Artificial Intelligence, which the Internet of course facilitates, has been one of the main news items lately. We are beginning to panic about the future. A RxISK post We Will Get Fooled Again picks up some of the mounting concern.
The last sentence in the text above introducing Imagining the Internet Centre perhaps unintentionally catches the worries – A better tomorrow must be fueled by applied foresight today.
This post by Ryan Horath came to my attention through a listserve both he and I are on. Most of the people on this list are concerned about Pharma and its devious ways. Ryan is a lawyer and software developer with research interests in technology law. He stands to one side telling us that the key to actions you are concerned about might lie over here in an area you do not at present seem to be aware of.
Curious about what the 26 words are, ironic as it turns out, I Googled the Communications and Decency Act and moved on from there to Section 230 which gets Wikipedia posts in its own right. These are things that I imagine Ryan and lots of other figure the rest of us should know all about – perhaps figure we know nothing about what is going on in the world if we don’t what the 26 words are.
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Over to Ryan.
The Twenty-Six Words
Section 230 of the Communications Decency Act has been called “The Twenty-Six Words That Created the Internet”. Proponents of the law, who seem to be everywhere, claim that modern websites like social media would not exist without Section 230.
Is this true? Are we being told the truth about Section 230 or have so-called consumer interest groups weaved a web of misleading tales to sell the public on a law that privileges their funders – the technology industry?
Imagine if my local government passed an ordinance prohibiting the use of loudspeakers in city parks after sunset and before sunrise. This is known in the law as a time, place, or manner restriction. Such restrictions are legal if the government can provide appropriate justification. In this case, the law is meant to protect people who live near the parks from sleep disturbance. It would easily pass Constitutional review and be held valid by a court.
Now imagine the local government passes another law that exempts city council members from this law. Or all Democrats. Or people who work for newspapers. Civil liberties groups would immediately recognize this as an unfair privilege to speak for the groups with the exemption. Everyone else is restricted while the groups with the exemption are not.
Rarely, such privileges are justifiable, but they must pass the strictest Constitutional test, called strict scrutiny. A court would ask whether:
- There is an appropriate goal for the privilege,
- Whether the law is as narrowly tailored to serve that goal as possible,
- Whether no other means to serve that goal exists that is less restrictive than the law in question.
Only a law that satisfies all three of these criteria will survive strict scrutiny. Few laws survive such intense review.
This presents an obvious problem for Section 230. The state laws it overrides – known as intermediary liability laws – are restrictions on the First Amendment rights of publishers and distributors of speech. The Supreme Court has defined the limits of these restrictions but otherwise held them to be valid restrictions for appropriate policy reasons.
Section 230 provides an exemption to these valid restrictions for online publishers and distributors only. This raises the same serious Constitutional scrutiny as the park loudspeaker example above. I have done a detailed analysis of this Constitutional question in a separate paper – see Horath.
Without going into that analysis here, Section 230 cannot survive strict scrutiny.
If this First Amendment problem is so obvious – and it is – how can it be that it has never been raised in all this time since Section 230’s passage? How can it be that no one even discusses such an obvious issue?
While it is difficult to know the motives of so many different entities, the short answers are likely ideology and money.
Early Internet advocacy groups like the Electronic Frontier Foundation (EFF) were deeply libertarian and viscerally anti-government. They saw the government as only a force for evil and saw themselves – the leaders of the early Internet – as only a force for good. For years they searched for a way to freeze the government out of the Internet so they could turn it into the utopia they envisioned, free from government interference.
This anti-government ideology was the driving force behind the drafting of Section 230. Groups like EFF and their offshoot, the Center for Democracy and Technology (CDT), allied with industry leaders – who they saw as benevolent forces – to keep the evil government at bay. Having staked their reputations on this cause, they have been unable and unwilling to reassess their earlier positions, locked in a sunk cost trap where time works to harden their position.
The other ingredient is money. Technology industry leaders and companies – especially Google – have flooded these same organizations and academia with money for decades. Their chosen people hold high positions with influence in academia and are routinely called upon to comment on Section 230. Control of academia is so complete that it goes unnoticed because it is considered normal.
For example, Daphne Keller is the Director of the Program on Platform Regulation at Stanford Law School. Prior to moving to Stanford, Keller held a similar position at Google and led the legal team in charge of their search product – Google’s most important product. Keller routinely comments on Section 230 in the media and her prior affiliation with Google is rarely mentioned.
Tech academia and Internet advocacy groups are plagued by similar conflicts of interest and they too are rarely mentioned in the media. The Tech Transparency Project calculated that 44 entities who submitted briefs in a recent Supreme Court case siding with Google had ties to Google itself. Many of these entities are a who’s who of the tech, academic and Internet advocacy world. It is difficult to find academics or groups that do not have substantial ties to Google or some other technology giant.
Google says a ‘broad cross-section’ of experts, academics, and organizations support its legal position. (The company is paying many of them).
Together with Internet advocacy groups, tech academia has long dominated discussion of Section 230. They control the debate and propagandize the public with misleading claims about the wonders of their law. These groups surely know that Section 230 cannot survive the Constitutional analysis I have outlined. Their solution to this has been to ignore this problem and ensure it does not enter public debate, while misleading the public with simplistic talking points that sound attractive, but are meant to deceive.
A common refrain is that Section 230 protects the First Amendment rights of websites. This is misleading because what it actually does is privilege their First Amendment rights over those of all other publishers and distributors of speech.
The next time someone recites this line in defense of Section 230, be sure to respond
“That is the problem.”
Will A.I. be privileged in this way or will this be the moment when the rubber hits the road?