FESC: Regulation by Internet Intermediaries

Regulation by Internet Intermediaries
Moderator: Jack Balkin
Emma Llanso & Rita Cant     “Internet
Referral Units”: Co-Option of Private Content Moderation Systems for Extralegal
Government Censorship
Kate Klonick, discussant: Most UGC platforms have content
standards to which users agree. 
Impermissible nudity, hate speech, violent content, harassment, etc. can
be taken down, and this is protected by §230. 
Platforms have become good at moderation of TOS-violating content; they’re
much better than the gov’t, and also unlike the gov’t they’re allowed to do
it.  UK created an internet referral unit
in 2010, dedicated to flagging “terrorist” content on social media sites.  IRUs are becoming increasingly popular for
countering terrorist propaganda in Europe; US is starting to talk about that.
Blur public/private lines.
 
Authors argue that flagging, and subsequent takedown,
constitutes gov’t action—takedown is directly causally related to the flagging.
They also argue that IRUs raise the specter of state action: allowing private
action to be held to const’l standards where state affirmatively encourages
actor; §1983 suits would be dismissed b/c of §230 immunity. 
 
UK definition of extremism: vocal disrespect for key values,
calls for death of armed forces—would be overbroad/unconst’l in the US. Also
lack of procedural safeguards.  Internet
cos. generally don’t provide adequate notice/right to appeal.
 
Klonick suggests that Google, FB, and Twitter aren’t very
vulnerable to gov’t pressures and easily able to push back.  IRUs couldn’t do their job w/o social media—the
platforms then have a lot of leverage in terms of denying gov’t access to
ToS.  [Though the platforms also trade
off interests and may sacrifice some for leverage on others, like stopping DMCA
reform making them more liable.] Also, content moderation at the big three at
least offers an extraordinary amount of notice—what more would you want, other
than notice of ToS, notice of takedown and reason, notice of existence of
appeals process, all of which are provided? 
A lot of appeals processes may not be available per platform, but many
times there are.
 
Transparency reports are a good idea: gov’t requests by
month, which would let the public know about the relationship b/t the platform
and the gov’t.
 
Llanso: we’ve seen some high
level examples of Google, FB, Yahoo taking affirmative stances against
overreach.  Concerned that there’s no
guarantee they’ll always be able to take that kind of stand, or that
other/smaller intermediaries will be able to make that stand.  Pressure on credit card companies as an
example: Backpage v. Sheriff Dart.
 
Molly Land     Human
Rights and Private Governance of the Internet
Rita Cant, presenter: Reminder that 1A isn’t universally
applicable as sometimes we think in the US. 
Even immediate removal of defamatory content upon notification of same in
the European Union can lead to liability. 
Institutional views drive courts’ understanding of roles of
intermediaries. European bodies aren’t dismissing the concept of intermediary
protection for speech, but holding them liable when they have capacity to
police users.  If they fail to do so,
liability attaches.  View that big hosts
have the power to remove content and thus the responsibility is just wrong,
according to Land.  Rather than liability
based on size, human rights law prescribes a different principle: an
intermediary that participates in creation of culpable speech is different than
one that merely serves as a conduit. 
Regulating them as colluders/contributors to human rights violation is
not regulating them as intermediaries. This prevents over-takedowns.
 
But is a platform’s takedown of legitimate speech a human
rights violation the way that facilitating murder or illegal mining is?  Those seem very different.  Wrongful takedown of expression: is it even a
violation of human rights at all if it’s according to a company’s standards?  Co-regulation for allowing gov’t to
affirmatively protect those rights may be quite difficult—generally, gov’t
actively enforcing human rights online has undermined those rights.
 
Land: Would like a bright line rule, but jurisdictions vary;
would not be seen as legitimate in many jurisdictions giving more weight to
dignity, protection against discrimination, etc.  Easily convinced that co-regulation can be
worst of both worlds, with lack of transparency.
 
Kate Klonick  From
Constitution to Click-Worker-The Creation, Policy, and Process of Online
Content Moderation
Presenter: Molly Land: Deal with actual empirical evidence
about how this works. Interviews executives and click-workers enforcing the
policies: FB, Twitter, Google.  May have
just 2 seconds to look at each piece of content.  Transborder nature affects these policies
too.
 
For future: closer connection between normative questions
and empirical research.  Right now there
are a lot of possible normative questions you could ask.  Maybe empirical research helps us understand
the nature of the problem. Who’s doing this, what the content problems are,
etc.  If these policies are in response
to user pressure v. gov’t pressure/avoiding regulation, we might have different
reactions.  Promoting v. defeating user
preferences may differ from regulatory perspective.  Also, why these companies and not
others? 
 
Klonick: FB, Twitter, Google are continuously operating for
a while. Primarily UGC companies, specifically YouTube.  History matters: created mostly by small group
of lawyers who were committed to the 1A and wanted to take down as little as
they could while retaining an engaged userbase—some of the same lawyers moved
from company to company.
 
Balkin: intermediary liability rules are state action
rules.  The only Q is whether the free
speech principle you use prohibits what’s being done.  If we tried an IRU in the US, though the ISP
is permitted to have a TOS, gov’t is probably not able to say “please enforce
your TOS with this class of content.” 
Line could be different—could be Grokster-style inducement for
everything, not just IP.  Leaves a wide
swatch open.  Internet company could
decide to be a passive conduit for something, but also curation and hosting.
Don’t want to tell a company what kind of business model it can adopt.  Drawing a line like Grokster offers more
opportunities for innovation.
 
Whenever the gov’t shapes the innovation space and
permissible rules about when a private party we rely on for speech will be held
liable, the gov’t is always already involved in that decision. The human rights
laws are always invoked; the only question is the substantive one: what do
those laws require?
 
Q: Gov’ts across the globe are resorting to self-help w/data
localization and content regulation, often affirmatively objecting to US
approach. Art. 20 of one treaty outlaws hate speech: advocacy of hatred that
incites hostility, discrimination, or violence. 
Microsoft’s response: commit to obey local laws where we do business,
informed by int’l law.  We have to
distinguish social media from search engines. 
Mapping all info on Web is critical part of research/advancing
knowledge; rely on notice & takedown rather than looking for affirmatively
offensive content. Nobody elected us to make these decisions. We couldn’t hire
the right people across the globe to make a nuanced decision.  So we use notice & takedown; we publish
our standards.
 
Land: if we just went w/users, it’d be all porn, so it makes
sense for companies to have freedom to shape their own communities. Signal to
gov’t about where they are going too far.
 
Balkin: consider Southern gov’ts cooperating indirectly or
directly w/private entities to enforce private segregation—also intermediary
issues.
 
Abrams: terrible terrorist attack; gov’t learns that the
perpetrator just watched a particularly explosive and incendiary work touting
jihad.  President calls in Microsoft
& Google etc. and provides list of things they ought to do to screen out
bad content, though you don’t have to do it. 
For the safety of the country you should do it; and the President tells
the public that she has called for this action on their part.  Is that a problem?  [Note that this already happens in less
fraught circumstances—consider the gov’t’s organization of the best practices
in DMCA notices.] 
 
Q: when the NYT decides not to publish an article b/c the
gov’t pleads with it to hold off on national security grounds, is that state
action?
 
Balkin: that’s the Backpage
case. 
 
Llanso: reminds her of Innocence of Muslims.  Yes, that’s improper for the gov’t to do,
even in emergency circumstances. There are options for more formal procedures.  Telling the country about the request starts
feeling like coercion.
 
Klonick: Innocence of Muslims was a big deal for her
interviewees—often called the cause of the Benghazi attacks; people took it as incitement (even if that wasn’t
really the cause). Even w/pressure from White House, they uniformly decided not
to take it down.
 
Balkin: the fact that people violate the constitution isn’t
an argument, it’s just a fact.
 
Lyrissa Lidsky: where does gov’t speech come into this and
the gov’t’s right to express its opinion? 
If Obama had an op-ed saying ISPs shouldn’t publish Innocence of
Muslims, is that gov’t speech and ok or not ok?
 
Llanso: fact-intensive: expression of opinion versus
suggestion of consequences/coercion.  If
they start talking about modifying §230 if website owners aren’t more
responsible, that might be coercive. 
[But if they talk about amending §230 at some time there hasn’t just
been an attack, that’s ok?]
 
Klonick: YouTube took down anti-Thai monarchy videos; claim
is harm to the Thai people. Exporting 1A standards in many cases, though.
 
Q: 4.5% of world population is covered by the 1A.
 
Klonick: the click workers are from countries that don’t
have an easy context for the n-word. So they have to look at a report by
looking at the person’s whole page.
 
Llanso: when content is illegal, transparency about it and
where the locations are can be difficult, such as child porn, or avoiding
providing personal data.
 
RT: Not a hypo about gov’t pressure: 512 hearings, Katherine
Oyama of Google gets directly told: do more for copyright owners or we’ll have
to change this.  Did that violate the
First Amendment?
 
Balkin: Not a threat if they have a right to do it. Congress
has the right to change the rules of liability, unless the reason is viewpoint
based.  That’s the fact question to be
resolved: whether the reason is viewpoint based. 
 
Q: don’t assume private corporations are benign compared to
the gov’t.
 
Klonick: real name policies are designed to make sure people
know who’s attacking them. This is a way to control libel etc.  But they differ platform to platform.
 
Llanso: that’s a controversial policy; it also generates
worse outcomes for people with traditional Native American names whose names
aren’t recognized as “real,” or people at risk of stalking, harassment, or
abuse.  Still sees gov’t effort to
restrict publicly available speech as more dangerous than indiv. co. decisions,
which can have big impacts but not as big.

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