Define online opinion and video platforms as regular publishers, subject to traditional publishing regulations that seek to deter dissemination of libels, profanity, obscenity, intellectual property theft and so on. And define all the other big tech firms either as common carriers or public accommodations that are clothed in a public interest.
It sounds like an interesting idea, but it needs to be spelled out. I am not sure that I really understand what Lind means. And I am not sure that I would agree with him if I did.
I interpret Lind as saying that Amazon Web Services and Apple are common carriers, so that they cannot exclude Parler. But Parler is a regular publisher, so it is subject to all of the laws that apply to magazines.
I first learned about the Internet in terms of Ed Krol’s “pony express” metaphor. You put your content into an envelope, and the Internet delivers it to the recipient the way that the Pony Express used to deliver mail. In this metaphor, all of the responsibility for the content is on the sender, and all of the responsibility for what gets done with the content is on the recipient. The Pony Express riders who are in the middle are not responsible. That means that the companies that manufacture the routers are not responsible. The Internet backbone providers are not responsible. The Internet access providers are not responsible. They are all common carriers, if I understand Lind’s use of that term. Common carriers can plausibly deny responsibility for what the user sees.
Suppose we went with Lind’s system as I interpret it. If I were running YouTube, I would want to classify it as a common carrier, so that it is not allowed to exclude any content. I would push the responsibility for complying with publishing laws out to those who post content on YouTube. But that means I would have to stop creating “feeds” that offer suggestions of what to watch. The job of creating feeds is a publishing job, and YouTube would have to outsource that if it wants to avoid the burdens of being a publisher.
But what about, say, Gmail? Does the spam filter make Gmail a publisher?
There are two fundamental flaws with this approach.
1.) Current SCOTUS precedent (Manhattan Community Access Corp. v. Halleck) makes it highly unlikely that government compelled speech would be constitutional under the First Amendment.
2) Making internet companies like Twitter, Facebook, et al liable for content that their users generated would substantially increase the amount of content that they remove which would, ironically, caused them to remove a ton of the content that this crusade to “fix” Section 230 is supposedly intended to correct.
I’d go farther, and say that if YouTube and Facebook had to accept legal liability for everything they “published”, they would become non-viable businesses in their current form. There are billions of posts and videos, nearly all of which make trivial amounts of money for the platforms. Legal review of all of them would be impractically expensive. They would have to take down everything except the stuff that’s valuable enough to stand behind, and that just makes them Netflix.
OTOH, the internet is global. If you treat those companies as carriers and push liability out to the uploaders, then American law won’t have jurisdiction over most of them. The Cayman Islands could easily offer video uploading services; what then?
It’s not an easy problem.
I’d go farther, and say that if YouTube and Facebook had to accept legal liability for everything they “published”, they would become non-viable businesses in their current form.
In order to steelman the argument I’m assuming that they can automate this (flag post for libelslander, auto take down. They do it today for copyright.)
There’s a specific law, the Digital Millennium Copyright Act, that defines what their responsibilities are in relation to copyright. Libel and slander are harder, because there is no such law (yet). Disinformation is even harder, because it requires the companies to judge the truth. In many cases, including the most visible ones, that is asking far too much of them.
I’m aware, my point was that they automate the process as the scale makes it impossible to intervene manually – and they err on the side of taking everything down if there is a complaint and put the onus on the user to prove it is compliant.
Anything to do with libel, etc will likely work exactly the same way.
Generally, retracting a libelous statement does not shield one from liability (under current law). If the plaintiff’s reputation suffered damage, the damage is done and the plaintiff is entitled to be made whole. At least in most American states – the question of whose law applies is a whole other thing.
> I’d go farther, and say that if YouTube and Facebook had to accept legal liability for everything they “published”, they would become non-viable businesses in their current form.
I think that’s AK’s point — that a law change of this kind (essentially revoking section 230) would destroy the business as it exists, and force the industry to restructure. We are speculating (idly) about what that structure would be who would like it.
But as you say there’s a lot of countries in the world. They can’t all have the same structure that article 230 brings to the US. And yet these companies exist in their current form.
As a simple example: Dominion has threated to sue the news orgs that have been spreading the accusations that they and their voting machines are part of a conspiracy to steal the election. Each news org have made public apologies and admitted that the claims were false and unfounded. And that is from organizations that have a strong incentive to protect their own First Amendment rights.
In an internet world where Twitter could be sued for the same conduct Dominion would have sued earlier forcing Twitter’s hand in removing all of that content without caring whether the suits had merit as they would delete content than risk a lawsuit for things that their users say.
In this case it would have prevented the spread of misinformation, but it would also stop the spread of *useful and true* information as well.
But that means I would have to stop creating “feeds” that offer suggestions of what to watch. The job of creating feeds is a publishing job, and YouTube would have to outsource that if it wants to avoid the burdens of being a publisher.
And what’s the problem with that?
And what’s the problem with that?
Why would the new feed creators escape the ‘publisher’ label? Wouldn’t they then be liable for what people want to make Google liable for today?
And assume you can get around the First Amendment issues that allow restrict Google’s speech but not this new publisher – what, exactly, is their revenue model?
I’m not a lawyer. I don’t care about “minimizing liabilities”, if that’s the name of that objective.
I care about minimizing the spread of fake new, diminishing political polarization, limiting the spread of conspiracy theories, etc…
If the new feed creators only cater to their own constituency/followers, that’s a much better situation than the current one. If the new feed creators have to make a much greater editorial effort to keep a good reputation, compared to zero editorial effort by Youtube in the current situation, that’s a much better situation than the current one.
none of the proposals around Section 230 do that. No business is going to put themselves at risk for lawsuits based on other people’s speech – they are just going to aggressively delete anything that anyone complains about.
Any law that makes Google liable for content (because they moderate content) is going to also make NewFeedCo liable for content (because they moderate content).
You could solve some of these problems by making the feed producers poorly capitalized shell companies in favorable jurisdictions. There’s not much point in trying to sue a company that’s registered in Liberia if it has total assets of one laptop. Of course, that just gets us back to the original problem.
In the end, the only reason tech tyrants can get away with their abuses is because a sufficient number of people continue to sponsor them. fwiw – I minimized my Christmas shopping online and compared prices online with prices in physical stores and generally found the latter offered prices 15 to 25 percent cheaper. Exit is market discipline, much more powerful than any regulations our garbage government will ever promulgate.
Arnold, I hope you have the opportunity to talk to Don Boudreaux about his last column for AIER in which he explains what Richard Epstein said in an interview (unfortunately, I cannot read the interview because it’s WSJ gated). If you are going to argue for a position in a legal matter, it’s important to understand the legal principles and laws involved and how they apply to different people and organizations.
I read Boudreaux’s comments at AEIR but he assumes free market competition. The USA is more state capitalism. The only sure way to learn if a common law remedy is available in a novel situation is to litigate. And given the anarchic nature of USA common law eventually a jurisdiction that offers such a remedy might well be found. Personally I think state laws against restraint of trade might be the optimal solution. Free market competition has done nothing to disrupt The Great Firewall of China, I see no reason to assume that the Great USA Firewall will be any more susceptible to free market forces merely because it is privatized. An interesting test case will be whether the banks and credit card companies will succeed in preventing any Trump memoirs from being published privately or elsewhere: https://www.independent.co.uk/news/world/americas/us-election-2020/publishers-trump-memoir-ban-book-deal-b1788904.html. Exit from the online markets and payment processors may be powerful but perhaps even more powerful when supplemented with legal protections for fundamental human rights.
Thanks, Fernando. Two points. First, Don assumes free entry and competition but he is aware that it will take some time for new suppliers to enter. There are some arguments to think that new platforms will take a long time to compete with the existing ones. I’m always inclined to decide case by case why competition is unlikely in a reasonable time framework–and I prefer the courts to decide.
Second, the cancelation of Trump and their supporters by all sorts of businesses can only be avoided by law –it would amount to add “politics” to the list of arbitrary discrimination. Indeed, it may not happen under the new Congress and Administration. It may happen, however, that the strong pressure of radical leftists will force the addition of “Republican politics” to that list.
This link to the WSJ article should be ungated:
https://www.wsj.com/articles/the-common-carrier-solution-to-social-media-censorship-11610732343?st=09gad2h7vls5atf&reflink=article_copyURL_share
Thanks for the link. I think Don has informed correctly about what RE said. Indeed, as usual, Don makes clear its strong preference for free entry and competition (see my reply to Fernando’s comment).
I favor a change to the status quo of Big Tech censorship. I have heard of this common carrier argument before. It makes sense. A “common carrier” has a specific definition under common law by the way: “A common carrier holds itself out to provide service to the general public without discrimination . . . ” See https://en.wikipedia.org/wiki/Common_carrier. You seem to get it. I think it makes sense for AWS and other “back-end” internet companies to get classified as common carriers.
I disagree that getting the social media companies classified as publishers is the way forward. I think they should be subject to our Supreme Court’s First Amendment jurisprudence, which allows some speech regulation (e.g., obscenity, fighting words, incitement to violence, etc.). Political speech, on the other hand, cannot be regulated whatsoever under this framework. “Misinformation” is not an acceptable category of free speech.
How could this be done? Big, conservative-ish states (e.g., Texas, Florida, Ohio, etc.) could pass an amendment to their state constitution that grants a right to access social media for speech purposes. This has already been done for malls in some states.
“Misinformation” is not an acceptable category of free speech.
So if I try to upload Fermat’s Last Theorem and it doesn’t get blocked by Facebook, does that mean I’ve proved the theorem? Or does it just mean that Facebook isn’t omniscient and cannot flawlessly judge the truth of all statements? And if the latter, how is the above supposed to work?
Indeed. It is worrisome how many people seem to think The TRUTH is known and readily accessible such that misinformation is clearly obvious. As though we just need to check the dictionary of truth to see the answer. I strongly suspect that this huge error of epistemology is the root of most modern dysfunction.
You are right. Any idiot that claims that public policy should be evidence-based, usually implying that it should be based on science, has no idea about how costly it is to get reliable and relevant evidence for many daily decisions and most occasional decisions. Those idiots think that they have found the truth and everyone else should pay attention and thank them, or worse think they are the anointed who has sought paradise and found the way to reach it.
As expected, Joe Biden is applying for the perfect idiot (as if his rot and corruption were not enough):
https://pjmedia.com/news-and-politics/bryan-preston/2021/01/18/biden-promises-science-will-guide-him-so-why-is-he-canceling-the-keystone-xl-pipeline-n1394574
Define all the Big Tech folk as “common carriers” only as long as they are willing to be sued for excessive censorship in cases where they censor NOT based on current Free Speech exceptions, like incitement to riot.
Was Trump inciting a riot? I claim no. Others claim yes. His words are facts, including the facts that a) he explicitly called for peaceful protest, and b) he called for supporters to “fight like hell” – a phrase in the impeachment.
Hundreds of politicians have said similar “fight” statements without being accused of incitement.
Who decides whether this was incitement? (Who counts the votes?)
.
Michael Lind is not somebody I trust in his “Dem trying to be fair” guise.
Donald Trump lost power in a free and fair election. Numerous courts and state officials and his own vice president have rejected his claims that the election was illegally stolen.
No court has heard the evidence and rejected the claims – the courts, including SCOTUS, have claimed lack of standing, or jurisdiction, or timing, to AVOID hearing the evidence.
Millions of Trump supporters, including me, will continue to believe that the election was stolen. Those who believe the election was fair, have a different belief. We’re all entitled to our different beliefs – but not facts. After 100 years of women voting, with an avg turnout of 55%, and a max turnout of 61% in 1964 after JFK, it doesn’t seem credible that 2020 had 67% of legal voting turnout.
The long & detailed Navarro Report has much more
https://navarroreport.com/#342e5f15-d44c-436a-bb58-9051a9397783
The Capitol riot, starting some 20 min. before Trump finished his speech about 30 minutes walk away, was NOT incited by what he said on 6 Jan. But the failure to seriously investigate and explain the irregularities lead credence to Trump’s claim of the election being stolen. There’s lots of evidence. Most evidence is not proof, even when there is a preponderance of evidence.
What is the right thing to do with mail-in votes being handled without Republican observers? a) count them anyway, despite it being against the “rules”,
b) wait for observers
c) NOT count them, ever
Lots of cases of (a) – no Rep observers, but ballots counted anyway. Including ballots from Mickey Mouse, plus thousands of dead people and those who’ve moved away.
Once the “rules” are broken, the “burden of proof” should switch. Without rules to avoid fraud being enforced, how can we know, or even believe, that there was no widespread fraud?
Because officials from the Deep State say so?
Officials like the ones who have lost or misplaced the Woods File?
https://www.powerlineblog.com/archives/2021/01/woods-file-gone-missing.php
Lind is far stronger vs Oligarchs:
Of graver concern in a democratic republic should be arbitrary powers exercised by companies in the real economy against dissident individuals or unpopular businesses or organizations.
An interesting near future issue will be consideration of the “election fraud” issue.
Those who claim no fraud might not be taken seriously by Trump supporters – those who claim big fraud might not be taken seriously by Trump haters. (That’s now OK with me, but it’s sub-optimal). I object to Lind’s prior essay for his biased phrases. Which are biased EVEN THO I see myself finding confirmation bias in my own analysis.
Arnold is probably optimal for YouTube:
The job of creating feeds is a publishing job, and YouTube would have to outsource that if it wants to avoid the burdens of being a publisher.
But I think there should be multiple free video services – one with feed (publishing! and moderation), and one without. The billion of users are enough for more than a single model.
Changes in the “Pony Express:”
Now it no longer takes “sealed” envelops or packets; it “opens” and “reads” all the material. It “analyzes the information derived. It then offer a service to other parties inducing them to send communications (based on the information and analysis) to both senders and receivers for which they charge.
This has been over-simplified as “We sell ads, Senator.”
The selling of ads and information analyses is interstate commerce, which is subject to federal regulation. Such regulation could include regulation of the “standards” for the instrumentalities (chiefly “platforms” initially) used to capture and disseminate information.
A first step could be establishment of a Federal Information Exchange Act and the creation of an Information Exchange Commission, with powers of disclosure requirements, exemptions, etc.. The information “marketplace” can be opened up just as the securities markets have been. It will be “messy.”
The irony in this consideration from a critic of the Federal Administrative State is noted.
1. When forming a business, one gets to choose between several officially sanctioned structures, each with its own particular tax regimes and governance requirements suited to the trade offs and risks involved. LLC, LLP, S-Corp, C-Corp, etc.
It seems to be the best kind of rule here would be for these companies to decide which kind of entity they are, and to accept different potential consequences and liabilities as a result.
For example, they could say they are content-blind “common carriers” or “indifferent pass-through services” which would shield them from liability for any of that content, but also mean that they couldn’t discriminate on the basis of content except for the traditionally well-recognized exceptions to the First Amendment, and couldn’t discriminate between or refuse to do business with members of the public / paying customers for any reason besides a basis of a track record of felonious activity or breach of contract.
Or they could choose to be able to discriminate at will between content and users using any terms of service or judgment mechanisms they want, but in that case, they are “publishers” and have joint and several liability for anything that gets disseminated.
At any rate, whatever one’s views on regulation, it does not seem very “libertarian” to give digital communications firms a *special* regulatory regime that is not equally enjoyed by other firms and industries in the information curation, publication, and dissemination sectors. At the very least they should be treated in the same way without any special immunity from liability risks borne by some of their competitors.
Removing a law-created privilege and unequal advantage of the kind meant to subsidize ‘infant industries’ is not ‘regulation’, it is de-regulation. We should de-regulate tech, which might indeed be ruinous to certain existing business models that depend upon the current subsidy, but we should also offer business-saving legal safe harbor, *on condition that* those companies behave in ways more compatible with public policy norms of non-discrimination.
That’s not so different from allowing people to form businesses with limited liability, which creates risks of a bigger gap between harms to general social welfare and remedy payments in the event of bankruptcy, *on condition that* those companies accept certain different requirements that are thought to help mitigate those risks.
But what about, say, Gmail? Does the spam filter make Gmail a publisher?
This is the right question. An even wickeder example is Google Search itself. Does ranking your search results make Google their publisher? There is no bright line between censorship and the actual fundamental service that these companies offer.
That consideration shouldn’t necessarily defeat law reform. It might be best to just make law according to sound priniciples and then force the players in the market adapt and to draw the lines.