SOPA Didn't Die. It's Just Lying In Wait.

from the it-never-ends dept

It would be nice if the public interest community and internet advocates won the SOPA fight because we had the best arguments. Instead, the bill died because of an overwhelming display of popular opposition. Americans from all walks of life urged Congress to reject the bill—and legislators listened.

However, this public outcry did not detract from our excellent arguments, many of which were based around due process, maintaining the integrity and security of the domain name system, and worries about fragmenting the internet. SOPA would have created a system with costs far exceeding whatever benefits it offered private rightsholders. This isn’t a great way to approach public policy.

The basic counter from site-blocking proponents was, and continues to be, that it's really difficult to track down “rogue” website operators and to enforce copyright internationally. From their perspective, it's much easier to just order DNS providers, such as ISPs, to block a list of domain names than it is to locate the people running these sites.

Of course, just because this option is easier for site-blocking proponents doesn’t make it a good idea for the rest of us. Regardless, SOPA was never enacted, which leaves one to wonder: what was their Plan B? To me, a reasonable Plan B would involve locating and shutting down these “rogue” websites (and identifying what tools are needed to make this easier, in a due process-respecting way of course) rather than developing cost-externalizing shortcuts that would create an American splinternet. 

Remember: removing a domain from DNS doesn't even knock a site offline. It just means you have to go to the IP address directly or use a different domain. This maneuver may deter casual users, but online copyright infringement is largely driven by a small number of dedicated people with the skills necessary to find and share a workaround with the public. From the rightsholder perspective, it would be at most a partial “win.” 

Once more, going after “rogue” websites and their operators proves quite difficult in practice. It requires international treaties and law enforcement cooperation. There are many layers to the onion. I am no fan of putting IP provisions in trade agreements and many actually-existing copyright treaty requirements are pretty bad. Still, countries reciprocally respecting each other's rights and ensuring that foreigners have full, fair access to domestic courts is basically one of the core things that treaties are for. That, and ending wars.

In the past ten years, there has been some progress in the fight to both preserve an open internet and ensure that creators are paid appropriately. The two goals are not and never have been in conflict. For example, more commercial material is available online via streaming, which addresses copyright infringement on the demand side. 

But many of the big ideas from the rightsholder lobby to address the supply side continue to be based around roping in more intermediaries—whether it's site blocking, suing CDNs for moving bits from A to B, or even suing broadband providers directly on the theory that they are responsible for what their users do online and should cancel a customer’s internet service upon being “notified” by a rightsholder.

Unfortunately, rightsholders seem to prefer a different Plan B—one where they just wait until the time is right to call for the next site-blocking law. Instead of making it easier to locate and sue the operators of a website devoted to copyright infringement, they’d rather rewire the internet. But this is a bad idea today just as it was ten years ago.

John Bergmayer is Legal Director at Public Knowledge, specializing in telecommunications, Internet, and intellectual property issues. He advocates for the public interest before courts and policymakers, and works to make sure that all stakeholders--including ordinary citizens, artists, and technological innovators--have a say in shaping emerging digital policies.

This Techdirt Greenhouse special edition is all about the 10 year anniversary of the fight that stopped SOPA. On January 26th at 1pm PT, we'll be hosting a live discussion with Rep. Zoe Lofgren and some open roundtable discussions about the legacy of that fight. Please register to attend.

Filed Under: copyright, due process, site blocking, sopa

Demanding Progress: From Aaron Swartz To SOPA And Beyond

from the foundations-of-activism dept

It’s a great irony — and an awkward thing to admit — that I’m not sure if the organization of which I’m executive director, Demand Progress, would exist but for SOPA and PIPA (or really their progenitor, COICA).

This month marks not just the 10th anniversary of the SOPA blackout, but also the 9th anniversary of the passing of my partner in the effort to get Demand Progress up and running, Aaron Swartz. Aaron took his own life while facing charges under the Computer Fraud and Abuse Act for allegedly downloading too many articles from the JSTOR academic cataloging service — to which he had a subscription — using MIT’s open network. We hope the organization still upholds the values that governed his work — and he certainly serves as an inspiration for so much of what we do. 

Aaron was several years younger than me, but we came to activism from similar perspectives — more or less unreconstructed utilitarianism — and first connected during my unsuccessful campaign for Congress in 2010. A few days after the primary we launched our first couple of online campaigns as Demand Progress, which was originally intended to be a multi-issue progressive populist concern. 

While Aaron is above all else remembered for his advocacy for an open internet and intellectual property reform, his priorities increasingly included contesting concentrated corporate power, implementing a more equitable vision for our economy, and opposing war-making. Some observers this fall noted the continued resonance of his final tweet — an entreaty to Treasury to mint a $1 trillion coin as a solution to a debt ceiling impasse.

But a second irony attendant to our founding is that, as we sought to identify a base of activists to support this progressive populist vision, Aaron was promptly pulled back into the firmament of online rights and IP activism. A petition we put forth in opposition to COICA gained hundreds of thousands of signers over a few days, demonstrating a certain void in the online campaigning ecosystem and imbuing the new organization with a sense of purpose — and providing a base of activists we could organize to make a difference. 

Everything Demand Progress has become since was built on that foundation. 

Over the course of the next year or so we worked together to build a movement to use the open architecture of the internet to save the open architecture of the internet. Aaron had a much more intuitive sense than I did of how to activate and harness the potential energy of online networks. 

My time in politics, starting before MySpace went online, had been shaped by a more traditional conception of political organizing - tactics like knocking on doors and phone banking. But my contribution was that I understood the legislative process and had a sense of what politicians recognize as demonstrations of power.

As time passed, kindred spirits — most notably Fight for the Future — emerged. Policy groups — Public Knowledge and EFF also come to mind, but there were many organizations that undertook the often unsung work of engaging with hundreds of Congressional staffers to attune them to the details of our coalition’s concerns.

It all culminated in the “blackout” of which others here have written: countless thousands of sites and users each serving as beacons, alerting their combined networks of tens of millions of people to the threat at hand, urging them to make their voices heard, and providing them the tools with which to do so. Is it cringey to say that it kind of felt transcendent? Well, it did. 

Idealism about the internet’s potential can seem quaint today — even to me — but for most who took part, the SOPA effort was a demonstration of a fundamental, visceral human yearning to connect with one another. You can watch a talk Aaron gave a few months later, where he discusses what all of this meant to him. 

We and our allies have wielded the tactics we learned and the relationships we built over the course of the SOPA campaign to agitate for other causes that have helped shape the workings of the internet — for instance in support of net neutrality and against mass surveillance.

Without them it’s unlikely that we’d have secured the strong net neutrality rules that were put in place in 2015 (with the explicit backing of millions of people) only to be repealed by the Trump administration a couple years later (over the will of millions of people). We are likely on the cusp of a new proceeding to reinstitute net neutrality rules, which are overwhelmingly likely to pass because of those broad demonstrations of support — and stand a chance of being longer-lasting. 

My second-to-last in-person conversation with Aaron was about how we might fight against suspected abuses of the Patriot Act to spy on a vastly broader universe than was understood by the public — a case Edward Snowden would crack open just a few months later. Demand Progress’s research and lobbying efforts would eventually, during the spring of 2020, prove dispositive of the sunset of several Patriot Act provisions, including that under which the telephonic metadata collection that Snowden revealed was taking place. (Government surveillance practices remain opaque, and there’s every reason to assume nefarious behaviors continue under a variety of other real or imagined authorities.)

And in the years since SOPA, Demand Progress has become an organization with a modicum of influence on the national stage — and has even been able to take on that broader remit we envisioned upon our founding. 

Today we work not to just to help forward online rights, but also in support of expansive macroeconomic policy, against endless wars, and for regulation of concentrations of corporate power — inclusive of some of the major platforms that were allied with us during the SOPA effort, because we think reforms are needed to bring the internet back in line with a more ideal, horizontalist conception of what it could be.

The Demand Progress team and I are grateful to Techdirt for pulling together this retrospective and inviting us to participate, and for giving us the opportunity to reflect on that exciting and hopeful work so many of us undertook together a decade ago. We'd also like to acknowledge the many people and groups carrying forth causes that Aaron cared about — SecureDrop, CFAA reform, and public access to court records and scientific research, to name just a few.

Davd Segal is the executive director of Demand Progress and a non-residential fellow at Stanford's Center for Internet and Society. He is a former Rhode Island State Representative.

This Techdirt Greenhouse special edition is all about the 10 year anniversary of the fight that stopped SOPA. On January 26th at 1pm PT, we'll be hosting a live discussion with Rep. Zoe Lofgren and some open roundtable discussions about the legacy of that fight. Please register to attend.

Filed Under: aaron swartz, activism, cfaa, sopa, surveillance

How The SOPA Blackout Happened

from the the-internet-saved-the-internet dept

"[Historical knowledge] gives understanding of how the present world came to be, and maybe more importantly, an appreciation that everything that is, never necessarily had to be" -from "History as Freedom" —Joe Costello, longtime political organizer, writer

On the 10th anniversary of the groundbreaking SOPA Blackout, a question seems to surface above all else: can any one of us really go on to change history? And how, exactly, does that happen?

For the 24 million people who participated in the largest online protest in history against the Stop Online Piracy Act, and the millions more who witnessed the protest in real time, the course of history was changed. Had it succeeded, SOPA would have given anyone the power to shut down entire websites over a claim of copyright infringement without recourse or the obligation to demonstrate any trespass at all.

The SOPA Blackout not only killed the bill in 2012, but shook Congress so profoundly that no significant copyright legislation has been introduced in the ten years since. Because the Blackout achieved so much progress against the political order in a matter of weeks, this moment in history rewrote what we collectively think is possible in the political realm; in particular among the political set, even though triumphs of this proportion remain elusive, and power is even more entrenched.

“Many people prefer glory to power, but on the whole these people have less effect upon the course of events than those who prefer power to glory..” —Bertrand Russell

Much of the disaffection with politics comes from the sense that it never seems to change. We feel on a gut level that what passes or doesn't pass is actually debuted by the spreadsheets of lobbying firms along K street, the number of saved cell phone numbers and email addresses in legislators' contacts, the social network of influence that is woven through corporate and political America, and the skyrocketing graph of expected or donated campaign dollars. 

Generally, power's alignments don’t get upset. And, that was almost the case with SOPA. With this bill, Hollywood was on the verge of achieving their holy grail of legislation. It was the most expensive lobbying campaign Hollywood had ever launched; they gained 100 cosponsors from both sides of the aisle and backing from a slew of companies. A swift road to passage with no organized opposition seemed guaranteed. Instead, the SOPA Blackout was the first time in recent US political history that the expected political order was turned upside down so swiftly.

"It often happens at critical moments in history that ideas which have long held the field almost unchallenged are suddenly discovered, not to be wrong, but to be useless; then almost everyone can see they are absurd." —“Western Society and the Church in the Middle Ages,” R. W. Southern

How did a bill of this magnitude, that was largely unknown to the public and had no organized opposition, suddenly fall apart? 

Yes, SOPA overreached against the will of the people to an absurd degree, but most bills of this nature still pass. Upsets against the political status quo generally depend on a highly complex set of factors and usually take years of organizing, but our SOPA protest had neither of those. 

Our work was different because this time, the Internet made it possible for a few people to play an outsized role in quickly catalyzing disparate voices into a large opposition, ripping the ceiling off of what was possible. The game plan—to be super clear about a riotously unjust bill that would censor the Internet, and provide the means for thousands of people to get to Congress’ inboxes with one click—allowed far-flung groups and individuals to target SOPA's passage on a mass scale. 

Harvard's SOPA-PIPA data study tracks the uniqueness of this bubbling up, and should be read to get some empirical grounding for the personal narrative I'm providing.

One piece of our strategy was probably the super spreader mechanism: we changed the form of protest itself. The act of protesting went from the great work of petitions and articles by sites like Techdirt to the use of websites as the protest themselves. My cofounder Holmes and I, on the phone during a freak snowstorm on Halloween, simultaneously suggested that the most effective protest would be if sites actually shut down—the way they could be forced to shut down if SOPA did pass. So, we built a widget that anyone could use to “shut down” their site, with an explanation about the bill and a form for people to contact Congress to oppose SOPA. 

Soon, brave early adopters would join the protest and/or use the tool––Mozilla, BoingBoing, Techdirt and tens of thousands of others would follow. Working with Demand Progress, EFF, Elizabeth Stark, and others, we received a growing roster of signups and were able to tag-team to get to Tumblr––one of the largest platforms with 40 million blogs. 

Everyone remembers January 18th’s SOPA Blackout, but the snowball started on our first day of action, November 16th, 2011. Thanks to the creative work by Tumblr staff, tens of thousands of sites helped blindside Congress with millions of emails and close to 100,000 calls to Congress.. This was the first time an online protest of this scale sprang out of nowhere. 

This day in November seeded a death by a thousand cuts: Redditors, YouTubers, and the then astute 4chaners were ablaze with ideas, like boycotting the domain registrar GoDaddy for being, weirdly, a SOPA supporter. With hundreds of thousands more people mobilized against SOPA, our coalition decided to call for a full shutdown of the Internet. I spent weeks building consensus with the community behind Wikipedia, one of the ten largest sites on the web, so that they could do something that was absolutely unheard of.

So, on January 18th, Internet users rose up, and the Internet shut down for a day. People couldn’t access at least 115,000 websites, including the biggest ones, Wikipedia, Craigslist, and WordPress (which powers 40 percent of the web). Because millions of people were contacting congressional inboxes, they too were completely shut down. Lobbyists and legislators weren't allowed to think about anything else. The very next day, Congress did an about face on SOPA and shelved it. Because we were the news on that day, we defined political reality.

Often the way change gets reported on is that it all of sudden happens or it was inevitable. But, to have big moments, you first need to develop a critical mass around the existing milieu to build the movement that most people see. We were uniquely positioned to build a coalition invested in defending the Internet because the Internet itself gave us the tools to unify vast numbers of people, ideas, and resources. On top of that, the historical moment was different: the Internet still had a bit of utopian idealism that infected its early days. Large and vocal communities were forming around newly accessible information, and it was easy to make and share powerful tools. 

"From the impulse to dominate the unknown, he points out, spring such desirables as the pursuit of knowledge and all scientific progress." —Maria Papova, blogger, on Bertrand Russell

What still applies by the logic of the SOPA Blackout? The absurdity of our political system is a disgrace. This system is acceptable until it isn’t. The Internet, though, has changed. It is no longer as young, and its cornerstone players are the biggest monopolies in history. 

Companies are fighting for policies that are so antisocial and far-fetched that there will likely be a moment that forces a reckoning, and possibly another watershed moment. In the meantime, distaste for the system is building into a foundation for collective action––people are discussing, debating, and organizing with each other and figuring out where the lines should be drawn. 

Every wave of change represents an opportunity for making epic moments like SOPA happen. And, perhaps that is the most cited of the legacies of the blackout; Congress is still afraid of getting “SOPA’ed”; that a piece of legislation will set off people who aren't afraid to find new ways to create a firestorm. They’re right to be worried.

How do we make the next moment happen? First, come with the impulse to dominate the absurd order of things. If you start to see a scam of grave proportions and can identify groups of people who would go to bat against it, try to feel out what your greatest leverage is—put your finger on the pulse of it. 

If you’re one or two people and want to build off of the moment you have and become the new zeitgeist, use a strategy that instrumentalizes all the different actors and points them in the same direction. If you fight with a thirst for blood and shoot for where it hurts, you will find how to protest in a way that matters. Who knows what will work, so try many different ways to speak to millions of people—both visually, to show what's wrong, and narratively, to pull back the curtain.

Some of the biggest problems in the 21st century, like monopoly power and surveillance, won’t automatically work themselves out. A lot of scrappy lobbyists know how to manipulate Congress, but there aren't enough people who try to do exactly that for honest policy changes that maximize good for everyone. There are lots of ways to approach doing so, and we should all be trying different things. If you want to use the Internet and new tech to help bring disparate groups together for the public interest, we need you. And, we’re still looking for people for an A-team to try some things here. 

Tiffiniy Cheng is a Political Director for A-teams. She also co-founded Fight for the Future and is a Shuttleworth Fellow. 

This Techdirt Greenhouse special edition is all about the 10 year anniversary of the fight that stopped SOPA. On January 26th at 1pm PT, we'll be hosting a live discussion with Rep. Zoe Lofgren and some open roundtable discussions about the legacy of that fight. Please register to attend.

Filed Under: copyright, policy, politics, sopa

Remembering The Fight Against SOPA 10 Years Later... And What It Means For Today

from the greenhouse-time dept

Register now for our online event featuring Rep. Zoe Lofgren »

As mentioned last week, today is the 10 year anniversary of the big "Internet Blackout Day" that effectively killed any forward momentum that the terrible copyright bills SOPA and PIPA had. Our new Greenhouse panel is going to be all about that, with plenty of folks who were there looking back at what happened -- and also what it means for things moving forward.

But I wanted to highlight a few things from that experience that still stick with me today. The first bit was that the fight against SOPA only worked because it was joined by a very diverse group -- including some old-timers who had fought many, many battles against the draconian and anti-public expansion of copyright law. Those old timers were useful in that they knew the system and they knew the process, and understood the political levers. But -- and this is the important part -- they had basically lost every battle on copyright going back decades and they came into the fight with a kind of resolution that this battle would be lost as well. No one ever said this, but in talking to them, the mood was very much: "We'll fight, and make a lot of noise, but in the end we'll lose, because we always lose."

What was different was that others joined in on the fight, and many of them were politically naïve, but had a really strong conviction that SOPA could not be allowed to pass. I don't think they ever thought it was even possible that the bill would become law, and because of their involvement, and the people they activated, SOPA was actually stopped.

The very first meeting that I was aware of involving a bunch of the different activists looking to stop SOPA, it was the folks at Fight for the Future (calling in from Massachusetts to a meeting held at Mozilla) who suggested having an internet blackout (though this was targeted at the markup day in November, and was kind of a test run for what happened in January). People agreed -- and some pointed to a similar kind of blackout that was done back in the 90s, but I actually thought it was an awful idea. I thought that there was no way that enough people would care or do anything to make it matter. And, my fear was that if it fizzled, it would demonstrate how weak this coalition was, and how easy it would be to keep passing even worse legislation over and over again.

I was wrong. People did get energized and all sorts of people from all different backgrounds and viewpoints came together to speak up and make it clear -- loudly -- that this was not to be.

It actually wiped away much of a fairly thick layer of cynicism I had built up in watching the politics regarding policies that impact the internet. I -- like many people -- had come to believe that most of these bills are bought and sold by lobbyists and concern about the public is left aside. The reality, as I came to learn, is that while there are many bills that are passed cynically, the power of the public to speak out loudly and make change can and will outweigh the power of special interests. But, it's quite rare that that can happen. Most bills people don't have time to deal with, and most people live lives where they can't be expected to pay attention to everything that Congress does.

And, at the same time, we've seen this same kind of energy abused, with certain folks in the media getting people wrapped up in believing that this bill or that bill is bringing about the end of America or some such nonsense. We've seen a kind of reverse playbook on this with Section 230 -- in which people are being fed nonsense (from across the media) about how Section 230 is damaging "democracy" or "harming free speech" or other kinds of nonsense.

Another key point that I learned a decade ago, was that this was never about a single battle, but it is an unending fight. I was actually in the Capitol on the day of the blackout. I had come to Washington DC to attend the State of the Net conference, where I got to debate one of the key lobbyists for Hollywood on the importance (or not) of SOPA the day before the blackout. The next day I was wandering the halls of the Capitol, meeting with Senators, Representatives, staffers, whoever, and (this part was fun) hearing phones ring off the hook as people called in to protest SOPA.

However, the very next day, while I was waiting at Dulles for my flight back home, it was announced that (without SOPA) the DOJ had seized Megaupload and (with New Zealand law enforcement) had arrested Kim Dotcom and a bunch of other executives at the company. This was interesting and disturbing for a few reasons. First, Megaupload was held up as example numbers 1, 2, and 3 as to why SOPA was needed in the first place (somewhat mirroring, years later, the DOJ seizing Backpage.com days before FOSTA was signed, even as we were told FOSTA was needed to take down Backpage). We later learned many of the questionable things done in the Megaupload case that raised serious questions about the evidence in that case.

But the underlying issue was there. Even as the DOJ's indictment against Megaupload suggested that it was interpreting perfectly reasonable business and legal decisions as criminal, it showed that stopping SOPA would not stop terrible ideas around site blocking and site removals. Indeed, various pieces of SOPA and other kinds of attempts to give the government the power to shut down websites have continued to creep into various laws around the globe. And nowadays, even some of the people who fought against SOPA are supportive of some of those ideas.

I still think the real lesson of the fight was how bringing together different people with different perspectives -- but with a common interest in having an open and free internet -- can lead to amazing things. But I do wonder where that will take us now. The coalition that came together around SOPA easily fractured soon after. The differing goals and perspectives of those involved were unlikely to keep that kind of coalition together for long anyway. And various other campaigns tried to co-opt that effort -- usually without much luck.

However, I do still wonder if the next great aspects of building a better, more open internet are going to come from the same combination of different and unexpected forces. I see the seeds of this in some of the arguments we see today, whether it's about content moderation online, or even about things like DAOs, in which you have combinations of powerful legacy forces pushing in one direction, and then a variety of users -- some feeling strongly one way, and others feeling strongly another, arguing and fighting over how the internet should be. I'm still hoping that we'll see a new and interesting coalition emerge out of all this mess -- one that possibly includes a cynical old guard who knows why things won't work, combined with a more naïve new guard who insists it must work, and somehow finds a way to make it happen.

I wrote a little about this last summer in my Eternal October post. I think that there's a path forward, building on these lessons, figuring out how to build a better future internet -- not one dominated by legacy special interests, but one in which the people on the internet are the ones who control its future and can create something wonderful.

This Techdirt Greenhouse special edition is all about the 10 year anniversary of the fight that stopped SOPA. On January 26th at 1pm PT, we'll be hosting a live discussion with Rep. Zoe Lofgren and some open roundtable discussions about the legacy of that fight. Please register to attend.

Filed Under: activism, copyright, free speech, site blocking, sopa

Winding Down Our Latest Greenhouse Panel: Content Moderation At The Infrastructure Layer

from the the-slickest-of-all-slippery-slopes dept

When Mike introduced our latest Greenhouse series on content moderation at the infrastructure layer, he made it abundantly clear this was a particularly thorny and complicated issue. While there's been a relentless focus on content moderation at the so-called "edge" of the internet (Google, Facebook, and Twitter), less talked about is content moderation at the "infrastructure" layers deeper in the stack. That can include anything from hosting companies and domain registrars, to ad networks, payment processors, telecom providers, and app stores.

If and how many of these operations should be engaged in moderating content, and the peril of that participation being exploited and abused by bad actors and governments the world over, made this Greenhouse series notably more complicated than our past discussions on privacy, more traditional forms of content moderation, or broadband in the COVID era.

We'd like to extend a big thank you to our diverse array of wonderful contributors to this panel, who we think did an amazing job outlining the complexities and risks awaiting policymakers on what's sure to be a long road forward:

The EFF's Corynne McSherry took a useful bird's eye view of the problem, highlighting how the well-documented and sometimes painful content moderation failures on the edge could prove utterly catastrophic when applied to the infrastructure layer.

Jonathan Zittrain examined the blurry lines when it comes to defining what infrastructure even is, and the need for reflective consensus as the infrastructure layer inevitably gets dragged into the politics of change.

Will Duffield took an excellent look at the particular risks involved with expecting the world's bankers and financial systems to be impartial arbiters of online content, especially given their history of bungled and problematic decisions to date.

Austin Ruckstuhl took a look at the complicated can of worms that is infrastructure-layer content moderation, while arguing that putting infrastructure players in such a position is akin to putting plumbers in charge of water quality.

Christian Dawson took a compelling look at Section 230, and deflated many of the myths currently propping up bad faith efforts to implement dubious "reform" of a law that helped make the internet the robust participation engine it is today.

Tomiwa Ilori took a more global, bird's eye view of the debate, specifically the collision between government ambition and the fundamental quest for basic human rights.

Niels ten Oever discussed the perils of concentrated power, and how the development, standardization, and implementation of Internet infrastructure is always inherently political.

Konstantinos Komaitis argued that if content moderation at the infrastructure layer is inevitable, a transparent framework based on certainty and consistency, crafted via informed consensus, will prove essential to avoiding potentially disastrous outcomes.

Alex Feerst offered an informative primer on the history of the social internet's evolution, arguing that more of everything (from transparency to competitors) will be essential as we craft and nurture the participatory internet of tomorrow.

Emma Llanso ably documented the perils of putting content moderation decisions into the hands of financial intermediaries, helpfully framed via the recent headaches experienced at OnlyFans.

Mike Masnick also discussed the rampant confusion of even defining what constitutes the "infrastructure" layer, the edge-confined narrowness of the content moderation debate so far, and the problem with expecting regulators to understand any of the nuances of either.

From the BBS' of old to Facebook's sprawling global advertainment ecosystem, digital connectivity has witnessed preposterous levels of growth in the blink of an eye. That growth has come hand-in-hand with immense new challenges in policy making, regulatory oversight, antitrust enforcement, and so much more. One recurrent them of both our contributions and live panel was that whatever the future looks like, transparency, healthy competition, informed consensus, and education must all be at the heart of building the healthy, resilient, efficient, and inclusive internet of tomorrow.

Again, we'd like to extend our immense appreciation to contributors of our latest roundtable, live panel participants, and Techdirt readers, and we hope these conversations have provided value to internet policymakers and everyday internet users alike.

Filed Under: content moderation, infrastructure, moderation

Does An Internet Infrastructure Taxonomy Help Or Hurt?

from the might-create-more-problems dept

We've been running our Greenhouse discussion on content moderation at the infrastructure level for a bit now, and normally all of the posts for these discussions come from expert guest commentators. However, I'm going to add my voice to the collection here because there's one topic that I haven't seen covered, and which is important, because it comes up whenever I'm talking to people about content moderation at the infrastructure level: do we need a new taxonomy for internet infrastructure to better have this discussion?

The thinking here is that the traditional OSI model of the internet layers is somewhat outdated and not particularly relevant to discussions such as this one. Also, it's hellishly confusing as is easily demonstrated by this fun Google box of "people also ask" on a search on "internet layers."

Clearly, lots of people are confused.

Even just thinking about what counts as infrastructure can be confusing. One of my regular examples is Zoom, the video conferencing app that has become standard and required during the COVID pandemic: is that infrastructure? Is that edge? It has elements of both.

But the underlying concern in this entire discussion is that most of the debate around content moderation is about clear edge providers: the services that definitely touch the end users: Facebook, Twitter, YouTube, etc. And, as I noted in my opening piece, there is a real concern that because the debate focuses on those companies, and there appears to be tremendous appetite for policy making and regulating those edge providers, that any new regulations may not realize how they will also impact infrastructure providers, where the impact could be much more seismic.

Given all that, many people have suggested that a "new taxonomy" might be useful, to help "carve out" infrastructure services from any new regulations regarding moderation. It's not hard to understand a concept like "maybe this rule should apply to social media sites, but not to domain registrars" for example.

However, the dangers in building up such a taxonomy greatly outweigh any such benefits. First, as noted earlier, any new taxonomy is going to be fraught with difficult questions. It's not always clear what really is infrastructure these days. We've already discussed how financial intermediaries are, in effect infrastructure for the internet these days -- and that's a very different participant than the traditional OSI model of internet layers. Same with advertising firms. And I've already mentioned Zoom as a company that clearly has an edge component, but feels more like it should be considered infrastructure. Part of that is just the nature of how the internet works, in which some of the layers are merged. Marc Andreessen famously noted that software eats the world, but the internet itself is subsuming more and more traditional infrastructure as well -- and that creates complications.

On top of that, this is an extremely dynamic world. Part of the reason why the OSI model feels obsolete is because it is. Things change, and they can change fairly rapidly on the internet. So any taxonomy might be obsolete by the time it's created, and that's extremely dangerous if the plan is to use it for classifying services for the purpose of regulation.

The final concern with such a taxonomy is simply that it seems likely to encourage regulatory approaches in places where it's not clear if it's actually needed. If the intent of such a taxonomy is to help lawmakers write a law that only puts its focus on the edge players, that's unlikely how it will remain. Once such a mapping is in place, the temptation (instead) will simply be to create new rules for each layer of the new stack.

A new taxonomy may sound good as a first pass, but it will inevitably create more problems than it solves.

Techdirt and EFF are collaborating on this Techdirt Greenhouse discussion. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live virtual audience (register to attend here).

Filed Under: content moderation, infrastructure, regulations, taxonomy

OnlyFans Isn't The First Site To Face Moderation Pressure From Financial Intermediaries, And It Won't Be The Last

from the money-and-moderation dept

In August, OnlyFans made the stunning announcement that it planned to ban sexually explicit content from its service. The site, which allows creators to post exclusive content and interact directly with subscribers, made its name as a host for sexually-oriented content. For a profitable website to announce a ban of the very content that helped establish it was surprising and  dismaying to the sex workers and other creators who make a living on the site.

OnlyFans is hardly the first site to face financial pressure related to the content it publishes. Advertiser pressure has been a hallmark of the publishing industry, whether in shaping what news is reported and published, or withdrawing support when a television series breaks new societal ground.

Publishers across different kinds of media have historically been vulnerable to the demands of their financial supporters when it comes to restricting the kinds of media they distribute. And, with online advertising now accounting for the majority of total advertising spending in the U.S., we have seen advertisers recognize their power to influence how major social media sites moderate, the organization of campaigns like Stop Hate for Profit, or the development of “brand safety” standards for acceptable content.

But OnlyFans wasn’t bowing to advertiser demands; instead, it says it faced an even more fundamental kind of pressure coming from its financial intermediaries. OnlyFans explained in a statement that it planned to ban explicit content “to comply with the requests of our banking partners and payout providers.”

Financial intermediaries are key actors in the online content hosting ecosystem. The websites and apps that host people’s speech depend on banks, credit card companies, and payment processors to do everything from buying domain names and renting server space to paying their engineers and content moderators. Financial intermediaries are also essential for receiving payments from advertisers and ad networks, processing purchases, and enabling user subscriptions. Losing access to a bank account, or getting dropped by a payment processor, can make it impossible for a site to make money or pay its debts, and can result in the site getting knocked offline completely. 

This makes financial intermediaries obvious leverage points for censorship, including through government pressure. Government officials may target financial intermediaries with threats of legal action or reputational harm, as a way of pursuing censorship of speech that they cannot actually punish under the law. 

In 2010, for example, U.S Congressmen Joe Lieberman and Peter King reportedly pressured MasterCard in private to stop processing payments for Wikileaks; this came alongside a very public campaign of censure that Lieberman was conducting against the site. Ultimately, Wikileaks lost its access to so many banks, credit card companies, and payment processors that it had to temporarily suspend its operations; it now accepts donations through various cryptocurrencies or via donations made to the Wau Holland Foundation (which has led to pressure on the Foundation in turn).

Credit card companies were also the target of the 2015 campaign by Sheriff Tom Dart to shutter Backpage.com. Dart had previously pursued charges against another classified-ads site, Craigslist, for solicitation of prostitution, based on the content of some ads posted by users, and had been told unequivocally by a district court that Section 230 barred such a prosecution. 

In pursuing Backpage for similar concerns about enabling prostitution, Dart took a different tack: He sent letters to Visa and MasterCard demanding that they “cease and desist” their business relationships with Backpage, implying that the companies could face civil and criminal charges. Dart also threatened to hold a damning press conference if the credit card companies did not sever their ties with the website. 

The credit card companies complied, and terminated services to Backpage. Backpage challenged Dart’s acts as unconstitutional government coercion and censorship in violation of the First Amendment. (CDT, EFF, and the Association for Alternative Newsmedia filed an amicus brief in support of Backpage’s First Amendment arguments in that case.) The Seventh Circuit agreed and ordered Dart to cease his unconstitutional pressure campaign. 

But this did not result in a return to the status quo, as the credit card companies declined to restore service to Backpage, showing how long-lasting the effects of such pressure can be. Backpage is now offline—but not because of Dart—the federal government seized the site as part of its prosecution of several Backpage executives, which was declared a mistrial earlier this month.

Since that time, the pressures on payment processors and other financial intermediaries have only increased. FOSTA-SESTA, for example, created a vague new federal crime of “facilitation of prostitution” that has rendered many intermediaries uncertain about whether they face legal risk in association with content related to sex work. After Congress passed FOSTA in 2018, Reddit and Craigslist shuttered portions of their sites, multiple sites devoted to harm reduction went offline, and sites like Instagram, Patreon, Tumblr, and Twitch have taken increasingly strict stances against nudity and sexual content. 

So while advertisers may be largely motivated by commercial concerns and brand reputation, financial intermediaries such as banks and payment processors are also driven by concerns over legal risk when they try to limit what kinds of speech and speakers are accessible online. 

Financial institutions, in general, are highly regulated. Banks, for example, face obligations such as the “Customer Due Diligence” rule in the US, which requires them to verify the identity of account holders and develop a risk profile of their business. Concerns over legal risk can cause financial intermediaries to employ ham-handed automated screening techniques that lead to absurd outcomes, such as when Paypal canceled the account of News Media Canada in 2017 for promoting the story “Syrian Family Adopts To New Life”, or when Venmo (which is owned by PayPal) reportedly blocked donations to the Palestine Children’s Relief Fund in May 2021.

As pressures relating to online content and UGC-related businesses grow, some financial intermediaries are taking a more systemic approach to evaluating the risk that certain kinds of content pose to their own businesses. In this, financial intermediaries are mirroring a trend seen in content regulation debates more generally, on both sides of the Atlantic. 

MasterCard, for example, in April announced changes to its policy for processing payments related to adult entertainment. Starting October 15, MasterCard will require that banks connecting merchants to the MasterCard network certify that those merchants have processes in place to maintain age and consent documentation for the participants in sexually explicit content, along with specific “content control measures.”

These include pre-publication review of content and a complaint procedure that can address reports of illegal or nonconsensual content within seven days, including a process by which people depicted in the content can request its removal (which MasterCard confusingly calls an “appeals” process). In other words, MasterCard is using its position as the second largest credit card network in the US to require banks to vet website operators’ content moderation processes—and potentially re-shaping the online adult content industry at the same time.

Financial intermediaries are integral to online content creation and hosting, and their actions to censor specific content or enact PACT Act-style systemic oversight of content moderation processes should bring greater scrutiny on their role in the online speech ecosystem. 

As discussed above, these intermediaries are an attractive target for government actors seeking to censor surreptitiously and extralegally, and they may feel compelled to act cautiously if their legal obligations and potential liability are not clear. (For the history of this issue in the copyright and trademark field, see Annemarie Bridy’s 2015 article, Internet Payment Blockades.) Moreover, financial intermediaries are often several steps removed from the speech at issue and may not have a direct relationship with the speaker, which can make them even less likely to defend users’ speech interests when faced with legal or reputational risk.

As is the case throughout the stack, we need more information from financial intermediaries about how they are exercising discretion over others’ speech. CDT joined EFF and twenty other human rights organizations in a recent letter to PayPal and Venmo, calling on those payment processors to publish regular transparency reports that disclose government demands for user data and account closures, as well as the companies’ own Terms of Service enforcement actions against account holders. 

Account holders also need to receive meaningful notice when their accounts are closed and provided the opportunity to appeal those decisions—something notably missing from MasterCard’s guidelines for what banks should require of website operators.

Ultimately, OnlyFans reversed course on its porn ban and announced that they had “secured assurances necessary to support [their] diverse creator community” (It’s not clear if those assurances came from existing payment processors or if OnlyFans has found new financial intermediaries). But as payment processors, banks, and credit card companies continue to confront questions about their role in enabling access to speech online, they should learn from other intermediaries’ experience: once an intermediary starts making judgments about what lawful speech it will and won’t support, the demands on it to exercise that judgment only increase, and the scale of human behavior and expression enabled by the Internet is unimaginably huge. The ratchet of content moderation expectations only turns one way.

Emma Llansó is the Director of CDT's Free Expression Project, where she works to promote law and policy that support Internet users' free expression rights in the United States, Europe, and around the world.

Techdirt and EFF are collaborating on this Techdirt Greenhouse discussion. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live virtual audience (register to attend here).

Filed Under: content moderation, financial intermediaries, infrastructure, payment systems

A New Hope For Moderation And Its Discontents?

from the decentralization-as-the-new-frontier dept

In his post kicking off this series, Mike notes that, “the biggest concern with moving moderation decisions down the stack is that most infrastructure players only have a sledge hammer to deal with these questions, rather than a scalpel.” And, I agree with Jonathan Zittrain and other contributors that governments, activists, and others will increasingly reach down the stack to push for takedowns—and will probably get them. 

So, should we expect more blunt force infra layer takedowns or will infrastructure companies invest in more precise moderation tools? Which one is even worse?

Given the choice to build infrastructure now, would you start with a scalpel? How about many scalpels? Or maybe something less severe but distributed and transparent, like clear plastic spoons everywhere! Will the moderation hurt less if we’re all in it together? With the distributed web, we may get to ask all these questions, and have a chance to make things better (or worse). How?

Let me backup a moment for some mostly accurate natural history. In the 90s, to vastly oversimplify, there was web 1.0: static, server-side pages that arose, more manual than you'd like sometimes, maybe not so easy to search or monetize at scale, but fundamentally decentralized and open. We had webrings and manually curated search lists. Listening to Nirvana in my dorm room I read John Perry Barlow’s announcement that "We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different," in a green IRC window and believed. 

Ok, not every feature was that simple or open or decentralized. The specter of content moderation haunted the Internet from early days of email and bulletin boards. In 1978, a marketer for DEC sent out the first unsolicited commercial message on ARPANET and a few hundred people told him to knock it off, Gary! Voila, community moderation. 

Service providers like AOL and Prodigy offered portals through which users accessed the web and associated chat rooms, and the need to protect the brand led to predictable interventions. There's a Rosetta Stone of AOL content moderation guidelines from 1994 floating around to remind us that as long as there have been people expressing themselves online, there have been other people doing their best to create workable rule sets to govern that expression and endlessly failing in comic and tragic ways (“‘F--- you’ is vulgar” but ‘my *** hurts’ is ok”). 

Back in the Lascaux Cave there was probably someone identifying naughty animal parts and sneaking over with charcoal to darken them out, for the community, and storytellers who blamed all the community’s ills on that person.

And then after the new millenium, little by little and then all at once, came Web 2.0—the Social Web. Javascript frameworks, personalization, everyone a creator and consumer within (not really that open) structures we now call "Platforms" (arguably even less open when using their proprietary mobile rather than web applications). It became much easier for anyone to create, connect, communicate, and distribute expression online without having to design or host their own pages. We got more efficient at tracking and ad targeting and using those algorithms to serve you things similar to the other things you liked.

We all started saying a lot of stuff and never really stopped. If you're a fan of expression in general, and especially of people who previously didn't have great access to distribution channels expressing themselves more, that's a win. But let's be honest: 500 million tweets a day? We've been on an expression bender for years. And that means companies spending billions, and tens of thousands of enablers—paid and unpaid—supporting our speech bender. Are people happy with the moderation we're getting? Generally not. Try running a platform. The moderation is terrible and the portions are so large!

Who’s asking for moderation? Virtually everyone in different ways. Governments want illegal content (CSAM, terrorist content) restricted on behalf of the people, and some also want harmful but legal content restricted in ways that are still unclear, also for the people. Many want harmful content restricted, which means different things depending on which people, which place, which culture, which content, which coffee roast you had this morning. Civil society groups generally want content restricted related to their areas of expertise and concern (except EFF, who will party like it's 1999 forever I hope). 

There are lots of types of expression where at least some people think moderation is appropriate, for different reasons; misinformation is different from doxxing is different from harassment is different from copyright infringement is different from spam. Often, the same team deals with election protection and kids eating Tide Pods (and does both surprisingly well, considering). There’s a lot to moderate and lots of mutually inconsistent demand to do it coming from every direction.

Ok, so let’s make a better internet! Web 3 is happening and it is good. More specifically, as Chris Dixon recently put it, “We are now at the beginning of the Web 3 era, which combines the decentralized, community-governed ethos of Web 1 with the advanced, modern functionality of Web 2.” Don’t forget the blockchain. Assume that over the next few years, Web 3 infrastructure gets built out and flourishes—projects like Arweave, Filecoin, Polkadot, Sia, and Storj. And applications eventually proliferate; tools for expression, creativity, communication, all the things humans do online, all built in ways that embody the values of the DWeb. 

But wait, the social web experiment of the past 15 years led us to build multi-billion dollar institutions within companies aimed at mitigating harms (to individuals, groups, societies, cultural values) associated with online expression and conduct, and increasingly, complying with new regulations. Private courts. Private Supreme Courts. Teams for safeguarding public health and democratic elections. Tens of thousands poring over photos of nipples, asking, where do we draw the line? Are we going to do all that again? One tempting answer is, let’s not. Let’s fire all the moderators. What’s the worst that could happen?

Another way of asking this question is -- what do we mean when we talk about “censorship resistant” distributed technologies? This has been an element of the DWeb since early days but it’s not very clear (to me at least) how resistant, which censorship, and in what ways.

My hunch is that censorship resistance—in the purest sense of defaulting to immutable content with no possible later interventions affecting its availability—is probably not realistic in light of how people and governments currently respond to Web 2.0. The likely outcome is probably quick escalation to intense conflict with the majority of governments. 

And even for people who still favor a marketplace-of-ideas-grounded “rights” framework, I think they know better than to argue that the cure for CSAM is more speech. There will either have to be ways of intervening or the DWeb is going to be a bumpy ride. But “censorship resistant” in the sense of, “how do we build a system where it is not governments, or a small number of powerful, centralized companies that control the levers at the important choke points for expression?” Now we’re talking. Or as Paul Frazee from Beaker Brower and other distributed projects put it: “The question isn't ‘how do we make moderation impossible?’ The question is, how do we make moderation trustworthy?”

So, when it comes to expression and by extension content moderation, how exactly are we going to do better? What could content moderation look like if done consistent with the spirit, principles, and architecture of Web 3? What principles can we look to as a guide? 

I think the broad principles will come as no surprise to anyone following this space over the past few years (and are not so different from those outlined in Corynne McSherry’s post). They include notice, transparency, due process, the availability of multiple venues for expression, and robust competition between options on many axes—including privacy and community norms, as well as the ability of users to structure their own experience as much as possible. 

Here are some recurring themes:

• Transparency: Clear, broadly available, and auditable information about what interventions are being made, including at the infrastructure level, is a precondition to empowering more people on the web. Rather than building in transparency as an adjunct to moderation (like the essential Lumen database), what if we baked it in from the start? With accommodations and exceptions for privacy where needed; a moderation system that defaults to publicly viewable records as part of every act of intervention.

• Multiplicity: More nodes with smaller power differentials between. More storage providers, more ISPs, more ways of accessing expression, more contexts for encountering it, and more communities with attendant norms, controlling more layers of the stack down to the infra.

• Subsidiarity: How do we give users as much control over their own experience as possible? Allow users to customize their applications so that, if desired, certain infrastructure is favored or disfavored (as opposed to blocked or not blocked), through tools like shareable open source lists of disfavored files, actors, institutions, with reliable information about their provenance. Push decisions to the edge.

• Identity & Reputation: can we structure more experience based on a person’s chosen, persistent, potentially pseudonymous identity? Ideally, assembled from multiple, decentralized sources, and multiple implementations parsing that data rather than one or a few arbiters who store data and make a broadly effective determination. 

We’re in the early days, so the question of how we build decentralized systems resilient to broad attempts to censor—in ways that are familiar from Web 2.0—is still in progress. But the applications are here. The Mastodon project and Element have been at it since 2016. Twitter’s Blue Sky project aims to build decentralized standards for social media with a leader in Jay Graber and a rocking Discord. If Web 2.0 has got you down, consider the possibility that Web 3 might be worth another shot?

Time around let’s not have a small number of actors (commercial or otherwise) making decisions for a large number of people about what expression they can or can’t publish or access. Let’s have more of everything. More decision makers, more venues for expression, more chances for users to make small decisions about what they want to see or not see, more civil society stakeholders with real influence (operationalized through say, governance tokens or whatever other means are at hand). 

At the infrastructure level we need more nodes, more actors, more storage providers, more mechanisms for choosing what is available to more disparate groups, and more ways to make it all visible. With all that and some luck, it may add up to fewer and fewer decisionmakers able to decide what comes down at scale, with a sledgehammer, a vaccine for capital C Censorship by the radical proliferation of small m moderators?

Alex Feerst is a legal & tech executive, trust & safety expert and currently is CEO Murmuration Labs whose clients include the Filecoin Foundation.

Techdirt and EFF are collaborating on this Techdirt Greenhouse discussion. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live virtual audience (register to attend here).

Filed Under: content moderation, cryptocurrency, decentralized, decentralized services, infrastructure, web3

Infrastructure And Content Moderation: Challenges And Opportunities

from the complexity-is-messy dept

The signs were clear right from the start: at some point, content moderation would inevitably move beyond user-generated platforms down to the infrastructure—the place where services operate the heavy machinery of the Internet and without which user-facing services cannot function. Ever since the often-forgotten incident when Amazon stopped hosting Wikileaks after US political pressure took place in 2010, there has been a steady uneasiness regarding the role infrastructure providers could end up playing in the future of content moderation. 

A glimpse of what this would look like came in 2017, when companies like Clouldflare and GoDaddy took affirmative action against content they considered problematic for their business models, in this case white supremacist websites that had been the subject of massive public opprobrium. Since then, that future has become the present reality as the list of infrastructure companies performing content moderation functions keeps growing. 

Content moderation has two inherent qualities that provide important context. 

First, content moderation is generally complex in real-world process design and implementation. There are a host of conflicting rights, diverse procedural norms and competing interests that come into play every time content is posted on the Internet; each case is unique and on some level so it should be treated. 

Second, content moderation is messy because the world is messy: the global nature of the Internet, economies of scale, societal realities and cultural differences create a multi-layered set of considerations that are difficult to reconcile. 

The bright spot in all this messiness and complexity is the hope of due process and the rule of law. The theory is that, in healthy and competitive markets, users have choice and therefore it becomes more difficult for any mistakes to scale. So, if a user’s post gets deleted on one platform, the user should have the option of posting it someplace else.

Of course, such markets are difficult to accomplish and the current Internet market is certainly not in this category. But, the point here is that it is one thing to have one of your postings removed from Facebook and it is another to go completely offline if Cloudflare stops providing you their services. The stakes are completely different. 

For a long time, infrastructure providers were smart enough to stay out of the content business. The argument was that the actors who are responsible for the pipes of the Internet should not concern themselves with the kind of water that runs through them. Their agnosticism was encouraged because their main focus was to provide other services, including security, network reliability and performance.

However, as the Internet evolved, so did the infrastructure providers’ relationship with content. 

In the early days of content moderation, what constituted infrastructure was more discernible and structured. People would usually refer to the Open System Interconnection (OSI) model as a useful analogy, especially with policy makers who were trying to identify the role and responsibilities various companies held in the Internet ecosystem. 

The Internet of today, however, is very different from those days. The layers of the Internet are not distinguishable any longer and, in many cases, participating actors are not just operating at the infrastructure or the application layers. At the same time, and as applications in the Internet were gaining in popularity and use, innovation started moving upstream. 

“Infrastructure” is now being nested on top of other “infrastructure” all within just layer 7 of the OSI stack. Things are not as clear-cut.

This indicates that, in some ways, we should not be surprised that the content moderation conversations seem to gradually be moving downstream. A cloud provider that provides support to a host of different websites, platforms, news outlets or businesses, will inevitably have to deal with issues of content. 

A content delivery network (CDN) will unquestionably face, at some point, the moral dilemma of providing its services to businesses that walk a tightrope with harmful or even illegal content. It really comes down to a simple equation: if user-generated platforms don’t do their job, infrastructure providers will have to do it for them. And, they do. Increasingly often. 

If this is the reality, the question becomes what is the best way for infrastructure providers to do moderation considering current practices of content moderation, the significant chilling effects, and the often-missed trade-offs. 

If we are to follow the “framework, tools, principles” triad, we should be mindful to not reinvent any existing ecosystem. Content moderation is not new and, over the years, a combination of laws and self-regulatory norms ensures a relatively consistent, predictable and stable environment—at least most of the time. 

Section 230 of the CDA in the US, the eCommerce Directive in Europe, Marco Civil in Brazil and other laws around the world have succeeded in creating a space where users and businesses could manage their affairs effectively and know that judicial authorities would treat their cases equally. 

For content moderation at the infrastructure level, a framework based on certainty and consistency is even more of a priority. Legal theory instructs that lack of consistency can diminish the development of norms or it can undermine the way existing ones can manifest themselves. In a similar vein, lack of certainty means the inability to get organized in such a way that complies with the law. For infrastructure providers that support basic and day-to-day functions of the Internet, such a framework becomes indispensable. 

I often say that the Internet is not a monolith. This is not only to demonstrate how the Internet was never meant to perform one single thing, but also to show the importance of designing a legal framework that behaves the same. When we talk about predictability and certainty, we must be conscious of putting in place requirements of clarity, stability and intelligibility so that participating actors can make calculated and informed decisions about the legal consequences of their actions. That’s what made Section 230 a success for more than two decades.

Frameworks without appropriate tools to implement and assess them, however, mean little. Tools are important as they can help maximize the benefits of processes, ultimately increasing flexibility, reducing complexity, and ensuring clarity. Content moderation has consistently been suffering from lack of tools that could clearly exhibit the effects of moderation. Think, for instance, all these times content is taken down and there is no way to say what the true effect is on free speech and on users.

In this context, we need to think of tools as things that would allow us to better understand the scale and chilling effect that content moderation in the infrastructure causes. Here is what I wrote about this last year: 

“A starting point is to perform a regulatory impact assessment for the Internet. It is a tested method of policy analysis, intended to assist policy makers in the design, implementation and monitoring of improvements to the regulatory system; it provides the methodology for producing high quality regulation, which can, in turn, allow for sustainable development, market growth and constant innovation. A regulatory impact assessment constitutes a tool that ensures regulation is proportional (appropriate to the size of the problem it seeks to address), targeted (focused and without causing any unintended consequences), predictable (it creates legal certainty), accountable (in terms of actions and outcomes) and, transparent (on how decisions are made).”

In this sense, tools and frameworks are co-dependent. 

Finally, the legitimacy of any framework and of any tools depends on the existence of principles. In content moderation, it is not the lack of principles that is the problem; on the contrary, it is the abundance of them. Big companies have their own Terms of Service (ToS), states operate within their own legal frameworks, and then there is the Internet, which is designed under its own set of principles. Too many principles inevitably create too many conflicts and, therefore, consensus becomes important. 

The Santa Clara principles on transparency and accountability in content moderation have that consensus. Negotiated through a collaborative and inclusive process, they offer a roadmap to content moderation and remove certain obstacles in the process. Their strength lies in their simplicity and straightforwardness. In a similar vein, the properties of the Internet constitute a solid guide in understanding the potential unintended consequences content moderation by infrastructure providers can have. 

The design of the Internet is very specific and adheres to some normative principles that have existed ever since its inception. In fact, the Internet’s blueprint has not changed much since it was sketched a few decades ago. Ensuring that these principles become part of the consideration process is key. 

There are still plenty of unknowns in content moderation at the infrastructure layer. But, there are also quite a few things we do know: the first thing is that scale plays a significant factor. Moderating content down the stack is not just about speech; in many cases, it can be about being present on the Internet. 

The second thing we know is that the general principle of infrastructure actors being allowed to provide their services agnostically of the content they carry should continue to hold as the default. There might be cases when they may need to engage but that should be the exemption rather the rule and it should abide by the “frameworks, tools and principles” identified above. 

Finally, the third thing we know is that content moderation is evolving in ways that could now directly affect the future of the Internet. Ensuring that the role and responsibilities of infrastructure providers is appropriately scoped will be content moderation’s greatest challenge yet! 

Konstantinos Komaitis is a veteran of developing and analysing Internet policy to ensure an open and global Internet. Konstantinos has spent almost ten years in active policy development and strategy as a Senior Director at the Internet Society, and is currently a policy fellow at the Brave New Software Foundation. Before that, he spent 7 years researching and teaching at the university of Strathclyde, Glasgow, UK.

Techdirt and EFF are collaborating on this Techdirt Greenhouse discussion. On October 6th from 9am to noon PT, we'll have many of this series' authors discussing and debating their pieces in front of a live virtual audience (register to attend here).

Filed Under: complexity, content moderation, impact assessment, infrastructure

Against 'Content Moderation' And The Concentration Of Power

from the power-and-moderation dept

Content moderation frameworks and toothless oversight boards legitimize the concentration of power in the hands of infrastructure providers and platforms. This gives them, and not democratic processes and structures, the discretion to egregiously shape the public debate.

In 1964 Marshall McLuhan wrote that content is a “juicy piece of meat carried by the burglar to distract the watchdog of the mind” (McLuhan 2013). I will argue that today this is more true than ever. If we want to solve the issue of human rights violating content, we will need to look at the structures that allow for the production of it. Therefore, I will argue that “content” is a false category, and that infrastructure is often misunderstood as a largely material object whereas it is a complex assemblage of people, practices, institutions, cultures, and devices. To address the false premises on which the concept of “infrastructural content moderation” is based, I propose an analytical framework that does not separate the context from the content but rather offers an integrative approach to address online discourse production. 

Aristotle famously wrote that there is no matter without form and no form without matter. Similarly, Bergson said that color does not exist as an abstract category, but only as a quality of a substance. The same holds true for content on the Internet. A Facebook post is something different than a post on Tiktok, a blog post, a tweet, or a YouTube comment. One understands these messages differently. Just like one understands a sentence spoken in a comic club differently than one spoken in parliament, and a sentence uttered in a forest is different from one in a theater.

It has taken centuries for legal and social rules for public and private spaces to develop. The Internet is a relatively new space that practically is largely private, but feels like the world's largest public space. It will take time for rules to sediment for this space. In the development of new rules, one should commence the interrogation of different possibilities with a simple question: Cui bono? Who profits? 

Julie Cohen describes in her book ‘Between Truth and Power’ that the shift in the image from the Internet as an “electronic superhighway” to a “cloud” should by no means be taken lightly. At least a highway has rules, a cloud has none. In the image that the Internet infrastructure industry has shown us, the Internet infrastructure is a given. A modular space on which things can be built, a neutral platform for economic growth and development, that would only suffer from regulation. 

But Keller Easterling explains that “infrastructure sets the invisible rules that govern the spaces of our everyday lives” and that “changes to the globalising world are being written, not in the language of law and diplomacy, but rather in the language of infrastructure.” She describes the practice of the development, implementation, and operation of these infrastructures as “extrastatecraft,” because these powers used to belong to nation states, but are now taken up by transnational corporations. 

The development, standardization, and implementation of Internet infrastructure is inherently political. Janet Abbate particularly says that: ‘the debate over network protocols illustrates how standards can be politics by other means. Denardis’ 2014 book ‘Protocol politics’ furthers the work by Abbate and showcases how “debates over protocols bring[ing] to light unspoken conflicts of interest.” Whereas the work of DeNardis focuses mostly on Internet protocols, she does emphasize that “politics are not external to technical architecture.”

When one looks at the infrastructure that undergirds the exchange of discourse, we should not see it as a neutral foundation for platforms and services, but rather as a shaping force that has both direct and indirect power. This shaping power is what sets the rules for everything that happens on top of it, which is more influential than the haphazard removal of a particular user or group. This shaping power is deeply entrenched in the standardization and governance bodies where the Internet infrastructure is produced. 

Upon interrogation of these standards and governance bodies, one cannot help but notice, as the research by Corinne Cath-Speth shows, that the bodies can be characterized by a laissez-faire approach to technology development and defy any strong accountability measures. This culture is characterized by a libertarian, American, masculine approach that values individualism. It is exactly these qualities that perpetuate the idea that regulation will “break the Internet” and that individual choice and responsibility is the only way forward for the Internet infrastructure. 

This attitude is deeply ironic because for the first half of its existence the Internet was heavily funded by states, and the second half has been characterized by oligopolies. However, this sense of individual engineering pride keeps the status quo intact, which means a continuous exclusion of those who do not want to succumb to this culture, mostly women, people of color, and those from outside of Europe and the United States. This in turn strengthens a network topology that reinforces power structures of dominance and extraction based in the United States and Europe. Submarine cables now cover the whole world, but network traffic still largely centers in Europe and the United States, maps that very much resemble those of colonial trade routes. 

The Internet infrastructure and its standardization and governance regime exist to increase interconnection between transnational corporations, largely based in the United States and Europe. Expanding the data flows to and through these networks is what these networks and their governance is optimized for. This has transformed the Internet from a medium of connection to a medium of extraction. Solely focusing on the outgrowths of this culture and regime by focusing on content moderation would be naive at best, and legitimizing an extractive practice at worst. 

Reflections on the practice of content moderation should not solely focus on the content that should, or should not be, moderated, but rather on the structures that incentivize and perpetuate such speech. It is the responsibility of communication infrastructure providers to meaningfully engage with the human rights impact of their actions, and their chain responsibility. Thus far, hardly any Internet infrastructure provider has done so sufficiently. The industry’s lack of meaningful adoption and integration of the United Nations Guiding Principles for Business and Human Rights reminisce of the tobacco industry’s opposition against health codes, and their lobbying budgets reflect the same fear for regulation. 

Civil society should not be afraid to present strong alternative network ideologies that rely on free association and self-determination by end users. The priority of the networking and content provision industry should be to address problems of inequity and inequality, not to extract more private data to be sold to advertising and surveillance companies (which are anyhow based on flawed premises). The Internet is the public square of the world, we should better reimagine it as one. This means that the strongest actors should live up to their responsibilities, and not seek to wait for civil society to organize themselves and demand accountability, and fix their problems. Here we can only refer back to Spiderman: with great power, comes great responsibility. It is high time that the Internet infrastructure sector lives up to that.

Niels ten Oever is a postdoctoral researcher with the ‘Making the hidden visible project at the Media Studies department at the University of Amsterdam.

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Filed Under: content moderation, power