DOJ 230 workshop part 3

Panel 3: Imagining the Alternative
The implications on competition, investment, and speech of
Section 230 and proposed changes.    
Moderator: Ryan Shores, Associate Deputy Attorney General
Professor Eric Goldman, Santa Clara University: (c)(1) means
no liability for 3d party content. Difference between 1st/3d party content isn’t
always clear. (2) protects good faith filtering and (2)(b) also helps providers
of filters. Exclusions: IP, federal criminal law, federal privacy, FOSTA sex
trafficking. No prerequisites for immunity as w/DMCA, no scienter required for
(1). Not claim-specific unless excepted. Common-law exceptions: (1) Roommates:
when sites encourage/require provision of illegal content. (2) Failure to warn?
(3) Promissory estoppel. (4) Anticompetitive animus.
Neil Chilson, Senior Research Fellow, Charles Koch Institute:
Taxonomy of possible regimes: what type of bad thing are we concerned about? Is
it illegal already or should it be? Who should be held liable? Person doing,
person providing tools? In what situations: strict, participation in creation,
knowledge, unreasonability? Can you get immunity back by taking action, e.g. by
takedown after notice? Concerns about incentives created. How do we protect
speech/public participation? Other countries don’t have 1A. Over-removal: ideal
outcome is sorting legal/illegal, but it’s hard to align incentives to do that.
Who makes the decision about legit speech remaining? Can companies decide for
themselves to remove legal speech? Does our approach disadvantage specific
business models?  What affects on legal
certainty are there?
Possible legislative alternatives: (1) exemptions approach,
like PLAN Act focusing on homesharing sites, (2) bargaining chip proposals:
keep 230 if you do X; Hawley’s proposal for politically neutral content
moderation/EARN IT for commission to define X.
David Chavern, President, News Media Alliance: 230 was
designed to nurture new industry, became distortion: punishes folks who are
willing to take responsibility for their content. News publishers’
responsibility for content wasn’t hindrance to our growth; we were pretty good
at it [but see: Alabama in the civil rights era].  230 means our content is subject to extreme
editorial control by major platform cos. Google News: someone has decided to
surface different content for you than for me. Their business value is
algorithmic judgments; they should be responsible for their judgments. They also
make decisions about reach. Small slander w/no impact could reach 10 people or 10
million, they should be responsible for that. Anonymity: a design factor that
prevents going after a speaker. If you’re a journalist, part of your job is
being abused online w/no redress, esp. if you’re a female journalist.  Need incentives for quality, investment in
quality content. Zuckerberg says FB is b/t a newspaer and a telecom pipe—but they
can’t be neither. Not impressed by the billions of pieces of content:
they built it, that’s their problem.
Julie Samuels, Executive Director, Tech:NYC: As we think
about landscape, think through lens of smaller cos. Need to incentivize competition;
230 is crucial for that. Printing press allowed one to many and we’re in another
fundamental shift moment to many to many. Worried that we think we can put
genie back in bottle. It’s hard if certain industries don’t work like they used
to but that can be ok.
Goldman: Elevate existing benefits, even if there are also
costs. It is balancing; easy to overlook benefits. Millennials don’t know what
they have: don’t take for granted what the internet provides. Benefits haven’t
changed; we didn’t know what tech could do when 230 was enacted, but we don’t
know what it can do now. 230 preserves freedom to see where we can go.
Solves moderator’s dilemma, that if you try and fail you’ll be liable for
having tried. 230 still lowers barriers to entry. Baseline is not “can we
eliminate all online harms.” Internet as mirror: people are awful to each other
all the time. Might be able to find ways to make us kinder: Nextdoor is trying
algorithms to suggest kindness.
Chilson: Conservative principle of individual responsibility,
not tool responsibility: the normal way we do things in the US. Tort law
generally favors punishing actors over intermediaries—authors, not bookstores—social
media users, not platforms. Unusual to hold one person responsible for acts of
others; need good reason to do that. 230 doesn’t immunize produced content, as
newspapers are liable for their own content. Google is liable for its own
content; they just do different things. Services connect people on
unprecedented scale. Participation in group for people parenting a child with
clubfoot: b/c FB didn’t have to vet any post, that group exists and is greatly
beneficial to participants. Can’t build a business model around that alone, but
can build FB.
Pam Dixon, Executive Director, World Privacy Forum: Promoting
voluntary consensus standards. Just finished a multiyear study on FERPA, has
lessons learned. Striking that this area suffers from (1) lack of systems
thinking and (2) lack of research on fact patterns. Systems thinking: people
called in w/privacy harms in about 3-4 categories including (1) victims of
domestic violence/rape, fleeing/trying to stay alive; (2) people with genetic
based illness. It is rare to find a situation with one platform/issue; need
system analysis: public records, health records, educational records, other
platforms. Lack of fact patterning is a problem. OECD principles on AI: we all
learned that we were correct in our own way. Disagreement is ok but can we find
consensus? Individuals and organizations can lose trust in systems, platforms
can lose trust in gov’t. In our interest to solve trust problems. Voluntary
consens standards as a solution: not self-regulation. What if a more formal
process allowed all stakeholders, not just the big guys, to find consensus on a
discrete, observable, solvable problem? 
Ability exists under OMB rules. FDA has recognized it for medical
Q: some proposals have carveouts for small & medium
entities. OK?
Samuels: size carveouts are worrisome. Small isn’t
automatically good. Swiss cheese approach. Small startups have big legal costs for
handling all kinds of issues; 230 is good at the pleading stage by making MTDs
relatively cheap, otherwise survival becomes difficult. Compare to the patent
troll problem: cottage industry of suing SMEs.
Chavern: we’re the only business mentioned in the 1A.
Incremental approach is justified. A few platforms matter more to society. Not a
lot of search, or social media, startups. Great scale = great responsibility.
Not irrational to start there.
Chilson: threshold concern: current antitrust investigation
is about search/social media killzone. If you have a threshold at which content
moderation becomes required, then the only safe way to cross that threshold
will be to get acquired. That’s not good. Big players are younger than many in
this room; they can come and go if competitive environment doesn’t cement their
market power into place.
Dixon: carveouts have unintended consequences. Right now no
unitary privacy test done by carveouts: should do that. Voluntary standards can
ID all stakeholders & discuss better solutions. Standard would be there if
you want to adopt it, not if you don’t.
Goldman: there are small companies in top 15 services, like
Craigslist, Wikipedia, Reddit. Some large cos have small UGC presence. Easy to
wrongly trip threshold. Concept great, translating hard.
Q: F/x on speech?
Chavern: Many complaints about speech we don’t like, not all
of it illegal. Freedom of speech isn’t freedom of reach. No inherent problem
with asking companies to be accountable about the act of deciding what to
disseminate. They’re deciding what you get to see, should be accountable for
that like a publisher. Weird that they get immunity for commercial decisions
that help their product. Unsustainable.
Samuels: That looks like a fundamentally different internet
experience. [Consider if you, an individual, had to have your posts go through
FB’s libel review before they’d post.] Social networks would be total chaos
without moderation etc. Real impact on users. Social movements and connections
happen now in incredible ways. Need to talk about end user experience.
Goldman: 230 can be the solution of how we interact as
humans; enables developments of better tools, services taking action on Gab.
Users on Gab, however, did have chilled conversations as a result. This is not
free. 230 enables diversity of editorial practices, not all like traditional
media. Finding communities that understand one another.
Dixon: Points to need for additional research and fact
patterning. Predictive speech is a coming issue.

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