Should Facebook, Google be liable for user posts? asks U.S. Attorney General

> Instead users moderate the content themselves.

I like putting users in control of moderation and giving communities the power to self-determine what content they see. This is one of the premises behind the fediverse. However, I think that's just option 3.

If we accept that users have a right to filter content, then users should also have the right to use automated tools to filter content. If users make a block-list, they should have the right to share that block-list with other people. By extension, they should also have the right to delegate that filtering to another entity, like a forum moderator. They should be able to pay that entity money to maintain a block list for them.

And jumping off of the Discord example, if users have the right to collectively ban people from a community, they should also have the right to automate that process, to share ban-lists, and to grant moderators the ability to ban people on their behalf.

I don't see a _fundamental_ difference between Reddit banning someone and a single subreddit moderator banning someone. It's just a question of scale.

To circle that back to the antitrust question: I regularly see comments about revoking section 230 that say, "well, this would only apply to large companies." It seems that in general, most people are fine with small communities moderating themselves and banning bad actors, even if the criteria is arbitrary. It only becomes a problem for them when Facebook does it because Facebook is big.

We could go to Facebook and say, "you're too big, so you can't moderate on behalf of your users." Or, we could go to Facebook and say, "you're too big, we're breaking you up and making smaller communities." It seems to me that the second option is a lot simpler.

I like this. Reddit should not be allowed to remove r/* because they don't agree with the politics of the subreddit. To enforce it, all members, individually, should be eligible to arbitrate the removal. Given the arbitration cost burden to the company, this would make them think twice.

Most users can't be trusted to moderate content because they will censor content they don't like, even if the content is legal and compliant with the terms of service.

I think a difference of kinds and not just degrees can be established between moderating just illegal content.

But maybe not, given that there is a lot of different interpretations of what is illegal and judgment calls have to be made over that, as well as issues of jurisdiction and even issues involving laws that may be unconstitutional.

Less "the way they see fit" and more "only remove criminal activity".

> Child porn is the most obvious example of an exception to both. We can all agree that we don't want to see that and don't want to host it on our platforms.

I wouldn't be surprised if some site like 8chan was happy to completely remove moderation/filtering if the federal penalties for unknowingly distributing CP were removed.

Basically, "look at 8chan! Even they restrict CP, so everyone supports moderation!" doesn't actually follow, since 8chan is legally required to restrict CP under federal law, unknowing or not.

The distinction about how sites like YouTube and Facebook amplify content is important. But moving away from the digital version, it would seem strange to me if Barnes and Noble became liable for having a big display for a book that defamed someone. INAL so maybe they would be, but as a thought experiment I lean towards them having significantly less responsibility than the author.

> The problem with this opinion is that you forget what powers these platforms: Money. Section 230 allows platforms to profit off illegal and harmful content with no responsibility whatsoever.

That's phrasing it in a way that makes it misleadingly clear who's in the wrong: of course all good people will not want something like that to happen.

The devil is in the details. How much does that "illegal and harmful" content help their bottom line? Is it making 50% of their income? 10%? 1% or less? After knowing the percentage value can you still make a general statement like "companies are profiting on illegal and harmful content"? Or the more correct statement would be "companies make extremely little profit on illegal and harmful content"?

On the other hand, before proposing mandatory moderation for all user content on all platforms we have to ask more questions. How much would it cost if all content is moderated in order to catch that X% that is "illegal and harmful"?

Everything has a price.

> What's complicated about repealing a 2-clause law?

There's substantial consensus among Internet scholars that this would change the entire Internet ecosystem in either negative or at least highly unpredictable ways. It's complicated because we need to consider and plan for the consequences, and because it opens up an entire new set of legal distinctions that have never been applied to the Internet and will need to be established and refined over decades.

Repealing 230 is simple in the same way that SESTA/FOSTA was simple -- there are lots of things that seem simple until you consider the details.

On the other hand, antitrust law is pretty widely established, it's something we need to be applying across the entire market (both online and offline) anyway, and breaking up companies has comparatively fewer fundamental consequences for the wider.

It's a mistake to measure complexity in lines of law, in the same way that it's a mistake to measure program complexity in lines of code. The real test is, "how much of the system does this change, how invasive is it, and do we know what all of the effects will be?"

> The analysis you present is very misleading. The CDA doesn't say anything about retroactive moderation or pre-vetting, but grants legal immunity with no regard for moderation styles. So how do you get from here to there?

This is correct. Section 230 removes liability for user content regardless of moderation. The moderation argument is a red herring.

> What's complicated about repealing a 2-clause law? Is there another part to this process I'm not aware of?

There is tomes of case law relying on Section 230 of the CDA, and much of the internet is able to operate as it does today because of it.

Without Section 230, services that enable users to share content would be encumbered with a mountain of liability that would most likely scare off investors.

Email providers are protected by Section 230, as are messenger apps, forums, Usenet, chat in games, etc. Social media as it exists today would be risky for any entity to host that couldn't afford to vet all content before serving it to others.

> Communities would self police much better if some level of anonymity was removed from members

This isn't an illogical theory, but I think Facebook's real-name policy disproves it.

We could have a deeper conversation about whether or not anonymity is more important than civility (I think it is). But I think before having that conversation I would want to be convinced that anonymity significantly impacts civility, and I'm much more skeptical of that claim today than I used to be. I tend to suspect now that it's more of a "common-sense" theory than something backed up by real-world studies.

That makes intuitive sense, but hasn't matched what I've seen in real life. I have had much more interesting and polite conversations on Freenet (which provides almost complete anonymity) than I have had on Facebook, back when I used it. I'm guessing it's because the audience is smaller and less visible. I think people posture for the invisible audience they assume are watching their every post, so larger communities tend to go south much more quickly than smaller more focused ones. You also get more group-think and mob-like behavior. As another example, smaller subreddits on reddit are much more polite and fun (in my experience) than the main subs. Whenever a subreddit I'm on gets linked to r/all, I just skip that post for my general mental stability. Youtube comments are another example, which are generally terrible in my experience and are visible by a huge potential audience.

> Communities would self police much better if some level of anonymity was removed from members; its less likely that “John Davidson” would post a racist rant than “xxTrump2020xx”.

A lot of Facebook users have no problem writing racist rants using their real names.

Has anybody found a good model for scaling display filtering that respects users' priorities and sensibilities, rather than platform owners' and governments'?

One thing I keep hearing is that doing moderation that gives users an experience they like is a ton of work, is very experience, and can be hard on the moderators' mental health if they do it a lot and the user base is large enough. (For example, some of the moderators might be watching videos of real people dying or getting raped all day long.)

In Mastodon and so on there are instance administrators, typically volunteers, but they don't scale well and probably don't deal well with large variations in people's beliefs, culture, and interests, nor with overlapping group memberships.

Meanwhile, major platforms are spending millions of dollars paying people to do moderation as a full-time job, in a heavy-handed, error-prone, arbitrary and centralized way where the only options are sometimes "delete this for everyone", "ban the user", or "allow this for everyone". (The "sophisticated" systems may also allow things like "hide this behind a sensitive content button", "hide this from users who don't claim to be over 18", and "ban this in certain countries".)

More sophisticated, nuanced, and pro-speech filtering work that doesn't aim to uphold a single worldwide standard seems like it will be even more expensive; who will do it and how will we incentivize it?

How do I filter thousands of people calling me slurs on twitter because I made a YouTube video supporting feminism?

Revoking 230 would disrupt big sites, but would likely further cement their monopoly. Liability for user generated content means that sites that feature user generated content need to spend a lot of resources on moderation, because the consequences of a false negative are large.

People who talk about section 230 breaking up large companies seem to be harboring the assumption that section 230 will only apply to large companies. This is not the case. It will be a massive blow to any site that features user generated content. A blow that only large sites have the resources to withstand.

That is the type of situation that 230 was meant to stop. It would be impossible to be Twitter, etc. without the protection of 230 and that is why it was created. It carries over from not being able to sue the telephone or telegraph company because someone sent something defamatory about you over their system.

The argument is that the services desire to keep the protections of 230 but act like publishers that are not afforded the same protections.

It isn't a legal arguement but a propaganda push. There is no publisher/platform duality. The concept is pure unadultered bullshit. There is no legal precedent for that concept but a later invention. This is not pointed out nearly enough.

It's not that publishers have to be unbiased, it's that publishers are legally responsible for what is published.

Common carriers (like a telephone company) are content-neutral (unbiased) and have no legal responsibility for what is said. If someone mails you a threatening letter, you can't sue USPS.

Publishers can publish (or decline to publish) whatever they want, but they do have some responsibility for what they say. Libel, copyright infringement, and threats all carry consequences even if the publisher is not the author. Publishers can be as biased as they want.

Is FB a publisher or a common carrier? What about Google? Youtube? Instagram? Twitter?

(The answer is that they are kind of either depending on the exact part of the organization. And they are having it both ways: control without responsibility.)

You are correct, publishers don't have a legal requirement to be unbiased, but publishers can be sued. Service Providers cannot be sued for what appears on their service[1]. The argument is that "biased" decisions on what to publish makes them publishers and not service providers.

1) ok, in the US anyone can get sued and there seem to be some specific things people can sue and win on, but that is outside the scope of 230.

So sites would not incur liability unless they are directly selling access to the published content? I could agree with that, assuming there were any merit to the concept of "illegal content" in the first place. Which, of course, would run directly counter to the 1st Amendment, freedom of speech, and proportionality.

"I'll wreck you on twitter, you flatten me on Facebook; we both cash out" ;)

I appreciate someone coming in with a different viewpoint. I admit that I haven't actually watched him talk, and only read 'choice' quotes from him in articles. I will have to take the time to watch him speak and google around a bit. At this point in time, my opinion of Barr is based more on gut feelings than anything else.

My initial reaction to reading about Barr makes me want to agree with you. However, I really haven't looked into him too much - tbh I only really know about him from popping up in HN articles (where he is always cast in a negative light). Any chance you have some links relevant to his history of violating civil rights, etc? Would love to be able to read through them to form a stronger opinion myself.

That kind of goes to my question though. It seems that people are suggesting that by offering a process to flag & bury content and by employing moderators, HN becomes a publisher and therefore should be liable for our posts.

I don't see why it would not be a problem here.

I could easily post a libelous but interesting comment here that I'm sure that no moderator or no HN user would recognize as libelous, so it isn't going to get buried.

That all sounds nice but what does it mean? What knowledge do they have that common carriers don’t? Responsible for what to what degree? What is a reasonable process and what does that look like?

These kinds of generalities and hand waving doesn’t really get us very far.

Are you suggesting that there should be a size requirement before a site has to pre-moderate their UGC? What metric would you use? Revenue? Taxable Income? Impressions? Volume of UGC? # of employees?

If there's a blanket repeal of liability protection for UGC, it's going to have a much larger impact on smaller forums.

We do not regulate the content of broadcast media just fine.

Compared to internet UGC, the flow of new content into broadcast media minuscule. According to a random Google search, three hundred hours of new video are added to YouTube each minute. It's unlikely that much new broadcast media is created each hour. And YouTube is just one of many sites. It wouldn't surprise me at all to find that UGC is created at a rate of more than 1000x that of broadcast media. That difference in scale, and the difference in economic value per unit of content, makes a solved problem in one medium an tricky challenge in the other.

She's absolutely right, but my fear is that room she is in is not the room where it happens.

There is still the challenge of the context of "person X said Y" Were they saying it sarcastically? Were they quoting someone else? Does Y include the content said before or after? That can meaningfully change the "fact"

On the extreme end, a video can be totally fake. Slightly less extreme, a video might be "fake" in that it's an actor playing a role, and the words they're saying belong to the character and not the actor. More commonly, a video might be taken out of context, so that the apparent meaning of a statement in isolation is the opposite of what it originally meant. (Compare "I hate group X" to "I think people who say 'I hate group X' are jerks.") Modern politics is effectively a distributed indexing system for exactly these most ambiguous cases, coupled with large media apparatuses for broadcasting them.

And these are the problems with the simplest sort of fact, "A said B." That's not even the majority of misinformation out there. We usually have to contend with even worse ambiguities, like whether A "caused" B, or whether A "supported" B, or whether A "criticized" B.

In everyday life of course, these problems are solvable. We find ways to punish people for acting in bad faith, and the incentives mostly line up. But that is very much not how things work in politics or in law. People have large incentives to seek out ambiguous cases. These edge cases become the typical case.

> Yes, there are facts. In your example, if I say "person X said Y" and have a video of them saying it, I am stating a fact. I am not dealing in beliefs and I don't give a fuck whether or not the person still supports the statements they made or not. I am saying that at some point in time T, person X said Y and this fact is on record.

There are clearly facts. But people don't spend a lot of time arguing over whether "person X said Y". Rather, we argue over the meaning of Y and the context in which it was said.

Political discourse has almost nothing to do with facts. That's just an observation, not necessarily a criticism.

You are correct, there are literal truths. Some person factually used some set of words in a particular order. The part that people care about is how we interpret those words. It being fact does not make the implication incorrect.

In an extreme example, if someone says "There are extremists in the world, and I am not going to be one of them", I can quote that as "There are extremists in the world, and I am ... one of them", which is factually true, that is a portion of what was said. The interpretation is the polar opposite, but it is factually true.

Likewise, there are facts that are misleading, but true. "The Earth is at the center of our solar system". It's a perfectly valid statement; the rotation of planets can be modeled where the Earth is at a fixed point and the other planets moved around it. It's messy, and the movements look extremely erratic, but it's perfectly valid to be modeled that way.

There are also facts that are true, given a set of circumstances. "I weigh 7 pounds". It's not true on Earth, but in the correct gravitational field, I do weigh 7 pounds. Determining whether that statement is true depends on the implication; was I implying that it is true on Earth or not? That depends on the context of that statement, and on how you interpret the context.

You might be saying "they said this", but what your audience reads is "this is true".

To take a recent example:

"A renowned firefighter says that bushfires have mostly been caused by arsonists, exacerbated by conservationists protesting harm reduction burns, resulting in an exceptional fire season this year."

"A renowned firefighter says that climate change has reduced the safe period to perform harm reduction burns, and has contributed to drought conditions, resulting in an exceptional fire season this year."

These are both facts. But which one you report on will give your audience an entirely differently picture of the situation.

> Yes, there are facts. In your example, if I say "person X said Y" and have a video of them saying it, I am stating a fact.

assuming you actually do this - which i dont believe you do but will accept for argument's sake - it is entirely meaningless. mouth-sounds are not important in and of themselves; you hear the mouth-sounds and interpret them to try and guess how that person will act in the future. you are building a predictive model of that person.

lets say there is a video of a politician (clumsily) saying "i am a rapist hater. i will increase the punishment to try and dissuade these awful crimes and make all our lives safer". You argue it is a true fact that politician is on video saying "i am a rapist". My point is that "true" in this sense is nonsense, and furthermore "true" in any absolute sense is always nonsense.

if your head is a list of quotes people have said that simply don't feed into your impression of them, then you are in a minority so small its effectively 0 on a global scale.

Perhaps. But who gets to decide which side of the line any given statement is on? Imagine, for example, that the person appointed to decide that is an anti-vaxxer. Or that they just left a gig at Monsanto/Bayer, and feel like all claims that Roundup/glyphosate might cause some harm to someone are blatantly false. Or the person appointed was a Democratic activist. Or a Republican activist. Pick your poison. And now this person is given the power to decide which claims are blatantly false, as opposed to grey.

While there are claims that are black and white, and claims that are grey, empowering someone to enforce that clearly-false claims cannot be published is going to bite you, because that person is going to have their own perspectives, biases, and (probably) agenda. It takes something close to a saint to not inflict their own agenda, and saints are in short supply.

> since it looks so similar to the "there is no perfect security so why even try" line of arguing.

What does "misinformation and extremist content" mean? Because that is the first point. Remember that the GOP called out large companies for "silencing the right" when they enacted policies that reduced misinformation and extremist content in the past. "Misinformation and extremist content" is thus itself an illdefined thing as different people consider different things to fall under it.

The framing usually used is that "if the big companies are liable the content won't be there" which history has shown is only true in so far as "if the big companies are liable user made content won't be there" effectively as huge restrictive filters need to be put in place to avoid the liability.

> even though I actually do think we should carefully observe whether current online platforms / communication changes our societies and if in a favorable way

Feel free to talk about it, you are not trying to enact policy. AG Barr is involved in creating policy and thus should be careful about exactly what he suggests rather than invoking the same liability boogieman that hasn't served us in the past.

Print and broadcast media exercise editorial control in a way that Facebook and Google do not. That difference matters legally.

I agree with you 100% about current Internet content providers. And I wouldn't miss them if they disappeared.

But they aren't the Internet. It was always intended as P2P.

Well, it’s not just far right stuff they’re censoring in bulk, so in a weird way I can see where he’s coming from.

For example, YouTube has been taking down legal instructional gunsmithing videos (one of my hobbies) because guns. Other things that scare people but aren’t associated with a US political axis position, like the lockpicking lawyer, stay up.

They are absolutely editorializing (see also: Apple’s squirt gun emoji, which I would find unconscionable even if I weren’t a firearms enthusiast because I am an accurate communications enthusiast first and foremost) and their behavior needs to change before it hurts our society even more.

My friend, for example, lost a meme page he ran on Facebook with hundreds of thousands of readers for posting a male nipple (the man was wearing makeup). The censorship is not just political. They are burning books and destroying value: art, teaching, literature. It’s not okay.

I just don’t think this is the right approach to it.

User-generated content can be viable if the users host/publish it themselves. That's usually the response when tech companies boot pages or accounts (ie. private companies exercising their rights)

Maybe we should just get rid of liability for authors and publishers, then, also?

It's fair to ask how big of a problem libel is. It's hardly enforced now, anyway. False accusations fly, with no consequences. Reporters at major outlets repeat accusations with no evidence ("sources say that ... did ...").

I was born in the US, and I spend about half each year there.

I think it is tradition in the US that whenever there is a new market or opportunity, to both celebrate the early entrants (in the case of tech, the persistent “two founders in a suburban garage” meme) and then also ignore the fact that it’s routine to make it as difficult as possible to replicate the conditions that lead to new companies or new people having wealth creation opportunities. I’ve heard it described as “pulling the ladder up behind you”.

A lot of people play the game as if it’s zero-sum.

It could also just be that I’m somewhat bitter because I have about five great ideas for companies that would make the world markedly better and more useful, and they have all recently been made either de facto or de jure illegal.

I hate that we’re almost always stuck with large incumbents who rent-seek based on their position, or seek for the government to make it harder/illegal for others to use the same general wealth-creation methods that they did.

Witnessing that level of selfishness hurts my soul, especially leveled against those who are most able and willing to build new businesses, cool products and services, and jobs.

I think they have to move to purely mechanical moderation. It's the only way. Keyword and user reporting. Everything else is a mess politically (and that will end up being a political mess).

I imagine Netflix considers themselves a publisher, Amazon is the most interesting test case imo- with both their content and physical goods marketplace.

Let’s be clear. The “conservative” voices that have been moderated out not because of the PC police, but because of obvious reasons that violate ToS (spreading racism, inciting violence, etc). Look over [1] and show me this consistent “abuse of power”.

[1] https://en.wikipedia.org/wiki/Twitter_suspensions

Where did people unearth this "platforms" vs. "publishers" argument from? It looks like a political tool someone with a dark agenda diged out of some dark swampy corner of polytics...

Everything is both!

Of course you'll have more and more proprietary-algos / blackbox-ML/AI-systems filtering content. And of course the content can't be manually reviewed (because SIZE) and you can't have the platform be responsible for it (what does it even mean to "be responsible for content"?!).

It's sad there's not much we can do to regulate away some of the toxic infos (like the "platform vs publisher" meme currently floating around...), but here it's actually a case where doing nothing and stomacking some of the bad consequences is 1000% better that doing something! Because that "something" whatever it may be will limit fundamental freedoms simply by having something exists in this space!

It says there is no need for an arguement because there is nothing to justify it. "Should it be legal for the government to kill and harvest the organs of underperforming schoolchildren?".

"No. Full stop." Is a stance that there is nothing to even argue.

If Facebook were liable they wouldn't allow the posting or even the possibility of posting in the first place, the law protects individual rights by keeping the liability onus on the author as opposed to the "publisher".

> not about protecting the individuals "express[ing] themselves online."

Who in their right mind would host content created by individuals online? GeoCities, blogs and personal sites wouldn't exist as they did or do today.

So don't end the discussion. What I said is still true, the discussion is colored in a bad light because of his behavior.

In that light, it is impossible to think about the issue objectively, without legitimately worrying about what Barr in particular going to do with it. It's not hard to imagine how he can abuse new powers over Facebook and Google to benefit Trump in the 2020 election.

If he's already selectively applying criminal justice against opponents and not allies, do you think he'll apply fair and objective justice against Facebook and Google?

His actions call into question all his professional judgment, that's not compartmentalizable.

Considering the gravity of this issue, reasonable people can conclude that we'd be better off "wasting" these years and months and to return to the idea later when someone with more judicial independence is in the position.

Well, we did make robocalling illegal, right? We could do the same for ad spam quite easily. IMO 99% of YouTube issues would be resolved by just not showing comments by default. I.e. you're welcome to read and write comments if you like, but you have to click a button first to show the comment section, and don't have to see them otherwise. Some sites already do this.

Won't they need to have even more low-paid workers to make sure they don't publish something that violates the law?

Then maybe you should propose and support a law that addresses that very point instead of taking a hammer to it and completely breaking any Internet forum out there, especially those that won't have the money and size to afford to deal with this.

Facebook’s “moderation” goes far beyond merely removing illegal material and it’s disingenuous to claim otherwise.

Yes, they most definitely want the cake and eat it too but there are lots of good arguments to make for that, arguments that have nothing to do with sustaining the business model of multi-billion dollar Internet companies.

I'm making the argument that the authority to moderate discussions is being misused and you are replying as if I am suggesting removal of this authority.