the City of Hawaiian Gardens would certainly benefit from such legislation. This letter serves to support the City of Cerritos in their efforts to submit of the above mentioned resolution to the League of California Cities for consideration at the 2020 Annual Conference. Sincerely, ,. EmieH City Manager cc Blanca Pacheco, President, LA County Division/League of California Cities -bpacheco@downeyca.org Meg Desmond, League of California Cities -mdesmong@cacities.org Kristine Guerrero, LA County Division/League of California Cities -kquerrero@cacjties.org Kathy Matsumoto, Assistant City Manager, City of Cerritos -kmatsumoto@cerritos.us 21815 PIONEER BOULEVARD, HAWAIIAN GARDENS, CA 90716-1237 TEL: (562) 420-2641 FAX: (562) 496-3708
16Item 11.b. - Page 24\rit-1 l't 1<-n\\,.,rl \ in \ln~ur I 01111<·11 \lo 111h,,1 ',[('\I ( 'a,11( l ,,nnl'il '.\lt·ml1<·1· August 5. 2020 John Dunbar. President jdunbar@yville.com League of California Cities 1400 K Street, Suite 400 Sacramento. CA 95814 Dear President Dunbar: 1,,dd Uooi;,•r,. \111~••1 Diam· I ln Bui, ( '1111m·1I "•·mlx·r On August 3. 2020, the Cerritos City Council approved to sponsor a Resolution of the City Council of the City of Cerritos Submitting to the League of California Cities General Assembly a Proposed Resolution Regarding Support of Legislation Related to Social Media Platform AccountabiJity for Promotion of Criminal Acts. This proposed resolution. with the required backgrnund information. will be submitted to the League of California Cities fOi' consideration by the General Assembly at the Annual Conference on October 9, 2020. (Attachments 1 and 2) The intent of the resolution is to address the use of social medial 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. This letter serves to support the City of Cerritos in their effotts to submit the above mentioned resolution to the League of California Cities for consideration at the 2020 Annual Conference. Sincerely. ~r~ Todd Rogers Mayor cc: Blanca Pacheco. President. LA County Division/League of California Cities -bpacheco@.downeyca.org Meg Desmond, League of California Cities -mdesmond@cacitics.org Kristine Guerrero. LA County Division/League of California Cities -kguerrerol@cacitics.org Kathy Matsumoto, Assistant City Manager, City of Cerritos-kmatsumoto@cerritos.us Lakewood
17Item 11.b. - Page 25C IT Y 0 F 303 EAST "8" STREET, CIVIC CENTER PAULS. LEON MAYOR DEBRA DORST-PORADA MAYOR PRO TEM ALAN 0. WAPNER JIM W. BOWMAN RUBEN VALENCIA COUNCIL MEMBERS John Dunbar, President jdunbar@yville.com League of California Cities 1400 K Street, Suite 400 Sacramento, CA 95814 Dear President Dunbar: ONTARIO August 6, 2020 ONTARIO CALIFORNIA 91764-4105 (909) 395-2000 FAX {909) 395-2070 SCOTT OCHOA CITY MANAGER SHEILA MAUTZ CITY CLERK JAMES R. MILHISER TREASURER On August 3, 2020, the Cerritos City Council approved to sponsor a Resolution of the City Council of the City of Cerritos Submitting to the League of California Cities General Assembly a Proposed Resolution Regarding Support of Legislation Related to Social Media Platform Accountability for Promotion of Criminal Acts. This proposed resolution with the required background information will be submitted to the League of California Cities for consideration by the General Assembly at the Annual Conference on October 9, 2020. (Attachments 1 and 2) The intent of the resolution is to address the use of social medial 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. This letter serves to support the City of Cerritos in their efforts to submit the above-mentioned resolution to the League of California Cities for consideration at the 2020 Annual Conference. Sincerely, ~apne~ Council Member League of California Cities Board Member c: Blanca Pacheco, President, LA County Division/League of California Cities -bpacheco@downeyca.org Meg Desmond, League of California Cities -mdesmond@cacities.org Kristine Guerrero, LA County Division/League of California Cities -kguerrero@cacities.org Kathy Matsumoto, Assistant City Manager, City of Cerritos -kmatsumoto@cerritos.us
18Item 11.b. - Page 26August 6, 2020 John Dunbar, President jdunbar@yville.com League of California Cities 1400 K Street, Suite 400 Sacramento, CA 95814 Dear President Dunbar: Mayor L. Dennis Michael I Mayor Pro Tern Lynne B. Kennedy Council Memben Ryon A. Hutchison, Kristine D. Scott, Som Spagnolo City Manager John R. Gillison 10500 Civic Center Drive I Rancho Cucamonga, CA 91730 I 909.477.2700 I www.CityofRC.us On August 3, 2020, the Cerritos City Council approved to sponsor a Resolution of the City Council of the City of Cerritos Submitting to the League of California Cities General Assembly a Proposed Resolution Regarding Support of Legislation Related to Social Media Platform Accountability for Promotion of Criminal Acts. This proposed resolution with the required background information will be submitted to the League of California Cities for consideration by the General Assembly at the Annual Conference on October 9, 2020. (Attachments 1 and 2) The intent of the resolution is to address the use of social medial 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. On behalf of the City of Rancho Cucamonga, this letter serves to support the City of Cerritos in their efforts to submit the above mentioned resolution to the League of California Cities for consideration at the 2020 Annual Conference. Sincerely, ~---w L. Dennis Michael Mayor cc: Blanca Pacheco, President, LA County Division/League of California Cities -bpacheco@downeyca.org Meg Desmond, League of California Cities -mdesmond@cacities.org Kristine Guerrero, LA County Division/League of California Cities -kguerrero@cacities.org Kathy Matsumoto, Assistant City Manager, City of Cerritos -kmatsumoto@cerritos.us
19Item 11.b. - Page 27@) riOsEliLLE CALIFORNIA August 7, 2020 John Dunbar, President idunbar@wille.com League of California Cities 1400 K Street, Suite 400 Sacramento, CA 95814 Dear President Dunbar: City Council 311 Vernon Street Roseville, California 95678 On August 3, 2020, the Cerritos City Council approved to sponsor a Resolution of the City Council of the City of Cerritos Submitting to the League of California Cities General Assembly a Proposed Resolution Regarding Support of Legislation Related to Social Media Platform Accountability for Promotion of Criminal Acts. This proposed resolution with the required background information will be submitted to the League of California Cities for consideration by the General Assembly at the Annual Conference on October 9, 2020. (Attachments 1 and 2) The intent of the resolution 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. On behalf of the City of Roseville, this letter serves to support the City of Cerritos in their efforts to submit the above mentioned resolution to the League of California Cities for consideration at the 2020 Annual Conference. John B. Allard II, Mayor Cc: Blanca Pacheco, President, LA County Division/League of California Cities -bpacheco@downeyca.org Meg Desmond, League of California Cities -mdesmond@cacities.org Kristine Guerrero, LA County Division/League of California Cities -kguerrero@cacities.org Kathy Matsumoto, Assistant City Manager, City of Cerritos -kmatsumoto@cerritos.us Jason Gonsalves, Joe A. Gonsalves and Son 916.774.5362 ·Fax• 916.774.5485 TDD 916.774.5220 • citycouncil@roseville.ca.us • www.roseville.ca.us
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Item 11.b. - Page 28