Not All Tech Regulatory Desires Are Equal: And We Should Stop Pretending They Are

from the c'mon-people dept

The NY Times has a big (and quite interesting) article this week about how we've supposedly "reached a global tipping point" on "tech regulation." And if you look around, it may feel that way. And, sure, it's easy to point to lots of examples of tech regulation happening around the globe, as the article does:

China fined the internet giant Alibaba a record $2.8 billion this month for anticompetitive practices, ordered an overhaul of its sister financial company and warned other technology firms to obey Beijing’s rules.

Now the European Commission plans to unveil far-reaching regulations to limit technologies powered by artificial intelligence.

And in the United States, President Biden has stacked his administration with trustbusters who have taken aim at Amazon, Facebook and Google.

However, it does a disservice to readers and the truth to suggest that all of these moves towards tech regulation are coming from the same intent. The article does acknowledge that the "motivation varies" but I think that underplays reality:

Around the world, governments are moving simultaneously to limit the power of tech companies with an urgency and breadth that no single industry had experienced before. Their motivation varies. In the United States and Europe, it is concern that tech companies are stifling competition, spreading misinformation and eroding privacy; in Russia and elsewhere, it is to silence protest movements and tighten political control; in China, it is some of both.

Even within governments (hell, take the US government for example), the motivations in discussing tech regulation are extremely different and often diametrically opposed. Some are pushing for tech companies to be more aggressive in combatting "disinformation," while others are seeking to pressure them to leave up disinformation (usually the disinformation that is politically convenient for those demanding that information be left online).

It's difficult to discuss this concept without recognizing that while there are some people exploring tech regulation with an intellectually honest recognition that there are issues concerning power concentration, privacy, data control, and more -- the vast majority of the "motivation" behind these tech regulation bills is completely self-serving garbage. In some cases, it's simply about power and control. In some cases, it's about trying to limit competitors or to try to for successful tech companies to prop up failed companies (such as the news business). In other cases, it's about trying to clamp down on the tools that allow the public to speak out and call out hypocrisies.

And that's why it's unfair to lump all "global" tech regulation into one bucket, as if it's all coming from the same place and meant to do the same thing. A huge part of the push for tech regulation these days is cynical opportunism, and any story that doesn't recognize that fails its readers. The NY Times piece certainly recognizes that there are varying approaches, and that fights over "power" are driving much of movement here, but it fails to distinguish good faith efforts to explore the negative consequences of some of the tech world with the cynical exploiters of those concerns, who are simply seeking to use that momentum for their own power and benefits.

Yet while governments agree that tech clout has grown too expansive, there has been little coordination on solutions. Competing policies have led to geopolitical friction. Last month, the Biden administration said it could put tariffs on countries that imposed new taxes on American tech companies.

There's little coordination because of the extremely different -- and often competing -- interests at play. It feels like the article should have been much more explicit on that point.

There is an interesting discussion to be had about this focus on tech regulation around the globe, but I think the NY Times article fails to have that. You could read the article and come out of it with the conclusion that Myanmar and China's internet restrictions come from the same core place as explorations by thoughtful lawmakers on how to deal with misinformation online. And that's fundamentally wrong. It's a kind of "both siderism" or "view from nowhere" reporting that does tremendous disservice, and fails to enlighten.

We can look at issues regarding internet regulations, and explore the ins and outs of it by looking at what problems actually need solving and then exploring what proposed solutions will actually work and which won't. But simply lumping all kinds of internet regulations into one big article, without highlighting how a very large percentage of them are simply opportunistically exploiting a general anti-internet narrative to their own cynical purposes, is a failed attempt at journalism. The NY Times should do better. At the very least, these reporters might want to admit or acknowledge that their own company has been actively engaged in some of the cynical attempts to push for regulations on internet companies that is designed just as a wealth transfer mechanism from the companies that innovated, to the NY Times itself. But apparently that wasn't worth including.

Filed Under: antitrust, big tech, censorship, content moderation, privacy, regulations

Josh Hawley: We Must Break Up Companies Whose Politics I Disagree With For Discriminating Against People Whose Politics I Agree With

from the that's-not-how-it-works dept

Josh Hawley is gonna Josh Hawley. The Senator from Missouri, who still has not apologized or admitted to supporting the invasion of the Capitol in an attempt to overturn the election, has a long history of nonsense bills that are performative for his riled up base. His latest is more of the same. On Monday he introduced the "Bust Up Big Tech Act" and even if you're a supporter of antitrust and think that big tech should be "busted up," it should give you pause before supporting Hawley's nonsense. The bill itself is... weird. It seems to pick seemingly random activities and insist that no company can do two of them. Basically, he looked at different businesses that Amazon and Google are in, and the bill says "you're no longer allowed to do those different things." As some have pointed out, under this bill it appears that Walmart can no longer sell under a house brand, because the bill bars any company that qualifies from selling, advertising or otherwise promoting your own products.

But the thing that amazes me is just how upfront and blatant Hawley is that this bill is not about any principled stance regarding antitrust. It is entirely about "owning the libs," which is the performance Hawley thinks he needs to perform for his base. The fact that Hawley knows he needs to do stupid shit for his voters shows that he truly believes his supporters are a bunch of ignorant fools, and he's catering to that audience. He did it last week with his bill to attack MLB for its speech, and now he's doing it this week with this bill to go after "big tech." You can see it from the quote in his press release, in which he flat out admits he's doing it to attack "woke" companies.

“Woke Big Tech companies like Google and Amazon have been coddled by Washington politicians for years. This treatment has allowed them to amass colossal amounts of power that they use to censor political opinions they don’t agree with and shut out competitors who offer consumers an alternative to the status quo. It’s past time to bust up Big Tech companies, restore competition, and give the power back to the American consumers.”

Hawley has really embraced the phrase "woke capitalists" in the last few months as he realized that everything he used to pretend to stand for (he used to argue he was about "keeping government out of business") resulted in a bunch of companies recognizing that Josh Hawley is a power-hungry fascist in waiting. So now he has to attack the very companies he used to say he wanted the government's hands off of, so he's invented the laughable idea that these companies are "woke" (by which he means they're skeptical of his style of fascism, and therefore they need to be taken down).

But, really, that quote is quite incredible on multiple levels. He starts out by attacking the companies for their supposed (though, not actual) political beliefs ("woke"), and then says he has to do this to stop them from "censoring political opinions they don't agree with." So... that one quote alone shows Josh Hawley's true principles: punish those whose politics I dislike, and protect those whose politics I like.

Even if you dislike big tech and think the companies should be smashed to bits, that's no reason to support Josh Hawley's cynical brand of authoritarian retribution.

Filed Under: antitrust, big tech, josh hawley, woke capitalists
Companies: amazon, google

The Privacy Paradox: When Big Tech Is Good On Privacy, They're Attacked As Being Bad For Competition

from the tradeoffs.-it's-all-tradeoffs dept

For many years I've tried to point out that no one seems to have a very good conceptual framework for "privacy." Many people act as if privacy is a concrete thing -- and that we want our information kept private. But as I've pointed out for years, that doesn't make much sense. Privacy is a set of tradeoffs. It's information about ourselves, that we often offer up freely, if we feel that the tradeoff is worth it. And, related to that, there's a big question about who is controlling the data in question. On top of that, things get confusing when we consider just who is controlling what data. If we're controlling our own data, then we have some degree of autonomy over our privacy trade-offs. But when we hand that data off to a third party, then they have much more say over our privacy -- and even if they agree to "lock down and protect" that data, the end result might not be what we want. For one, we're giving those companies more power of our data than we, ourselves have. And that can be a problem!

Because of this, privacy questions are often highly contextual -- and often conflict with other issues. For example, after the Cambridge Analytica scandal, Facebook was yelled at over and over again regarding its poor data privacy efforts -- leading the company to say "okay, fine we'll lock down your data, and just keep it for ourselves." Which is a totally reasonable response to the complaints that "Oh, Facebook leaked our data." But, of course, the end result of that is... worse. Then we've handed Facebook even more control over our data, and given significantly less ability for competitors to come along. That's not good!

There's a similar issue with advertising and privacy, that we discussed just last month. Google clarified its plans to block 3rd party cookies. In many ways, this is good for privacy. 3rd party cookies are often abused in creepy ways to track people. So it's good that Google won't support them (Firefox and Safari already made this move earlier). But lots of people then vocally complained that this would only give more power to Google, because it can deal with the lack of data, while competitive (smaller) advertising firms cannot.

These issues are often in conflict -- and many of the big tech critics out there don't want to recognize that. In fact, it lets them attack these companies no matter what they do. If they do something that's good for privacy, but bad for competition, focus on how it's bad for competition. If they do something that's good for competition, but bad for privacy, focus on how it's bad for privacy.

A recent article in Wired by Gilad Edelman highlights this tension in the antitrust context. Noting that in the big antitrust fights against Facebook and against Google, the two companies are being attacked in very different ways: one for being more protective of private data in a way that gives the company more power, and one for violating privacy of users.

HERE’S SOMETHING TO puzzle over. In December, the Federal Trade Commission and a coalition of states filed antitrust lawsuits against Facebook, alleging that as the company grew more dominant and faced less competition, it reneged on its promises to protect user privacy. In March, a different coalition of states, led by Texas, accused Google of exclusionary conduct related to its plan to get rid of third-party cookies in Chrome. In other words, one tech giant is being sued for weakening privacy protections while another is being sued for strengthening them. How can this be?

Edelman tries to solve this seeming paradox by suggesting that there might be a way to sort out the actual intent of these actions:

Maybe, then, the right way to think about what should happen when the privacy and competition dials diverge is to ask whether a company is cutting off access to personal data that it intends to keep using itself. That could help distinguish between a case like the Privacy Sandbox, on the one hand, and Apple’s App Tracking Transparency framework, on the other. Apple’s new policy will force all iPhone app developers to ask for permission before tracking users. That is expected to hurt companies that make money by tracking users across the web, most notably Facebook, which has reportedly considered filing an antitrust lawsuit to block the change. But since Apple doesn’t make its money by selling personalized ads based on surveilling user behavior, it’s harder to argue that it is hoarding access to user data for its own purposes. That makes the tension between privacy and competition easier to resolve.

Not that Apple will always come out ahead in this analysis. Contrast the Facebook spat with the ongoing feud between Apple and Tile, which sells tracking technology to help users find lost stuff and thus competes with Apple’s own “Find My” software. According to Tile, Apple has discriminated against the company by prohibiting certain practices, like background location tracking, that it requires to function. Apple says the rules are meant to protect user privacy. If it were to sue, Tile might have a stronger case than Facebook because its product competes more directly with Apple.

That's an interesting idea -- but I'm not sure it would be so easy in practice. There are so many competing interests at play, and so many actions may seem good for one particular concern, but less good for others.

Obviously, I've long been an advocate of simply removing much of the data from these large companies' control entirely -- via a system of protocols that moves control out to the end users. But in most versions of that system, most users are going to eventually entrust that data to some third party company, and in some ways that puts us back where we're started. My hope is that such a world would end up with more neutral 3rd party "data banks" and you could even suggest that there could be an information fiduciary model, in which these companies are legally required to act in your best interests.

But, even that model runs into some trouble, and we end up talking about questionable ideas like a DMCA for privacy, which seems like it would be a true horror online.

It would be nice, though, if we could have this kind of debate and conversation in a reasonable manner, rather than everyone jumping immediately to their own corners about who's evil and who's good. Every one of these decisions has tradeoffs, and it would be more productive if we could recognize that and debate the relative merits of all of those tradeoffs. But, having nuanced discussions about subjects with no easy answers does not seem to be in fashion these days.

Filed Under: antitrust, big tech, competition, narrative, privacy
Companies: facebook, google

Republican's 'Big Tech Accountability' Platform Calls For Both More And Less Moderation, And A 'Not Fairness Doctrine' Fairness Doctrine

from the all-over-the-map dept

It's become quite clear over the past few years that the Republicans' platform these days is "punish those who disagree with us," or, in the shorter vernacular: "cry moar, libs." This becomes blatantly clear as you look at the newly released "Big Tech Accountability Platform" that the Republicans in the House have released (coming from the ranking member of the House Energy & Commerce Committee, Rep. Cathy McMorris Rodgers). The platform actually starts out making some amount of sense, but note that it will ignore all of that within a single page. The principles laid out are actually good ones -- if the plan actually followed them (which it does not):

1. We will protect free speech: Republicans worked hard to repeal the Federal Communications Commission’s Fairness Doctrine and we will not advocate for a new one.

2. We will be mindful of small businesses and entrepreneurship: Any policy we pursue will balance these essential interests to preserve competition.

3. We will promote American tech leadership and innovation: We will continue to promote American global leadership while working to address issues here at home.

You could build a good platform around those pointers. But, this is not that. On the very next page, it lists out its legislative "concepts" for Section 230 reform, which quickly show how things go off the rails.

Legislative Concept 1: Limit the Right of Exclusion

a. Define Big Tech companies as places of public accommodation and prohibit discrimination based on political affiliation and/or viewpoint.

b. Alternatively, define Big Tech companies as places of public accommodation and limit liability protections to content moderation processes that provide a measure of due process to users.

So, uh, remember that whole thing about respecting free speech and not bringing back the fairness doctrine? This legislative concept is literally bringing back the fairness doctrine. It's also unconstitutional as it attacks the 1st Amendment rights of companies not to be compelled to host speech they don't want to host.

Perhaps even more incredible is that while the first legislative concept is basically "moderate less," the second legislative concept is "moderate more"!

Legislative Concept 2: Require Reasonable Moderation Practices

a. Require Big Tech companies to implement and maintain reasonable moderation practices to address illegal drug sales; child exploitation, including child pornography and trafficking; targeted harassment or bullying of users under the age of 18; terrorism; counterfeit products and materials sales; and all other illegal content on their platforms.

b. Failure to implement and maintain such reasonable moderation practices is a violation of Section 5 of the Federal Trade Commission (FTC) Act.

c. Such companies may be liable for content decisions related to content included above but may assert liability protections if they implement and maintain reasonable moderation practices.

This shows how totally unprincipled and ignorant the Republicans are on this topic. It's kind of the standard response of those who don't even understand the basics of content moderation. The assumption is always that there's some perfect level of moderation -- less moderation of speech we like, and more moderation of speech we dislike. But that assumes everyone agrees on which speech is liked and which speech is not. And that's not how any of this works.

This isn't a Goldilocks fairy tale, in which some moderation is too much, and some moderation is too little, and you can just turn the dials and find the kind of moderation that is "just right." And legislative proposals that pretend otherwise only show their complete disconnect from reality.

And they're not done yet.

Legislative Concept 3: Limit Liability to Protected Speech

a. Modify Section 230 to only provide liability protection for moderation of speech that is not protected by the First Amendment or specifically listed in the statute.

Uh, yikes? This might depend on what's "listed in the statute," but already listing types of speech that get immunity and that do not would raise serious 1st Amendment issues. But beyond that, it's not even clear what this means? If it means that 1st Amendment protected speech no longer gets 230 protections then, um, won't sites be much, much quicker to pull down all sorts of content? This would mean no 230 protections over abuse, harassment, hate speech, etc. Under such a proposal, you'd think that Republicans spreading disinformation would be at serious risk of having all their accounts banned. I know that the Democrats might like this, but it seems like a bizarre thing for Republicans to suggest.

Legislative Concept 4: Remove Liability Protections

a. Remove liability protection under Section 230 for content moderation decisions made by Big Tech companies that discriminate based on political affiliation or

viewpoint.

We've been over this before. It would violate the 1st Amendment and create compelled speech. Why do no politicians seem to understand this?

Legislative Concept 5: Require Appeals Processes

a. Require Big Tech companies to implement and maintain reasonable and userfriendly appeals processes for users to challenge content moderation decisions on constitutionally protected speech as well as decisions about suspending or deplatforming users. The appeals process must clearly explain the company’s content moderation policies and identify the specific provision(s) the content or user violated and why.

Why? Why is Congress interfering in the ways that private companies run their business? Most companies (and all large companies) do have an appeals process already. But mostly all these kinds of proposals do is serve to make it a lot more costly for websites to suspend bad actors. It's like an "all trolls get to troll" act, and often is used to test the boundaries of what people can get away with. It's a perfect tool for bad actors.

Legislative Concept 6: Carve Out Big Tech Companies from Section 230

a. Carve out Big Tech companies and/or only those that are specifically engaged in certain activities, such as hosting social media platforms and app stores, from Section 230 liability protections while retaining current liability protections for all new entrants and small companies.

b. Repeal Section 230 protections for companies engaged in targeted behavioral advertising.

It's unclear how either of these ideas does anything even remotely useful. I mean, you could carve big companies out of 230 and they'd survive, but all it would likely do is lead to a lot of wasteful litigation. It would also almost certainly lead the companies to be a lot more aggressive in taking down content, and would then rely on the 1st Amendment to protect those decisions. As for connecting 230 to advertising practices, we've seen a few bills that try to do that and no one has ever explained what useful thing that does -- other than basically attack one particular business model.

Nearly every one of these proposals doesn't seem to have any principled argument behind it. There's no policy rationale at all. It's entirely "big tech is bad, big tech likes 230, let's take 230 away from big tech." That's not leading. That's regulating based on perceived grievances.

Filed Under: big tech, cathy mcmorris rodgers, content moderation, fairness doctrine, free speech, republicans, section 230

Senator Mark Warner Doesn't Seem To Understand Even The Very Basic Fundamentals Of Section 230 As He Seeks To Destroy It

from the this-is-astounding dept

On Monday morning, Protocol hosted an interesting discussion on Reimagining Section 230 with two of its reporters, Emily Birnbaum and Issie Lapowsky. It started with those two reporters interviewing Senator Mark Warner about his SAFE TECH Act, which I've explained is one of the worst 230 bills I've seen and would effectively end the open internet. For what it's worth, since posting that I've heard from a few people that Senator Warner's staffers are now completely making up lies about me to discredit my analysis, while refusing to engage on the substance, so that's nice. Either way I was curious to see what Warner had to say.

The Warner section begins at 12 minutes into the video if you want to just watch that part and it's... weird. It's hard to watch this and not come to the conclusion that Senator Warner doesn't understand what he's talking about. At all. It's clear that some people have told him about two cases in which he disagrees with the outcome (Grindr and Armslist), but that no one has bothered to explain to him any of the specifics of either those cases, or what his law would actually do. He also doesn't seem to understand how 230 works now, or how various internet websites actually handle content moderation. It starts out with him (clearly reading off a talking point list put in front of him) claiming that Section 230 has "turned into a get out of jail free card for large online providers to do nothing for foreseeable, obvious and repeated misuse of their platform."

Um. Who is he talking about? There are, certainly, a few smaller platforms -- notably Gab and Parler -- that have chosen to do little. But the "large online platforms" -- namely Facebook, Twitter, and YouTube -- all have huge trust & safety efforts to deal with very difficult questions. Not a single one of them is doing "nothing." Each of them has struggled, obviously, in figuring out what to do, but it's not because of Section 230 giving them a "get out of jail free card." It's because they -- unlike Senator Warner, apparently -- recognize that every decision has tradeoffs and consequences and error bars. And if you're too aggressive in one area, it comes back to bite you somewhere else.

One of the key points that many of us have tried to raise over the years is that any regulation in this area should be humble in recognizing that we're asking private companies to solve big societal problems that governments have spent centuries trying, and failing, to solve. Yet, Warner just goes on the attack -- as if Facebook is magically why bad stuff happens online.

Warner claims -- falsely -- that his bill would not restrict anyone's free speech rights. Warner argues that Section 230 protects scammers, but that's... not true? Scammers still remain liable for any scam. Also, I'm not even sure what he's talking about because he says he wants to stop scamming by advertisers. Again, scamming by advertisers is already illegal. He says he doesn't want the violation of civil rights laws -- but, again, that's already illegal for those doing the discriminating. The whole point of 230 is to put the liability on the actual responsible party. Then he says that we need Section 230 to correct the flaws of the Grindr ruling -- but it sounds like Warner doesn't even understand what happened in that case.

His entire explanation is a mess, which also explains why his bill is a mess. Birnbaum asks Warner who from the internet companies he consulted with in crafting the bill. This is actually a really important question -- because when Warner released the bill, he said that it was developed with the help of civil rights groups, but never mentioned anyone with any actual expertise or knowledge about content moderation, and that shows in the clueless way the bill is crafted. Warner's answer is... not encouraging. He says he talked with Facebook and Google's policy people. And that's a problem, because as we recently described, the internet is way more than Facebook and Google. Indeed, this bill would help Facebook and Google by basically making it close to impossible for new competitors to exist, while leaving the market to those two. Perhaps the worst way to get an idea of what any 230 proposal would do is to only talk to Facebook and Google.

Thankfully, Birnbaum immediately pushed back on that point, saying g that many critics have noted that smaller platforms would inevitably be harmed by Warner's bill, and asking if Warner had spoken to any of these smaller platforms. His answer is revealing. And not in a good way. First, he ignores Birnbaum's question, and then claims that when Section 230 was written it was designed to protect startups, and that now it's being "abused" by big companies. This is false. And Section 230's authors have said this is false (and one of them is a colleague of Warner's in the Senate, so it's ridiculous that he's flat out misrepresenting things here). Section 230 was passed to protect Prodigy -- which was a service owned by IBM and Sears. Neither of those were startups.

Birnbaum: Critics have said that small platforms and publishers will be disproportionately harmed by some of these sweeping Section 230 reforms, including those contained within your bill. So did you have an ongoing conversation with some of those smaller platforms before the bill was introduced? Are you open to any changes that would ensure that they are not disproportionately harmed while Facebook just pays more, which they can afford?

Warner:Section 230 in the late '90s was then about protecting those entrepreneurial startups. What it has transformed into is a "get-out-of-jail-free" card for the largest companies in the world, to not moderate their content, but frankly, to ignore repeated misuse abuse in a way that we've tried to address.

What an odd way to respond to a question about smaller websites -- to immediately focus on the largest companies, and not ever address the question being raised.

Lapowsky jumps in to point out that Warner is not answering the question, and that to just focus on the (false) claim that the "big tech" platforms use 230 as a "get out of jail free card" ignores all the many smaller sites who use it to help deal with frivolous and vexatious litigation. Lapowsky follows that up by noting, correctly, that it's really the 1st Amendment that protects many of the things that Warner is complaining about, and that Section 230 has the procedural benefits that help get such cases kicked out of court earlier. Her question on this is exactly right and really important: Facebook and Google can spend the money to hire the lawyers to succeed on 1st Amendment grounds on those cases. Smaller platforms (like, say, ours) cannot.

Warner, looking perturbed, completely misses the point, and stumbles around with a bunch of half sentences before finally trying to pick a direction to go in. But one thing Warner does not do is actually answer Lapowsky's question. He just repeats what he claims his law will do (ignoring the damage it will actually do). He also claims that the law is being used against the wishes of the authors (the authors have explicitly denied this). He also claims -- based on nothing -- that the courts have "dramatically expanded" what 230 covers, and that other lawmakers don't understand the difference between the 1st Amendment and 230.

And then things go completely off the rails. Lapowsky pushes back, gently, on Warner's misunderstanding of the point and intent of 230, and Warner cuts her off angrily, again demonstrating his near total ignorance of the issue at hand and refusing to address her actual point, but just slamming the table insisting that the big companies are somehow ignoring all bad stuff on their websites. This is (1) simply not true and (2) completely unrelated to the point Lapowsky is making about every other website. What's incredible is how petulant Warner gets when asked to defend just the very basics of his terrible law.

Lapowsky: There's also another part of your bill, though, that deals with affirmative defense requirements. And the idea is basically so defendants couldn't just immediately fast track to the 230 defense to get cases quickly dismissed. And this is something a lot of critics say, effectively, guts the main purpose of Section 230 protections. So tell me a little bit about why you introduced this requirement.

Warner: Are you saying that the original intent of Section 230 was to in a sense, wipe away folks' legal rights?

Lapowsky: Not the intent, but certainly—

Warner: But if we're gonna go back to the intent of the legislation, versus the way the courts have so dramatically expanded what was potentially the original intent, I think it's one of the reasons why we're having this debate. And candidly, some policymakers may not be as familiar with the nuance and the differential between First Amendment rights, which we want to stand by and protect, and what we think has been the misuse of this section and the over-expansion of the court's rulings. We want to draw it back in and to make sure that things that are already illegal — like for example, illegal paid scams that take place on a lot of these platforms, I actually think there should be an ability to bring a suit against those kinds of illegal scams. The idea that you can flash your "get-out-of-jail" Section 230 card up front, before you even get to the merits of any of those discussions, I just respectfully think ought to not be the policy of the United States.

Lapowsky: My understanding of the intent was that this was a bill that was meant to encourage good faith efforts to moderate content, but also protect companies when they get things wrong, when they don't catch all the content or when they take something down that they shouldn't have. And obviously, this was written at a time when the internet—

Warner: Can I just ask, are you saying that Section 230 has reinforced good faith intent on moderation? Again, if that's your view of how it's been used by the large platforms, we just have a fundamental disagreement. I think Section 230 has been used and abused by the most powerful companies in the world.

Lapowsky: I wouldn't—

Warner: [They've been allowed] to not act responsibly, and instead it has allowed whether it's abuse of civil rights, abuse of individuals' personal behaviors as in the Grindr case, whether it's for large platforms to say, "Well, I know this scam artist is paying me to put up content that probably is ripping people off, but I'm going to use Section 230 as a way to prevent me from acting responsibly and actually taking down that content." So if you don't believe those things are happening, then that's a position to have, again, respectfully, I would just fundamentally disagree with you.

Lapowsky: It's not my position—

Warner: Emily, are there other questions? I thought we were gonna hear from a variety of questions. I'm happy to do this debate but I thought that—

There's so much to comment on here. First, Lapowsky is asking a specific question that Warner either does not understand or does not want to answer. She's pointing out, accurately, what 230 actually does and how it protects lots and lots of internet users and sites, beyond the "big" guys. And Warner is obsessing over some perceived problem that he fundamentally does not seem to understand. First of all, no large online platform wants scammers on their website. They don't need to hide behind Section 230, because public pressure in the form of angry users, journalists exposing the bad behavior, and just common sense has every major online site seeking to take down scams.

Warner's bill doesn't do anything to help in that situation other than make sure that if a smaller platform fucks up and misses a scammer, then suddenly they'll face crippling liability. The big platforms -- that Warner is so sure are doing nothing at all -- have massive trust and safety operations on the scale that no other site could possibly match. And they're going to miss stuff. You know why? Because that's the nature of large numbers. You're going to get stuff wrong.

As for the Grindr case, that actually proves the opposite point. The reason the Grindr case was a problem was not that Grindr fucked up, but that law enforcement ignored Matthew Herrick's complaint against his vengeful ex for too long. And eventually they got it right and arrested his ex who had abused Grindr to harass Herrick. Making Grindr liable doesn't fix law enforcement's failures. It doesn't fix anything. All it does is make sure that many sites will be much more aggressive in stifling all sorts of good uses of their platform to make sure they don't miss the rare abusive uses. This is fundamentally why 230 is so important. It creates the framework that enables nearly every platform to work to minimize the mistakes without fearing what happens if they get it wrong (exactly as Lapowsky pointed out, and which Warner refuses to address).

At this point, Lapowsky again tries to explain in more detail what she's asking, and a clearly pissed off Warner cuts her off, ignores her and turns to the other reporter, Birnbaum, to ask if she has any other questions for him, snottily noting that he expected questions from listeners. Lapowsky tries again, pointing out that she thinks it's important to hear Warner respond to the actual criticisms of his bill (rather than just repeating his fantasy vision of what is happening and what his bill does).

Finally, Lapowsky is able to raise one of the key problems we raised in our article: that the SAFE TECH Act, by wiping out 230 protections for any content for which money exchanges hands, is way too broad and would remove 230 for things like web hosting or any kind of advertising. Warner goes on a long rambling rant about how he thinks this should be debated around conference tables as they "iterate," but then also says that the companies should be forced to come to hearings to defend their content moderation practices. Then, rather than actually responding to the point that the language is incredibly broad, he immediately focuses in on one extreme case, the Armslist case, and demands to know Lapowsky's view on what should happen with that site.

But... notice that he never actually answers her question about the incredibly broad language in the bill. It's incredibly ridiculous to focus on an extreme outlier to defend language that would basically impact every website out there by removing any 230 protections for web hosts. This is the worst kind of political grandstanding. Take one extreme example, and push for a law that will impact everyone, and if anyone calls you on the broad reach, just keep pointing at that extreme example. It's disgusting.

At the end, Warner states that he's open to talking to smaller platforms, which is kind of laughable, considering that his staffers have been going around trashing and lying about people like myself that have pointed out the problems with his bill.

Either way, the interview makes clear that Warner does not understand how content moderation works, or what his bill actually does. Clearly, he's upset about a few extreme cases, but he doesn't seem to recognize that in targeting what he believes are two bad court rulings, he would completely upend how every other website works. And when pushed on that, he seems to get angry about it. That's not a good way for legislation to be made.

Filed Under: 1st amendment, big tech, civil rights, content moderation, emily birnbaum, free speech, intermediary liability, issie lapowsky, mark warner, safe tech act, scams, section 230

What I Hope Tech CEOs Will Tell Congress: 'We're Not Neutral'

from the just-lay-out-the-truth dept

The CEOs of Facebook, Google, and Twitter will once again testify before Congress this Thursday, this time on disinformation. Here’s what I hope they will say:

Thank you Mister Chairman and Madam Ranking Member.

While no honest CEO would ever say that he or she enjoys testifying before Congress, I recognize that hearings like this play an important role -- in holding us accountable, illuminating our blind spots, and increasing public understanding of our work.

Some policymakers accuse us of asserting too much editorial control and removing too much content. Others say that we don’t remove enough incendiary content. Our platforms see millions of user-generated posts every day -- on a global scale -- but questions at these hearings often focus on how one of our thousands of employees handled a single individual post.

As a company we could surely do a better job of explaining -- privately and publicly -- our calls in controversial cases. Because it’s sometimes difficult to explain in time-limited hearing answers the reasons behind individual content decisions, we will soon launch a new public website that will explain in detail our decisions on cases in which there is considerable public interest. Today, I’ll focus my remarks on how we view content moderation generally.

Not “neutral”

In past hearings, I and my CEO counterparts have adopted an approach of highlighting our companies’ economic and social impact, answering questions deferentially, and promising to answer detailed follow up questions in writing. While this approach maximizes comity, I’ve come to believe that it can sometimes leave a false impression of how we operate.

So today I’d like to take a new approach: leveling with you.

In particular, in the past I have told you that our service is “neutral.” My intent was to convey that we don’t pick political sides, or allow commercial influence over our editorial content.

But I’ve come to believe that characterizing our service as “neutral” was a mistake. We are not a purely neutral speech platform, and virtually no user-generated-content service is.

Our philosophy

In general, we start with a Western, small-d democratic approach of allowing a broad range of human expression and views. From there, our products reflect our subjective -- but scientifically informed -- judgments about what information and speech our users will find most relevant, most delightful, most topical, or of the highest quality.

We aspire for our services to be utilized by billions of people around the globe, and we don’t ever relish limiting anyone’s speech. And while we generally reflect an American free speech norm, we recognize that norm is not shared by much of the world -- so we must abide by more restrictive speech laws in many countries where we operate.

Even within the United States, however, we choose to forbid certain types of speech which are legal, but which we have chosen to keep off our service: incitements to violence, hate speech, Holocaust denial, and adult pornography, just to name a few.

We make these decisions based not on the law, but on what kind of service we want to be for our users.

While some people claim to want “neutral” online speech platforms, we have seen that services with little or no content moderation whatsoever -- such as Gab and Parler -- become dominated by trolling, obscenities, and conspiracy theories. Most consumers reject this chaotic, noisy mess.

In contrast, we believe that millions of people use our service because they value our approach of airing a variety of views, but avoiding an “anything goes'' cesspool.

We realize that some people won’t like our rules, and go elsewhere. I’m glad that consumers have choices like Gab and Parler, and that the open Internet makes them possible. But we want our service to be something different: a pleasant experience for the widest possible audience.

Complicated info landscape means tough calls

When we first started our service decades ago, content moderation was a much less fractious topic. Today, we face a more complicated speech and information landscape including foreign propaganda, bots, disinformation, misinformation, conspiracy theories, deepfakes, distrust of institutions, and a fractured media landscape. It challenges all of us who are in the information business.

All user-generated content services are grappling with new challenges to our default of allowing most speech. For example, we have recently chosen to take a more aggressive posture toward election- and vaccine-related disinformation because those of us who run our company ultimately don’t feel comfortable with our platform being an instrument to undermine democracy or public health.

As much as we aim to create consistent rules and policies, many of the most difficult content questions we face are ones we’ve never seen before, or involve elected officials -- so the questions often end up on my desk as CEO.

Despite the popularity of our services, I recognize that I’m not a democratically elected policymaker. I’m a leader of a private enterprise. None of us company leaders takes pleasure in making speech decisions that inevitably upset some portion of our user base - or world leaders. We may make the wrong call.

But our desire to make our platform a positive experience for millions of people sometimes demands that we make difficult decisions to limit or block certain types of controversial (but legal) content. The First Amendment prevents the government from making those extra-legal speech decisions for us. So it’s appropriate that I make these tough calls, because each decision reflects and shapes what kind of service we want to be for our users.

Long-term experience over short-term traffic

Some of our critics assert that we are driven solely by “engagement metrics” or “monetizing outrage” like heated political speech.

While we use our editorial judgment to deliver what we hope are joyful experiences to our users, it would be foolish for us to be ruled by weekly engagement metrics. If platforms like ours prioritized quick-hit, sugar-high content that polarizes our users, it might drive short term usage but it would destroy people’s long-term trust and desire to return to our service. People would give up on our service if it’s not making them happy.

We believe that most consumers want user-generated-content services like ours to maintain some degree of editorial control. But we also believe that as you move further down the Internet “stack” -- from applications towards ours toward app stores, then cloud hosting, then DNS providers, and finally ISPs -- most people support a norm of progressively less content moderation at each layer.

In other words, our users may not want to see controversial speech on our service -- but they don’t necessarily support disappearing it from the Internet altogether.

I fully understand that not everyone will agree with our content policies, and that some people feel disrespected by our decisions. I empathize with those that feel overlooked or discriminated against, and I am glad that the open Internet allows people to seek out alternatives to our service. But that doesn’t mean that the US government can or should deny our company’s freedom to moderate our own services.

First Amendment and CDA 230

Some have suggested that social media sites are the “new public square” and that services should be forbidden by the government to block anyone’s speech. But such a rule would violate our company’s own First Amendment rights of editorial judgment within our services. Our legal freedom to prioritize certain content is no different than that of the New York Times or Breitbart.

Some critics attack Section 230 of the Communications Decency Act as a “giveaway” to tech companies, but their real beef is with the First Amendment.

Others allege that Section 230’s liability protections are conditioned on our service following a false standard of political “neutrality.” But Section 230 doesn’t require this, and in fact it incentivizes platforms like ours to moderate inappropriate content.

Section 230 is primarily a legal routing mechanism for defamation claims -- making the speaker responsible, not the platform. Holding speakers directly accountable for their own defamatory speech ultimately helps encourage their own personal responsibility for a healthier Internet.

For example, if car rental companies always paid for their renters’ red light tickets instead of making the renter pay, all renters would keep running red lights. Direct consequences improve behavior.

If Section 230 were revoked, our defamation liability exposure would likely require us to be much more conservative about who and what types of content we allowed to post on our services. This would likely inhibit a much broader range of potentially “controversial” speech, but more importantly would impose disproportionate legal and compliance burdens on much smaller platforms.

Operating responsibly -- and humbly

We’re aware of the privileged position our service occupies. We aim to use our influence for good, and to act responsibly in the best interests of society and our users. But we screw up sometimes, we have blind spots, and our services, like all tools, get misused by a very small slice of our users. Our service is run by human beings, and we ask for grace as we remedy our mistakes.

We value the public’s feedback on our content policies, especially from those whose life experiences differ from those of our employees. We listen. Some people call this “working the refs,” but if done respectfully I think it can be healthy, constructive, and enlightening.

By the same token, we have a responsibility to our millions of users to make our service the kind of positive experience they want to return to again and again. That means utilizing our own constitutional freedom to make editorial judgments. I respect that some will disagree with our judgments, just as I hope you will respect our goal of creating a service that millions of people enjoy.

Thank you for the opportunity to appear here today.

Adam Kovacevich is a former public policy executive for Google and Lime, former Democratic congressional and campaign aide, and a longtime tech policy strategist based in Washington, DC.

Filed Under: 1st amendment, bias, big tech, congressional hearings, content moderation, disinformation, jack dorsey, mark zuckerberg, neutral, section 230, sundar pichai
Companies: facebook, google, twitter

Is Section 230 Just For Start-ups? History Says Nope

from the original-intentions dept

One of the arguments for changing Section 230 is that even if we needed it a long time ago when the Internet was new, now that the Internet has been around for a while and some of the companies providing Internet services are quite big, we don't need it anymore. This view is simply untrue: Internet service providers of every size still need it, including and perhaps even especially the big ones because they are the ones handling the greatest volume of user expression.

Furthermore, Section 230 was never specifically aimed at start-ups. Indeed, from the outset it was intended to address the legal problems faced by an established incumbent.

The origin story for Section 230 begins with the Stratton Oakmont v. Prodigy case. In this case a New York state court allowed Prodigy to be sued over speech a user had posted. By doing so the court not only hurt Prodigy right then, in that case, but it threatened to hurt it in the future by opening the door to more lawsuits against it or any other online service provider—which would also be bad news for online expression more broadly as well. In the shadow of this decision services weren't going to be able to facilitate the greatest amount of valuable user expression, or minimize the greatest amount of detrimental. Even back then Prodigy was handling far too many posts by users for it to be possible to vet all, or even most, of them. While that volume might today seem like a drop in the bucket compared to how much expression Internet services handle now, the operative point is that use of online services like Prodigy had already surpassed the point where a service provider could possibly be able to review everything that ever appeared on its systems and make decisions about what to leave up or take down perfectly. If that's what they needed to do to avoid being crushed by litigation, then they were looking at a future of soon being crushed by litigation.

And that was the case for Prodigy even though it was an established service. As an *Internet* service provider Prodigy may have been new to the game because the Internet had only just left the realm of academia and become something that commercial service providers could provide access to. But it was hardly new as an "interactive computer service" provider, which is what Section 230 actually applies to. True, Section 230 contemplates that interactive computer service providers may likely provide Internet-based services, but it doesn't condition its statutory protection on being connected to the Internet. (From 47 U.S.C. Section 230(f)(2): "The term 'interactive computer service' means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server…"). To be eligible for Section 230 the service provider simply needs to be in the business of providing some form of interactive computer service, and Prodigy had been doing that for well over a decade as a dial-up service with its own proprietary network—just like CompuServe had long done and eventually America Online did as well.

Furthermore, Prodigy was a service provider started by Sears and IBM (and briefly also CBS). At the time these were some of the largest companies in America. The "big tech" of the era was "Big Blue" (as IBM was known). And while Sears may have managed to bungle itself into irrelevance in the years since, at the time Section 230 was passed there were few companies more expert in remote commerce than it was. Nevertheless it was the needs of these big companies that Congress was addressing with Section 230 because Congress recognized that it wasn't just their needs that it was addressing. The same legal rules that kept start-ups from being obliterated by litigation were the same ones needed to keep the bigger players from being obliterated as well.

The irony, of course, is that Section 230 may have ultimately ended up hurting the bigger players, because in the long run it opened the door to competition that ultimately ate these companies' lunch. Of course, that's what we would still want Section 230 to do: open the door to service providers that can do a better job than the large existing incumbents. It can hardly be said that Section 230 was or is a subsidy to "big tech," then or now, when building that on-ramp for something better is what it has always done and needs to be allowed to continue to do.

Filed Under: big tech, intermediary liability, section 230, startups

How Can Conservatives Fight Back Against Big Tech? For A Start, Just Be Sane Again.

from the not-so-hard dept

Right wingers are demanding that their political leaders do something, anything. There must be a response to Twitter's ban on Donald Trump, and to Amazon Web Services' shutdown of Parler. Republicans, once so ardent for free markets, want the government to teach private tech companies a lesson they won't soon forget. Nationalize them. Prosecute them. Whatever. Any measures that convey hate for the scary truth-phobic plutocratic Bolsheviks of Silicon Valley will do.

The first problem, of course, is that the GOP, though strong in anger, is weak in power. Even if they channel their enthusiasm into concrete bills, they control neither the White House nor the Senate nor the House of Representatives.

To be sure, Democrats, too, are mad at the major social media platforms. Their biggest gripe, however, is that those platforms failed to suppress rightwing extremism earlier. Democrats strongly want quite literally the opposite of what Republicans want. They want Trump and QAnon and “Stop the Steal” to remain off Twitter and Facebook.

Even if implemented, most rightwing populist ideas would not serve rightwing populist ends. We are told, for instance, that Section 230 must be repealed. But that would not undermine platforms' discretion in moderating content. Platforms have First Amendment rights of free speech and free association. When PragerU sued it for placing certain videos in restricted mode, YouTube prevailed not under Section 230, but under the First Amendment.

Actually, repealing Section 230 would ensure that more far-right content gets taken down. Section 230 is most useful, not when a platform removes content, but when it leaves content up. Consider Force v. Facebook, decided by the U.S. Court of Appeals for the Second Circuit in 2019. Victims of terror attacks in Israel sued Facebook for not doing a better job of finding and removing extremist content posted by Hamas. The court held both the publishing of the content, and any algorithmic promotion of it, protected by Section 230.

Plaintiffs' lawyers will not hesitate to treat posts by rightwing extremists as akin to posts by Hamas. Nor will platforms, if exposed to liability for such posts, hesitate to take down marginal material—any post that plaintiffs' lawyers might try to tie to an attack. It'd almost be worth it, the GOP destroying Section 230, for the spectacle of Republicans empowering plaintiffs' lawyers to drive the party's burgeoning conspiracist faction from the commercial Internet.

Another rightwing proposal is to declare each major platform a “public forum” subject to First Amendment restrictions. But this plan is almost certainly unconstitutional. “Merely hosting speech by others,” the Supreme Court recently declared, in an opinion by Justice Kavanaugh, does not “transform private entities into state actors subject to First Amendment constraints.”

Some on the right want to expand this “state action” doctrine to embrace platforms. Others want to apply Pruneyard Shopping Center v. Robins, a 1980 Supreme Court decision forcing a mall to let students protest on its private property, in bold new ways. These efforts are riddled with difficulties. For one thing, a pack of conservatives has recently taken the bench. Most of those judges presumably have little interest in bending the law simply to reach socialistic outcomes.

Populist Republicans will likely conclude that antitrust is their best cudgel for chastising Big Tech. Joining with Democrats, they can seek to redistribute revenue, unwind deals, and punish refusals to deal. When it comes to online speech, however, even antitrust will probably do the right no good.

Freezing a competitor out of a market for economic reasons can, indeed, be an antitrust violation. That is not at all the same as refusing to deal with a company because of the abhorrent opinions it holds, spreads, or condones. After the storming of the Capitol on January 6, a prominent QAnon account proclaimed that a death cult secretly runs the planet, that this cult stole the election, and that President Trump had ensnared the cult in a sting operation. The post received more than 2.2 million views on Parler:

You have a First Amendment right not to associate with a business that amplifies wingnuts. So does Amazon Web Services.

Some Republicans want to use antitrust to break up companies. But would that really change anything? Amazon Web Services has many competitors in the cloud-computing industry. So far none—not even Trump-friendly Oracle—has been willing to accept Parler as a client. Parler hosted a lot of violent, racist, toxic speech. Even if there were twice as many Facebooks and Twitters, they might all refuse to carry such material. And even if there were twice as many cloud-computing providers, Parler might still find itself universally shunned. Again, Parler can’t make other companies work with a partner they find immoral. This is, as they say, a free country.

Which brings us to the rub: a political party that lacks cultural power—that cedes it ostentatiously, in fact, as if doing so were a strategy—is doomed to struggle. It’s not a question of electoral success. Political power counts for little when you have no sway in universities, large cities, the mainstream media, Hollywood, Silicon Valley, or the wider corporate world.

Inter-elite battles matter. If conservative ideas don’t get a hearing at Princeton, at Google, or at NBC, conservative fortunes will suffer. Conservatives should pay more attention, therefore, to ensuring they are present where cultural power is wielded. They can do this by denouncing the GOP’s fringe elements; by supporting principled moderates and by offering a positive vision, one that appeals to the next generation of top talent who will occupy our cultural heights.

Conservative professors, computer engineers, and screenwriters deserve support. Cranks and bigots “censored” by social media platforms do not.

Corbin Barthold is Internet Policy Counsel for TechFreedom

Filed Under: big tech, conservatives, content moderation, section 230