Ricky Byrdsong And The Cost Of Speech

from the consequences-of-algorithmic-polarization dept

On July 2nd,1999, Ricky Byrdsong was out for a jog near his home in Skokie, Illinois, with two of his young children, Sabrina and Ricky Jr. The family outing would end in tragedy. His children watched helplessly as their father was gunned down. He was the victim of a Neo-Nazi on a murderous rampage targeting Jewish, Asian and Black communities. Ten other people were left wounded. Won-Joon Yoon, a 26 year-old graduate student at the University of Indiana, would also be killed.

When you distill someone's life down to their final minutes, it does a disservice to their humanity and how they lived. Though I didn't know Won-Joon Yoon, I met Coach Byrdsong — one of few Black men's head basketball coaches in the NCAA — through my father, who is also part of this small fraternity. As head coaches in Illinois in the late 90s, their names were inevitably linked to each other. They occasionally played one another. Beyond his passion for basketball, Coach Byrdsong's love of God, and his commitment to community and family shone bright.

Coach Byrdsong was the first Black head basketball coach at Northwestern University in Evanston, Illinois. His appointment was a big deal: Northwestern is a private university in an NCAA "power conference," with a Black undergraduate population of less than 6%. I visited Northwestern's arena when my dad was an assistant coach at the University of Illinois. At 11-years old, I remember being surrounded by belligerent college students making ape noises. When I hear jangling keys at sporting events, I'm transported back to the visceral feeling of being surrounded by thousands of (white) college students, alumni and locals, shaking their car keys while smugly chanting "that's alright, that's ok, you will work for me one day."

Their ditty, directed towards a basketball court overwhelmingly composed of Black, working-class student athletes, seemed to say: you don't belong here, and you never will — a sentiment that still saturates the campus. This is the world that Neo Nazi Benjamin Smith came from. Smith was raised in Wilmette, Illinois, one of the richest and whitest suburbs in the country, less than five miles from where he killed Coach Byrdsong.

The digital boundaries that exist online, much like the neighborhood ones, carve up communities often by ethnicity, class, and subculture. In these nooks a shared story and ideology is formed that reinforces an "us against the world" mentality. It's debatable whether that's intrinsically bad — but in this filter bubble, it is hard to see our own reflection accurately, let alone others. This leaves both our digital and physical bodies vulnerable.

Matthew Hale, Smith's mentor and founder of the World Church of the Creator, was an early adopter of Internet technology. He was part of a 90s subculture of white nationalists that flocked to the web, stitching a digital hood anonymizing those who walk and work amongst us. Hale's organization linked to white power music, computer games, and developed a website "Creativity for Kids," with downloadable white separatist coloring books. They used closed chat rooms and internet forums to rile up thirst for a race war. They understood the importance of e-commerce as a vehicle for trafficking hate, and they experimented with email bombing and infiltrating chat rooms.

Beyond being tech savvy, Hale was also a lawyer, who in 1999 was being defended by the ACLU. The Illinois Bar Association had denied Hale's law license based on his incitement of racial hatred and violence against ethnic and religious groups. The ACLU has had a long run of defending white nationalists including Charlottesville "Unite the Right" organizer Jason Kessler. In 1978 they defended the organizers of a Skokie Nazi march, the same community where Coach Byrdsong was assassinated. At the time 1 in every 6 Jewish residents there was either a survivor, or directly related to a survivor of the Holocaust.

Hale's law license was rejected based on three main points:

1. That a lawyer's responsibility to uphold equal justice for all, is compromised when their sworn allegiance to one race comes before the greater good.

2. That freedom of speech did not offer protection from the consequences of speech, nor did it mean validation and accreditation for dangerous speech, which an approved law license would imply.

3. That the community standards, values and guidelines set by the law association gave the judging body the ability to define based on a set of socially accepted criteria, what goes outside the bounds of decency and morality. From their standpoint, being an avowed Klansman, given their history of lynchings and terrorism, clearly crossed that line.

But Hale felt entitled to the right to speech with impunity. And the ACLU mounted a vigorous defense of that. What rights we are owed by institutions, is a question that divides even those that are normally aligned. Though tech companies say their role is to ensure that all speech matters, free speech does not mean the right to content or user validation, amplification or freedom to incite violence. This is why groups that are deemed terrorist threats by companies don’t have the same stranglehold that white nationalists enjoy. That they remain so openly prevalent speaks more to a tacit societal acceptance of white nationalist ideologies than it does the matter of free speech.

Free speech as a red herring is used as a wedge to politicize universal rights conversations, falsely brand common sense content moderation policies as "anti-" speech, freedom, and liberties. It's an argument that's routinely manipulated to shield corporations that get rich off of if it bleeds it leads incentive structures but aren't willing to accept the responsibility that comes from being about that life. Moreover, it chills the ability of marginalized groups to advocate for safer spaces.

Already, indoctrination can occur organically by nature of the interest-driven algorithmic models that permeate the platforms and trap people into digitally segregated neighborhoods. I put these algorithms to the test when I started using a device to research white nationalist communities. I found that when the computer read my data profile, it fundamentally changed my user experience. "Hey you follow Mike Cernovich," Twitter would note, "try following David Duke or David Horowitz." Amazon would see I was looking up books about Lauren Southern and make sure I knew I could also buy Mein Kampf. I was bombarded with YouTube conspiracy videos about the deadly Blacks in Chicago. With no fact check mechanism in sight, my world was shaped by who the internet thought I was. Once relegated to that bubble, it was hard to get out.

Institutions like the Harvard Shorenstein Center and Data and Society document how hate groups build power online. According to the Southern Poverty Law Center, there are over 1,000 hate groups active in the United States. Beyond these known hate groups there are many loosely organized factions and countless sympathizers that are one bad quarantine day away from unleashing.

In our constricted online universe ruled by clickbait gods and monsters, it takes a special type of disassociation to say that words have the power to change the world yet there should be no boundary to them. Every morning there is another father, mother, son, daughter, or person tying up their shoes to go out for a jog, a person who could be the next Ricky Byrdsong or Ahmaud Arbery. Somewhere online at this very moment another Benjamin Smith is being groomed for violence. So many of them exist that their story may never make it out of their community filter bubble. According to 2018 data from the FBI there were 7,120 hate crime incidents reported that year. Often hate crimes — particularly against women of color and trans people — go unreported. While there's a slight dip in the total number of hate crimes overall, according to the FBI, the severity of violence is getting worse.

In 2018 Change the Terms, a coalition of 50 civil and human rights organizations, released a set of model corporate principles for dealing with hate speech. Color Of Change helped develop the framework, which encourages transparency, right to appeal, and baseline criteria for defining hate speech. The coalition is composed of either represented constituencies disproportionately targeted for hate crimes, or organizations that emphasize racial, gender, identity or religious justice in their mission. While the organizations have helped lead a culture shift in Silicon Valley, there is still much work to be done.

Matthew Hale, the pied piper of amateur racists, uses his Internet platform to lure in people like Benjamin Smith. When testifying in support of Hale's petition for a law license, Smith told the court "He's given me spiritual guidance...When I first met him, I wasn't really sure what I wanted to do with my life, what direction I was going to go." Weeks later Smith killed two people before committing suicide. From prison Hale churns out hate propaganda you can buy on Amazon.

The adage "I don't agree with what you say but I defend to the death your right to say it," is often used to prop verbal violence. But history shows that disproportionately Black and Brown bodies get sacrificed in the name of boundless white speech. For some, Matthew Hale is a cause worth theoretically dying for. Reminders of the lives he had a hand in snuffing out are often met with a digital shoulder shrug on Twitter. It's as though everyone murdered for simply existing are merely the proverbial spilt milk, splashed on the floor for the greater good of the communities left to mourn them.

Rarely have these free speech martyrs actually suffered the life and death consequences of their absolutism. I begrudge anyone their righteous cause who knows what it means to mourn yet still believe. But over Independence Day weekend in 1999, Coach Ricky Byrdsong and Won-Joon Yoon did die. The online legacy left by their assassin and his enablers would empower and inspire a killer to walk into Emanuel African American Methodist church and murder nine people, another one to massacre 11 in the Tree of Life synagogue in Pittsburgh and yet another to gun down 49 people in New Zealand in the Muslim community of Christchurch.

Each of them set in motion the real-world consequences of an online model that monetizes polarization. And all of them left behind digital breadcrumbs for the next monster. Coach Byrdsong is one of multiple stories I could share about someone I knew who was killed or assaulted because of their ethnicity, gender identity, sexuality or religion. For me, free speech can not truly be free when it operates on a sliding scale weighted against those with the most to lose, and it will never hold more intrinsic value than human lives.

Brandi Collins-Dexter is a visiting fellow at the Harvard Kennedy School’s Shorenstein Center on Media, Politics and Public Policy and a senior fellow at Color Of Change. She is currently writing a book about Black participation in democracy and the US economy, with particular focus on the role technology and information integrity play in improving or deteriorating community health.

Filed Under: benjamin smith, content moderation, filter bubbles, free speech, hatred, indoctrination, matthew hale, racism, ricky birdsong, won-joon yoon

It Doesn't Make Sense To Treat Ads The Same As User Generated Content

from the cleaning-up-the-'net dept

Paid advertising content should not be covered by Section 230 of the Communications Decency Act. Online platforms should have the same legal risk for ads they run as print publishers do. This is a reform that I think supporters of Section 230 should support, in order to save it.

Before I explain why I support this idea, I want to make sure I'm clear as to what the idea is. I am not proposing that platforms be liable for content they run ads next to -- just for the ads themselves. I am not proposing that the liability lies in the "tools" that they provide that can be used for unlawful purposes, that's a different argument. This is not about liability for providing a printing press, but for specific uses of the printing press -- that is --publication.

I also don't suggest that platforms should lose Section 230 if they run ads at all, or some subset of ads like targeted ads, like a service-wide on/off switch. The liability would just be normal, common-law liability for the content of the ads themselves. And “ads” just means regular old ads, not all content that a platform commercially benefits from.

It's fair to wonder whom this applies to. Many of the examples listed below have to do with Facebook selling ads that are displaying on Facebook, or Google placing ads on Google properties, and it's pretty obvious that these companies would be the ones facing increased legal exposure under this proposal. But the internet advertising ecosystem is fiendishly complex, and there are often many intermediaries between the advertiser itself, and the proprietor of the site the ad is displayed on.

So at the outset, I would say that any and all of them could be potentially liable. If Section 230 doesn't apply to ads, it doesn't apply to supplying ads to others; in fact, these intermediary functions are considered a form of "publishing" under the common law. Which party to sue would be the plaintiff's choice, and there are existing legal doctrines that prevent double recovery, and to allow one losing defendant to bring in, or recover from, other responsible parties.

It's important to note, too, that this is not strict or vicarious liability. In any given case, it could be that the advertiser could be found liable for defamation or some kind of fraud but the platform isn't, because the elements of the tort are met for one and not the other. Whether a given actor has the "scienter" or knowledge necessary to be liable for some offense has to be determined for each party separately -- you can impute the state of mind from one party onto another, and strict liability torts for speech offenses are, in fact, unconstitutional.

The Origins Of An Idea

I first started thinking about it in the context of monetized content. After a certain dollar threshold is reached with monetized content, there should be liability for that, too, since the idea that YouTube can pay thousands of dollars a month to someone for their content but then have a legal shield for it simply doesn't make sense. The relationship of YouTube to a high-paid YouTuber is more similar to that between Netflix and a show producer, than it is between YouTube and your average YouTuber whose content is unlikely to have been reviewed by a live, human YouTube official. But monetized content is a marginal issue; very little of it is actionable, and frankly the most detestable internet figures don't seem to depend on it very much.

But the same logic runs the other way, to when the content creator is paying a platform for publishing and distribution, instead of the platform paying the content creator. And I think eliminating 230 for ads would solve some real problems, while making some less-workable reform proposals unnecessary.

Question zero should be: Why are ads covered by Section 230 to begin with? There are good policy justifications for Section 230 -- it makes it easier for there to be sites with a lot of user posts that don't need extensive vetting, and it gives sites a free hand in moderation. Great. It's hard to see what that has to do with ads, where there is a business relationship. Business should generally have some sense of whom they do business with, and it doesn't seem unreasonable for a platform to do quite a bit more screening of ads before it runs them than of tweets or vacation updates from users before it hosts them. In fact, I know that it's not an unreasonable expectation because the major platforms such as Google and Facebook already do subject ads to heightened screening.

I know I'm arguing against the status quo, so I have the burden of persuasion. But in a vacuum, the baseline should be that ads don't get a special liability shield, just as in a vacuum, platforms in general don't get a liability shield. The baseline is normal common law liability and deviations from this are what have to be justified.

I'm Aware That Much "Harmful" Content is not Unlawful

A lot of Section 230 reform ideas either miss the mark or are incompletely theorized, since, of course, much -- maybe even most -- harmful online content is not unlawful. If you sued a platform over it, without 230, you'd still lose, but it would take longer.

You could easily counter that the threat of liability would cause platforms to invest more in content moderation overall, and I do think that this is likely true, it is also likely that such investments could lead to over moderation that limits free expression by speakers that are even considered mildly controversial.

But with ads, there is a difference. Much speech that would be lawful in the normal case -- say, hate speech -- can be unlawful when it comes to housing and employment advertisements. Advertisements carry more restrictions and regulations in any number of ways. Finally, ads can be tortious in the standard ways as well: they can be fraudulent, defamatory, and so on. This is true of normal posts as well -- but with ads, there's a greater opportunity, and I would argue obligation, to pre-screen them.

Many Advertisements Perpetuate Harm

Scam ads are a problem online. Google recently ran ads for scam fishing licenses, despite being told about the problem. People looking for health care information are being sent to lookalike sites instead of the site for the ACA. Facebook has even run ads for low-quality counterfeits and fake concert tickets. Instead of searching for a locksmith, you might as well set your money on fire and batter down your door. Ads trick seniors out of their savings into paying for precious metals. Fake customer support lines steal people's information -- and money. Malware is distributed through ads. Troublingly, internet users in need of real help are misdirected to fake "rehab clinics" or pregnancy "crisis centers" through ads.

Examples of this kind are endless. Often, there is no way to track down the original fraudster. Currently, Section 230 allows platforms to escape most legal repercussions for enabling scams of this kind, while allowing the platforms to keep the revenue earned from spreading them.

There are many more examples of harm, but the last category I'll talk about is discrimination, specifically through housing and employment discrimination. Such ads might be unlawful in terms of what they say, or even to whom they are shown. Putting racially discriminatory text in a job or housing ad can be discriminatory, and choosing to show a facially neutral ad to just certain racial groups could be, as well. (There are tough questions to answer -- surely buying employment ads on sites likely to be read by certain racial groups is not necessarily unlawful -- but, in the shadow of Section 230, there's really no way to know how to answer these questions.)

In many cases under current law, there may be a path to liability in the case of racially discriminatory ads, or other harmful ads. Maybe you have a Roommates-style fact pattern where the platform is the co-creator of the unlawful content to begin with. Maybe you have a HomeAway fact pattern where you can attach liability to non-publisher activity that is related to user posts, such as transaction processing. Maybe you can find that providing tools that are prone to abuse is itself a violation of some duty of care, without attributing any responsibility for any particular act of misuse. All true, but each of these approaches only addresses a subset of harms and frankly seem to require some mental gymnastics and above-average lawyering. I don't want to dissuade people from taking these approaches, if warranted, but they don't seem like the best policy overall. By contrast, removing a liability shield from a category of content where there is a business relationship and a clear opportunity to review content prior to publication would incentivize platforms to more vigorously review.

A Cleaner Way to Enforce Anti-Discrimination Law and Broadly Police Harm

It's common for good faith reformers to propose simply exempting civil rights or other areas of law from Section 230, preventing platforms from claiming Section 230 as a defense of any civil rights lawsuit, much as how federal criminal law is already exempted.

The problem is that there is no end of good things that we'd like platforms to do more of. The EARN IT Act proposes to create more liability for platforms to address real harms, and SESTA/FOSTA likewise exempts certain categories of content. There are problems with this approach in terms of how you define what platforms should do, and what content is exempted, and issues of over-moderation in response to fears of liability. This approach threatens to make Section 230 a Swiss cheese statute where whether it applies to a given post requires a detailed legal analysis, which has other significant harms and consequences.

Another common proposal is to exempt "political" ads from Section 230, or targeted ads in general (or to somehow tackle targeting in some non-230 way). There are just so many line-drawing problems here, making enforcement extremely difficult. How, exactly, do you define "targeted"? How, by looking at an ad, can you tell whether it is targeted, contextual, or just part of some broad display campaign? With political ads, how do you define what counts? Ads from or about campaigns are only a subset of political ads--is an ad about climate change "political"--or an ad from an energy company touting its green record? In the broadest sense yes, but it's hard to see how you'd legislate around this topic.

Under the proposal to exempt ads from Section 230, the primary question to answer is not what is the content addressed to and what harms it may cause, but simply, whether it is an ad. Ads are typically labeled as such and quite distinct--and it may be the case that there need to be stronger ad disclosure requirements and penalties for running ads without disclosure. There may be other issues around boundary-drawing as well--I perfectly well understand that one of the perceived strengths of Section 230 is its simplicity, relative to complex and limited liability shields like Section 512 of the DMCA. Yet I think they're tractable.

Protection for Small Publishers

I've seen some publishers respond to user complaints of low-quality or even malware-distributing ads running on sites where the publishers point out that they don't see or control the ads--they are delivered straight from the ad network to the user, alongside publisher content. (I should say straight away that this still counts as "publishing" an ad--if the user's browser is infected by malware that inserts ads, or if an ISP or some other intermediary inserts the ad into the publisher's content, then no it is not liable, but if a website embeds code that serves ads from a third party, it is "publishing" that ad in the same sense as a back page ad on a fancy Conde Nast magazine. Whether that leads to liability just depends on whether the elements of the tort are met, and whether 230 applies, of course.)

For major publishers I don't have a lot of sympathy. If their current ad stack lets bad ads slip through, they should use a different one, if they can, or demand changes in how their vendors operate. The incentives don't align for publishers and ad tech vendors to adopt a more responsible approach. Changing the law would do that.

At the same time it may be true that some small publishers depend on ads delivered by third parties, and not only does the technology not allow them to take more ownership of ad content, they lack the leverage to demand to be given the right tools. Under this proposal, these small publishers would be treated like any other publisher for the most part, though I tend to think that it would be harder to meet the actual elements of an offense with respect to them. That said I would be on board with some kind of additional stipulation that ad tech vendors are required to defend and pay out for any case where publishers below a certain threshold are hauled into court for distributing ads they have no control over, but are financially dependent on. Additionally, to the extent that the ad tech marketplace is so concentrated that major vendors are able to shift liability away from themselves to less powerful players, antitrust and other regulatory intervention may be needed to assure that risks are borne by those who can best afford to prevent them.

The Tradeoffs That Accompany This Idea Are Worth It

I am proposing to throw sand in the gears on online commerce and publishing, because I think the tradeoffs in terms of consumer protection and enforcing anti-discrimination laws are worth it. Ad rates might go up, platforms might be less profitable, ads might take longer to place, and self-serve ad platforms as we know them might go away. At the same time, fewer ads could mean less ad-tracking and an across-the-board change to the law around ads should not tilt the playing field towards big players any more than it already is, and would not likely lead to an overall decline in ad spending, just a shift in how those dollars are spent (to different sites, and to fewer but more expensive ads)..

This proposal would burden some forms of speech more than others, too, so it’s worth considering First Amendment issues. One benefit of this proposal over subject matter-based proposals is that it is content neutral, applying to a business model. Commercial speech is already subject to greater regulation than other forms of speech, and this is hardly a regulation, just the failure to extend a benefit universally. Though of course this can be a different way of saying the same thing. But, if extending 230 to ads is required if it’s extended anywhere, it would seem that same logic would require that 230 be extended to print media or possibly even first-party speech. That cannot be the case. And I have to warn people that if proposed reforms to Section 230 are always argued to be unconstitutional, that makes outright repeal of 230 all the more likely, which is not an outcome I’d support.

Fans of Section 230 should like this idea because it forestalls changes they no doubt think would be worse. Critics of 230 should like it because it addresses many of the problems they've complained about for years, and has few if any of the drawbacks of content-based proposals. So I think it's a good idea.

John Bergmayer is Legal Director at Public Knowledge, specializing in telecommunications, media, 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.

Filed Under: ads, advertisements, content moderation, liability, section 230

Social Media Critics Ignore Rest of Internet

from the there-are-better-ways... dept

Conservative criticism of social media content moderation is often characterized by misinformation and unfounded allegations. Factually unsupported assertions that federal law requires firms such as Facebook and Twitter to choose whether they are “platforms” and “publishers” — and dubious claims that “Big Tech” is engaged in a concerted anti-conservative campaign are prominent — but they’re not the most interesting feature of the present content moderation debate.

More interesting is the lack of imagination that seems to dominate the discourse. Rather than exploring different content moderation regimes, conservatives have focused on shaping the rules of established companies through regulation and legislation. The ironic result of this narrow thinking could be the entrenchment of market incumbents.

Conservative complaints about Silicon Valley censorship are often based on poor methodological study and collections of anecdotes. Although conclusive evidence that Silicon Valley is engaged in an anti-conservative campaign is lacking, many Republican lawmakers have used claims of bias as the basis for legislative proposals that would radically change how the Internet is regulated and governed.

Conservative critics of the most prominent social media companies are correct to note that content moderation at Facebook, Twitter, and YouTube (owned by Google) is centralized, with human content moderators and machine learning tools tasked with implementing a single governing set of content guidelines. This centralized system is far from perfect, and in an environment where Twitter users post half a billion tweets a day and YouTube account holders upload about 500 hours of video a minute false positives and false negatives should be expected.

In addition, speech intended for specific audiences may be misunderstood by moderators from different backgrounds, but at scale, firms simply lack the time or resources to provide boutique, culturally-aware governance.

Centralized content moderation also suffers from a perceived lack of transparency and process, with Silicon Valley behemoths considered by many to be secretive, distant institutions with few incentives to care about an individual case when their empires include millions or billions.

Republican responses to allegations of political bias have focused on Section 230 of the Communications Decency Act, the law that shields owners of interactive computer services such as social media companies, newspaper comments sections, university and library websites, and others from being held liable for the vast majority of content posted by third party users.

A separate post would be required to dissect every Republican Section 230 proposal, but it is fair to say that most take aim at Section 230 with the intent of reforming social media companies’ content moderation rules. Proposals include conditioning Section 230 protections on “politically neutral” content moderation policies.

But while the modern debate on social media has focused on Twitter, Facebook, YouTube, and other household name companies, Republican lawmakers should remember that the centralized content moderation model is not a necessary feature of social media and that there are other models that offer solutions “big tech” critics across the political spectrum seek.

Although not household names, there are social media services that implement more permissive content moderation policies. Facebook, Twitter, and YouTube are hardly alone in the social media universe. The Internet is full of social media sites. Indeed, some of these sites – such as Gab and Parler – emerged as centralized alternatives to Twitter, with their creators citing concerns about big tech bias.

There are social media sites that reject centralization altogether. Mastodon is an example of a social media service that embraces a governance structure very different from those seen in big tech social media. It is open source and allows users to host their own nodes.

Diaspora is another social media service that rejects the centralized governance of Facebook, Twitter, and YouTube. It is a non-profit and based on the principles of decentralization, privacy, and freedom to alter and tweak source code. There are also LBRY and the InterPlanetary File System; peer-to-peer decentralized protocols that allow users to share content absent any central governing authority.

Conservatives who want a social media service where they can form their own communities, find like-minded users, and build content moderation rules consistent with their values have plenty of options available.

Nonetheless, conservatives concerned about big tech bias seem unaware of the plethora of options available. It has never been easier for conservatives to build their own communities, share ideas, and seek to convince others of their ideology. Sadly, rather than embrace competition and innovation, many conservative activists and lawmakers have turned to government.

The risks are difficult to overstate. Powerful market incumbents may oppose regulation, but once the writing is on the wall, they will take steps to ensure that they, and not smaller competitors, are able to comply with new regulations. The result will be the entrenchment of the companies conservative activists criticize. When conservative lawmakers and activists claim that Section 230 is a big tech subsidy, they are engaged in misleading rhetoric that is precisely the opposite of the truth. If anything, Section 230 should be considered a subsidy for big tech competitors. It ensures that they do not need to hire teams of lawmakers, saving them startup costs.

An unintended consequence of Section 230 reforms and legislation motivated by weak claims of anti-conservative bias could be big tech getting bigger, with Facebook, Google, and Twitter continuing to dominate American speech online.

We are still in the early years of online speech, yet activists and lawmakers seem to have forgotten much of its short history. Firms that at one time seem to dominate online speech, online search, and online entertainment have been displaced in the past. AskJeeves, AOL instant messenger, MySpace, and many others have fallen into obscurity or disappeared altogether. Facebook, Twitter, and Google may be dominant today, but their continued success is not an axiom of history.

Conservatives convinced of big tech’s anti-conservative bias ought to consider the numerous platforms and competing content moderation models available. The future of online speech does not have to be centralized and dominated by a handful of firms, but continued calls for regulation in the name of content moderation risks further empowering market incumbents.

Matthew Feeney is the director of Cato’s Project on Emerging Technologies, where he works on issues concerning the intersection of new technologies and civil liberties. Before coming to Cato, Matthew worked at Reason magazine as assistant editor of Reason​.com. He has also worked at The American Conservative, the Liberal Democrats, and the Institute of Economic Affairs. His writing has appeared in The New York Times, The Washington Post, HuffPost, The Hill, the San Francisco Chronicle, the Washington Examiner, City A.M., and others. He also contributed a chapter to libertarianism.org’s Visions of Liberty. Matthew received both his B.A and M.A in philosophy from the University of Reading.

Filed Under: anti-conservative bias, bias, competition, content moderation, online speech, social media

Digital Technology As Accelerant: Growth And Genocide In Myanmar

from the broader,-collaborative-view dept

Every person in Myanmar above the age of 10 has lived part, if not most, of their life under a military dictatorship characterized by an obsession with achieving autonomy from international influences. Before the economic and political reforms of the past decade, Myanmar was one of the most isolated nations in the world. The digital revolution that has reshaped nearly every aspect of human life over the past half-century was something the average Myanmar person had no personal experience with.

Recent reforms brought an explosion of high hopes and technological access, and Myanmar underwent a digital leapfrog, with internet access jumping from nearly zero percent in 2015 to over 40 percent in 2020. At 27-years-old, I remember living in a Yangon where having a refrigerator was considered high tech, and now, there are 10-year-olds making videos on Tik Tok.

Everyone was excited for Myanmar's digital revolution to spur the economic and social changes needed to transform the country from a pariah state into the next economic frontier. Tourists, development aid, and economic investment poured into the country. The cost of SIM cards dropped from around 1,000 US dollars in 2013 to a little over 1 dollar today.

This dramatic price drop was paired with a glut of relatively affordable smartphones and phone carriers that provided data packages that made social media platforms like Facebook free, or nearly free, to use. This led to the current situation where about 21 million out of the 22 million people using the internet are on Facebook. Facebook became the main conduit through which people accessed the internet, and now is used for nearly every online activity from selling livestock, watching porn, reading the news, to discussing politics.

Then, following the exodus of over 700,000 Rohingya people from Myanmar’s war-torn Rakhine State, Facebook was accused of enabling a genocide.

The ongoing civil wars in the country and the state violence against the Rohingya, characterized by the UN as ethnic cleansing with genocidal intent, put a spotlight on the potential for harm brought on by digital connectivity. Given its market dominance, Facebook has faced great scrutiny in Myanmar for the role social media has played in normalizing, promoting, and facilitating violence against minority groups.

Facebook was, and continues to be, the favored tool for disseminating hate speech and misinformation against the Rohingya people, Muslims in general, and other marginalized communities. Despite repeated warnings from civil society organizations in the country, Facebook failed to address the new challenges with the urgency and level of resources needed during the Rohingya crisis, and failed to even enforce its own community standards in many cases.

To be sure, there have been improvements in recent years, with the social media giant appointing a Myanmar focused team, expanding their number of Myanmar language content reviewers, adding minority language content reviewers, establishing more regular contact with civil society, and devoting resources and tools focused on limiting disinformation during Myanmar’s upcoming election. The company also removed the accounts of Myanmar military officials and dozens of pages on Facebook and Instagram linked to the military for engaging in "coordinated inauthentic behavior." The company defines "inauthentic behavior" as "engag[ing] in behaviors designed to enable other violations under our Community Standards," through tactics such as the use of fake accounts and bots.

Recognizing the seriousness of this issue, everyone from the EU to telecommunications companies to civil society organizations have poured resources into digital literacy programs, anti-hate-speech campaigns, social media monitoring, and advocacy to try and address this issue. Overall, the focus of much of this programming is on what Myanmar and the people of Myanmar lack—rule of law, laws protecting free speech, digital literacy, knowledge of what constitutes hate speech, and resources to fund and execute the programming that is needed.

In the frenzy of the desperate firefighting by organizations on the ground, less attention has been given to larger systemic issues that are contributing to the fire.

There is a need to pay greater attention to those coordinated groups that are working to spread conspiracy theories, false information, and hatred to understand who they are, who is funding them, and how their work can be disrupted—and, if necessary, penalized.

There is a need to reevaluate how social media platforms are designed in a way that incentivizes and rewards bad behavior.

There is also a need to question how much blame we want to assign to social media companies, and whether it is to the overall good to give them the responsibility, and therefore power, to determine what is and isn't acceptable speech.

Finally, there is a need to ask ourselves about alternatives we can build, when many governments have proven themselves more than willing to surveil and prosecute netizens under the guise of health, security, and penalizing hate speech.

It is dangerous to expect private, profit-driven multinational corporations to be given the power to draw the line between hate speech and free speech. Just as it is dangerous to give that same power to governments, especially in this time of rising ethno-nationalistic sentiments around the globe and the increasing willingness of governments to overtly and covertly gather as much data as possible to use against those they govern. We can see from the ongoing legal proceedings against Myanmar in international courts regarding the Rohingya and other ethnic minorities, and statements from UN investigative bodies on Myanmar that Facebook has failed release to them evidence of serious international crimes, that neither company policies nor national laws are enough to ensure safety, justice, and dignity for vulnerable populations.

The solution to all this, as unsexy as it sounds, is a multifaceted, multi-stakeholder, long-term effort to build strong legal and cultural institutions that disperses the power and the responsibility to create and maintain safe and inclusive online spaces between governments, individuals, the private sector, and civil society.  

Aye Min Thant is the Tech for Peace Manager at Phandeeyar, an innovation lab which promotes safer and more inclusive digital spaces in Myanmar. Formerly, she was a Pulitzer Prize winning journalist who covered business, politics, and ethno-religious conflicts in Myanmar for Reuters. You can follow her on Twitter @ma_ayeminthant.

This article was developed as part of a series of papers by the Wikimedia/Yale Law School Initiative on Intermediaries and Information to capture perspectives on the global impacts of online platforms’ content moderation decisions. You can read all of the articles in the series here, or on their Twitter feed @YaleISP_WIII.

Filed Under: content moderation, myanmar
Companies: facebook

Section 230 Isn't Why Omegle Has Awful Content, And Getting Rid Of 230 Won't Change That

from the one-size-does-not-fit-all dept

Last year, I co-authored an article with my law school advisor, Prof. Eric Goldman, titled “Why Can’t Internet Companies Stop Awful Content?” In our article, we concluded that the Internet is just a mirror of our society. Unsurprisingly, anti-social behavior exists online just as it does offline. Perhaps though, the mirror analogy doesn’t go far enough. Rather, the Internet is more like a magnifying glass, constantly refocusing our attention on all the horrible aspects of the human condition.

Omegle, the talk-to-random-strangers precursor to Chatroulette, might be that magnifying glass, intensifying our urge to do something about awful content.

Unfortunately, in our quest for a solution, we often skip a step, jumping to Section 230—the law that shields websites from liability for third-party content—instead of thinking carefully about the scalable, improvable, and measurable strides to be made through effective content moderation efforts.

Smaller companies make for excellent content moderation case studies, especially relatively edgier companies like Omegle. It’s no surprise that Omegle is making a massive comeback. After 100+ days of quarantine, anything that recreates at least a semblance of interaction with humans, not under the same roof, is absolutely enticing. And that’s just what Omegle offers. For those that are burnt out on monotonous Zoom “coffee chats,” Omegle grants just the right amount of spontaneity and nuanced human connection that we used to enjoy before “social distancing” became a household phrase.

Of course, it also offers a whole lot of dicks.

When I was a teen, Omegle was a sleepover staple. If you’re unfamiliar, Omegle offers two methods of randomly connecting with strangers on the Internet: text or video. Both are self-explanatory. Text mode pairs two anonymous strangers in a chat room whereas video mode pairs two anonymous strangers via their webcams.

Whether you’re on text or video, there’s really no telling what kinds of terrible content—and people—you’ll likely encounter. It’s an inevitable and usual consequence of online anonymity. While the site might satisfy some of our deepest social cravings, it might also expose us to some incredibly unpleasant surprises outside the watered-down and sheltered online experiences provided to us by big tech. Graphic pornography, violent extremism, hate speech, child predators, CSAM, sex trafficking, etc., are all fair game on Omegle; all of which is truly awful content that has always existed in the offline world, now magnified by the unforgiving, unfiltered, use-at-your-own-risk, service.

Of course, like with any site that exposes us to the harsh realities of the offline world, critics are quick to blame Section 230. Efforts to curtail bad behavior online usually start with calls to amend Section 230.

At least to Section 230’s critics, the idea is simple: get rid of Section 230 and the awful content will follow. Their reason, as I understand it, is that websites will then “nerd harder” to eliminate all awful content so they won’t be held liable for it. Some have suggested the same approach for Omegle.

Obvious First Amendment constraints aside (because remember, the First Amendment protects a lot of the “lawful but awful content,” like pornography, that exists on Omegle’s service), what would happen to Omegle if Section 230 were repealed? Rather, what exactly is Omegle supposed to do?

For starters, Section 230 excludes protection for websites that violate federal criminal law. So, Omegle would continue to be on the hook if it started to actively facilitate the transmission of illegal content such as child pornography. No change there.

But per decisions like Herrick v. Grindr, Dyroff v. Ultimate Software, and Roommates.com, it is well understood that Section 230 crucially protects sites like Omegle that merely facilitate user-to-user communication without materially contributing to the unlawfulness of the third-party content. Hence, even though there exists an unfortunate reality where nine year-olds might get paired randomly with sexual predators, Omegle doesn’t encourage or materially contribute to that awful reality. So, Omegle is afforded Section 230 protection.

Without Section 230, Omegle doesn’t have a lot of options as a site dedicated to connecting strangers on the fly. For example, the site doesn’t even have a reporting mechanism like its big tech counterparts. This is probably for two reasons: (1) The content on Omegle is ephemeral so by the time it’s reported, the victim and the perpetrator have likely moved on and the content has disappeared; and (2) it would be virtually impossible for Omegle to issue suspensions because Omegle users don’t have dedicated accounts. In fact the only option Omegle has for repeat offenders is a permanent IP ban. Such an option is usually considered so extreme that it’s reserved for only the most heinous offenders.

There are a few things Omegle could do to reduce their liability in a 230-less world. They might consider requiring users to have dedicated handles. It’s unclear though whether account creation would truly curb the dissemination of awful content anyway. Perhaps Omegle could act on the less heinous offenders, but banned, suspended, or muted users could always just generate new handles. Plus, where social media users risk losing their content, subscribers, and followers, Omegle users realistically have nothing to lose. So, generating a new handle is relatively trivial, leaving Omegle with the nuclear IP ban.

Perhaps Omegle could implement some sort of traditional reporting mechanism. Reporting mechanisms are only effective if the service has the resources to properly respond to and track issues. This means hiring more human moderators to analyze the contextually tricky cases. Additionally, it means hiring more engineers to stand up robust internal tooling to manage reporting queues and to perform some sort of tracking for repeat offenders.

For Omegle, implementing a reporting mechanism might just be doing something to do something. For traditional social media companies, a reporting mechanism ensures that violating content is removed and the content provider is appropriately reprimanded. Neither of those goals are particularly relevant to Omegle’s use case. The only goal a reporting mechanism might accomplish is in helping Omegle track pernicious IP addresses. Omegle could set up an internal tracking system that applies strikes to each IP before the address is sanctioned. But if the pernicious user can just stand up a new IP and continue propagating abuse, the entire purpose of the robust reporting mechanism is moot.

Further, reporting mechanisms are great for victimized users that might seek an immediate sense of catharsis after encountering abusive content. But if the victim’s interaction with the abusive content and user is ephemeral and fleeting, the incentive to report is also debatable.

All of this is to drive home the point that there is no such thing as a one-size-fits-all approach to content moderation. Even something as simple as giving users an option to report might be completely out of scope depending on the company’s size, resources, bandwidth, and objectives.

Another suggestion is that Omegle simply stop allowing children to be paired with sexual predators. This would require Omegle to (1) perform age verification on all of its users with the major trade-off being privacy—not to mention the obvious that it may not even work. Nothing really stops a teen from stealing and uploading their parents’ credit card or license; and (2) require all users to prove they aren’t sexual predators (???)—an impossible (and invasive) task for a tiny Internet company.

Theoretically, Omegle could pre-screen all content and users. Such an approach would require an immense team of human content moderators, which is incredibly expensive for a website that has an estimated annual revenue of less than $1 million and less than 10 employees. Plus, it would completely destroy the service’s entire point. The reason Omegle hasn’t been swallowed up by tech incumbents is because it offers an interesting online experience completely unique from Google, Facebook, and Twitter. Pre-screening might dilute that experience.

Another extreme solution might be to just strip out anonymity entirely and require all users to register all of their identifying information with the service. The obvious trade-off: most users would probably never return.

Clearly, none of these options are productive or realistic for Omegle; all of which are consequences of attacking the awful content problem via Section 230.

Without any amendments to Section 230, Omegle has actually taken a few significant steps to effectively improve their service. For example, Omegle now has an 18+ Adult, “unmoderated section” in which users are first warned about sexual content and required to acknowledge that they’re 18 or older before entering. Additionally, Omegle clarifies that the “regular” video section is monitored and moderated to the best of their abilities. Lastly, Omegle recently included a “College student chat” which verifies students via their .edu addresses. Of course, to use any of Omegle’s features, a user must be 18+ or 13+ with parental permission.

The “unmoderated section” is an ingenious example of a “do better” approach for a service that’s strapped for content moderation options. Omegle’s employees likely know that a primary use case of the service is sex. By partitioning the service, Omegle might drastically cut down on the amount of unsolicited sexual content encountered by both adult and minor users of the regular service, without much interruption to the service’s overall value-add. These experiments in mediating the user to user experience can only improve from here. Thanks to Section 230, websites like Omegle increasingly pursue such experiments to help their users improve too.

But repealing Section 230 leaves sites like Omegle with one option: exit the market.

I'm not allergic to conversations about how the market can self-correct these types of services and whether they should be supported by the market at all. Maybe sites like Omegle—that rely on their users to not be awful to each other as a primary method of content moderation—are not suitable for our modern day online ecosystem.

There's a valid conversation to be had within technology policy and Trust and Safety circles about websites like Omegle and whether the social good they provide outweigh the harms they might indirectly cater to. Perhaps, sites like Omegle should exit the market. However, that's a radically different conversation; one that inquires into whether current innovations in content moderation support sites like Omegle, and whether such sites truly have no redeemable qualities worth preserving in the first place. That’s an important conversation; one that shouldn’t involve speculating about Section 230’s adequacy.

Jess Miers is a third-year law student at Santa Clara University School of Law and a Legal Policy Specialist at Google. Her scholarship primarily focuses on Section 230 and content moderation. Opinions are her own and do not represent Google.

Filed Under: content moderation, greenhouse, lawful but awful, section 230
Companies: omegle

Revisiting The Common Law Liability Of Online Intermediaries Before Section 230

from the nuts-and-bolts dept

On February 8, 1996, President Clinton signed into law the Telecommunication Act of 1996. Title V of that act was called the Communications Decency Act, and Section 509 of the CDA was a set of provisions originally introduced by Congressmen Chris Cox and Ron Wyden as the Internet Freedom & Family Empowerment Act. Those provisions were then codified at Section 230 of title 47 of the United States Code. They are now commonly referred to as simply “Section 230.”

Section 230 prohibits a “provider or user” of an “interactive computer service” from being “treated as the publisher or speaker” of content “provided by another information content provider.” 47 U.S.C. § 230(c)(1). The courts construed Section 230 as providing broad federal statutory immunity to the providers of online services and platforms from any legal liability for unlawful or tortious content posted on their systems by their users.

When it enacted Section 230, Congress specified a few important exceptions to the scope of this statutory immunity. It did not apply to liability for federal crimes or infringing intellectual property rights. And in 2018, President Trump signed into law an additional exception, making Section 230’s liability protections inapplicable to user content related to sex trafficking or the promotion of prostitution.

Nevertheless, critics have voiced concerns that Section 230 prevents the government from providing effective legal remedies for what those critics claim are abuses by users of online platforms. Earlier this year, legislation to modify Section 230 was introduced in Congress, and President Trump has, at times, suggested the repeal of Section 230 in its entirety.  

As critics, politicians, and legal commentators continue to debate the future of Section 230 and its possible repeal, there has arisen a renewed interest in what the potential legal liability of online intermediaries was for the content posted by their users under the common law, before Section 230 was enacted. Thirty years ago, as a relatively young lawyer representing CompuServe, I embarked on a journey to explore that largely uncharted terrain.

In the pre-Section 230 world, every operator of an online service had two fundamental questions for their lawyers: (1) what is my liability for stuff my users post on my system that I don’t know about?; and (2) what is my liability for the stuff I know about and decide not to remove (and how much time do I have to make that decision)?

The answer to the first question was not difficult to map. In 1990, CompuServe was sued by Cubby, Inc. for an allegedly defamatory article posted on a CompuServe forum by one of its contributors. The article was online only for a day, and CompuServe became aware of its contents only after it had been removed, when it was served with Cubby’s libel lawsuit. Since there was no dispute that CompuServe was unaware of the contents of the article when it was available online in its forum, we argued to the federal district court in New York that CompuServe was no different from any ordinary library, bookstore, or newsstand, which, under both the law of libel and the First Amendment, are not subject to civil or criminal liability for the materials they disseminate to the public if they have no knowledge of the material’s content at the time they disseminate it. The court agreed and entered summary judgment for CompuServe, finding that CompuServe had not “published” the alleged libel, which a plaintiff must prove in order to impose liability on a defendant under the common law of libel.

Four years later, a state trial court in New York reached a different conclusion in a libel lawsuit brought by Stratton Oakmont against one of CompuServe’s competitors, Prodigy Services Co., based on an allegedly defamatory statement made in one of Prodigy’s online bulletin boards. In that case, the plaintiff argued that Prodigy was different because, unlike CompuServe, Prodigy had marketed itself as using software and real-time monitors to remove material from its service that it felt were inappropriate for a “family-friendly” online service. The trial court agreed and entered a preliminary ruling that, even though there was no evidence that Prodigy was ever actually aware of the alleged libel when it was available on its service, Prodigy should nevertheless be deemed the “publisher” of the statement, because, in the court’s view, “Prodigy has uniquely arrogated to itself the role of determining what is proper for its members to post and read on its bulletin boards.”

The Stratton Oakmont v. Prodigy ruling was as dubious as it was controversial and confusing in the months after it was issued. CompuServe’s general counsel, Kent Stuckey, asked me to address it in the chapter I was writing on defamation for his new legal treatise, Internet and Online Law. Tasked with this scholarly mission in the midst of one of the digital revolution’s most heated legal controversies, I undertook to collect, organize and analyze every reported defamation case and law review commentary in this country that I could find that might bear on the two questions every online service faced: when are we liable for user content we don’t know about and when are we liable for the user content we know about but decide not to remove?

With respect to the first question, the answer dictated by the case law for other types of defendants who disseminate defamatory statements by others was fairly clear. As I wrote in my chapter, “[t]wo common principles can be derived from these cases. First, a person is subject to liability as a ‘publisher’ only if he communicates a defamatory statement to another. Second, a person communicates that statement to another if, but only if, he is aware of its content at the time he disseminates it.” Hamilton, “Defamation,” printed as Chapter 2 in Stuckey, Internet & Online Law (Law Journal-Seminars Press 1996), at 2-31 (footnotes omitted).  

I concluded that the trial court had erred in Stratton Oakmont because it failed to address what the term “publish” means in the common law of libel—to “communicate” a statement to a third party. When an intermediary disseminates material with no knowledge of its content, it does not “communicate” the material it distributes, and therefore does not “publish” it, at least as that term is used in the law of libel. Thus, whether the intermediary asserts the right of “editorial control” over the content provided by others, and the degree of such control the intermediary claims to exercise, are immaterial to the precise legal question at issue: did the defendant “communicate” the statement to another? I wrote:

While it is true that a publisher’s “choice of material to go into a newspaper” constitutes “the exercise of editorial control and judgment” by that publisher, his “increased liability” for defamation arises from the knowledge of content that he inherently acquires as a result of exercising that judgment to include the material in the newspaper; it does not arise from the mere fact that he has a right to make that judgment. All distributors, like primary publishers, exercise the very same right to determine what material they will disseminate and what material they will not. . . . Indeed, the liability standard applied to a distributor presumes that he has such a right to refuse distribution and requires him to exercise it whenever he knows or has reason to know that a particular publication contains unlawful or tortious content. His efforts to exercise that right, therefore, cannot create the very same general duty to inspect content that is prohibited by that common law standard (and by the First Amendment).

Id. at 2-62 (footnotes omitted, quoting Stratton Oakmont, 23 Media L. Rep. (BNA) 1794, 1796 (N.Y. Sup. Ct. May 25, 1995).

With respect to the second question online intermediaries had for their lawyers—when are we liable for stuff posted by users we decide not to remove—the answer dictated by the common law was anything but firmly established and settled. In the pre-digital world, the economics of communicating with the public made it far more practical for aggrieved plaintiffs to sue only the producers of such content rather than those who merely distributed it. The truth is that in the pre-Internet history of the common law of libel, entities in the business of distributing the printed content of others were rarely sued, and even then only as an afterthought to defeat diversity of citizenship and thereby prevent the defendants in a state court action from removing the lawsuit to the federal courts. And in only two of those rare cases was the distributor defendant alleged to have actual knowledge of the defamatory content it was selling to the public; in both cases, the distributor defendant was eventually dismissed before the case ever went to trial.

Thus, as I noted in my chapter, I did not find a single reported case of defamation liability actually being imposed on an entity in the business of distributing to the public printed content produced by others. That meant that, prior to the enactment of Section 230, when a lawyer advised his intermediary client as to when he might be held liable for deciding not to remove users’ content, the lawyer could refer only to dicta by courts and speculation by commentators as to how courts might apply the law in that circumstance.  

And there certainly was no consensus in such speculation. As I noted in my chapter, Professor Keeton observed in 1984 that "[i]t would be rather ridiculous, under most circumstances, to expect a bookseller or a library to withhold distribution of a good book because of a belief that a derogatory statement contained in the book was both false and defamatory of the plaintiff.” Prosser and Keeton on the Law of Torts, § 113, at 811 (5th ed. 1984). Indeed, do we really expect Kroger to make decisions whether to pull an issue of the National Enquirer from the shelves in every one of its grocery stores across the country because the CFO’s spouse told her at breakfast that he read in that week’s issue that a celebrity claimed one of his critics was a “liar”?

As I observed in my chapter, it is also noteworthy that in 1992, the National Conference of Commissioners on Uniform State Laws considered, but did not adopt, a standard that would immunize from republisher liability any “library, archive, or similar information retrieval or transmission service" that provides access “to information originally published by others,” if it is not “reasonably understood to assert in the normal course of its business the truthfulness of” such information or if it “takes reasonable steps to inform users” that it makes no such assertion. See Perritt, “Tort Liability, the First Amendment, and Equal Access to Electronic Networks,” 5 Harv. J.L. & Tech. 65, 108 (1992).

In 1996, Section 230 was enacted into law at the same time my research and analysis of the applicable common law standards was published as Chapter 2, “Defamation,” in Kent Stuckey’s treatise, Internet & Online Law (Law Journal-Seminars Press 1996). I then added a section to the chapter discussing Section 230 and continued to update it for a few years to discuss the initial cases applying it. Eventually, however, it became apparent that, in light of the courts’ construction of Section 230, an extensive discussion of the pre-Section 230 case law with respect to the liability of online intermediaries for user content was no longer needed, and my chapter in the treatise was replaced with one that focuses instead on the cases applying Section 230.

Kent Stuckey’s treatise is still being updated and is available for purchase from Law Journal Press. The chapter I wrote, however, which details all of the reported case law and commentary I found that might bear on the potential liability of online intermediaries for defamation under the common law at that time, before Section 230 was enacted, has not been made available to the public for many years. In light of the renewed interest in this topic as part of the current debates about Section 230’s future, that chapter is being made available online, with permission, here.

Robert W. Hamilton is Of Counsel at Jones Day. He has more than 36 years of experience in state, federal, and bankruptcy court litigation and in First Amendment and media cases. Bob represented CompuServe in Cubby v. CompuServe in 1990-1991. The views and opinions set forth herein are the personal views or opinions of the author; they do not necessarily reflect views or opinions of the law firm with which he is associated.

1. See Spence v. Flynt, 647 F. Supp. 1266, 1273-1274 (D. Wyo. 1986) (convenience store continued to sell magazine for two days after plaintiff’s attorney notified store employee of its defamatory content); Janklow v. Viking Press, 378 N.W.2d 875, 876 S.D. 1985) (plaintiff sued bookstore owners and operators who “willfully refused to remove the book from the shelves” of their stores “even though he had notified them of its libelous nature”). In the Spence case, the convenience store was dismissed from the litigation prior to trial, at which liability was imposed on the original publisher for describing an attorney as a “vermin-infested turd dispenser.” See Spence v. Flynt, 816 P.2d 771 (Wyo. 1991). In the Janklow case, the claims against the bookstores eventually were dismissed on summary judgment for the same reason that judgment was entered for the producers of the book (speech was “opinion” protected by 1st Amendment). See: In the Spirit of Crazy Horse.

2. I found two reported cases in which a court imposed liability on a property owner for defamatory graffiti on an interior wall in his building, and three extremely old cases in which a property owner was held responsible for refusing to remove a defamatory statement displayed on his property. In none of those cases was the defendant in the business of distributing to the public printed speech produced by others.

Filed Under: defamation, intermediary liability, section 230

Moderate Globally, Impact Locally

from the monumental-balancing-act dept

Every minute, more than 500 hours of video are uploaded to YouTube, 350,000 tweets are sent, and 510,000 comments are posted on Facebook.

Managing and curating this fire hose of content is an enormous task, and one which grants the platforms enormous power over the contours of online speech. This includes not just decisions around whether a particular post should be deleted, but also more minute and subtle interventions that determine its virality. From deciding how far to allow quack ideas about COVID-19 to take root, to the degree of flexibility that is granted to the President of the United States to break the rules, content moderation raises difficult challenges that lie at the core of debates around freedom of expression.

But while plenty of ink has been spilled on the impact of social media on America’s democracy, these decisions can have an even greater impact around the world. This is particularly true in places where access to traditional media is limited, giving the platforms a virtual monopoly in shaping the public discourse. A platform which fails to take action against hate speech might find itself instrumental in triggering a local pogrom, or even genocide. A platform which acts too aggressively to remove suspected “terrorist propaganda” may find itself destroying evidence of war crimes.

Platforms’ power over the public discourse is partly the result of a conscious decision by global governments to outsource online moderation functions to these private sector actors. Around the world, governments are making increasingly aggressive demands for platforms to police content which they find objectionable. The targeted material can range from risqué photos of the King of Thailand, to material deemed to insult Turkey’s founding president. In some instances, these requests are grounded in local legal standards, placing platforms in the difficult position of having to decide how to enforce a law from Pakistan, for example, which would be manifestly unconstitutional in the United States.

In most instances, however, moderation decisions are not based on any legal standard at all, but on the platforms’ own privately drafted community guidelines, which are notoriously vague and difficult to understand. All of this leads to a critical lack of accountability in the mechanisms which govern freedom of expression online. And while the perceived opacity, inconsistency and hypocrisy of online content moderation structures may seem frustrating to Americans, for users in the developing world it is vastly worse.

Nearly all of the biggest platforms are based in the United States. This means not only that their decision-makers are more accessible and receptive to their American user-base than they are to frustrated netizens in Myanmar or Uganda, but also that their global policies are still heavily influenced by American cultural norms, particularly the First Amendment.

Even though the biggest platforms have made efforts to globalize their operations, there is still a massive imbalance in the ability of journalists, human rights activists, and other vulnerable communities to get through to the U.S.-based staff who decide what they can and cannot say. When platforms do branch out globally, they tend to recruit staff who are connected to existing power structures, rather than those who depend on the platforms as a lifeline away from repressive restrictions on speech.

For example, the pressure to crackdown on “terrorist content” inevitably leads to collateral damage against journalism or legitimate political speech, particularly in the Arab world. In setting this calculus, governments and ex-government officials are vastly more likely to have a seat at the table than journalists or human rights activists. Likewise, the Israeli government has an easier time communicating their wants and needs to Facebook than, say, Palestinian journalists and NGOs.

None of this is meant to minimize the scope and scale of the challenge that the platforms face. It is not easy to develop and enforce content policies which account for the wildly different needs of their global user base. Platforms generally aim to provide everyone with an approximately identical experience, including similar expectations with regard to the boundaries of permitted speech. There is a clear tension between this goal and the conflicting legal, cultural and moral standards in force across the many countries where they operate.

But the importance and weight of these decisions demands that platforms get this balancing right, and develop and enforce policies which adequately reflect their role at the heart of political debates from Russia to South Africa. Even as the platforms have grown and spread around the world, the center of gravity of these debates continues to revolve around D.C. and San Francisco.

This is the first in a series of articles developed by the Wikimedia/Yale Law School Initiative on Intermediaries and Information appearing here at Techdirt Policy Greenhouse and elsewhere around the internet—intended to bridge the divide between the ongoing policy debates around content moderation, and the people who are most impacted by them, particularly across the global south. The authors are academics, civil society activists and journalists whose work lies on the sharp edge of content decisions. In asking for their contributions, we offered them a relatively free hand to prioritize the issues they saw as the most serious and important with regard to content moderation, and asked them to point to areas where improvement was needed, particularly with regard to the moderation process, community engagement, and transparency.

The issues that they flag include a common frustration with the distant and opaque nature of platforms’ decision-making processes, a desire for platforms to work towards a better understanding of local socio-cultural dynamics underlying the online discourse, and a feeling that platforms’ approach to moderation often did not reflect the importance of their role in facilitating the exercise of core human rights. Although the different voices each offer a unique perspective, they paint a common picture of how platforms’ decision making impacts their lives, and of the need to do better, in line with the power that platforms have in defining the contours of global speech.

Ultimately, our hope with this project is to shed light on the impacts of platforms’ decisions around the world, and provide guidance on how social media platforms might do a better job of developing and applying moderation structures which reflect their needs and values of their diverse global users.

Michael Karanicolas is a Resident Fellow at Yale Law School, where he leads the Wikimedia Initiative on Intermediaries and Information as part of the Information Society Project. You can find him on twitter at @M_Karanicolas.

Filed Under: content moderation, global, greenhouse, impact, local

Welcome To The Techdirt Tech Policy Greenhouse: Content Moderation Edition

from the stop,-listen,-and-learn dept

In the early days of the internet, there was no shortage of predictions insisting the emerging technology would be a bold new frontier of transformative change, ushering forth a golden era of connectivity free from the pesky befuddlement of incompetent government leaders, bad actors, and malicious overlords. This new frontier, we were told, would culminate in a fairer and more humane planet, unshackled from the petty hassles of the brick and mortar world, extracting us from our worst impulses as we marched, collectively, toward a better and more ethical future.

Technological innovation, it would seem, was going to fix everything.

This optimism certainly wasn't unwarranted. For those of us who cut our teeth on the advent of the internet (I spent much of my own youth on an Apple IIe at 300 baud, enamored with early bulletin board systems), the capacity for revolutionary change was obvious. It still is. But while there's certainly an endless list of examples showcasing the internet's incredible potential for positive, transformative cultural change and innovation, the last decade has witnessed a clear reckoning for those who seemingly believed the lesser angels of our nature wouldn't come along for the ride.

Internet corporations so large, or so fused to the government itself, that they laugh off the intervention of world governments. Foreign and domestic propaganda efforts, often working in concert, geared toward sowing discord and division. Disinformation at scale so dangerous it helps spur genocide. Bogus missives so potent they can impact elections and the democratic process itself. Trolls; swatting; deep fakes; racist subreddits; live streamed mass shootings; Pinterest child porn; gamergate; millions getting dangerous health information from unqualified nitwits on YouTube.

The core of many of these problems aren't new. In fact in many instances, they're as old as humanity itself. But they have mutated into dangerous new variants courtesy of technology, scale, naivete, and apathy. There's simply no escaping the fact we could have done a better job predicting their evolutionary impact, and establishing systems of oversight, transparency, and accountability that could have dulled many of their sharpest edges.

As with Greenhouse, privacy edition, there are no easy answers here. Moderation at scale is utterly formidable. Doing it well at scale may be impossible. Every last policy decision comes with trade offs and a myriad of unforeseen consequences that need to be adequately understood before rushing face first into the fray. As the Section 230 debate makes abundantly clear, there's no shortage of bad faith or unworkable ideas that hold the potential to create far more problems than they profess to solve. Avoiding these pitfalls will require stopping, listening, and understanding one another -- American cultural anomalies to be sure.

We're hopeful that the insights presented here from those on the front lines of the content moderation debate will help inform policy makers, the public, and experts alike. And we're hopeful the pieces make some small contribution to the foundation of a better, kinder, more equitable internet more in line with our original good intentions. Techdirt Greenhouse is a conversation, so if you've got expertise in the content moderation arena, or see pieces you'd like to respond to, please feel free to reach out.

Filed Under: content moderation, greenhouse, policy, tech policy

That's A Wrap On Techdirt Greenhouse, Privacy Edition

from the so-much-to-talk-about dept

The inaugural edition of the Techdirt Tech Policy Greenhouse is in the books, and we'd like to thank all of our contributors and those that engaged in conversation as we tackled one of the thornier issues of the modern tech policy era. As we noted early on, our goal with the project is to bring some nuance, collaboration, and understanding to a privacy conversation frequently dominated by simplistic partisan bickering, bad faith arguments, and the kind of deep ideological ruts that routinely result in either bad policy,or, in the case of U.S. privacy, no policy at all.

If you've not yet had a chance to dig through contributions for this inaugural edition, here's a brief rundown:

Crafting meaningful privacy guidelines and ensuring sensible, consistent, transparent enforcement was a steep uphill climb even during the best of times. Now the effort will share fractured attention spans and resources with an historic pandemic, recovering from the resulting economic collapse, and addressing the endless web of socioeconomic and political dysfunction that made the American COVID-19 crisis far worse than it needed to be.

But as many of our contributors made clear, many of these problems are not mutually exclusive. Crafting sensible, transparent, and equitable privacy rules and standards remains just as essential as ever; preferably before the steady parade of privacy and security scandals inevitably get worse. We're hopeful the insight and conversation collected here gave policymakers and observers alike some additional food for thought as we collectively stumble in the right direction.

Filed Under: greenhouse, privacy

Techdirt Podcast Episode 249: The Greenhouse Privacy Wrapup

from the big-ideas dept

At the end of May, we launched the Techdirt Greenhouse — a new project to foster long-form conversations with a wide variety of experts about the most challenging and nuanced tech policy questions of our time. Since then we've been focusing on our first topic: privacy. Now we're wrapping that up and getting ready to launch a series of posts on our next subject, but first we wanted to sit down with one of our Greenhouse editors, Karl Bode, to look back on all the excellent pieces that we've published over the past few weeks. Check out the Greenhouse page here on Techdirt to catch up on the posts, then listen to the podcast for a wrapup of all the ins-and-outs of privacy policy challenges that our many great contributors brought to the project.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Filed Under: greenhouse, podcast, policy, privacy