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Limits on how editorial algorithms work might not be compatible with the legal understanding of free speech in the US, but excluding algorithms with certain cha

by Zak 4y ago

Limits on how editorial algorithms work might not be compatible with the legal understanding of free speech in the US, but excluding algorithms with certain characteristics from platform immunity is. I don't know exactly how to write such a law, but I like the concept of treating an algorithm that provides personalized, maximally addictive content as the publisher of that content. Don't want to get sued? Curate your content (Netflix) or don't use that kind of algorithm (reddit).

mikem170 4y ago
Agreed! I always thought it would be nice if there were user-selectable algorithms, like most recent, similar to my friends, popular in my city, random, etc.
matthewdgreen 4y ago
This makes me really uncomfortable. It seems like you agree that under the First Amendment the government should not have the power to limit the way private publishers use algorithms, but you’re happy to let the same government pressure companies into limiting their algorithms by exposing them to a potentially unsustainable number of lawsuits if they fail to comply with similar rules. I’m not saying you’re wrong on the law. I’m saying that it feels obvious that the goal here is coercion. While I suppose some people might legitimately want to ban all use of algorithms (including moderation?) it seems more that the idea is to “work around” the spirit (and perhaps literal text) of the First Amendment by using the courts to make non-compliant publishers unprofitable. At very least it feels like “Congress passing laws abridging” if not literally banning. I also don’t understand the limits of this approach. Are there any principles here? If some near-future Congress passed a law saying “any algorithms you use must reduce the reach of posts that criticize the Biden administration, else you major platforms lose liability protection,” would that be fine? In my eyes that seems very abusive and problematic.
- Zak 4y ago
  This comment uses the word "publishers" a couple times. I think it was unintended, but that alludes to an important distinction: publishers do not have platform immunity. Platforms have immunity even if they moderate content, but will likely be treated as publishers if a human editor chooses what content to feature prominently. A human editor who chooses to actively promote libel or terrorist recruitment videos will get sued or maybe even imprisoned. It seems to me the guiding principle should be that a sufficiently smart, personalized algorithm gets treated like a human editor. Of course, precisely defining "sufficiently smart" in a manner that's both reasonable and enforceable might be hard.
  - matthewdgreen 4y ago
    The bright line distinction between “platforms” and “publishers” is imaginary. Publishers generate content and also make opinionated decisions about the content of others, including decisions about which content to promote and which content to suppress. In an era where a newspaper may feature original content as well as moderated reader comments, you can’t pretend that freedom of expression is somehow limited only to the original content or the unmoderated comments. It’s all part of the same expressive process. As far as the actual text of the First Amendment goes, I’m not aware of any distinction between platforms and publishers: there’s simply a broad prohibition on Congress passing laws that abridge freedom of expression. And let’s be clear: abridging the speech rights of these private parties is precisely the intention of many lawmakers who have proposed Section 230/liability updates, both at the state and Federal level. They’re mad because they think private companies are suppressing content that they want published, and they want to use the power of the state to punish such infractions. Note that they don’t want to punish the companies for the specific moderation decisions they object to, since that would obviously be protected speech. No: the political goal here is to punish private firms who violate government speech codes by causing them to suffer for unrelated posts that appear on the platform, as a kind of protection racket. Nobody is even being coy about this stuff.
    - Zak 4y ago
      Laws are often written to draw bright lines where one does not necessarily exist naturally. In the case of platform versus publisher, I think one does exist naturally, but it applies separately to each piece of content. A newspaper acts as a publisher with regard to its articles, but a platform when its CMS accepts comments. A publisher selects or whitelists content. A platform does not, but may moderate or blacklist content. Of course, mathematically those can achieve the same result, but laws are not mathematical formulas. The intent and effects matter. I'm aware some of the proposals to update platform immunity are intended as political leverage. I oppose those.
      - matthewdgreen 4y ago
        > A publisher selects or whitelists content. A platform does not, but may moderate or blacklist content. Not to be the "citation needed" person, but can you point me to the specific legal statute that makes this distinction -- i.e., says that platforms can only blacklist content? Or are you saying that you think this should be the definition and we should pass new laws that enforce limits on what platforms can do?

by Zak 4y ago

mikem170 4y ago

Agreed! I always thought it would be nice if there were user-selectable algorithms, like most recent, similar to my friends, popular in my city, random, etc.

matthewdgreen 4y ago

This makes me really uncomfortable. It seems like you agree that under the First Amendment the government should not have the power to limit the way private publishers use algorithms, but you’re happy to let the same government pressure companies into limiting their algorithms by exposing them to a potentially unsustainable number of lawsuits if they fail to comply with similar rules. I’m not saying you’re wrong on the law. I’m saying that it feels obvious that the goal here is coercion. While I suppose some people might legitimately want to ban all use of algorithms (including moderation?) it seems more that the idea is to “work around” the spirit (and perhaps literal text) of the First Amendment by using the courts to make non-compliant publishers unprofitable. At very least it feels like “Congress passing laws abridging” if not literally banning. I also don’t understand the limits of this approach. Are there any principles here? If some near-future Congress passed a law saying “any algorithms you use must reduce the reach of posts that criticize the Biden administration, else you major platforms lose liability protection,” would that be fine? In my eyes that seems very abusive and problematic.

Zak 4y ago
This comment uses the word "publishers" a couple times. I think it was unintended, but that alludes to an important distinction: publishers do not have platform immunity. Platforms have immunity even if they moderate content, but will likely be treated as publishers if a human editor chooses what content to feature prominently. A human editor who chooses to actively promote libel or terrorist recruitment videos will get sued or maybe even imprisoned. It seems to me the guiding principle should be that a sufficiently smart, personalized algorithm gets treated like a human editor. Of course, precisely defining "sufficiently smart" in a manner that's both reasonable and enforceable might be hard.
- matthewdgreen 4y ago
  The bright line distinction between “platforms” and “publishers” is imaginary. Publishers generate content and also make opinionated decisions about the content of others, including decisions about which content to promote and which content to suppress. In an era where a newspaper may feature original content as well as moderated reader comments, you can’t pretend that freedom of expression is somehow limited only to the original content or the unmoderated comments. It’s all part of the same expressive process. As far as the actual text of the First Amendment goes, I’m not aware of any distinction between platforms and publishers: there’s simply a broad prohibition on Congress passing laws that abridge freedom of expression. And let’s be clear: abridging the speech rights of these private parties is precisely the intention of many lawmakers who have proposed Section 230/liability updates, both at the state and Federal level. They’re mad because they think private companies are suppressing content that they want published, and they want to use the power of the state to punish such infractions. Note that they don’t want to punish the companies for the specific moderation decisions they object to, since that would obviously be protected speech. No: the political goal here is to punish private firms who violate government speech codes by causing them to suffer for unrelated posts that appear on the platform, as a kind of protection racket. Nobody is even being coy about this stuff.
  - Zak 4y ago
    Laws are often written to draw bright lines where one does not necessarily exist naturally. In the case of platform versus publisher, I think one does exist naturally, but it applies separately to each piece of content. A newspaper acts as a publisher with regard to its articles, but a platform when its CMS accepts comments. A publisher selects or whitelists content. A platform does not, but may moderate or blacklist content. Of course, mathematically those can achieve the same result, but laws are not mathematical formulas. The intent and effects matter. I'm aware some of the proposals to update platform immunity are intended as political leverage. I oppose those.
    - matthewdgreen 4y ago
      > A publisher selects or whitelists content. A platform does not, but may moderate or blacklist content. Not to be the "citation needed" person, but can you point me to the specific legal statute that makes this distinction -- i.e., says that platforms can only blacklist content? Or are you saying that you think this should be the definition and we should pass new laws that enforce limits on what platforms can do?