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tv   Jeff Kosseff The Twenty- Six Words That Created the Internet  CSPAN  August 7, 2019 10:06pm-11:41pm EDT

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influence. in "the 26 words that created the internet", jeff kosseff described the communications decency act that protects websites and lawsuit over user content. policing the internet. after that, technology reporter anna recounts her experiences working for a tech startup in san francisco. >> good afternoon. my name is john, i'm the vice president here at the cato institute. i'd like to welcome you to our book form today on an important
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book, 26 words that created the internet by jeff kosseff. general housekeeping notes, week, for the first time will have our offer and two commentators reflect on this book followed by a question and answer session. then about 1:30 p.m., we shall have lunch and more conversation about these issues. let's go to the subject matter today. legislators and regulators work on a greater burden that facilitates intimate speech. left and right receive what's treated as the publishers of the users speech. that means subject to all the rules that go for number publishers, it's unknown but utperhaps very damaging effectsn
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speech or freedom of speech. australia content, a recent law include jail social media executives, uk created social media regulator. they do not remove harmful content. this morning, parliament voted for antiterrorism bill which required requires them to act on reports of terrorist content within 60 minutes. as large of 4% of their revenue. think about what that would mean for large companies in particular like google and facebook, it's a lot of money but of course for small companies that might be evenng more damaging. it's increasingly seen as a
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simple solution to a wide variety of dangers, perhaps revealed by but not created by the internet. they have grappled with the harassment without suppressing free expression enough positive externalities thereof. there is, however a tendency, a temptation to treat these as novel political controversies or particular features of currently dominant speech platforms. in resolving them, create social itselfnd the internet and that brings us to our book today and our author, "the 26 words that created the internet" is a history and discussion of analysis of the struggles of the
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internet, the words that created the internet and the policy thereof. our author, jeff kosseff is a cybersecurity law professor in the naval academy cyber science department. privacy and first amendment law. judge leone of the united states district court of virginia. he was a technology and political journalist. he was a recipient of a george reward. we are eager to hear about your book. >> thank you.
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just a disclaimer, at the beginning of the talk, i am a professor at the naval academy. thanks for coming but i do have to sayve that everything i say today is only on my behalf, and not on behalf of the naval academy. now i can tell the story of how we got heree with internet regulation. it did not start with the internet. think way back to 1956. this book was being sold at a new stand in l.a. i stand owned by 72-year-old immigrant. this book is called sweeter than life, it does not have copyrig copyright. i can say it is not a very good book. i will read the first line,
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which is pretty much all i'm able to read. beautiful legs under the dashboard. lapd officer happened to be undercover at this stand and he read that and said this is a team. mr. smith was arrested and he was sentenced to 30 days in jail. he goes to the supreme court and they say his conviction has to be overturned because of the ordinance he was convicted of did not have any requirement, it didn't matter if he knew this book was, that he could go to jail regardless. that's violating the first amendment. we have this rule think the only way youst can hold them liable s if they know or should have known.
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all sorts of people who sell content created by others. it's a pretty easy rule until we get to the early 90s. we have services that my students hopefully remember, prodigy of america online.y it was first two big online services. there were two approaches to how they allowed users to interact. they let people post anything, they had no moderators or content policies. prodigy on the a other hand, haa lot of policy, they contracted to moderators to delete objectionable content. in a few years, both of them ended up getting sued for defamation. the user posted about daniel, a guy played by him on wall street. the two results were very
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different. for copy, the case gets tossed out. the judge says it's noub differt than the newsstand. it's just a distributor. prodigy, on the other hand, is found to be a t publisher of the content. prodigy took t steps to edit usr content, have moderation policies, all of that made it reliable as if it were the speaker. it creates this preserves affect were online services get they get more protection if they don't do anything. so that's where congress steps in. 1995, congress was going through this multiyear process to pass this act which eventually passed in 96. most of the debate was about how to regulate local phone competencies companies, it's pretty interesting when you looe
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back that that's what the debate was. there was this internet that was kind of percolating. there was a senator from nebraska and he was very concerned about his grandchildren seeing all of this content on my. so hee passed, he proposed something called the communications decency act. it basically said, imposed a lot of penalties on individuals and companies for transmitting certain types of materials to minors. that would have really made it very difficult for homeless things. like information about diseases. there were a lot of first amendment concerns. he got the senate version and on the house side, they are really
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concerned about this. there are technology civil liberties groups, tech companies like prodigy who say we don't want to do this. we are better positioned than the government to determine what is inappropriate for minors and our customers will vote with laws. so we have all of this objectionable material and we are not meeting the demands of the parent were subscribing. they're going to walk o away and vote with their wallets. so the solution was what became section 230, proposed by chris. he's a moderate conservative congressman from orange county. fairly liberal democrat from portland. they shared an interest in
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helping the technology industry to grow. they have a lot of technology preps but they also use empowerment. they proposed section 230. he said no provider or user of the computer services provided by another provider. if you don't know what that means, that's okay t because nobody then knew what it meant.. there was no coverage of this in the news as it got attached paper eight, 1996 by president clinton. there is a lot of coverage because the other portion of thv bill also got past. so they ended up getting cast into cloth. the next year, the supreme court struck down the amendment.
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so all of that indecency, criminal penalties, that went away because they said it violates the first amendment. so what you have left, which is buried in this massive, i think there were about 2000 pages, 26 words, a few exceptions for federal criminal law, electronic medications but there's not much more. having gone through all of the newspaper clips, there was really no coverage of this. they didn't even know what to do with it. that changed the next year. this is all online. there was a man who was living a quiet life, selling real estate,
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living with his parents in seattle and suddenly starts getting a lot of phone calls. first every half hour, then multiple calls a minute saying really mean things to him. he doesn't know why. then he gets reporters calling him. he found out that somebody, we still don't know who, posted on america online, and advertisement for those marking the oklahoma city bombing. this was after the bombing. i will repeat the exact terms but they were really crude jokes. he doesn't know what america online is. so he calls america online and they say okay, we'll take care of it and take it down. they delayed taking it down.
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when they did, on the other post gets put up. he's begging them, writing letters to them, they are not doing anything about it. it takes weeks for this to get sorted out. nn top of this, dj read the ad on air and read his phone number, which was in the attic. so he's getting all these calls and it eventually stops but he sues america online. this lawsuit was filed in 1997. this is the first lawsuit seeking to hold an online platform liable. so americat. online hires one of the best media lawyers in town. he knows about this section 230. he makes this argument that nobody thought to make before that those 26 words means that
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america online is not responsible for anything its users post. his attorney said that's not the right reading. you need to look at that it's not holding them to be the publisher or speaker. it's holding them to be the distributor. once they noticed the post, they are reliable. he dismisses the case and it goes up to court circuit. nobody really knows how this is because nobody really interpreted section 230. it goes to a panel that ended up having judge wilkinson to write this opinion that basically says section 230, the 26 words are what they are. you can't hold these platforms when reliable at all.
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we feel for you but this is the choice congress made. we are going to dismiss the case. so the first ruling is basically what almost every other federal courts interpretation of section 230 rests on. they all i say in so many opin opinions, we feel really bad for you but that's basically the law of the land. so i spent a lot of time with those who are generous with their time. i talked with me and one thing that impressed me as they both seemed to know the nuances of the law. the commentary says this is not what the law was intended for.
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but chris said some interpretations have concerned him. so i asked him what was most concerning. he immediately respond with theo worst word hateful. i think this illustrates this section. so he was an attorney who had just moved to north carolina. she was representing art galleries and museums and she needed some work done, a friend a handyman. hire the handyman does some work, is not happy with the work. he wanted her to market a script to one of her clients and she didn't want to do it. it wasn't a great situation. but he, for whatever reason senc an e-mail to the museum security network which is dedicated to
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helping recover stolen artwork. she right, i justhe did some wok in north carolina, i think she said she washt descended from a nazi, might have been hendrix granddaughter. so strong implication of what set saying, what she says, i represent art galleries. i never claimed to be descendent of any nazis but the owner gets the e-mail she gets the e-mail, he makes some changes to it and she posted online on the website as well as the list. her life gets ruined quickly. shee loosed she loses a lot of clients. she sues and what the circuit
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does, there was a bit of history but section 230 does protect someone like the museum security even if they made the affirmative choice to forward it on to their users. so i think that probably illustrates the big house sweeping. i spent time speaking with her, she has a lot of insightful thoughts and she does not agree with section 230. then i asked her, do you think this is what caused your harm? she paused for a second and see said no, she was in the netherlands. she had no idea what section 230 west. i won't say exactly what she said but she said people are going to be a, you can fill in the rest of the words.
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i think i was pretty insightful. we look at section 230 mcc a lot of debate about what the platforms are doing. the platforms are not doing enough to moderate. it also needs to be clear, there's not going to be a perfect solution. no matter what you do unless you ban all content, some are going to get it. the other side is that the internet under section 230, i believe has held up a mirror to say this is what we look like. there are some bad people who will do bad things. you might defame someone make these claims and when someone bites. we like have revenge pornography. sex trafficking online.
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congress ended up amending that for that. harassment of all kinds. section 230 does allow platforms to take a hands-off approach and i would say that's allowed by law but also not necessarily what section 230 was intended for. i view it as being a contract between congress and the platform saying the platforms are better than the federal government regulating content. we want them to take care of this.. it's a muchin more obligated answer about how they are doing. they are doing stuff. and not doing enough. if you look at the debate in congress right now, i think section 230 may well be limited, i think a lot of it is based on this information. a lot of it is based on
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arrogance over many years for many tech companies. i think if this fully repealed, i would like to know the next step. i think there's not really a good answer to that. if it's repealed, the modern internet is built on section 230. we have almost all of our largest websites relying on user content. i don't think theyng would be ae to exist in their current forms if we did not have section 230. that may be good or bad depending on your preferences. it would be a radical change and we need to have a social discussion about how we want the internet to look. when i first proposed the book, it was called the 26 words that shaped the internet.
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i changed it because i think the 26 words created the internet. they created the social structure that we know today.orr i think it would look very different and again, if that's something we want as a society, it's finee but we need to have n informed discussion about this. anyone who tells you there's an easy answer to solving this has about the questions because i can tell you, there's not an easy answer. there are a lot of equities and trade-offs. i hope it will help to inform this discussion and figure out how we want to take the internet in the future. [applause] >> there you go with allll that complication. everyone knows there are no real policy problems, it's just bad people making bad policy.
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first commentator will be alonzo, the center for democracy and technology free expression concept which supports internet users freedom of expression. the project works on any subject including human trafficking. counterterrorism and radicalizing content and online harassment. the legislative and activity in the united states of the eu and responsible for a great part of the world. focuses on protecting rights, freedom of expression after
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serving liability protections. the project works to develop content policies, best practices with internet contentnt and advocates for user empowerment tools. government regulation of online speech. she earned a ba in anthropology and that will turn out later. a ba in anthropology for the university of delaware. we look forward to your comment. >> thank you for that kind introduction. and thank you for a remarkable book. it has been in d.c. for about ten years, on intermediary issues, we've seen a lot of
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different sections over the years and the way it functions in court cases, we often talk about it being as important as the firstom amendment. my organization has a deep history with section 230. our founder makes a couple of appearances in jeff's. book in 1994, he and some t of the othes in the digital rights here were excited to find senators to work with on creating what these 26 words would be. i don't know that even then anybody had quite the vision of the internet that we would have in ten years time let alone the internet we have today. there was one thing i really drew from jeff's book discussing the creation of the law, what led to it and how it was interpreted by courts in the
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first ten years or so, there was something of a common vision for what was it that people, governments, companies were trying to achieve with section 230. what kind of internet are we aiming toward? there were cases of prodigy that showed that traditional armaments are potentially going sto lead to adverse outcomes, confusing results were operators who did the job trying to moderate speech, put it more at risk. that seemed to dis- incentivize the kind of pro- social content moderation, keeping discussions on topic, dealing with harassment or unproductive comments that they wanted to see early on. we have section 230, there are
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many more than 26 words, there's a pretty substantial finding and policyon section of the front of the statute. the drafts of the laws really articulate the vision for what is going to mean for the u.s. and the world. it talks about things like being the most self-directed access to information that people have ever really had. the policy of the u.s. seems to be supporting that free open internet firms really putting choice in people's hands as to what they access and what they get to share. this vision that sounds kind of simple but it was kind of a clear vision but i think was both overtly shaping the policy debates in the early days of the
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internet and it was taken up in a variety of international forms, we see similar questions coming up in europe and countries around the world, intermediary discussion and what it should be. it was a great effort to product. the technical intermediary or a search engine or lead posting company, if they say it's a legal risk for other people, the most sensible option is to shut that down. there are incentives of hosting free speech by third parties, often who aren't even paying you for the privileges pretty well. there's this strong embrace of this recognition of the world they play in really and embrace
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the sense of legal risk for the gatekeepers with a wrong direction to go. but as we, some of the cases that started defining the outer boundaries started complication of this discussion. when you think about, jeff talks about the website, the dirty, sort of what got the website that actively is out there saying, sent us the dirt on people, not necessarily send uss illegal stuff but send us gossip and things that might be true or might not be. t they look at these submissions and decides which one to put on the website.
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he puts out y materials that cod be extremely damaging to somebody's reputation with no knowledge one way or another whether it's true or not. section 230 is interpreted by many over many years and it says that because he did not offer the content is not legally responsible for it. it's a very sensible application of the law if you look at how it's developed. it makes people stop and think, that can't be right. that doesn't seemed like the right outcome. today, i feel like we are in a space where it's not really clear what the vision is. there are multiple competing visions being put forward by government, by people, users and advocacy groups, people raising the fact that it's a widely unregulated intimate and can have a chilling effect on people.ll
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often not clear what different companies vision is for the internet. we are years away from when twitter will describe itself as the free speech party. yesterday they had a post talking about the sense of obligation that the company fails to find content that might be harassing or discouraging people from participating in recognizing or articulating responsibly that they feel to view content and not just rely on users. the attitudes of the major platforms, we can talk about all those and why that might be but we're in a global policy debates today, there are a lot of different kinds of visions that are at least intentions with
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that, let's make this a free open internet, the gatekeepers out of the picture. today we have governments like the united kingdom wanting to regulate online harm and recognizing that they are talking about activity not necessarily illegal but wanting to formulate a duty of care for platforms because of its negative effect on society. that's a really different role for them to play then you areia the publisher and nothing else. we are facing conversation about wanting comprehensive content moderation. it was very common for the way many would moderate, it is our
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reaction response. from report order or one of your users reporting material on your platform that violates your terms of service. it's a reactive process and there's a real resistance by advocates of using automated tools to find potentially infringing or violating or illegal content. that hasn't shifted and a lot of the current discussion where there is much more defense that you hear of wanting comprehensive applications of law across all content. four make sure platforms enforce their terms of service consistently which means enforce it against every piece of content on the platform and not just case-by-case. that's an enormously different role for platforms to play. it creates problems of over determining what speech gets,
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scrutiny, shifting who bears the burden of identifying content is potentially violating speech and a shift in how we have had systems of rules or laws about speech applied to the vast majority of public discourse. day today, we have a lot of different pressures and constraints that shapes how we see. most of them have nothing to do with the law. it's not like i'm standing here worried about what a police officer might think about what i'm saying, i'm worried about what you all think about what pnvsaying. the social forms the shape therein and it can be powerful forces. there are also things that arere typically enforced in a dynamic that is left top-down, abstract rules and much more something
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that is created collaboratively in a dynamic fashion. they can be extremely strong pressures s but they are not necessarily the same, a third party is articulated as standa standard. we are in an environment today that i think is deeply rethinking as here in the u.s., around the world what is that we are sort of expecting or thinking about when we think about free speech online. when we have these conversations, we are talking about section 230, there are a lot of ways people are pointing to 230 not needing what they want to see. one common think we see discussed when congress has
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hearings about this is the sense that there's nothing corrosive about section 230. section 230 has two parts, 26 words that say no intermediary is liable as a publisher or speaker of third-party content and they are shielded for the activities they do to moderate content. if i post something on facebook and facebook take it down, i don't have a cause of action, i can't sue facebook for its action in moderating my speech. we've seen a number of cases that will get that question as they try to suit different companies at any time it's about my moderating speech, they take it down or improperly not taking it down, section 230 is pretty
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clear. they are both forms of protection. a lot of the content that people want to see platforms taking more actions against or moderating, if we are talking about hate speech or harassment or bullying, we are talking about speech protected by the first amendment. speech therapy difficult to compel an action even if itos didn't exist. you'd be trying to cross a law that required the post to take down someone's lawful protected speech. that's probably not going to get very far with the supreme court. section 230 works to enable content moderation by removing that risk or during content
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moderation. shielding them from lawsuits and users who get caught up in their terms of service. at a time when our information system feels out of control, a lot of people in discussion around 230 seems to focus on this concept that is not coercive. we see that sometimes inn the common confusion that we see in congressional hearings on the topics whether there's any kind of content neutrality required of platforms or intermediaries to benefit from these sections. ro that there's no secret hidden, you have to be neutral and how you do moderation to benefit this production. platforms can be as skewed as they want.
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they can do content -based prescriptions, but part of what 230 enables. except their own terms and policies. we even see it in thehe current discussion around the state of the law, people are not able to believe others generally nothing corrosive. another interesting facet of section 232 think about here is it's almost negative formulation of the way the first amendment is. congress shall make no law in the other, it is not what says
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there's a positive obligation for the government to enable free speech, it's very much focused on prohibiting government action that could limit or burden speech. in a similar way, section 230 is a negative, no court shall find a court reliable if this is obtained. that's really effective at promoting free speech in some respects but it doesn't answer questions about the positive side, what other conditions to enable this? i think isit a observer of how these conversations can be different here and in europe, there's much more of a positive sense of obligation to enable conditions for freedom of speech as well as restrictions on things like hate speech and glorification of terrorism. one of the dialogues going on where i see many poor people in the u.s. today talk in a more positiveni right and recognize d
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draw out these dynamics. the dynamics of the chilling effect of harassment. we are seeing people do studies and documents. looking at reporters, i think it was a guardian newspaper did an analysis that there are different reporters receiving articles they busted and found the top ten reporters receiving the most harassment kind of comments in response to the articles where across the board, either women or people of color or both. so it was this really stark look, the burdens of harassment and hate speech are not shared equally across all commentators online. one of the real dynamics, whether people feel like they can use the internet for this
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vision of accessing information, yes, some of that depends on things like whether there's a law or it will take you down but some of it depends on these other dynamics, the other conditions in speech platforms you are trying to engage in. what they might do about this, i think it's important to recognize there are some fundamentally different ways of thinking about free speech that are kind of frustrating our conversations that need to probably move up into conversation and consideration.
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i'll just do high points now, i mentioned europe a couple of times already, there was a moment in the book where jeff notes twitter and facebook and youtube talking about 20 sixteenths, how much more they were doing to take down terrorist propaganda and it wasn't clear what the motivation was. where they started to really take proactive efforts to push things themselves. to me, the answer seems very clear, it was europe. the legal and regulatory policy debates happening, particularly in the wake of the early 2015 that led toun a number of very intense conversations, policy conversations including counterterrorism coordinator for the european union, months after the attack recognizing europe
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set up something called internet furlough unit, law enforcement agency, are several across the eu where members of law enforcement will identify material they think should come down from an online platform and without going to a judge or getting ruling, since in order to the social media platforms inc. we think this content violates your terms of content and we thank youwn should take t there. they are coming to companies in the context of a legislature that is primed and ready to pass laws regulating tech companies that are thinking the old dynamics of intermediary liability are skewed. i'm over time, i'll stop there. thank you for your book.
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[applause] >> very interesting comments. i have gone through a time consuming exit and russia caused the public agenda. your remarks are well taken. so almost two years prior to that. it does suggest a lot of what we talk about in this area is about recent events, wherever it began that our next commentator has been on these issues before they were popular and before they were on the front of new york times of the washington post or before legislators.
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stern professor of law at temple university law school, currently a contributor what hosted by the magazine. in a scholar at the cato institute sometimes called upon to have lunch with john. he maintains also active practice, trained originally as a physical anthropologist. david was one of the first internet law scholars in the u.s. he's been a member in the department of anthropology in additiondd to temple. practicing lawyer and a clerk for supreme court justice ruth bader ginsburg and feel free to ask about retirement plans.
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he is the author of a book on cyberspace. his perspective on internet law and policy. cyber law in the information age is 1996 article co-authored with david and the rise of law in cyber space. his recently identified as the second most cited intellectual property law.er david -- run those monsters, buddy. >> i'm sorry my parents aren't here to hear the wonderful introduction. my father would have been impressed and my mother would have believed it.
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a general nostalgia for the old days and battles, i wasn't directly involved in the communications debate but i was involved with those who weren't involved. jeff's book is a reminder of what a strange and bizarre this is. this legal evolution of what shapes business and commerce. they are "the 26 words that created the internet". at least the internet as we know it today. i agreed about that. several years ago, i said a
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similar sentiment. i said it was the sentence, the one sentence i created more wealth and more value and more jobs and revenue and impact than any other sentence in the u.s. code. i stand by that unless someone wants to give me challenge temple. it's impossible to see how the entire generated content phenomena of the past 15 -- 20 years would have happened. the numbers are such, the scale of operations is such. the liability exposure without 230 as an immunity for user generated sites is incalculably large. you could have raised a dollar for facebook or twitter or reddick or pinterest or wordpress or any of the user generated content sites without some liability protection of the
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kind that 230 gifts. it's a strange and bizarre sto story, it was so far under the radar, the most important sentence. buried in the thousands of pages of very complex technical provisions of the telecom act, a major reorganization. e they got to yelling and screaming about all that. then there is this munication decency act, decency and pornography and how we willl stp it and then, there are the 26 words. nobody knew what it meant. the language was a little odd, some treated as a speaker
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providing information for it should be treated as a publisher or speaker of content provided by another information provider it's not self executing. as jeff talks about in the book, until the courts get on it. it was not clear what the impact would be. they knew it was there in the midst of the 2000 pages of the text, it wasn't clear what the impact would be. he was giving a broad reading but it could have been otherwise. he did not know. it's strange because of thiss weird paradoxical feature that i had. with all that has happened, it's
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hard to remember the purpose of section 230, the purpose was to encourage internet intermediaries to do content moderation. it was a direct response to this case, as jeff was describing and that, too, is bizarre. this trial court out there on long island that issues this opinion. that's unusual. the prodigy case said if you moderate content, we will teach you as a publisher. you are strictly liable, knowledge or not of the material you publish. section 230 says to the contrary
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that we won't hold you liable for third-party content. and that won't change even if you do moderate content. that won't make you a publisher. ... hateful, pornographic, whatever they decided, whatever they felt was inappropriate, then now could take down without the fear of this crushing and incalculable library. so didn't really give intermediaries a specific incentive to moderate content, it removed the disincentive to moderate with the hope that the companies would then devise their own content procedures. sort of like a double negative for a paradoxical feature of the act and whether it was successful or not, we can talk
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about during the q-and-a whether the companies have devised their own procedures and whether those are efforts to soon to tell. so when a series of thoughts i had about this. the second general category one of the things i liked about the telling of this section is that he makes it a story at least in significant part of the internet exceptionalism. this was and still remains a hot debate in the circles is the internet so different from real space that means its own rules and legal structures and institutions were not. i've been an exceptional list since the startxc i think and to 30 was a victory for the exception at the most basic excess liability can be imposed for content that "washington
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post".com can distribute the same content and be immune. there has been no clearer distinction between what we have a different wall for the internet and we hav than we have real space publications. same content. exceptionalism triumphs for what are good reasons. the internet of course is different in some ways and the same in others, but it's different from real space with respect to the intermediary function in ways that are crucial and that our most salient to this question and the difference is the scale, one major difference is the scale of the operations, the numbers. the internet as my colleague has nicely put it is in comprehensibly andni sublimely large, the largestki undertaking in human history. it's immense size, the
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foundational definitional attribute of the internet is in its immense size. it's not big because it is the internet, it is the internet because it is so big. because it is the one network that has the capability of connecting everybody together. you all know the numbers i assume, 100 million upload a d day. more contentre is posted on youtube in two weeks than was produced by the entire broadcast industry in the united states since its inception. i did a little consolation. they would need to hire 30,000 people. they probably have 200 employees, 400 employees maybe. they'd have to hire 30,000 people, eight hours a day, seven
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days a week. no lunch, no breaks to look to give a one second if you have everything thatev is uploaded. 30,000 people looking at each one,ng one per second. the internet is different. in recognizing it it enables and allows these gigantic things to emow precisely because it gives them protection from liability. exceptionalism is a part of a larger trend. it's interesting to lookk back. the u.s. small embodied a kind of industrial policy designed to facilitate the growth of the internet industries. that had three pillars one of them was section 230 that the
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internet any more difficult to regulate category then say the telephone companies or cable companies. third was the so-called sales tax exemption the supreme court ruled you couldn't collect sales tax from out-of-state sellers unless they maintain the physical presence in the jurisdictioof thejurisdiction we companies like amazon and other internet retailers a big boost. the nobody said this policy in motion and it gave the internet-based companies, online retailers, social media platforms, search engines all the rest got a huge boost out of this special treatment. whether it will continue its course iofcourse is a question e
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face today. so, what happens now? 230 has come under heavy fire as of late and it's hard to see it's arriving in its present form. the left doesn't like it because it leads legal wrongs on remedied and appears at the expense of individuals have suffered legal harm. the right doesn't like it, but it's a bad combination, the right doesn't like it because they don't like leaving the content modification to private actors, hence the recent brouhahaha over the buyers in te search results an into the takedowns and all the rest. in the defense if there's somethinthere issomething aboutt that youon don't like, and lord knows there's plenty about it
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not like them it's easy and not unreasonable to lay the blame at the feet of section 230 precisely because it created the internet as we know it so whatever it is, is to 30s called and we should fix section 230, all of it. but of course what to do about it is a hard question. what i find is the way he found himself towards a moderate qualified defense for not ignoring the wrongs left on remedied but also concluding that on balance it has probably llne more good thann harm and is overall a net plus. the argument said it could use some tweaking now that the industries have matured, we don't have to be so protective
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of them. it's not an unreasonable argument and a as many of you probably know, the wall has already been breached and the floodgates may be opening soon. last year in the fight online sex trafficking act amended to 32 remove32 remove the liabilitr intermediaries who knowingly assist, facilitate or support online trafficking. now i would like to knowin more about, and i mean it's a genuinely, i would like to know how it has worked or not worked before i start tweaking section 230 anymore. they've suppressed a great deal of speech per instance craigslist responded by shutting down its personal message boards
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in light of the liability risk eliminating millions of proceeds. hapadded it had an impact i dont know the answer to that. i would like to know before i evaluate other changes to see the effect that they may have. it's perfect before we carve up section 230 any further. you notice that it illustrates in the way that the paradox still looms in this and easily going to go away you can't impose strict liability on the internet intermediaries for the unlawful conduct of their accusers because of the scale of the operations and the overwhelming liability that
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would entail at it has it's own risk that they would now be less willing to monitor. this is how we started. if they are going to be liable if they knowingly assist, they would be less willing to take action against specific postings or k remove particular messages for fear having known a unlawful activities. this is why we have 230 in the first place and it has the prodigy all over again. this isn't an easy problem to solve, and i think people on both sides need to recognize that it isn't an easy problem to solve a. one thing i think, i come from a lot of time on the copyright war
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and the copyright law which is outside expressly exempted from the region has an exception for intellectual property. it doesn't cover intellectual property and it worked out as soon regime in takedowns and immunizes the media raised onlyp if they respond when they receivereceive notice from somet there is a copyright infringing material on their site they take it down and have the obligation to put it back up with the original poster if they write back and say it's not infringing, like cousin is playing the guitar i don't know
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what you are talking about. we need to look harder path to sehard at that tosee how well i. my impression is that it has worked reasonably well actually in combating infringement and also allowing people freedom to post what they want to post and couldod be a very good model for 230 going forward. so i look forward to hearing what all of you have to say. [applause] they want to start as we organize here. in this discussion we have had two senators assure us that the origins of 230, the companies said he understood there was going to beie a commitment and obligation for the companies to be neutral, politically natural
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and therefore that's what's wrong with the political bias they are violating the law so it has to be enforced or maybe changed. is it correct that they took on an obligation? >> continuing the theme of me not speaking on behalf of the federal government the answer is no there is nothing in the record that talked about this requirement for political neutrality as a condition for section 230 it was focused on moderating all sorts of content that i am not from all the legislative histor history and h i do might not talk to anyone who said that politics into thee political viewpoint were even an issue. the perhaps that might have
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motivated some that i haven't seen anything in the record to say. >> that is comparable with the incentives to avoid bias or any other kind of thing. let's go to your questions. please wait for the microphone and i'm going to be rude and thanks to you when it comes you can identify yourself entirely in line with the internet and maintain your anonymity if you want, but please, anonymous or not, please make sure that it's in the form of a relevant question for the people appear. right on the aisle. >> there was a comment earlier that this is exceptionalism but you start the chapter with free
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speech, empowerment of free speech and then it talks about how europe has gone the other way with article ten. how do we turn away from this notion of protecting the internet or talking more about free speech and then getting back to go more broad i know you talked about this that i was hoping you could kind of expand american exceptionalism on free-speech first amendment and of those types of ideas internationally. >> i will be for dave to defer to the experts. we are having a much broader discussion in american society from what i see it on to the section 23 230 -ish you about te values when we look at security, privacy and free speech when they come in conflict you see this with the attempt to bring o them here. there often are conflicts between the free speech and other values and the u.s. has
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always tilted more on the scale of free expression. europe has not, but that's also a broader social discussion we're having right noweare havil defer to others. >> there are so many different ways to potentially answer that question, but i think that just ain't asking what are the prospects of exporting the u.s. first amendment that is an extremely uphill battle and i don't think there's much success framed like that. most countries in the world do not put the model of the first amendment thinking how they want to do freedom of expression. it's very much seen as an outlier near and dear to my heart, but it is not, we have sort of lost the fight. but what we do have and i think that there's actuall there is an common about our societal conceptions of freedom of speech then maybe how we deal with it
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in our national constitutions might point to. the conversations we're having today in the u.s. about freedom of expression are based on our constitutional framewor framewot there's also a lot more that we have questions about the bias and fairness and am i getting a fair deal on the platform and understand what the rules are being applied to me in the concept of the kind of procedural and substantive fairness and due process are things that show up in the legal system and many other. the concept that whatever the restriction of speech is it needs to be defined. these are concepts that appear in the first amendment doctrine and the human rights law. there's a lot of ground we can point to try to rein in some of the aggressive censorship efforts and intermediary efforts that we see going on in other countries but i think it actually requires us to do more translation of our yearly held
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to find the common ground areas. >> hole that makes me want to defend the first amendment more strongly. it's the american exceptionalism is true we have a different view about the free expression than the rest of the world. we should hear what they have to say andou listen to their different views of course respectfully, but it makes met want to tear my shirt off and say i am for the first amendment and if we are the only ones out there for it, so be it. one of the interesting things about the debate about 230, every single major intermediary platform to 30 helped this
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happen, free expression helped this happen, people migrated to this from all over the world because of the free expression on the platforms and i don't think in a globalized world, and i respect the view of other people but that makes it more important to stand up and lead the charge because without us is going down the drain. >> i'd like to hear the whole panell discuss the second half, the good samaritan part. i'd like to ask your interpretation of the last
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phrase in the second part is there any action taken in good faith to restrict access with availability of material that the provider or the user considers to be obscene, lewd, excessively violent, harassing or otherwise objectionable, what is your interpretation of otherwise objectionable and what do you think it should be? >> i'm curious how much there was that hasn't been deeply examined. >> there wasn't very much. there was i think about 12 representatives talking briefly on the house floor but there wasn't that much precision at the time about distinguishing the 26 words and in the earlier
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version of the bill they were both in the same section so at least what you could gather his most peoplemo were focusing on . two. nobody noticed the first words that still boggles my mind after spending three years writing this book that nobody noticed it, but i think the otherwise objectionable that might be a catchall to give the providers as much leeway as possible to make these good-faith moderation efforts. >> i think it goes to the question on political neutrality. it's a sign that the kind of world that they had envisioned as you invite the libertarians tend you invite the republicanss did you invite the democrats and
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you invite the anarchists and the armenians and people who lived abroad and whatever is objectionable to you, you are permitted to curate your content and it's from the diversity of site or their own rules about speech that we will have a sort pr robust conversation. i think that language supports that ifag it's objectionable to you you can take good-faith efforts to control it and we will not make you a publisher. there is another aspect here not talking a lot about it but definitely in the background which is remember these are businesses, they are not nonprofit or part of the government although sometimes people act as if they are. otherwise the content of
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otherwise objectionable is at least going to be filled by whatever is consistent with the goal. there may be something more than that, but i would suggest that isn't such a terrible thing because wanting to attract people to your platform is, but it may not be consistent with and certainly the evidence we have is not consistent with as much free speech as the united states supreme court and forcesn the public forums. i am going to get to the right side over here. the gentleman right down here over here first. >> you pointed out to what extent would this question more academic than fragmented in china and india
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for example to separate itself. >> many people would say it has fragmented in the same standard that for many years there was a single internet in the sense that it would look the same whether you are in san francisco or shanghai or hungary or wherever you were a. that is no longer true for a variety of reasons. some commercial, but mostly governmental and blacklist and blacklist of sites so in the sense that it has we fight against fat and the most valuable thing to me that it's a terrible tragedy that we have actually lost a or some of the universality of the internet it
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was the one place on earth everybody has equal access to the same forms of content until it was and is a remarkable resource and we are watching that sort of decline i think because of the commercial pressures and government pressures. >> the gentle man in the very back has been waiting. >> put the magnitude might be because of the good overall but even in the case you bring up, the fact she was hurt by someone with a malicious rumor is meant to businesses must have been out to lunch or something because they are promising to be for publishing her with something and the guy with the telephone problems can change his number and w soap work.
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i've done a fair amount of study of tourism and it's almost overwhelmingly clear that the internet is great for the police because most are too stupid to realize that posting their proclivities on facebook and twitter is a good way to attract the attention of the fbi so the harms thats facilitate or overwhelmed by the fact that they are moret likely to be disrupted. >> i would say that for individuals who have suffered certain circumstances, it is overwhelming. so i would say he couldn't sleep for weeks. that was tragic. more and more there are worse cases that have come up into the worst was about two weeks ago in the second circuit finding the 230 immunity for a man whose ex-
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wanted to get revenge on him so there was a dating map inviting a anonymous strangers to come to hiss work and home and demand ad that resulted in hundreds if not more than a thousand people threatening him because they thought that's what he was looking for, his photo was on there and he repeatedly called the site and was begging for help and they did not help him. so section 230 i-india nic 230 e from that. i would say that is a pretty overwhelming harm. there was a woman who was advertising on a modeling website and there were these two men who basically posted recruiters basically get her a drug and apparently the site had known about it and that was a case where section 230 immunity
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wasn't provided up for failure to work. overall, yes there are great benefits, but you have to look at some of these people whose lives are turned upside down and i think any fair analysis does have to look at that. me one other thought i think it is helpful to look at what are the unique characteristics and how does play into the harm, so essentially a lot of them that we have seen that motivates some of these extremely compelling cases are from the potential for the kind of amplification and enormous reach of communications in a way that section 230 shields the website operator for the viabilityel of that, and there's nothing else necessarily in the legal system that could capture that were in the case of harassment on the social media platform but it's like 10,000
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strangers all directed at 8% at once and they had done a great t job kind of describing a they facilitated on the internet or because of the characteristics of the internet that still doesn't answer the question of who should mitigate and what should responses be?
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>> it's not just anecdotes. online harassment and not just something where someone gives a negative opinion of the busine business. i don't know how many are busy with just representing these people and i would not rate them as trivial. we needd to look at how they haprotect people against this because if they don't, i think that the days are numbered if there is some criticisms that are not valid.
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that is something that really happens if we need to lookve at how we solve that otherwise we are not going to have section 230 anymore. >> to go to the flipside of the comment this idea think about the craigslist personals one there was sex trafficking going on. some o of that may disappear at somifsome of it may go undergroo instead of having a public place that the police can monitor and a place you could go into the subpoena and give the information on thewi ip addressf the perpetrators if you find something they vanish into the dark web.
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i would like to hear from both e police about the actually. >> time is short and scarce so the next question will come from the gentleman in front. you mentioned she wrote a piece with benjamin i think in 2017 where they argued that section 230 should be limited to the service providers that put in place measures to prevent their services from being used for the
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unlawful activity. i'm curious if anyone on the panel ha as a reaction to that proposal or if that seems like a reasonable approach. >> i think they make some compelling arguments and criticisms in the article particularly about the effect of like the argument about the first amendment. that said i don't know how you would apply that rule. i think that they use this as an example of something that would encourage harmful content. they are used to leave reviews. could be seen as encouraging defamatory reviews, so my concern is an implementation because therin the implementatis
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that you want but i don't think play a useful social role. rightyb now i don't think anyboy has much of a description about what reasonable content moderation would be particularly if you keep in mind of th mind l diversity of the different sites out there what is reasonable for facebook and wordpress and that isn't to say that it finds such standards. we have defined what you might theorize and what comes out is
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going to look different. we solve it in section 234 it was proposing the amendment if they just got confined. but the house cam house came ups the alternative eventually we had a hybrid talk about in the book asking congress not to do what they are tryin trying todao section 230 because the actual outcome in the ideal scenario. it's a trend we are seeing in other o countries that were more capable of passing the ball
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quickly and look at evaluating and there's something to be said from the shift from liability based on a single mistake a company makes about whether to take something down the these wnmpanies may have grown up in the u.s. and have been benefited from the first amendment and section 230 they are not leaving the market anytime soon and so much of what they have done from my perspective and how they do the content moderation in the regulatory and faults voluntary sufferesuffered every initiativt they've taken up in response to the record pressuree in europe
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are affecting us in the u.s. today. because it isn't coercive that isn't going to get the promotion of those values very far. there is the uncertainty and the diverse environment of what is reasonable is very difficult and costly there are specific things they have to do to remain in the wind. it's straightforwarwood. it's straightforward and you have to have a mailbox people can send in notices of a particular form of a.
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it's hard to say that is overburdened some and very clear. to the extent you can't monitor, there's too much activity it's not reasonable to expect facebook or twitter to look at the content to decide whether it is hateful to. the page has been taken down because we don't t know why. because it violated som somethig
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that triggered one of these algorithms. that's the direction in which we will be moving and i'm not sure that is the direction that we always want to go. it's a company or person that has a regulation of content that's what you can hold them responsible for libel to the extent that it works they will be able to filter it out and they will look more like a publisher if they look more like a publisher, it's harder to argue section 230 should exist. >> it's beeexpended 26 words tht created the internet thank you
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for the panel. the

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