Lessons From Making Internet Companies Liable For User's Speech: You Get Less Speech, Less Security And Less Innovation

from the not-good dept

Stanford's Daphne Keller is one of the world's foremost experts on intermediary liability protections and someone we've mentioned on the website many times in the past (and have had her on the podcast a few times as well). She's just published a fantastic paper presenting lessons from making internet platforms liable for the speech of its users. As she makes clear, she is not arguing that platforms should do no moderation at all. That's a silly idea that no one who has any understanding of these issues thinks is a reasonable idea. The concern is that as many people (including regulators) keep pushing to pin liability on internet companies for the activities of their users, it creates some pretty damaging side effects. Specifically, the paper details how it harms speech, makes us less safe, and harms the innovation economy. It's actually kind of hard to see what the benefit side is on this particular cost-benefit equation.

As the paper notes, it's quite notable how the demands from people about what platforms should do keeps changing. People keep demanding that certain content gets removed, while others freak out that too much content is being removed. And sometimes it's the same people (they want the "bad" stuff -- i.e., stuff they don't like -- removed, but get really angry when the stuff they do like is removed). Perhaps even more importantly, the issues for why certain content may get taken down are the same issues that often involve long and complex court cases, with lots of nuance and detailed arguments going back and forth. And yet, many people seem to think that private companies are somehow equipped to credibly replicate that entire judicial process, without the time, knowledge or resources to do so:

As a society, we are far from consensus about legal or social speech rules. There are still enough novel and disputed questions surrounding even long-standing legal doctrines, like copyright and defamation, to keep law firms in business. If democratic processes and court rulings leave us with such unclear guidance, we cannot reasonably expect private platforms to do much better. However they interpret the law, and whatever other ethical rules they set, the outcome will be wrong by many people’s standards.

Keller then looked at a variety of examples involving intermediary liability to see what the evidence says would happen if we legally delegate private internet platforms into the role of speech police. It doesn't look good. Free speech will suffer greatly:

The first cost of strict platform removal obligations is to internet users’ free expression rights. We should expect over-removal to be increasingly common under laws that ratchet up platforms’ incentives to err on the side of taking things down. Germany’s new NetzDG law, for example, threatens platforms with fines of up to &euro'50 million for failure to remove “obviously” unlawful content within twenty-four hours’ notice. This has already led to embarrassing mistakes. Twitter suspended a German satirical magazine for mocking a politician, and Facebook took down a photo of a bikini top artfully draped over a double speed bump sign.11 We cannot know what other unnecessary deletions have passed unnoticed.

From there, the paper explores the issue of security. Attempts to stifle terrorists' use of online services by pressuring platforms to remove terrorist content may seem like a good idea (assuming we agree that terrorism is bad), but the actual impact goes way beyond just having certain content removed. And the paper looks at what the real world impact of these programs have been in the realm of trying to "counter violent extremism."

The second cost I will discuss is to security. Online content removal is only one of many tools experts have identified for fighting terrorism. Singular focus on the internet, and overreliance on content purges as tools against real-world violence, may miss out on or even undermine other interventions and policing efforts.

The cost-benefit analysis behind CVE campaigns holds that we must accept certain downsides because the upside—preventing terrorist attacks—is so crucial. I will argue that the upsides of these campaigns are unclear at best, and their downsides are significant. Over-removal drives extremists into echo chambers in darker corners of the internet, chills important public conversations, and may silence moderate voices. It also builds mistrust and anger among entire communities. Platforms straining to go “faster and further” in taking down Islamist extremist content in particular will systematically and unfairly burden innocent internet users who happened to be speaking Arabic, discussing Middle Eastern politics, or talking about Islam. Such policies add fuel to existing frustrations with governments that enforce these policies, or platforms that appear to act as state proxies. Lawmakers engaged in serious calculations about ways to counter real-world violence—not just online speech—need to factor in these unintended consequences if they are to set wise policies.

Finally, the paper looks at the impact on innovation and the economy and, again, notes that putting liability on platforms for user speech can have profound negative impacts.

The third cost is to the economy. There is a reason why the technology-driven economic boom of recent decades happened in the United States. As publications with titles like “How Law Made Silicon Valley” point out, our platform liability laws had a lot to do with it. These laws also affect the economic health of ordinary businesses that find customers through internet platforms—which, in the age of Yelp, Grubhub, and eBay, could be almost any business. Small commercial operations are especially vulnerable when intermediary liability laws encourage over-removal, because unscrupulous rivals routinely misuse notice and takedown to target their competitors.

The entire paper weighs in at a neat 44 pages and it's chock full of useful information and analysis on this very important question. It should be required reading for anyone who thinks that there are easy answers to the question of what to do about "bad" content online, and it highlights that we actually have a lot of data and evidence to answer the questions that many legislators seem to be regulating based on how they "think" the world would work, rather than how the world actually works.

Current attitudes toward intermediary liability, particularly in Europe, verge on “regulate first, ask questions later.” I have suggested here that some of the most important questions that should inform policy in this area already have answers. We have twenty years of experience to tell us how intermediary liability laws affect, not just platforms themselves, but the general public that relies on them. We also have valuable analysis and sources of law from pre-internet sources, like the Supreme Court bookstore cases. The internet raises new issues in many areas—from competition to privacy to free expression—but none are as novel as we are sometimes told. Lawmakers and courts are not drafting on a blank slate for any of them.

Demands for platforms to get rid of all content in a particular category, such as “extremism,” do not translate to meaningful policy making—unless the policy is a shotgun approach to online speech, taking down the good with the bad. To “go further and faster” in eliminating prohibited material, platforms can only adopt actual standards (more or less clear, and more or less speech-protective) about the content they will allow, and establish procedures (more or less fair to users, and more or less cumbersome for companies) for enforcing them.

On internet speech platforms, just like anywhere else, only implementable things happen. To make sound policy, we must take account of what real-world implementation will look like. This includes being realistic about the capabilities of technical filters and about the motivations and likely choices of platforms that review user content under threat of liability.

This is an important contribution to the discussion, and highly recommended. Go check it out.

Filed Under: cda 230, daphne keller, dmca 512, free speech, innovation, intermediary liability, section 230, security

Can SESTA Be Fixed?

from the will-it-be-fixed? dept

It appears that sometime this week (or even possibly today), the Senate is unfortunately likely to vote (perhaps by an overwhelming margin) for SESTA, despite the fact that it's a terribly drafted bill which no one can explain how it will actually stop sex trafficking. Indeed, it's a bill that many victims advocates are warning will not just make problems worse, but will put lives in danger. And that's leaving aside all of the damage it will do to free speech and tons of websites on the internet.

Much of this could have been avoided if anyone in Congress were actually interested in understanding how the internet worked, and how to write a bill that actually addressed problems around sex trafficking -- rather than buying into a false narrative (pushed mainly by Hollywood) that the liability protections of CDA 230 were magically responsible for sex traffickers using the internet. Two academics who are probably the most knowledgeable experts on intermediary liability, Daphne Keller at Stanford and Eric Goldman at Santa Clara University, have each posted thoughts on how to "salvage" SESTA. If Congress were serious, it would listen to them. But that's a big "if."

Let's start with Keller's suggestions that she helpfully put into a Twitter thread:

First up, she takes on the problematic "knowledge" standard used in SESTA/FOSTA. Again, a key part of the bill is that internet sites can become liable if they have "knowledge" of sex trafficking activity that is done on the platform. But what the hell is meant by "knowledge"? In other parts of the law, even when it's more spelled out, there are examples of legal cases lasting years while everyone wrangles over what "knowledge" means. In the copyright context, Viacom sued YouTube and were in court for more than half a decade, with much of that being over the simple question of whether knowledge meant "specific" knowledge or "general" knowledge. SESTA could solve many of its problems if it made its knowledge standard clear -- and, as Keller notes, one that wouldn't require "teams of lawyers."

Indeed, this is perhaps the largest problem with SESTA (and may also doom the bill in court). Prosecutors and the DOJ have already raised concerns about the standards in the bill, and even the politicians supporting it toss out very, very different definitions. Senator Rob Portman has claimed it requires "intent." Meanwhile, Rep. Cathy McMorris Rodgers claims that the standard is "knowingly turning a blind eye." That's... extremely different. Senator Cory Booker claims its "a high standard" that requires "proving beyond a reasonable doubt." All of those mean very different things, and when you have the politicians backing the bill all spouting nonsense, and the law itself doesn't clarify, you're making a huge mess.

Keller's second suggestion is to add in real and meaningful penalties for bad faith accusers as well as an appeals process for the accused. This is also a big deal. Again, looking at the DMCA, we've talked about how the one part of that law dealing with bad faith accusations is basically toothless and almost never useful. And thus, the DMCA is abused all the time. We have all those lessons to learn from -- and it appears that Congress is ignoring them.

Up next would be a clear statement that the law does not require monitoring all speech. Such a mandatory monitoring system would have tremendous First Amendment issues -- but unfortunately it seems likely that some may read the bill to require mandatory filtering (oddly, others will read it as saying you shouldn't use filters at all to avoid knowledge -- and that dichotomy of results should just emphasize how poorly the bill was drafted).

Fourth, Keller suggests making it clear that merely monitoring should not be deemed as knowledge (this could be seen as related to clarifying the knowledge standard as well). On that front, there may be an amendment on the table that could help (see below...).

Fifth: the bills should make it clear that it applies to service providers that are end user facing, rather than further up the stack. Again, here's a lesson that we've learned from takedowns in the copyright space. As Hollywood got more and more upset about various things online it continued to move up the stack beyond services to hosting companies, data centers, registrars and even ICANN itself. We shouldn't allow SESTA to allow for the same nonsense.

Finally, Keller suggests that if we must go through with such a bad bill, there should be some requirements on transparency about the impacts for both tech platforms and government agencies, so that we can look back on the bill and determine what it did -- both good and bad.

Will Congress take any of these steps? It doesn't look like it.

As for Goldman, his post focuses on an amendment that Senator Wyden is offering. Last I heard, it appears that the Senate may actually consider this amendment. And it's an amendment similar to one that Goldman himself suggested -- with a very modest addition to SESTA clarifying the whole question of does "monitoring" equal "knowledge." Specifically the amendment would add the following language:

The fact that a provider or user of an interactive computer service has undertaken any efforts (including monitoring and filtering) to identify, restrict access to, or remove material the provider or user considers objectionable shall not be considered in determining the criminal or civil liability of the provider or user for any material that the provider or user has not removed or restricted access to.

As Goldman notes, this one amendment would fix the worst problems of SESTA (while still leaving in place plenty of others). If you at least support making SESTA less horrible, he suggests calling your Senators and letting them know:

If you think this is a meritorious fix to a bad bill, then *immediately* call your Senators (you have 2, remember!) and tell them:

1) You oppose SESTA/FOSTA because it’s not clear the law actually helps sex trafficking victims; and

2) You want your Senator to support Sen. Wyden’s proposed content moderation amendment because it ensures online services will keep being the first line of defense in the fight against sex trafficking.

Note 1: This issue could be moot as early as Monday afternoon, so literally CALL NOW.

Note 2: CALL, not email. The EFF has made it easy for you to do.

It seems quite likely the bill is going to pass very soon and then get signed into law. The fact that there are simple and reasonable ways to improve on the bill, which Congress is blatantly ignoring, is problematic.

Filed Under: cda 230, daphne keller, eric goldman, fosta, intermediary liability, knowledge, knowledge standard, moderator's dilemma, rob portman, ron wyden, sesta

Google Lawyer Says ACTA Is 'Cultural Imperialism'

from the going-too-far dept

With the official release of ACTA finally out, it's good to see various organizations speaking out against the many problems found in the draft agreement. We've already covered the detailed arguments against ACTA supported by numerous organizations. And now, a Google lawyer, Daphne Keller, has spoken out harshly against ACTA as well, calling it "cultural imperialism" that had "metastasized" and "grown in the shadows, Gollum-like," from a document that was supposed to just be about dealing with counterfeit goods at the border, to a serious challenge to copyright laws around the globe. And, indeed, it is a form of cultural imperialism, in that it seeks to export certain aspects of US copyright law around the globe... while critically leaving out the consumer protections and necessary exceptions. I wonder if the USTR, who is negotiating the agreement on behalf of the US will put up Keller's words on their website next to the entertainment industry letters in support of ACTA that it's put on the USTR website? Or, does the USTR only listen to Hollywood on this particular topic?

Filed Under: acta, copyright, daphne keller
Companies: google