Telecom, Internet & Information Policy

January 15, 2021 1:56PM

Online Extremism to Dominate Section 230 and Encryption Debates

Storming of the Capitol

Last week’s attack on the Capitol removed any doubts that the regulation of social media will continue to be a Congressional priority after the Trump administration ends. The president and his allies have argued for legislative changes to address alleged anti‐​conservative bias within the most popular social media companies. These complaints have often overshadowed concerns from Democratic lawmakers, who have expressed unease for years about the proliferation of extremist content online. Many of these lawmakers no doubt view last week’s tragedy as a vindication of their concerns, and they will act. We should expect renewed policy debates on Section 230 and encryption to center around political extremism.

Sadly, last week’s attack on the Capitol was not the first time Americans have witnessed domestic violence from those who become expressed extremist views online. In October 2018 a shooter murdered eleven congregants in the Tree of Life Synagogue in Pittsburgh. Shortly after, Sen. Mark Warner (D-VA) said, “I have serious concerns that the proliferation of extremist content — which has radicalized violent extremists ranging from Islamists to neo‐​Nazis — occurs in no small part because the largest social media platforms enjoy complete immunity for the content that their sites feature and that their algorithms promote.” The Pittsburgh shooter had been an active poster on Gab, a social media site popular with white nationalists and conspiracy theorists. He allegedly posted, “HIAS [Hebrew Immigrant Aid Society] likes to bring invaders in that kill our people. I can’t sit by and watch my people get slaughtered. Screw your optics, I’m going in.“

Sen. Warner’s mention of “complete immunity” is a reference to Section 230 of the Communications Decency Act. The law states that interactive computer services, such as Facebook and Twitter, are not considered the publishers of the vast majority of content posted by users. Warner is incorrect when he describes Section 230 as providing “complete immunity.” The law does include exceptions for (among others things) content related to sex trafficking and content that violates copyright. Nonetheless, Warner is correct to note that online content can radicalize social media users.

A few months after the shooting in Pittsburgh, a white supremacist murdered dozens of Muslims during a shooting at two mosques in Christchurch, New Zealand—and live‐​streamed the shooting on Facebook. He had visited sites such as 4chan’s /​pol board, well‐​known as a home for alt‐​right content. His descent into xenophobic ideology did not occur solely on the Internet. He went on a pilgrimage to Europe, visiting sites of Islamic terrorist attacks and meeting with identitarian leaders. After the shooting, Sen. Richard Blumenthal (D-CT) accused Facebook, YouTube, and Twitter of turning a “blind eye to hate & racism on their platforms.”

While the shootings in Pittsburgh and Christchurch prompted discussions about online extremist speech, it is safe to assume that the recent storming of the Capitol will lead to a much larger backlash against online extremist speech.

One of the most popular recent venues for extremist political speech and conspiracy theories was Parler. A social media network that portrayed itself as an online free speech zone, Parler became a popular venue for Trump supporters amid allegations of Silicon Valley anti‐​conservative bias. Parler users were among the rioters at the Capitol last week. Perhaps in anticipation of political backlash, Apple and Google removed Parler from their app stores. Amazon joined them in taking action by suspending Parler from Amazon Web Services (AWS) hosting, taking the site offline entirely. Parler is suing AWS, alleging that Amazon breached its contract. Since the AWS news, Parler has registered its domain with Epik, a domain registrar of last resort for the far‐​right.

Since Google, Apple, and Amazon severed ties with Parler a range of online platforms have seen an increase in users. Tens of millions of people signed up for Signal and Telegram, two encrypted messaging apps. Reporting from The New York Times reveals that at least one militia group is using Signal to organize its activities.

That Parler enjoyed Section 230 protections and political extremists moved to encrypted channels suggest that upcoming debates on online speech and encryption will feature frequent references to extremist content.

Although much of the debate surrounding objectionable online content features Section 230, we should not forget that it is the First Amendment, not Section 230, that protects a private company’s decision to remove content they find objectionable. Section 230 is about liability, not the freedom of association. Nonetheless, Section 230 remains crucial for any institution allowing users to post content on walls, message boards, review pages, etc.

Last year, a bipartisan group of senators proposed the EARN IT Act. The bill, as its name implies, would require companies to “earn” Section 230 protections, making them contingent on services adhering to a set of best practices developed by a commission aimed at tackling child sexual abuse material. Civil libertarians voiced their concerns about the bill, which many consider a threat to encryption. After all, if the commission deemed the creation of a “back door” to encrypted content part of their best practices, interactive computer services would be put in the position of choosing between threatening their users’ security and privacy or facing the potential of crippling lawsuits.

As lawmakers see political extremists flock to end‐​to‐​end encrypted messaging services such as Signal, they may look to proposals such as the EARN IT Act and seek to incentivize services to allow law enforcement to decrypt encrypted content. It is true that criminals use encryption, but so do journalists, whistleblowers, dissidents, members of the military, Capitol Hill staff, and many others. There is no such thing as encryption that only works for the good guys. Weakening encryption may help law enforcement investigate crimes, but it will put the privacy and security of Americans at risk.

Any legislation to address political extremism will quickly run into a stubborn barrier: the First Amendment. Much of the content shared on Parler was vile, but it was not illegal. Under U.S. law, it is not illegal to say that the world would be better if the vice president were killed, or spread conspiracy theories and racist content.

The list of speech not protected by the First Amendment is short, but it does include incitement to “imminent lawless action.” Although many commentators have described the rhetoric of President Trump’s Jan. 6th comments as “inciting” the mob to attack the Capitol, it is not obvious that his comments clear the Supreme Court’s incitement test set out in Brandenburg v. Ohio (1969). Under Brandenburg, speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” is not protected by the First Amendment. Legal scholars and commentators have come to different conclusions about whether Trump’s comments meet that standard.

Whether Trump’s comments are illegal could have a significant impact on online speech if Section 230 is amended. Boston University Law School’s Danielle Citron and the Brookings Institution’s Ben Wittes have proposed changing Section 230 so that it applies only to interactive computer services that take “reasonable steps to prevent or address unlawful uses of its services.”

If such an amendment were enacted, interactive computer services would have an incentive to embrace false positives in order to ensure that they don’t run afoul of Section 230. Awful but lawful speech could be stifled because sites hosting third‐​party content would seek to avoid bankruptcy via a tsunami of lawsuits.

Some might ask, “What’s wrong with services having an incentive to err on the side of caution when it comes to borderline illegal speech?” The answer is that such an environment is likely to be anti‐​competitive, with powerful market incumbents best positioned to adapt to how courts and lawmakers interpret “reasonable steps.” While concerns about online political extremism are likely to prompt lawmakers to seek carrots and sticks for social media companies, we should keep in mind that Section 230 amendments could ultimately entrench the companies so many are criticizing.

The attack on the Capitol last week will bring online political extremism to the center of debates about encryption and Section 230. Amid such debates, we should be wary of the unintended consequences of weakening encryption and amending Section 230.

January 15, 2021 12:19PM

Transit Unions to DHS: Give America A “No Ride” List

We’re just 15 days into 2021, and the number of really bad, anti‐​liberty policy and legislative proposals are multiplying like mold spores.

To that end, I would direct you to the request by the International Association of Sheet Metal, Air, Rail and Transportation Workers that the Transportation Security Administration (TSA) create a “No Ride” list for passenger rail akin to TSA’s infamous “No Fly” list for the airline industry. From the unions’ press release:

Suspected insurrectionists continue to threaten further violence as the transition to President‐​elect Joe Biden’s administration approaches next week. Some of these have been relegated to the No Fly List overseen by FAA, preventing them from traveling by air, but no such restriction exists for the national passenger rail network. SMART-TD and BLET urge that a “no‐​ride” list that mirrors FAA’s list be enacted immediately.

By all means, lets make passenger rail travel just as hell‐​like as airline travel: insane requirements for removing shoes, non‐​science based limits on liquid carry‐​on items, more expensive, ineffectual screening technology, and of course, even longer delays in being able to board your train and get to your destination. Apparently, union reps have forgotten just how ineffectual and liberty‐​damaging TSA’s VIPR teams were before Trump—in one of his few useful acts as President—tried to kill the VIPR program.

This union proposal naturally begs additional questions: where will it end? Will the union representing Washington Metropolitan Transportation Authority (WMATA) ask for a “No Ride” list for DC’s Metrorail and Metrobus services? After all, since you don’t know who might morph from a protestor to an insurrectionists, better to to simply take any names of the January 6, 2021 insurrectionists (alleged or actual) on the TSA “No Fly” list and get them banned from riding Amtrak, DC Metro, or any other transit system, right?

That our nation’s Capitol building was overrun by at least hundreds seeking to overturn a fair, free, and valid election is clear. The Department of Justice has already created a running, online list of those thus far charged with federal crimes in connection with the insurrectionist event. What we don’t need is yet another due process‐​free, innuendo driven, government run transportation security “list” that gives us another debacle like TSA’s Quiet Skies program, and that further undermines the ability of citizens not wanted for a crime to go about their travel unmolested.

January 15, 2021 8:30AM

Happy 20th Anniversary, Wikipedia!

Today marks the 20th anniversary of Wikipedia’s website going live. The online, collaboratively sourced encyclopedia is one of the internet’s biggest success stories, but one that, on the face of it, conventional economic analysis would suggest was the least plausible.

The free, volunteer‐​edited site today hosts 55 million articles in 300 languages, including 6.2 million individual content pages in English that have been subject to almost 100 million edits. The Wikipedia page about Wikipedia itself cites articles claiming it is the 13th most popular site on the internet, with 1.7 billion unique visitors and 20 billion page views per month.

Some academics remain snooty about an encyclopedia that can be “edited by anyone,” but Wikipedia is often a go‐​to website for even established researchers looking for a quick overview of conventional wisdom or to double‐​check a fact cited elsewhere. The site has been adopted by companies such as Amazon and Apple to answer factual questions in voice assistants and smart speakers, and by social media companies such as Facebook to provide information links on posts.

There is good reason for this. A 2005 Nature study found that Wikipedia had decent accuracy compared to the expert‐​written Encyclopedia Britannica. Why? Aggregating information from a wide and diverse editor and reader base helps quickly correct obvious errors, especially on contentious and highly read topics. The articles that are most read then, over time, tend to be more accurate. Embedded within Wikipedia’s model is a market‐​style feedback mechanism that ensures resources head to improve product quality where demand is highest. And, of course, because it utilizes new, rapid internet technologies, this collaboratively sourced website can update much more quickly than the book‐​bound encyclopedias of yesteryear.

In a world of filter bubbles and media segregation, Wikipedia has also proven somewhat of a mediating resource. Analysis has found that a weak version of Linus’ Law holds for Wikipedia—that “Given enough eyeballs, all bugs are shallow.” On articles with plentiful contributors, such as political pages, the large number of editors combined with Wikipedia’s own evolving protocols helps achieve a high degree of neutrality.

This is an underappreciated success. Public debate focuses on the idea of internet gatekeepers “censoring” free speech. Wikipedia has largely avoided that accusation to date, despite being a highly read source with explicit safeguards to try to eliminate fake news and ill‐​sourced opinion. True, errors or slant are harder to police on less well‐​read pages. Wikipedia’s founder Jimmy Wales acknowledges that on certain niche topics, only those are who strong fans of the subject will tend to contribute, meaning the sentiment of articles will be biased. But in all Wikipedia is well‐​trusted and widely believed to be doing a reasonably decent job, especially compared to the media. Some research even posits that engaging in Wikipedia edits causes contributors on political topics to become less slanted over time. Imagine!

Of course, such an open model is made possible by Section 230’s intermediary liability protections. As a nonprofit enterprise, the Wikimedia Foundation cannot afford to litigate the decisions of its volunteer editors. Section 230 allows it to both avoid liability for user errors and rectify errors without provoking litigation from those unhappy with the changes. While discussions of the law often focus on the judgments of ‘Big Tech’ moderators, it’s important to remember it safeguards the ongoing editorial judgment of Wikipedia’s hivemind.

As a non‐​profit, Wikipedia is part of the rich tapestry of organizations that arise in a free economy. Often public debate overly focuses on “the market” versus “the government.” Wikipedia’s success as a free content, non‐​profit institution highlights how within free economic systems intermediate organizations arise that can develop safeguards and standards that achieve the desired ends willed on by people calling for heavy‐​handed government regulation, while obviating the need for that path which crushes new innovation.

Indeed, the site should be of particular interest to libertarians. Jimmy Wales is on record at Cato as highlighting that the inspiration behind it lay with his reading of Friedrich Hayek’s “The Use of Knowledge In Society.” That famous essay explained a key reason why central planning couldn’t match the efficiency of an open market. The market order is dictated by prices, which themselves reflect a host of locally embedded information that no single planner could ever comprehend or collect. Wales took the message to heart in regards to knowledge, thinking he could build something that could harness that localized, dispersed, and niche knowledge among individuals to produce a resource as globally comprehensive as possible.

Wikipedia is a useful case‐​study for economists on certain other policy issues.

First, its existence shows how services with public good‐​like characteristics can be provided in a free economy. Knowledge is something that is non‐​rivalrous (me knowing something doesn’t “use it up” and so prevent you from knowing it) and non‐​excludable (you can try to raise barriers to its acquisition but it can still spread relatively freely). Introductory economics textbooks would say these characteristics mean such a good or service would be underprovided in a free economy, requiring some state subsidies or provision. Indeed, some Wikipedia employees have been known to joke “Thank God our little enterprise works in practice, because it could never work in theory”.

Yet it turns out donors worldwide are willing to fund the knowledge venture because they find it useful or buy into the vision, while enough editors volunteer to participate because they find satisfaction and usefulness themselves from the pastime. Mastering Wikipedia’s rules and guidelines make this a bit like Terence Kealey’s “contribution good” idea.

Second, the website reminds us that network effects, other things given, enhance consumer welfare, rather than diminish it. In the Big Tech antitrust debates it’s common to read that competition is inherently stifled in social media or the search engine sectors because users find services more useful when large numbers of other people are using them. This is said to constitute a major “barrier to entry” for competitors. But from the consumers’ perspective, it’s good that certain companies have high usership rates, as this improves the quality of the product.

In the case of Wikipedia, it should be obvious that the readers benefit from large numbers identifying errors and removing biases. Yet nobody says “Wikipedia is unfairly monopolizing the online encyclopedia market,” because we recognize those benefits arise from an open, competitive process. So while there might be other anti‐​competitive conduct charges against Big Tech companies, the existence of “network effects” should be separated out from other issues and not talked about as if they are a “bad.”

Finally, Wikipedia is a great example of how internet‐​based products have enhanced human welfare in ways not picked up in conventional GDP statistics. The decline in the purchase of physical encyclopedias would show up as a decline in measured market activity. But because of innovations such as Wikipedia, we now have access to more information than they provided at a zero out‐​of‐​pocket cost. Research from two years ago estimated U.S. consumers valued Wikipedia then at $150 per year. That’s some consumer surplus. For context, the cost of Encyclopedia Britannica’s 32‐​volume, five‐​yard‐​long set in 2012 was $1,400.

Sure, one can quibble that the way Wikipedia operates entrenches consensus positions and treats certain controversial ideas harshly. One can find examples of mistakes on the site, or bias or slant. But the counterfactual is the imperfect world we live in, just without Wikipedia. Human beings themselves exhibit biases every day. At least in‐​built into the editorial process is a means of correction. Even the Wikipedia page about Wikipedia is pretty critical!

Wikipedia itself will have to evolve as more internet‐​activity moves away from the desktop or laptop onto smart technologies. But for now, we should see sites such as Wikipedia as a testament to the open, collaborative opportunities a free economy allows.

January 8, 2021 5:07PM

Content Moderation Cannot Fix Elite Failure

Twitter responded to the Capitol riot by, in a first for the platform, removing two of President Trump’s tweets and imposing a 24‐​hour ban on his account. Facebook followed suit, first banning the president from posting for the next day, and then banning him until he leaves office, while Snapchat indefinitely locked his account.

At this point, however, their decisions are mostly a symbolic gesture. While the president has tweeted false claims of election fraud since November and had posted notice about the planned rally on Twitter, he exhorted the crowd to march on the Capitol from the White House Ellipse.

Mainstream social media moderation has in many ways reached a point of diminishing returns. Those who planned to occupy the Capitol had already been relegated to alternative platforms such as Gab and Parler. Some organized in invitation‐​only spaces, such as Discord groups and messaging services. Crucially, their grievances were supported by an increasingly mature pro‐​Trump media ecosystem, with its own platforms and sources of news.

TheDonald.win, an independent clone of the banned subreddit r/​TheDonald, played a prominent role. Here, rioters encouraged one another and posted photos of their standoffs with the Capitol Police. Despite cutting ties with Reddit, TheDonald.win, isn’t entirely independent – the forum is still reliant on web hosting services provided by other firms. Now TheDonald’s hosting providers have given it an ultimatum – clean up the site or find a new webhost. In a pattern established by content delivery network Cloudflare’s cessation of service to white supremacist website Daily Stormer, spasms of extremism often push moderation decisions to infrastructure providers.

There are, however, real tradeoffs involved in shuttering alternative public platforms. Beyond the reduced opportunities for legal speech, closing TheDonald would likely push its more extreme users into invitation‐​only spaces where surveillance of their activities would be more difficult. Given the frequency with which rioters posted about their participation across alternative platforms, discouraging these opportunities for self‐​incrimination might be unwise. After all, TheDonald’s initial exodus created a less visible community unbound by the broader rules that had restrained their speech on Reddit.

Perhaps more important than the establishment of alternative platforms is the normalization of conspiracy. The media niche pioneered by fringe YouTubers (several of whom took part in the fracas, streaming themselves wandering the halls of Congress in search of content) has been formalized and professionalized. NewsMax, One America News, and a host of elected officials have spent the past two months legitimating baseless claims of a stolen election, constructing an engaging narrative around what would otherwise simply be the rantings of a sore loser.

The most striking example of this malaise is the rapid spread of the claim that antifa infiltrators instigated the riot at the Capitol. Over the course of the evening, a great chain of right‐​wing media personalities and politicians validated and amplified the baseless assertion.

It started with several separate, image‐​driven claims that began circulating mid‐​afternoon. In the first, a tattoo from the video game Dishonored was identified as a hammer and sickle (and evidence of antifa membership)

The misidentified tattoo (left) and the 'Outsider's Mark' from the video game Dishonored (right)

The misidentified tattoo (left) and the ‘Outsider’s Mark’ from the video game Dishonored (right)

In the other, the same tattooed rioter and a compatriot are matched to an image from phillyan​tifa​.org. In its original context, Matthew Heimbach, leader of the Traditionalist Workers Party, and the tattooed man and have been labeled fascists by a Philadelphia antifa group. However, in a cropped side by side with some overlaid lines, only the source of the image, phillyan​tifa​.org, remains.

The false side-by-side (left) and the original image from an antifa website (right)

The false side‐​by‐​side (left) and the original image from phillyan​tifa​.org (right)

This was proof enough for some. Beyond the Parler account of pro‐​Trump lawyer Lin Wood, the images themselves received only limited reach. However, they formed the basis for a reckless evening story by Washington Times reporter Rowan Scarborough. Originally titled “Facial Recognition Identifies Extremists Storming the Capitol,” within a few hours the title was softened to “Facial Recognition Firms claims Antifa infiltrated Trump Protestors who stormed Capitol.”

Scarborough writes that “a retired military officer told The Washington Times” that the image analysis firm XRVision had used facial recognition to identify antifa agitators within the Capitol mob. While Scarborough provides no real evidence of these claims beyond “the source provided the photo match to The Times,” his descriptions are telling. He claims that the firm “matched two Philadelphia Antifa members to two men inside the Senate” and “one has a tattoo that indicates he is a Stalinist sympathizer.”

XRVision CTO Yaacov Apelbaum has contributed to past right‐​wing messaging campaigns, providing XRvision branded photos of Sen. Bernie Sanders’ (D-VT) lake house and antifa groups in Syria. However, he has denied identifying any antifascists at the Capitol, saying his firm had instead identified skinheads and national socialists.

At 7:40 pm, The story was shared by Fox News host Laura Ingraham, garnering 32,000 retweets. By the time Congress reconvened at half‐​past eight, the claim had made it to Matt Gaetz (R-FL), who parroted the assertion on the floor of the House. Platform regulation is not a salve for epistemically divided government.

Rapid elite endorsement, not lax platform moderation, is responsible for the claim’s spread. The images themselves provided a pretext for less contestable claims; the hammer‐​and‐​sickle interpretation of the Dishonored tattoo was organically mocked. Scarborough’s story summarizing the false visual evidence without providing a means of contesting it was quickly validated and redistributed by public officials and journalists. Sarah Palin invoked the images as evidence on Fox News, and Rep. Paul Gosar (R-AZ) amplified claims that rioters’ knee‐​pads were evidence of antifa affiliation. Each particular claim can be debunked, but the story’s rapid movement between mediums limits platform‐​specific solutions.

Like the President, these figures’ off‐​platform bona fides have, at least until now, prompted moderators to treat them gingerly. However, unlike the deplatformed alt‐​right celebrities who wandered the Capitol on Wednesday, elites in positions of public trust have enduring off‐​platform reach. Moderating them more strictly would be ineffective and politically fraught.

Midway through Thursday afternoon, The Washington Times pulled Scarborough’s story. A different version, published Thursday evening, acknowledges the error, apologizing for presenting XRVision’s identification of fascists as the identification of antifascists before doubling down on the original claim of antifa involvement. In addition to Rep. Gosar’s unsupported kneepad theory and an unnamed law enforcement source, Scarborough references a story by the NY Post. Now reliant on a single unidentified law enforcement source, an earlier version of the Post story cited Scarborough’s initial story, “Two other D.C. protesters were actually Philadelphia‐​based Antifa members, The Washington Times reported Wednesday night.” This shell game keeps the story alive, obscuring the fact that it now relies on nothing more than the accounts of up to two unnamed law enforcement sources and the gut feelings of a few Congressmen. Nevertheless, largely because of Scarborough’s tale, in his words “The presence of Antifa became part of Wednesday’s divisive debate.” Rep. Matt Gaetz (R-FL) has yet to address the false claims he repeated on the House floor.

When misinformation moves rapidly among mass social media, niche platforms, and cable and print news, public figures who move between these spaces must assume greater responsibility for their claims. The lack of forethought and restraint demonstrated throughout this disinformation bucket brigade, to say nothing of the lack of contrition in its aftermath, is not a problem that can be solved by well‐​meaning managers in Menlo Park. Content moderation is no replacement for a healthy elite.

December 31, 2020 11:14AM

A Patent Violation of Separation of Powers and Due Process

The American system of government is predicated in large part on just two concepts: separation of powers and due process of law. The separation of powers requires that the execution of laws be done by the executive branch and more specifically by people who are politically responsible. For this reason, the Constitution requires that important executive decisions be made only by individuals who are nominated by the president and confirmed by the Senate, so the public knows whom to blame for the poor performance. The due process of law requires that justice be administered by neutral adjudicators whose job and salary don’t depend on political considerations—which is why most federal judges (and all Article III judges) enjoy life tenure.

But even individuals who are not judges, yet who exercise some judicial functions, enjoy a certain level of job security. In 2014 Congress passed the America Invents Act and created the Patent Trial and Appeal Board (PTAB), an administrative‐​law body housed within the Patent and Trademark Office (PTO) and vested with the extraordinary power to cancel patents.

Congress required the PTAB to be staffed by administrative patent judges (APJs) who are appointed to their position by the secretary of commerce and once appointed cannot be removed except “for cause.” Despite not having gone through the rigor of presidential vetting and Senate confirmation, APJs have the power to speak for the entire executive branch when they adjudicate patent disputes. What’s more, in so doing, they are invested with the power to essentially overrule the PTO director—who did go through the nomination and confirmation process.

Thus we have a situation where important decisions are made not by politically responsible persons but by bureaucrats not subject to anyone’s direct control. The U.S. Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over patent law, correctly recognized that the arrangement where APJs can speak on behalf the entire executive branch without going through Senate confirmation is constitutionally problematic. To “fix” the problem, the Federal Circuit excised the “for cause” protection currently enjoyed by the APJs, thus converting them into “inferior officers” who can be terminated at will by the PTO director ot secretary of commerce.

Instead of solving the constitutional problem, however, the Federal Circuit only compounded it. By making APJs terminable at will, the court is allowing APJs to make executive determinations without review by any “principal officer,” as the Constitution requires. Making matters worse, the Federal Circuit’s solution allows for political actors to exert—through the threat of termination—pressure on individuals who are charged with adjudicating patentees’ private property rights.

This dynamic raises the specter of adjudication being dependent on political connections rather than on the neutral application of law to facts. A PTAB staffed by APJs who are terminable at will is fundamentally incompatible with constitutional due process requirements.

The Supreme Court took up the case to review this arrangement, which Cato argues cannot stand. Our amicus brief seeks to uphold both the proper separation of powers in staffing the Patent Office and the due process rights of patent‐​holders.

The case of United States v. Arthrex, Inc. will be argued at the high court this winter.

December 17, 2020 3:53PM

Section 230 and the Whole Internet

Section 230 shields an ecosystem. Rather than protecting particular platforms or offering separate rules for different sorts of services, it protects all internet intermediaries equally, regardless of their size, purpose, or policies. Under this uniform, predicable arrangement, specific platforms may set their own rules, choosing to cater to mass audiences or niche subcultures and governing their services accordingly. Diversity of opinion marks the whole system but not every platform therein. This liberal, decentralized approach remains the best mechanism for ensuring freedom of speech online.

Section 230 was intended to let a thousand platforms bloom, ensuring that, according to the Congressional findings that precede the bill’s substantive sections:

“The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”

Crucially, this expectation was made of the internet as a whole, or, “the internet and other interactive computer services,” when taken together, not specific services. Unfortunately, critics of the policies of particular platforms such as Twitter and Facebook increasingly misread this expectation as relating to individual platforms.

In a Federalist Society Blog post titled “Section 230 and the Whole First Amendment,” Craig Parshall, General Counsel of the National Religious Broadcasters, claims that Section 230 was intended to incentivize individual tech platforms to open themselves to all speech.

“The intent behind Section 230 was to incentivize tech platforms to screen out harmful and offensive content while also providing a “forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad of avenues for intellectual activity.

It is time that they be required to live up to their part of the bargain; namely, expressly conditioning their protection under Section 230 in return for their use of a First Amendment free speech paradigm for their decisions on third‐​party content.”

Setting aside the problem of how platforms might be expected to screen “offensive and harmful” material while simultaneously mirroring the First Amendment, by substituting “tech platforms” for “the internet,” Parshall dramatically alters Section 230’s expectations.

More recently, Conservative Partnership Institute Policy Director Rachel Bovard makes the switch in an opinion piece for USA Today;

Internet platforms would receive a liability shield so they could voluntarily screen out harmful content accessible to children, and in return they would provide a forum for “true diversity of political discourse” and “myriad avenues for intellectual activity.”

By narrowing “the internet” to particular “internet platforms,” Bovard and Parshall invent a Section 230 that demands diversity within platforms, rather than between them. The expectation that all platforms offer truly diverse forums amounts to an expectation of uniformity in platform policy. If all platforms must serve as a “forum for a true diversity of political discourse,” none may serve particular communities. This leveling would perversely render the internet as a whole far less diverse than it is today. Instead of Ravelry offering a platform for knitters and TheDonald.win offering a home for unfiltered MAGA fandom, Bovard and Parshall would have both platforms host it all. Taking a narrow view of the internet as a handful of major platforms, they propose systemic changes that would put the diversity they ignore on the chopping block.

Their unworkable expectation is at odds with a plain reading of the statute and the intentions of Section 230’s drafters, Representatives Ron Wyden (D-OR) and Chris Cox (R-CA). In a recent letter to the Federal Communications Commission objecting to its efforts to modify the statute via rule‐​making, they write:

In our view as the law’s authors, this requires that government allow a thousand flowers to bloom—not that a single website has to represent every conceivable point of view. The reason that Section 230 does not require political neutrality, and was never intended to do so, is that it would enforce homogeneity: every website would have the same “neutral” point of view. This is the opposite of true diversity.

By allowing individual websites to screen off‐​topic or “otherwise objectionable,” Section 230 ensures that online communities and service providers can chose whatever rules or standards they think most fitting for their particular corner of the internet.

All platforms have rules intended to foster particular sorts and styles of conversation. Some are enforced by moderators or bots, while others are built in to the platform’s architecture. Twitter maintains rules against threats of violence, and the platform will not allow an account to post more than 100 tweets in an hour. Even ostensibly ungoverned platforms maintain rules. 4chan is divided into topic specific image boards for everything from “Papercraft & Origami” to “Adult Cartoons.”

Because online real estate is an unlimited resource, for those who find a given ruleset ill‐​fitting, exit is cheap. Section 230’s intermediary liability protections keep the cost of exit low by preventing platforms from being held liable for their users’ speech. While The Atlantic staff writer Kaitlyn Tiffany calls this capacity for exit “the internet’s structural penchant for hate,” it prevents any single set of platform rules from creating a universal prohibition. Unlike legal speech restrictions, unwanted platform restrictions are intended to be avoided through the creation of competing jurisdictions.

This is particularly important for explicitly dissident alternatives to mainstream platforms. Both TheDonald.win and Ovarit were created as off‐​platform alternatives to banned subreddits. For these burgeoning, essentially moderator‐​run forums, the fact that they regularly host speech deemed impermissible by Reddit would serve as a magnet for litigation in the absence of Section 230.

Indeed, at a time when traditional media gatekeepers have deemed migration to Parler “a threat to democracy,” and treat podcast apps as the next front in an unending War on Disinformation, intermediary liability protections are vital speech protections. Advocates of liberal speech governance should refrain from reading expectations of uniformity into Section 230. Undermining protections for diverse approaches to content moderation will serve only to nip alternatives to mainstream platforms in the bud.

December 10, 2020 7:59AM

The Feds Come for Facebook

Facebook is under assault again, this time for real. The Federal Trade Commission and 46 states have filed an antitrust case to make the company divest itself of Instagram and WhatsApp and submit to restrictions on its future acquisitions and deals.

How many times have I seen this story play out as West Coast tech companies find themselves suddenly facing unwanted attention from Washington? It was bad enough that congressional committees kept summoning founder Mark Zuckerberg to hearings, both in‐​person and virtually, forcing him to trade his T‐​shirt and hoodie for a suit and tie.

Zuckerberg can afford the new clothes and the flights to Washington. The company can afford the hundreds of millions of dollars in legal fees it will face. The real problem is that the most important factor in America’s economic future—in raising everyone’s standard of living—is not land, or money, or computers; it’s human talent. And some part of the human talent at America’s most dynamic companies is being sidetracked from serving consumers to protecting the company from political predation. Another productive company is being sucked into Washington’s zero‐​sum parasite economy.

Like so many other founders in our most dynamic industry, for years Zuckerberg was content to stay on the West Coast developing software and building a business. Then he found his company targeted by activists and politicians and had to respond. “He was completely apolitical. His political views had to be coaxed out of him,” recalls Tim Sparapani, the company’s first public policy director.

Now, with some 225 million Americans using his social media platform for free, he’s forced to deal with attacks from both left and right. This means that some portion of his time and brainpower is being diverted from creative, customer‐​focused work to dealing with politics.

It’s sadly similar to what’s happened to other tech companies. For the past 40 years or so, West Coast‐​based technology firms have revolutionized our lives. They’ve created systems for documents and databases. They’ve helped us run our homes and our businesses more efficiently. They’ve created a World Wide Web of information and communication. They’ve put all the knowledge in the history of the world into our pockets.

And for those efforts, they’ve been badgered and summoned and subpoenaed by politicians.

It’s getting to be an old story. For a decade or so Microsoft founder Bill Gates and many other millionaires in Redmond, Washington, got rich the only way you can in a free market: by producing something other people wanted. A lot of brilliant people worked long hours producing computer software that millions of people chose to buy in a highly competitive market that offered lots of other options.

Then the federal government noticed that Microsoft was too good and was helping its customers too much. It launched a Federal Trade Commission investigation, later compounded by a Justice Department investigation, to determine whether Microsoft “has monopolized or has attempted to monopolize” markets for personal computer software and peripherals. Microsoft gave in and agreed to restrictions on its contracting and pricing policies in order to avoid long and costly litigation. That wasn’t enough for the government or for some of Microsoft’s competitors, who went on to launch more antitrust investigations.

The government lured Microsoft into the political sector of the economy. For more than a decade the company went about its business, developing software, selling it to customers, and innocently making money. Then in 1995, after repeated assaults by the Justice Department’s Antitrust Division, not to mention its growing encounters with immigration, tax, trade, and other regulations, Microsoft broke down and started playing the Washington game. It hired lawyers, lobbyists, and PR firms.

In 1998 Gates wrote, “It’s been a year since the last time I was in D.C. I think I’m going to be making the trip a lot more frequently from now on.” And that’s a tragedy, because it diverted Gates and his associates from their focus on making better products.

Ironically, Gates also wrote at that time, “One of the things I know I’m going to be asked [at the congressional hearing] is whether Microsoft is going to try to control the Internet.” It’s pretty obvious today that Microsoft controlling the internet wasn’t in the cards.

And the story just kept playing out, even with the introduction of new characters. In the decade after that congressional hearing, one of the great success stories in the American economy was Google, the search firm started in a Stanford University dorm room. And then, around 2006, Washington came calling. There were demands to regulate search engines, maybe even declare Google a public utility. The company got the message; it opened a Washington office and hired well‐​connected lobbyists.

One congressional aide had said of Microsoft, “They don’t want to play the D.C. game, that’s clear, and they’ve gotten away with it so far. The problem is, in the long run they won’t be able to.” Similarly, a lobbyist said that Google would have to learn that “It pays to pay attention to Washington.”

And once again one of our most innovative companies was forced to redirect some of its money and smarts to fending off political attacks.

A few years later it was Apple’s turn. After years as a cute little niche player, Apple suddenly started producing wildly popular products such as the iPod, the iPhone, and the iPad. And the Federal Trade Commission started grumbling about Apple’s threat to competition. Note the absurdity here: Apple creates whole new products and industries, consumer benefits that didn’t exist before, and the federal government worries that it’s somehow going to “limit” competition in a field it brought to the market.

Yet another congressional aide sniffed, “I never once had a meeting with anybody representing Apple. There have been other tech companies who chose not to engage in Washington, and for the most part that strategy did not benefit them.”

In other words: nice little company ya got there, shame if anything happened to it.

And now the bell tolls for Facebook. Zuckerberg and company created a social media site to “bring the world closer together.” The site allows hundreds of millions of people to keep in touch with neighbors, friends, and colleagues, and to express themselves on all manner of topics. Now it’s under political attack for antitrust issues, privacy questions, and the fact that some of its users have odd or unsavory ideas that they post on Facebook, just as they once used the printing press and the telephone. And like his competitors Zuckerberg is forced to divert a portion of his attention and money from innovation and investment. That’s not good for growth and progress.