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Private Companies, Public Squares


7 min read

Daphne Keller, Director, Stanford Center for Internet & Society, and Lee Rowland, Senior Staff Attorney, ACLU Speech, Privacy & Technology Project

Moderator: Matthew Prince, Co-Founder & CEO, Cloudflare

MP: Technology and law seem like they are colliding more and more. Tech companies are being asked to regulate content. For a largely non-lawyer audience, give us some foundations about basic rules when you have content on your network?

LR: Communications 2.0 makes the 1st amendment almost quaint. The vast majority of speech that we exchange happens online. When it is hosted by private companies, the 1st amendment doesn’t constrain it. So this is a space governed by norms and individual choices of people like Matthew. In the wake of Cloudflare's decision to take down the Daily Stormer, Matthew penned a piece saying it’s scary that we have this power, and I exercised it. We have a completely unaccountable private medium of communication.

MP: There are shields for companies for this; What is intermediary liability and why is this a position at Google/Stanford?

DK: No one knows what it means; it’s a set of laws that tell platforms when they have to take down user speech because that speech is illegal. In the US, platforms don't have to take anything down; but outside of the US, the rule is that when platforms discover something they have to take it down or face liability themselves. The problem is that anytime someone alleges that something is illegal, it can be taken down. So the rules about when platform should to do this are very consequential for practical free speech rights of users on the internet.

LR: We can’t undervalue how much these rules have created today’s online ecosystem: Yelp would not exist without intermediary liability. Any content provider platform exists because of these laws passed in late 90s.

MP: In both the US and the EU, laws are coming under threat; we tend to focus on US, but Germany’s top priority in the last G7 meeting was limiting intermediary liability.

LR: There’s an opportunity here for companies with ties to US to make sure that we don’t allow countries with less protected speech regimes to ratchet to the lowest common denominator. Multinational pressures risk going to that lowest common denominator. I think companies like Cloudflare have a duty to uphold the values that reflect our first amendment landscape. Do we want a world where Nazis cannot have a website? It’s not a comfortable thing to talk about; but I want the ability to see and find speech that reflects human beliefs, because that’s how we know it is out there. Enforcing that kind of purity only hides beliefs it does not change them. Companies that are part of web infrastructure have fundamental responsibility to provide neutral platform. We are providing a neutral platform and it's other people’s job to see that speech and counter it.

DK: There’s also an ugly dynamic between governments and major platforms; private companies are taking over government functions, which is weird because they are not subject to government constraints. This creates an opportunity where private companies can do things that government can't but maybe want to do e.g. collecting user data.

In Europe, the commission reached agreement with 4 big platforms on the EU hate speech code of conduct: The agreement was that they would voluntarily take down hate speech as described in the agreement, which is not the same as hate speech as defined in the law. They are voluntarily agreeing with the government to take down hateful speech. Many Americans find this odd.

MP: Is this a fight that we can win? Views on free expression ideals have changed since 4 years ago; “don’t be evil” doesn’t translate well in German; What argument persuades rest of world that we should be neutral platform?

LR: These borders have real impacts on speech; but for American consumers and companies giving internet access to American Internet users, we do have the ability to help people understand not to race to moral panics. No one is out there picketing AT&T because Richard Spencer has a cell phone account with them.

MP: We have had a tradition of newspapers having editorial perspective, conservative or liberal.
Is Facebook like the modern newspaper? Or are they like the printing press? What is the analogy that makes sense?

DK: In Europe, people are inclined to say that Facebook needs to admit that it is a media company. The difference between Facebook and a media company is that the media company hand-selected everything that it published, whereas Facebook is an open platform

MP: But if you put up a link to Daily Stormer on Facebook with support for the site, it was taken down; if you were critical of the organization, however, it was kept up.That sounds like a media company.

DK: They take down a lot. That’s not the same as saying they could be legally accountable for everything that is transmitted on their platform.

LR: I do think that people on a gut level hold newspapers accountable for their world view.
Facebook already exists as a content review company; they’re a platform but they've always had algorithms and curation. Each of these is a choice that affects what you hear/see.

MP: “it’s the algorithm it’s neutral”

LR: That has always struck me as horseshit...

MP: Does it surprise you there’s not a Fox News search engine?

LR: This has been constant conversation in the net neutrality debate. Internet service providers have said: we don’t discriminate: but we want the right to not take you to a certain website.

Can you have a bespoke ISP? The Disney ISP that makes for damn sure you don’t see porn? Maybe, no one has done it. People’s willingness to replicate their own bubble. There seems to be enough of a demand of that.

DK: The fact that there isn’t a Fox News search engine is actually important.

People who are saying, Facebook should not be able to take over my political speech are also noting that there is no place else to go: friends, etc. are all on Facebook. It matters when there’s somewhere else to go. If there’s only one place to go, it’s easier to imagine there being government regulations on them.

MP: The question is: is there any scale at which you think maybe it’s not the right time… Is there a time when that’s the way to think of your status? Steve Bannon is proposing that giant companies should be regulated as utilities. Is there a time when that’s the right way that this should be thought of? If you are Facebook and you are the only place to reach this audience, does that mean that you have another set of obligations?

DK: I don't think that works. This may apply to your business, but for the service that Facebook offers, the service creates a community that people want to come to because it is not full of hate speech and bullying. And without that kind of curation, they would no longer have the value proposition for their users.

MP: That suggests that there are different rules depending on where you are in the stack. What should a registrar do vs. DNS vs. browser provider? What is the framework you’d use to determine where internet is or is not neutral vs. curated?

LR: I want to admit that as a 1st amendment advocate, there are interests on the other side. I may think it is a dangerous precedent, but you have the right to decide who to keep and kick off.

For us, as ACLU, we focus on two things:
Government subsidies and the kind of centrality and importance of that service.

Are you a neutral … or common carrier? Are you actively curating content?

Generally there isn’t a model where you are distinguishing based on content; this isn’t the most profitable path to success.

MP: ACLU has been force for free speech in US; who is fighting for free and open web outside of this country?

DK: There are organizations around the world that work on this. Some of the best efforts are in Brazil, Argentina, India; much smaller in EU. We're paying attention to these differences.

It's important for smaller companies, for journalistic interests to show up and let them know.

MP: What are the arguments you’ve found that are persuasive in these conversations about regulation? What works?

DK: I think people get it when you say you are sacrificing sovereignty by standing back and asking an American company to decide this for you. In some cases, the economic argument is also persuasive. Outside US, American lawyers yelling about 1st amendment do not get much respect. But there are other important points you can make

LR: Domestically, if we’re talking about convincing legislators to think about roles, there’s the Communications Decency Act. At the time in the late 90s when it was passed it was overwhelmingly bipartisan because conservatives and republicans knew Silicon Valley is liberal.

In the last 15 years, there has been moral panic about human trafficking online. Some of the unholy alliances come when women’s advocates on left and libertarians on right agree with each other. It’s the First time congress has amended SESTA since late 90s.

The only thing that’s ever effective besides a lawsuit is reminding people that they might be the goose or the gander next time. You might not always be on the right side.

Facebook agreed to the hate speech rules. So many human rights activists voices have been silenced according to that agreement. The Intercept article on human rights activists that have been silenced under over censoring.

MP: What are 1 or 2 things that you are worried about, that people aren’t thinking enough about right now?

DK: There is tremendous pressure to build technical filters to find and suppress content and widespread belief that this tech can be built to identify terrorist speech. Companies are under pressure and end up agreeing; the result is that videos documenting atrocities in Syria re-being taken down. So the push for mechanized content removal is very dangerous.

LR: I totally agree, and I also highlight the importance of due process. If someone censors our speech we can say, hey wait a minute. But you don't have that option with FB.
Hand in hand, algorithmic ratcheting combined with lack of due process is a problem.


Q: Besides basic issue about media making judgments about censorship, there are two additional dangers: 1) what makes companies like Cloudflare more or less susceptible to pressure from governments; 2) the danger of companies colluding on these things.

DK: On vulnerability, What makes you vulnerable to pressure form a government: people on ground that can be arrested; assets that can be seized; wanting to have a market in that company, or already having a market that you are afraid to lose.In terms of collusion, I worry about monoculture that systematically discriminates against speech of particular people.

Companies that don't want to be regulated decide to self-regulate.

Q: One of the challenges with open internet is its openness; what about dark web that is encrypted? Is that potentially an answer, where regulating free speech becomes difficult because we don’t know where it comes from.

LR: I think it addresses free speech values problem; but for average internet user, probably will create less attractive ecosystem. If you want anonymity that’s great, but is it an actual useful web? If you want useful web that is free, effective, and accessible, answer is probably no.

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Ryan Knight|@yank

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