Transcripts For CSPAN2 Jeff Kosseff The Twenty-Six Words That Created The Internet 20240714

Welcome to the Cato Institute. The Vice President here at the Cato Institute. Id like to welcome you to our performed today on an important book, the 26 works that treated the internet by jeff kosseff. General housekeeping notes, we, for the first time, will have our offer and two commentators reflect on this book all about question and answer session. Then about 1 30 p. M. , we shall have much. And more conversation about these issues. Lets go to the subject matter today. Legislatures and regulators work on the greater border in that speech. American, left and right would see platforms treated as the publishers at a user speech. That means subject to all the rules that go for normal publishers. With unknown but perhaps very damaging effects on speech or freedom of speech. Australia sharing content bill, a recent law includes provisions to jail social media executives, uk creating social media regulator with Broad Authority who do not remove harmful content. The justice wanted to go to into tears and bill which would require them to act on report of terrorist content within 60 minutes. As largest 4 of annual rainy revenue. About what that would mean for Large Companies like google and facebook, there Small Companies that might be even more damaging. This intermediary is increasingly seen as a simple solution to a wide variety of dangerous perhaps revealed by but not created by the internet. Regulators have long grappled with the challenge of preventing liable media harassment without suppressing expression and positive democratic externalities. There is however a temptation to treat these questions in a specific controversy over particular features of currently dominant speech platforms. Resolving these problems in social media and the internet itself and that brings us to our book today and our author. The 26 words that created the d discussion and analysis of the struggle over the internet that created the internet and the policies there. Jeff kosseff is a Cyber Security law professor in the u. S. Naval Academy Science department. For judge d smith junior of the u. S. Court of appeals for the ninth circuit. As a finalist for the surprise for National Reporting in the recipient of the georgia board for National Reporting. Jeff, welcome to the Cato Institute. We are eager to hear about your book. Thank you. Just a disclaimer, i am a professor at the naval academy, thank you for coming but i do have to say that everything i say today is only on my behalf and not the naval academy. Now that that disclaimer is out of the way, i tell the story of how we got here with internet relation for user content. It does not start on the internet, you have to think way back to 1956, this book was being sold at a newsstand in l. A. Owned by 72yearold immigrant. This book is called speedier than liked. I say it is not a very good book. I will read the first line, which is pretty much all i am able to read. Lapd vice officer happened to be undercover in mr. Smiths newsstand and he read that and said, this is a team. And he was arrested. He was sentenced to 30 days in jail. He appeals all the way to the Supreme Court. The Supreme Court says his conviction has to be overturned, did not have any requirement for state of mind. It didnt matter if he knew this book was. He could go to jail regardless. Thats violating the First Amendment. This First Amendment rule saying the only way you can hold distribute liable is if they know of the content. Also to people softer picketed by others. Its an easy cool until we get to the early 90s. We have services that my students probably dont rememb remember, prodigy America Online. They were too big online services. Very different approaches to how they allowed users to interact. It was like the wild west. They let people post anything, they had no moderators or content policy. They had a lot of policies contracted out to moderators for objectionable content. Both prodigy ended up getting sued for defamation. Prodigy for a bulletin board. The post about daniel, the guy who was played by jonah on wall street. The two results were very different. The judge says the publisher is no different than las smith. They are just a distributor. They are found to be a publisher content. Prodigy took steps to edit user content, had moderation policies, all that made project be a viable. This creates a perverse effect. Online services get more protection under the First Amendment if they dont do anything. So thats where Congress Steps in. In 1995, congress was going through this multi process to pass the telecommunications act. Most of the debate was about how to regulate local phone companies, longdistance companies, its interesting when you look back. There was this thing called internet, it was percolated. They ran a cover story, there was a senator from nebraska, conservative and he was very concerned about his grandchildren. So he passed something called the indications act as an amendment to help content. It basically said a lot of penalties on individuals and companies for transmitting certain types of materials to minors. That would have really a very difficult to send even harmless things like information about diseases. There was no real. Definition. He proposed this, he got to the Senate Version of the act and on the house side, they are really concerned about this. There are technology liberties groups, tech Companies Like prodigy they say we dont want to do this. We are better positioned than the government, then the fcc to determine what is inappropriate for minors. Our customers will vote with their wallets. If we have all of this objectionable material in our services we are not meeting the demands of the parents who are subsiding, they will walk away with their wallets. The solution was what became section 230. Proposed by chris cox, a fairly conservative congressman from orange county. Fairly liberal democrat from portland. They shared an interest in first, helping the Technology Industry to grow. Both districts had a lot of technology presents. They also wanted user empowerment. About us driving what they did. They proposed section 230. No provider or user on Computer Service shall be held publishers deeper of the information provided by other providers. If you dont know what that means, thats okay. Nobody then would have. It was literally no coverage of this in the news as a got attached and signed february 8 by president clinton. Theres a lot of coverage because the other portion of the bill, the Communications Decency act also passed. They both got past. Next year, concern Supreme Court struck down the amendment. All that indecency criminal penalties, but went away because of the Supreme Court said it violated the Supreme Court my minute. You have the act which is buried in this massive, i think it was about 2000 pages of form, 26 words have a few exceptions for intellectual property, federal criminal law, electronic medications but theres not much more. I tell you, having gone through all the newspaper clips, there is really no coverage. They didnt know what to do with it. That changed the next year. This involves America Online. There was a guy living a quiet life, doing photography, selling real estate, living with his parents in seattle, he starts getting a lot of phone calls. First it every halfhour, but its about notable calls a minute. Think mean things to him. He doesnt know why. And he gets reporters calling him. When he finds out what happened, somebody still to this day we dont know who, somebody posted on America Online on one of the user Bulletin Boards comments and advertisement for tshirts mocking the Oklahoma City bombing. This was about six days after the bombing. I wont repeat the exact terms but they were really rude awful jokes. He doesnt know what America Online is. So he calls America Online and they say okay, this is bad, we will take it down. They delayed taking it down. When they do, another post gets put up, multiple posts keep going. Hes writing letters to them, theyre not doing anything about it. It takes weeks for this to get sorted out. He is about to the media, Oklahoma City papers because on top of this, a dj read the ad on the air and read his phone number which was in the ad. Hes getting all of these calls and it eventually stops but he sues America Online. This lawsuit was filed in 1997. This is the first lawsuit after section 230, he came to hold an Online Platform liable for user content. America online hires one of the best media lawyers in town. He knows about this section 230. He makes this clever argument that nobody thought to make before that those 26 words means that America Online is absolutely not responsible for anything its users post. The attorney said thats not the right reading of it. What you need to look at is that its not holding them to be the publisher speaker. Telling them to be the better which means once they get noticed, they will be liable. This goes up first, the District Court provided over the trial that goes up to the court circuit. Nobody really knows how because no court can ever interpret section 230. So goes to a panel by a real stroke of law and up having judge wilkinson used to be a newspaper editor and he writes this opinion that basically says section 230, these 26 words are what they are. What they say that you cant hold these platforms liable at all. We feel for you but this is the choice congress made. We are going to dismiss the case. So that First Federal court lying is basically at least for my research, almost every other federal courts interpretation of to the 30 restaurant. They will all say in so many opinions, we feel really bad for you but thats basically the law of the land. Its not up for interpretation. When i was in the book, i spent a lot of time on both it worked very generous with their time. One thing that impressed me was they both really came to know the nuances of the law and they intended the result. A lot of commentary says this is not what section 230 intended. At least according to them, it was. He also said some interpretation since then have really concerned him. So i asked him whats the most concerning . He immediately responds with the word they sell. This story illustrates section 230. He was an attorney who just moved to carolina, representing art galleries, museums and she needed some work done, a friend asked her to hire a handyman. He does some work on her house, shes not happy with the work at least according to her interpretation, she wanted her to market a script to one of her clients and she didnt want to do it. It wasnt a great situation. He, for whatever reason, sent an email to something called the medium security network. Its dedicated to helping recover that. He writes that he just did some work for her and i think she said she was descended from a nazi, i think it might have been that shes the granddaughter and i saw a lot of fancy artwork on her roles. Sanctification of what that is say, she says i represent art galleries. I never claimed to be a descendent of any nazi. The owner of the lister gets the email sent to him, makes editorial changes and posted both on mine on the website as well as on the lister. Life gets ruined quickly. Shes doing kinds because she represents a lot of at galleries art galleries. She doesnt know why, somebody else or something later. So she sues and what the man circuit does, is a Public Entity procedural but it says that section 230 does protect someone like the Museum Security lister. Even if they make affirmative toys on the users. So i think probably that illustrates the big house sweeping after section 230. I spent a lot of time speaking with her. She has a lot of really insightful thoughts about section 230. She does not agree with it. Then i asked her, do you think this is what caused your heart . She paused for a second and she said no. She said he was in the netherlands. I know we have cspan here so i wont say exactly what she said but she said people are going to be, you can fill in the rest of the words. I think that was pretty insightful. You look at section 230 and we see a lot of debate about what the platforms are doing. I need to be clear, the problems are not doing enough to moderate. Also, theres not a perfect solution. No matter what you do unless you then all your content, some bad content will get in. Thats one side of the equation. The other side is the internet under section 230, i believe, has held up a mirror for society. This is what we look like. There are bad people. They would do bad things. Like claim someone, defame someone and ruin someones life. We have issues like pornography revenge, terrorist recruiting on social media. Sex trafficking online. Thats something that Congress Updated up amending. Harassment of all kinds. Section 230 does allow the platforms to take hands off approach. I would say that is allowed by law but all also not what section 230 was intended for. It is being a contract between congress and the platform thing platforms are better than the federal government regulating content. We want them to take care of this. Based on demand. Ill say, its a much more gated answer about how are they doing . They are doing stuff. Not doing enough and i think 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 misinformation. Also a lot of it is based on many years of many tech companies. I will say that i think section 230 is fully repealed, i like to know what the next step would be. I bet theres not really a good answer to that. You can repeal section 230 but as i say in the book, the modern internet the u. S. Is built on section 230. We have almost all of our largest websites visited relying on the content. I dont think they would be able to exist in the current form if we do not have section 230. That may be good or bad to you, depending on your preferences. It would be a radical change and i think we need to have social discussion about how we want the internet to look. When i first proposed the book, called the 26 words that shaped the internet. I changed that as i was researching because i think the 26 words really did create the internet. They created a social structure of the internet that we know today. The internet would look very different and again, if that is something that we want as a society, i think its fine but we need to have an informed discussion about this. Anyone who tells you theres an easy answer to solving this, has not brought about the question because i tell you, theres not an easy answer, there are a lot of equities and tradeoffs. I hope with this book that it will help to inform this discussion as we figure out how to take the internet in the future. [applause] there you go with all that complication. Everyone knows there are no real policy problems, just bad people making bad policy. When could people get the chan chance, theres a real problem there. First commentator, emma. The director of the center for democracy and technologies the expression project which works to promote one policy that supports Internet Users Free Expression. The project works spans many subjects including human trafficking, online repetition issues, counterterrorism and radicalizing content and online terrorists. Emily was in the legislative the activity of the u. S. Of the eu. Shes responsible for a great part of the world. Fundamental rights of freedom of expression of rights and Liability Protections which is our structure today. The project also works to develop content policy best practices with internet content platforms and advocates for user empowerment tools. Other alternatives to government regulation online speech. She earned a ba in that will turn out later, ill tell you. A ba in its apology at the university of delaware. Welcome, emma. We look forward to your comments. Thank you for that introduction. Thank you for the remarkable book. I thank you call it a biography of section 230. As a person who works in this policy face, its in d. C. For about five years working at center for democracy and technology on intermediary issues, we see a lot of different sides of section 230 over the years. The way it functions in court cases we talk about it being as important as the First Amendment to supporting freedom of expression online. My organization has a deep history with founder jerry, he makes a couple of appearances. He and some of the other folks in the Digital Rights your, they were excited to find senators to work with on creating what these 26 words would be. I dont know that even then buddy had quite the vision of the internet we would have been ten years time let alone the internet we have today. I think that was one thing i really true from his book, discussing kind of the creation of the law that led to it and also how it was interpreted by courts in the first ten years or so after past, there was something of a common eyes asian for what was it that people, governments and companies, lawyers were trying to achieve with section 230. Kind of intimate we are aiming toward. Of the cases of prodigy that showed that the Traditional Law was potentially going to lead to consuming results were operators who did the job of trying to moderate speech on the platforms was more risk. That seemed to disincentive ice the kind of prosocial content moderation keeping discussions on topic dealing with harassment or unproductive comments that we wanted to see. We have section 230 and one of the pieces about it, there are many more than 26 words because its a pretty substantial findings and policy section at the very front office. Theyre really articulating the vision for the internet is going to mean for the u. S. And the world. It talks about things like the most sort of health directed access information that people have ever really had. The educational opportunity. Innovation opportunities homes in on the policy of the u. S. Being supporting, the brief open internet, free flow of information, putting toys into peoples hands as to what they access and what they get to share. This vision, this sounds kind of simple but it was kind of a clear vision that i think was both shaping the policy debates in the early days of the internet. It was taken up in a variety of Different International forms as well, we see similar questions come up in Europe Countries around the world. A lot of countries had to deal with this question of the liability and what it should be. There was great effort to promote this content that limiting liability was crucial. When the technical intermediary, or the Search Engine or the Web Hosting Company or the provider, its legal risk for other peoples speech. The most option for them is to shut that down. As an incentive of posting potentially risky speech by third parties often who arent even paying you for the privilege is pretty low. So theres this strong embrace of this recognition of the role a technical temerity or play. Its really an embrace in the sense of legal risk for the gatekeepers with the wrong direction to go. I think as we, as he described in the book, some of the cases that really started defining the outer boundaries of section 230, they started, getting and letting the question of exactly what is the kind of internet that people want to see. Anything about the case of the website, the dirty, the gossip website that actively is out there saying, send us the dirt on people. Not necessarily send us your legal comments but tennis gossip and things that may or may not be true. Operator looks at all of these submissions that he receives, decides which ones puts commentary around them and put out material that could be extremely damaging to somebodys reputation with no knowledge one way or the other of whether its true or not. Section 230 is interpreted by many over many years says that he did not offer any of the content, is not legally responsible for it. Its a very sensible application of the law if you look at as developed. It makes people stop and think that cant be right. That seems like the right outcome. So today, were where its not really clear what the vision is. There are at least multiple competing divisions by government and people, advocacy groups and people raising the fact that actually a widely unregulated internet can have a strong Chilling Effect in some peoples present participation. Its not entirely clear what the companys visions are for the internet. Years away from when twitter was the free speech we of the freespeech party. They post talking about the sense of obligation that twitter feels to proactively find content that might be harassing or otherwise discouraging people from participating and recognizing or articulating spots buddy they feel to do proactive looking for content and not just for relying on reports from users. The attitudes of some of the major platforms pretty significantly and in why that might be. Were in the Global Policy debates today, there are a lot of different kinds of visions that are at least intention with that, lets meet open internet take the push for intermediary gatekeepers out of the picture by shielding them from legal liability. Today we have governments like the United Kingdom talking about going to bring the online harm and directly recognize their talking about activities that is not necessarily illegal but still wanting to form the kind of community of care for platforms to police harmful behavior because of the negative effect on society. Thats a really difficult for intermediary to play then you are the publisher and nothing else of the content. We see conversations about wanting comprehensive content moderation. Ten, 15 years ago, is very common for the way he content post to do moderation to be unnoticed and action kind of response, whether the notice was coming, or order a government or one of your users reporting material on your platform that violates your terms of service. There was a real resistance by companies and Free Expression advocates of using automated tools to go out and find potentially infringing or filing illegal content. That also has shifted and a lot of the current discussion around the intermediaries with as much more of the sense you hear in many quarters of wanting comprehensive applications of law across all platforms or make sure the platforms to enforce the terms of service consistently which means enforcement against every piece of content on the platform and not just casebycase basis. Thats in the normal sleep different role for platforms to play. He creates any number of problems of over determining what is scrutiny. Densely fighting speech and also real shift in how weve ever had a systems of rules or laws about applied to the vast majority of public discourse. Day today, you and i and everyone on the panel a lot of different pressures and constraints that shape how we seek. Most of them have nothing to do with the law. Its not that im standing here worried about what Police Officer might think about what im saying, im worried about what you all think what im saying. Whether i am professional or staying ontopic. The social norms that shape our conversations can be extremely powerful forces but there are also things that are kind of typically enforced in dynamic that is lest down, abstract of rules and much more something that is created collaboratively in a dynamic fashion. They can be extremely strong pressures. They are not necessarily the same, thirdparty article standard and holding every single speed that you engage in. We are in an environment today of deeply rethinking as society here in the u. S. And europe, around the world, what is were sort of expecting or thinking about when the about freespeech online. When we had this conversation, here in the u. S. , we talk about section 230, there are a lot of ways people are pointing to 230 as not measuring up our meeting with a quantity. One common think we see discussed when congress has hearings about the state of online speech, the sense that theres nothing coercive about section 230. It has two parts, the first 26 words essay no intermediary content or other kind of immediately is liable as a publisher or speaker of 30 thirdparty content, they are shielded for the opportunities they do for content. So if i post something on facebook and say facebook takes it down, ill have a cause of action even if we think of a lot that might apply, i cant sue for facebook in moderating my speech. We rented and seen a number of Different Cases to kind of look at that question, different people have tried different ways to sue companies and any time that action is about to moderate my speech and they take it down or improperly not take it down, section 230 is pretty clear. Those are both forms of protection. Its a lot of, theres not really any stick to it. Theres a reason for that. Partly because a lot of the content people want to see platforms taking more action against or moderating, whether its misinformation or things like hate speech or harassment or bullying that doesnt rise to the level of criminal conduct, we talk about speech that is protected by the First Amendment. Speech thats difficult to compel a platform to take action against even if 230 didnt exist. Youd be kind of crossing a law that requires the content post to take down someones lawful constitutional perspective speech. Is probably not going to get very far. I think theyre very good reason. Section 230 works to enable content moderation by removing that illegal risk for doing content moderation from platform shoulders. Chilling them from their users to get caught up in the service. A time when our Information System feels out of control, a lot of people, a lot of the discussion around 230 seems to focus on this concept that its not coercive. I think we also see that sometimes in the common fusion around 230 that we see in congressional hearings on the topic, whether theres any kind of that required patterns or intermediaries or benefit from section 230 protection. Those are 26 words that does no secret hidden, you have to be neutral and how you do moderation to benefit from this production. It can be as skewed as they want. They can do content based prescriptions on user speech, it enables set their own terms and on policies. People are not even able to believe that theres nothing coercive in the law. Another interesting to think about here in the u. S. Is that, its almost a negative formati formation, the way First Amendment is. Congress shall make no law and the freedom of speech, it is not a searing that says theres an obligation for the government to enable. Limiting Government Action that could limit freedom of speech. Its a somewhat similar way, section 230 is a negative and intramedullary liable if you condition that. Its really effective at promoting free speech and some specs. It doesnt, as i mentioned earlier, answer questions about the positive bright side of things, what are the conditions that we enable freedom of expression . Its a kind of observer how these conversations can be different here in the u. S. And in europe, there are much more of a positive sense of obligation for the state to enable conditions for freedom of speech as well as restrictions on things like hate speech and glorification, this is interesting, sometimes kind of unrealized or energyrelated dialogue going on where i see many more people in the u. S. Today talking in a more positive bright framework and recognize and going out in that. Then in of the Chilling Effect of harassment, this is something now that we are seeing people do in studies in documents, looking at reporters, newspaper did an analysis of the reporters received on articles they posted in the top ten reporters receiving the most harassment in the comments, nasty, file consulting, writing, offtopic kind of comments in response to articles where acrosstheboard, either women or people of color or both or a lgbtq. It is this kind of stark look at okay, the burden 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 information, some of that depends on things like whether theres or to take it down, some of the depends on these other dynamics. The other conditions in the speech platforms that you are trying to engage in. As we think about section 230 and what else we might be looking for, what else systems like our share in the rest i think its important to recognize there are some really fundamentally different ways of thinking about freespeech that kind of substrate some of our conversations that need to probably move up into more conversation and consideration. I mentioned europe a couple of times already, there is a moment in the book where jeff note twitter and facebook and youtube, all talking about 2016, how much more they are doing to take down propaganda. Wasnt exactly clear from a u. S. Perspective, what the motivation there was. Why did it suddenly start really start taking proactive efforts and pushing things themselves. To me, it seems very clear it was europe. Legal and bigotry policy debates happening in the European Union, particularly the ways the charlie shootings have been early 2015, it immediately but to a number of very intense conversations, policy conversations in your including counterterrorism coordinator for European Union an early sunday 15, month after the attack, recommending europe set up internet referral unit. Law Enforcement Agency that has the europe hold, theres several in the members states where members of Law Enforcement will identify material think should come down from an Online Platform and without going to judge or a ruling the content is on lawful, in order to the social media platforms and we think this content violates your terms of service. We thank you should take it down. Theres no particular legal compulsions to these they are coming to companies in the context of a legislature, European Parliament that is primed and ready to pass laws relating, that are thinking the old dynamics of liability are skewed. Im over time, ill stop there. Thank you for your book, some of the most important conversations weve had in the states. [applause] im assuming that brexit caused a lot of that on the public agenda. That is in january of 2015. Really almost two years prior to that. He suggest that a lot of what we talk about in this area i some areas is about recent events, wherever it began, but our nest commentator has been on these issues before they were popular and before they were on the front of the New York Times in the Washington Post or before legislatures. The post wasnt until 2016, the stern professor of law at Temple University law School Contributor at the wall of conspiracy which is hosted by the magazine, and the Cato Institute where he is sometimes called upon to have lunch. He maintains also active brief practice, trained originally as a physical anthropologist. I told you that would come up again. David was one of the first internet law scholars in the u. S. Hes been a member of the Columbia University possible down in george mason, universities in addition to temple. And clark for Supreme Court justice and yes, you can feel free to ask him about retirement plans later. Hes the author of in search of definitions, in cyberspace in 2009. Perspective on internet law and policy. He has something to say about everything. Cyber law, problems in the information era of the age. The article in the review with Law Enforcement law in cyberspace. It was recently identified as the second most intellectual property law in the article. Of all time. David. Im sorry, my parents are here today. To hear that wonderful introduction. My mother would have believed and my father passed. Excellent book. A general nostalgia for the old days and old battles, i wasnt directly involved in the medication debate, but debates over to 30,000 involved with those who were involved. Jeffs book is a reminder of what a strange and bizarre case this is. Legal evolution of how the law shapes society and business and commerce. They are the 26 works that created the internet. I agree with jeff about that. Several years ago, i was writing about 230 and i said similar sentiments although i phrased it differently. I said it was the sentence that 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 somebody wants to give you a counter example. It is impossible to see how the entire User Generated Content phenomena of the past 16, 20 years could have happened. Because the numbers are such. The liability exposure without 230, without Something Like 230 as an immunity for using content sites is incalculably large. Its hard to see her you could raise a dollar for facebook or twitter or reddit or pinterest or wordpress or any of these content. Without some Liability Protection of the kind that 230 gives. Just strange, bizarre story several people mentioned already because it was so far under the radar, the most important thing in the u. S. , the most valuable sense in the u. S. Buried in the thousands of pages very complex technical provisions of a telephone act, Major Organization of the entire Telecom Industry in the u. S. Fighting and screaming about all that and it was this can medication decency act, which is all about intensity and pornography and how we will stop it and everybody is fighting. Then off in the corner, the 26 words. Nobody knew what it meant. Language is a little odd, it might be treated as a publisher or speaker of information provided, intermediaries should not be treated as a publisher or speaker of content provided by another information provider, its not self executing. Standing there in the code, its just, what does that mean . Until as jeff elaborated the book, until the court interpreted it. There are the case of, it was not clear what the impact would be. Even if you knew it was there in the midst of his 2000 pages of the text, it was not clear what the impact would be. It was given a broad reading by the courts that has become the law of the land but it could happen otherwise. We did not know. Its strange because it is this weird paradox feature that has. With all that has happened in the last 20 years, its hard to remember the purpose of section 230 and i think, talked about this a bit, the purpose was to encourage internet intermediaries to do content moderation. It was a direct response to this threat in that case. As jeff was describing, and that, fighting and bizarre. A file court in new york state system at their on county long island that his opinion that is earthshaking effect. Its unusual. The prodigy case said if you moderate content, we will treat you as a publisher and you are strictly liable, knowledge or not of the material that you publish. Section 230 says on the contrary, we wont hold you liable for thirdparty content. And that wont change even if you do moderate content. Its not going to make you a publisher. The idea was that this would encourage the platforms to do some content moderation, takedown offensive, 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 didnt 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. Like a double negative. Weather is accessible or not in doing that, that is whether the companies have devised their own content moderation procedures. So that was one series that i had about this. The second category, another thing i liked in section 230 story, he makes it a story at least in significant parts about internet, exceptionalism. This was and remains still a debate and internet law and policy circles. If the internet is so different from real space, it beat its own rules and legal structures. We are not. Ive been an exceptional list. 230 was certainly a victory for the exceptional list. Its most basic, library can be imposed on the Washington Post for content that washington po post. Com can distribute the exact same content. Theres no more, theres no clearer distinction between them. Theres a different law for the internet and real space. Same content. Exceptionalism trying to here for good reasons, the internet was different from real space in some ways and the same in other ways but the internet is different from real space with respect to immediately function in ways that are crucial and most salient to this question. The difference is the scale or one difference, major difference is the scale of operation, number. The internet as my colleague has nicely put it, incomprehensibly and sublimely large. The largest undertaking in human history. Its immense size is foundational definitional attribute of the internet. Its not big because its the internet, its the internet because it is so big. Its the one network that has the capability of connecting everybody together. You all know the numbers, i assume 100 million uploads, 100 million uploads instagram a day. More content posted to youtube in two weeks been produced by the entire broadcast industry in the u. S. Since its inception. I did a little calculation, instagram would need to hire 30,000 people, probably has 200 employees, 400 maybe. 30,000 people, eight hours a d day, seven days a week, no lun lunch, no breaks, to look to give one second you of everything that is uploaded to instagram. 30,000 people looking at each one, one a second. The internet is different. 230 recognize that. And in recognizing it enabled it also, it allows these gigantic things to grow because it gave them protection from liability. Exceptionalism was part of a larger trend. Its interesting to look back, u. S. Law embodied kind of industrial policy in the 90s an early 2000s, designed to facilitate the internet industries. It had really three pillars, one of them was section 230. When i think was telecom act itself, which would remove the complicated, you put the internet and he worked difficult to regulate category than the Telephone Companies or cable companies. The third pillar was the exemption, Supreme Court rule but you couldnt collect sales tax from outofstate sellers unless they maintained issues of a presence in your jurisdiction which gave Companies Like amazon and other internet retailers a big boost. It wasnt part of, nobody set this policy emotion. I think it gave internet based companies, online retailers, social media platforms, Search Engines and authorized a huge boost out of this special treatment. Whether they continue course is the question we face today. It appears to privilege large corporations at the expense of individuals who have suffered legal harm. The life doesnt like it because it seems like some folks on the right dont actually like leaving that. Hence the recent brouhaha over the purported buyers in twitter takedowns and twitter takedowns and all of the rest. In a sense if theres something about the internet that you dont like. Lord knows theres plenty that is not to like and not completely unreasonable to lay the blame at the feet of section 230. It created the internet as we know it. We should fix section 230. Of course what you do about it is a hard question. The way he fights his way towards the kind of moderate and qualified defense of 230 not ignoring the many wrongs that has left unremedied some of which are quite horrible, terrible and the book is chilling in some ways but also concluded that on balance it has probably done more good than harm and overall a net toss. The arguments that it could use some tweaking are not unusual. We dont know about that. Its not that unusual. And there are many of you that know that it has already been breached and the floodgates may will be opening soon. Last year and foster the fight on the fighting the trafficking act. They knowingly assist facility or support online trafficking. I would like to know more about how foster has worked or not work before i start tweaking section 230 anymore as we know it has suppressed a great deal of speech craigslist responded by shutting down its personal message boards. In light of the liability risk eliminating millions of post. The vast majority of which have nothing to do with trafficking were perfectly lawful. Has foster have an impact on it. Id like to know that before i evaluate other changes to 230 to see the effects that they may have. Before we carve up section 230. Any further. They illustrate in a way that the 230 paradox still looms and is not easily going to go away. You cant impose strict liability on intermediaries or unlawful conduct of their users because of the scale of the operations in the overwhelming liability that such a move would entail. But unknowingly support or facilitated standard has its own risks. They will now be less willing to monitor. If theyre going to be if they knowingly assist the trafficking they will be less willing to take action against specific postings or to remove paul to killer messages for having known of unlawful activities. This is why we had 230 in the first place. I just has the strategy all over again. This is not an easy problem to solve. I think the people on both sides of the argument need to recognize that its not easy to sell. One thing that i think. A lot of time on the copyright wars of the last 20 years. It has an exception for intellectual property. In copyright on the United States a lot it worked out its own regime for dealing with this intermarry liability and in that carpet copyright act came up with the notice and takedown. Only if they respond and respond when they receive a notice from someone that there is a copyright infringing material on their sites. They take it down. They also have the obligation to then put it back up if the original poster writes back and says hey, thats not infringing. I think we need to think hard and look hard at that kind of regime. It has worked reasonably well actually in both combating infringements but also allowing freedom to post what they want to post. And could be a very good model i look forward to hearing what you will have to say. [applause]. I want to answer billy quick as we insert really quick things. We have heard two senators. That the origins of 230 the companies and everybody understood there was gonna be a commitment and obligation for the current needs to be neutral and therefore thats whats wrong with the political bias. Is it correct what they say that the companies took on a new tally obligation. The theme of me not speaking on the federal government. The answer is no. There is nothing in the record that talked about the requirement. As a condition for section 230. I have not talked with anyone that said allowing moderation practices in free speech. That might have motivated some to help with political neutrality. I have not seen anything in the record to say that. They may have powerful incentive to a void by us. There is a private side to this. Lets go to your questions please await for the microphone. You can identify yourself by it yourself i tenet entirely in line with the internet. Anonymous are not please make sure a great panel. There was a comment earlier that this is exceptionalism for the internet. They started the chapter with the First Time Ever in congress. Talking about free speech. Can of an an outgrowth of free speech. Europe has gone the other way on free speech. How do we turn away from protecting the internet. I hope you could kind of expand it. And those kind of ideas internationally. About these of values. When you look at security and privacy and free speech when they come in contact. You see this in the gdp our. Europe has not. Thats also most talented. What are the prospects of exploiting that. That is an extremely uphill battle. There is not much success if it is framed like that. When they are thinking about how they want to do freedom of expression. Its very much seen as an outlier. Weve sort of lost that fight. I think there is actually more in common about that. It is based on our constitutional framework. Also a lot more with the fairness. Do i really understand with the substantive fairness. With many other legal systems. The concept and the restriction of speech is. Dennys needs be clearly defined not bag. Really aggressive. It actually requires those of us in the u. S. To do more translation of our dearly held beliefs and Core Concepts into the language of human rights law. All of that makes me want to defend the First Amendment more strongly. The american exceptionalism is true. We have a different view about expression on the rest of the world. And listen carefully to their views of course. It makes me want to tear my shirt off and say im for the First Amendment. And if where were the only ones out there for the debate about 230. Every single major intermediate platform was the internets existence it was all the United States. 230 help that happen. Free expression help that happen. They migrated from these all over the world. In the global times it makes it more important without us without us its going down the drain. The question for emma. I would love to hear the whole Panel Discuss it. I would like to ask your interpretation of the last phrase there. Does any action take a good place. They consider to be a list. Im actually curious. The legislative history. About 12 representatives. There wasnt really that much precision at the time about distinguishing the two. It is the 21 words. In the earlier version of the bill. Most people were focusing on the sea too. C2. Nobody really noticed. It still boggles my mind after spending three years writing this book. I think the objectionable think that maybe a catchall to give the providers as much leeway as possible to make the good faith moderation efforts. I think it goes to johns original question about political neutrality. I think it is a sign that the kind of world they have envisioned was one in which you invite the libertarians. And you kick everyone else out. With people that have lived abroad. Whatever is objectionable to you. We are permitted to curate your content and that it is from the diversity or with their own rules that we will have a robust conversation. It has been my interpretation all along. I think that language actually supports that. We will not make you a publisher there is another aspect here that we are sort of talking to a bow. These are businesses. Theyre not parts of the government although sometimes people act as if they are. The content of objection is at least i suggest that sent us a terrible thing. Wanting to attract people to your platform is there. It may not be consistent. The evidence we had is not as much free speech as the United States Supreme Court and enforces on public forums. I will wait for him to get to the right side over here. David post to what extent with this basic question become more academic it was not fragmented. If they decorated itself. The internet has a fragmented. For variety of reasons. Some commercial but mostly governmental. We fight against that. It was a remarkable resource. We are watching that decline. My colleague john mueller has been waiting. What the magnitude of it might be. Whatever harm they had is microscopic with a good overall. The mosher case. The fact that she was hurt by someone with a malicious rumor. And lost business it meant that the businesses it must have been out to lunch or something. The guy with the telephone problems can change his number and so forth. Ive done a fair amount of study with terrorism and its almost overwhelming. Its really great for the police because most terrorists are too stupid to realize that posting on facebook and on twitter is a good way to attract the attention of the fbi. That it would be overwhelmed by the fact that it would be disruptive. See. For individuals who have suffered certain circumstances the harm is overwhelming. I would say he have gone psychiatric medication. That was tragic. There are worst cases that have come up. It was decided about two weeks ago. By the second circuit. He posted the dating app all basically inviting anonymous strangers to come to both his work and home. That resulted in i believe hundreds if not more than a thousand people basically threatening him because they thought that was what he was looking for. He repeatedly called the site and was begging for help and they did not help them. Section two thursday dash 230 falls out from that. There was a woman there were two men who basically posed as recruiters but basically gave her a drug. That was actually a case where a section 230 mindy overall they are great benefits. But you have to look at some of these people whose lives are turned upside down and any if your analysis does have to look at that. One other thought on how we think about crimes online. Its helpful to look at what are the unique characteristics of the internet and how those play into the harms. Essentially a lot of the harms that we see in that motivate some of these cases are from the potential of amplification and an enormous reach of communications in a way that section 230 shields the website operator. And there is nothing else necessarily in our legal system can capture that. Or in the case of harassment on a social media platform. The way our legal system tends to think about it. It is the form of a single post from 10,000 strangers all directed at a person all at once. Other scholars had done a great job describing thats a different kind of harm. Previous to the intermittent net. We thought it would be a person to charge with doing the harassment. Are there novel harms that really are facilitated or only on the internet. That still doesnt answer the question. And what should the responses be. [indiscernible] is not just in adults. Online harassment and tragic defamation. Not something where someone gives their negative opinion of the business. But actually ruining peoples lives. That does happen. With those busy with what we have. I would not write those off. I think those are very real and we do need to look at how the platforms can better protect people against that. I think section 230s days are numbered. Criticisms are not valid. Others like the people they get harassed constantly. That something that really happens. How do we solve that. And the text trafficking. There was trafficking going on via the craigslist personals. Some of that may disappear some of it may go underground. Instead of having a public place that the police can monitor. In that place where you can go with that subpoena and they will give you information on the ip addresses of the perpetrators if you find something. They vanished into the dark web or some or someplace that is unplaced dash mike is the cost of removing the immunity in a sense. The Activity Still go on but theyre now much more difficult to find because we have made it so. That may just mean that the police have a harder time actually tracking things done down. Time is short in scarce. Our last question will come from the gentleman in front of john mueller. That analogy never occurred to me. You mentioned that the they argued that section 230 should be limited to service providers. If anyone on the panel has a reaction to that proposal and what the downside might be if it seems like a regional reasonable approach. I think they make some compelling arguments in criticisms. About that Chilling Effect that it can have on certain peoples speech. I do not know how you would apply that role. I think they use the dirty as an example. Yelp encourages leaving users to leave reviews. My concern is that implementation. I dont think they play a useful social role. I dont know if that changed the legitimate sites that play a valid social agreement. Right now i dont think anybody has much of a description about what reasonable content moderation would be if you keep in mind the actual diversity of different kinds of sites out there. What is reasonable for a facebook and a wikipedia. Thats not to say one couldnt to find such standards. Two quick comments. Any time we talk about amending section 230 we have to practically think about whatever new balance tweak you might see arise and go into the process with. We saw that in the creation of section 230. We saw that there. With what the house came up with. It is the worst of both worlds. Its not to say that its impossible to come up with those amendments to section 230 but i generally is because the actual outcome is so far from any kind of ideal scenario. It is very much a trend that we are seen in other parts of the country where much more capable of passing laws. And look at and evaluate that. Into more of looking at the systems and processes that they head in place. Against which standards are they being judged. It is moving from theoretical to very much in practice the push back a little bit. These Companies May have grown up in the u. S. And been benefited from the First Amendment but they are not leaving the European Market anytime soon. And so much of what they have done from my perspective is how they do content moderation the co regulatory and self voluntary regulatory and response to the pressure in europe are affecting us in the u. S. Today. And whether we like it or not i have any say in it or not. We have to really be aware of that. We can assist. That is not actually going to get promotion of those values very far. Its another place where i think the reason. Its of course the uncertainty that that engenders. Whats reasonable and one day and one site. The notice and takedown system has a bunch of specific things that websites have to do to remain immune. You can have a mailbox of where they can send in notices. In order to avail yourself of the immunity. I think Something Like that is worth exploring. I think its hard to say that that is over burdensome. The other thing going on here that we havent mentioned is that to the extent you cant monitor. There is too much activity to actually monitor. Its not reasonable to expect a facebook or twitter to actually see if it will be hateful or aggressive. What they will do to the extent they are obligated to do something is rely on algorithms to do so. That is what they are doing now. As a whole other conversation but its related to this conversation if you want to live in a world were you wake up and the Facebook Page has been taken down because it violated some thing that triggered one of these automated algorithms that is the direction in which we will be moving to the extent that we obligate people to take steps. And im not sure thats the direction we always wanted to go. If the ai stuff works you think about what is a publisher it is a post that has a regulation of content. Thats what you can hold them responsible to the extent that ai works the companies are going to be able to filter it out and they will look more like a publisher and if they look more like a publisher its harder to argue. That section 230 should exist. That seems down the road. Our book today has been the 26 words that created the internet congratulations jeff on it. And please join me in thanking our panel. Lunch is upstairs on the second floor. The restrooms will be on the right as you go. Think you thank you very much for coming today. Cspan. Org to check it out. [inaudible conversations]