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> The Court held that a platform’s algorithm that reflects “editorial judgments” about “compiling the third-party speech it wants in the way it wants” is the pl

by crummy 2y ago

> The Court held that a platform’s algorithm that reflects “editorial judgments” about “compiling the third-party speech it wants in the way it wants” is the platform’s own “expressive product” and is therefore protected by the First Amendment. I don't see how this is about personalization. HN has an algorithm that shows what it wants in the way it wants.

wk_end 2y ago
It’d be interesting to know what constitutes an “algorithm”. Does a message board sorting by “most recent” count as one?
- saratogacx 2y ago
  > algorithm that reflects “editorial judgments” I don't think timestamps are, in any way, construed editorial judgement. They are a content agnostic related attribute.
  - deleted 2y ago
    [deleted]
  - srj 2y ago
    What about filtering spam? Or showing the local weather / news headlines?
    - bitshiftfaced 2y ago
      Or ordering posts by up votes/down votes, or some combination of that with the age of the post.
      - remich 2y ago
        The text of the Third Circuit decision explicitly distinguishes between algorithms that respond to user input -- such as by surfacing content that was previously searched for, or favorited, or followed. Allowing users to filter content by time, upvotes, number of replies etc would be fine. The FYP algorithm that's contested in the case surfaced the video to the minor without her searching for that topic, following any specific content creator, or positively interacting (liking/favoriting/upvoting) with previous instances of said content. It was fed to her based on a combination of what TikTok knew about her demographic information, what was trending on the platform, and TikTok's editorial secret sauce. TikTok's algorithm made an active decision to surface this content to her, despite knowing that other children had died from similar challenge videos, they promoted it and should be liable for that promotion.
    - remich 2y ago
      Moderating content is explicitly protected by the text of Section 230(c)(2)(a): "(2)Civil liability No provider or user of an interactive computer service shall be held liable on account of— (A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or" Algorithmic ranking, curation, and promotion are not.
  - Izkata 2y ago
    On HN, timestamps are adjusted when posts are given a second-chance boost. While the boost is done automatically, candidates are chosen manually.
lcnPylGDnU4H9OF 2y ago
From the article: > TikTok, Inc., via its algorithm, recommended and promoted videos posted by third parties to ten-year-old Nylah Anderson on her uniquely curated “For You Page.”
- unyttigfjelltol 2y ago
  That's the difference between the case and a monolithic electronic bulletin board like HN. HN follows an old-school BB model very close to the models that existed when Section 230 was written. Winding up in the same place as the defendant would require making a unique, dynamic, individualized BB for each user tailored to them based on pervasive online surveillance and the platform's own editorial "secret sauce."
  - empressplay 2y ago
    HN is _not_ a monolithic bulletin board -- the messages on a BBS were never (AFAIK) sorted by 'popularity' and users didn't generally have the power to demote or flag posts. Although HN's algorithm depends (mostly) on user input for how it presents the posts, it still favours some over others and still runs afoul here. You would need a literal 'most recent' chronological view and HN doesn't have that for comments. It probably should anyway! @dang We need the option to view comments chronologically, please
    - kardos 2y ago
      > We need the option to view comments chronologically You might like this then: https://hckrnews.com/ https://hckrnews.com/
    - philipkglass 2y ago
      Writing @dang is a no-op. He'll respond if he sees the mention, but there's no alert sent to him. Email hn@ycombinator.com if you want to get his attention. That said, the feature you requested is already implemented but you have to know it is there. Dang mentioned it in a recent comment that I bookmarked: https://news.ycombinator.com/item?id=41230703 https://news.ycombinator.com/item?id=41230703 To see comments on this story sorted newest-first, change the link to https://news.ycombinator.com/latest?id=41391868 https://news.ycombinator.com/latest?id=41391868 instead of https://news.ycombinator.com/item?id=41391868 https://news.ycombinator.com/item?id=41391868
klik99 2y ago
Specifically NetChoice argued that personalized feeds based on user data were protected due to first person speech. This went to supreme court and supreme court agreed. Now precedent is set by the highest court that those feeds are "expressive product". It doesn't make sense, but that's how the law works - by trying to define as best as possible the things in gray areas. And they probably didn't think through how this particular argument could affect other areas of their business.
- remich 2y ago
  It absolutely makes sense. What NetChoice held was that the curation aspect of algorithmic feeds makes the weighting approach equivalent to the speech of the platforms and therefore when courts evaluated challenges to government imposed regulation, they had to perform standard First Amendment analysis to determine if the contested regulation passed muster. Importantly, this does not mean that before the Third Circuit decision platforms could just curate any which way they want and government couldn't regulate at all -- the mandatory removal regime around CSAM content is a great example of government regulating speech and forcing platforms to comply. The Third Circuit decision, in a nutshell, is telling the platforms that they can't have their cake and eat it too. If they want to claim that their algorithmic feeds are speech that is protected from most government regulation, they can't simultaneously claim that these same algorithmic feeds are mere passive vessels for the speech of third parties. If that were the case, then their algorithms would enjoy no 1A protection from government regulation. (The content itself would still have 1A protection based on the rights of the creators, but the curation/ranking/privileging aspect would not).
  - phire 2y ago
    Yeah, I agree. This ruling is a natural consequence of the NetChoice ruling. Social media companies can't have it both ways. > If that were the case, then their algorithms would enjoy no 1A protection from government regulation. Well, the companies can still probably claim some 1st Amendment protections for their recommendation algorithms (for example, a law banning algorithmic political bias would be unconstitutional). All this ruling does is strip away the safe harbour protections, which weren't derived from the 1A in the first place.
zerocrates 2y ago
So, yes, the TikTok FYP is different from a forum with moderation. But the basis of this ruling is basically "well the Moody case says that curation/moderation/suggestion/whatever is First Amendment protected speech, therefore that's your speech and not somebody else's and so 230 doesn't apply and you can be liable for it." That rationale extends to basically any form of moderation or selection, personalized or not, and would blow a big hole in 230's protections. Given generalized anti-Big-Tech sentiment on both ends of the political spectrum, I could see something that claimed to carve out just algorithmic personalization/suggestion from protection meeting with success, either out of the courts or Congress, but it really doesn't match the current law.
- Yeul 2y ago
  [flagged]
  - rstuart4133 2y ago
    [flagged]
- lupusreal 2y ago
  "well the Moody case says that curation/moderation/suggestion/whatever is First Amendment protected speech, therefore that's your speech and not somebody else's and so 230 doesn't apply and you can be liable for it." I see a lot of people saying this is a bad decision because it will have consequences they don't like, but the logic of the decision seems pretty damn airtight as you describe it. If the recommendation systems and moderation policies are the company's speech, then the company can be liable when the company "says", by way of their algorithmic "speech", to children that they should engage in some reckless activity likely to cause their death.
pessimizer 2y ago
Doesn't seem to have anything to do with personalization to me, either. It's about "editorial judgement," and an algorithm isn't necessarily a get out of jail free card unless the algorithm is completely transparent and user-adjustable. I even think it would count if the only moderation you did on your Lionel model train site was to make sure that most of the conversation was about Lionel model trains, and that they be treated in a positive (or at least neutral) manner. That degree of moderation, for that purpose, would make you liable if you left illegal or tortious content up i.e. if you moderate, you're a moderator, and your first duty is legal. If you're just a dumb pipe, however, you're a dumb pipe and get section 230. I wonder how this works with recommendation algorithms, though, seeing as they're also trade secrets. Even when they're not dark and predatory (advertising related.) If one has a recommendation algo that makes better e.g. song recommendations, you don't want to have to share it. Would it be something you'd have to privately reveal to a government agency (like having to reveal the composition of your fracking fluid to the EPA, as an example), and they would judge whether or not it was "editorial" or not? [edit: that being said, it would probably be very hard to break the law with a song recommendation algorithm. But I'm sure you could run afoul of some financial law still on the books about payola, etc.]
- Majromax 2y ago
  > That degree of moderation, for that purpose, would make you liable if you left illegal or tortious content up i.e. if you moderate, you're a moderator, and your first duty is legal. I'm not sure that's quite it. As I read the article and think about its application to Tiktok, the problem was more that "the algorithm" was engaged in active and allegedly expressive promotion of the unsafe material. If a site like HN just doesn't remove bad content, then the residual promotion is not exactly Hacker News's expression, but rather its users'. The situation might change if a liability-causing article were itself given 'second chance' promotion or another editorial thumb on the scale, but I certainly hope that such editorial management is done with enough care to practically avoid that case.
phire 2y ago
It's worth noting that personalisation isn't moderation, An app like TikTok needs both. Personalisation simply matches users with the content the algorithm thinks they want to see. Moderation (which is typically also an algorithm) tries to remove harmful content from the platform altogether. The ruling isn't saying that Section 230 doesn't apply because TikTok moderated. It's saying Section 230 doesn't apply because TikTok personalised, allegedly knew about the harmful content and allegedly didn't take enough action to moderate this harmful content.
- cdchn 2y ago
  >Personalisation simply matches users with the content the algorithm thinks they want to see. These algorithms aren't matching you with what you want to see, they're trying to maximize your engagement- or, its what the operator wants you to see, so you'll use the site more and generate more data or revenue. Its a fine, but extremely important distinction.
  - bryanrasmussen 2y ago
    What the operator wants you to see also gets into the area of manipulation, hence 230 shouldn't apply - by making algorithms based on manipulation or paid for boosting companies move from impartial unknowing deliverers of harmful content into committed distributors of it.
- fasa99 2y ago
  "harmful content" is such a joke word. if a piece of text or media could harm people the military would have weaponized it long ago. Even monty python made a satire of such a "harmful content" scenario: https://www.youtube.com/watch?v=Qklvh5Cp_Bs https://www.youtube.com/watch?v=Qklvh5Cp_Bs Big tech's hyperbole of the word is even more severe than Monty Pythons absurdist satire. Sadly it's not a joke.
  - vlark 2y ago
    Let me introduce you to the concept of psychological warfare. . .

by crummy 2y ago

wk_end 2y ago

It’d be interesting to know what constitutes an “algorithm”. Does a message board sorting by “most recent” count as one?

saratogacx 2y ago
> algorithm that reflects “editorial judgments” I don't think timestamps are, in any way, construed editorial judgement. They are a content agnostic related attribute.
- deleted 2y ago
  [deleted]
- srj 2y ago
  What about filtering spam? Or showing the local weather / news headlines?
  - bitshiftfaced 2y ago
    Or ordering posts by up votes/down votes, or some combination of that with the age of the post.
    - remich 2y ago
      The text of the Third Circuit decision explicitly distinguishes between algorithms that respond to user input -- such as by surfacing content that was previously searched for, or favorited, or followed. Allowing users to filter content by time, upvotes, number of replies etc would be fine. The FYP algorithm that's contested in the case surfaced the video to the minor without her searching for that topic, following any specific content creator, or positively interacting (liking/favoriting/upvoting) with previous instances of said content. It was fed to her based on a combination of what TikTok knew about her demographic information, what was trending on the platform, and TikTok's editorial secret sauce. TikTok's algorithm made an active decision to surface this content to her, despite knowing that other children had died from similar challenge videos, they promoted it and should be liable for that promotion.
  - remich 2y ago
    Moderating content is explicitly protected by the text of Section 230(c)(2)(a): "(2)Civil liability No provider or user of an interactive computer service shall be held liable on account of— (A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or" Algorithmic ranking, curation, and promotion are not.
- Izkata 2y ago
  On HN, timestamps are adjusted when posts are given a second-chance boost. While the boost is done automatically, candidates are chosen manually.

lcnPylGDnU4H9OF 2y ago

From the article: > TikTok, Inc., via its algorithm, recommended and promoted videos posted by third parties to ten-year-old Nylah Anderson on her uniquely curated “For You Page.”

unyttigfjelltol 2y ago
That's the difference between the case and a monolithic electronic bulletin board like HN. HN follows an old-school BB model very close to the models that existed when Section 230 was written. Winding up in the same place as the defendant would require making a unique, dynamic, individualized BB for each user tailored to them based on pervasive online surveillance and the platform's own editorial "secret sauce."
- empressplay 2y ago
  HN is _not_ a monolithic bulletin board -- the messages on a BBS were never (AFAIK) sorted by 'popularity' and users didn't generally have the power to demote or flag posts. Although HN's algorithm depends (mostly) on user input for how it presents the posts, it still favours some over others and still runs afoul here. You would need a literal 'most recent' chronological view and HN doesn't have that for comments. It probably should anyway! @dang We need the option to view comments chronologically, please
  - kardos 2y ago
    > We need the option to view comments chronologically You might like this then: https://hckrnews.com/ https://hckrnews.com/
  - philipkglass 2y ago
    Writing @dang is a no-op. He'll respond if he sees the mention, but there's no alert sent to him. Email hn@ycombinator.com if you want to get his attention. That said, the feature you requested is already implemented but you have to know it is there. Dang mentioned it in a recent comment that I bookmarked: https://news.ycombinator.com/item?id=41230703 https://news.ycombinator.com/item?id=41230703 To see comments on this story sorted newest-first, change the link to https://news.ycombinator.com/latest?id=41391868 https://news.ycombinator.com/latest?id=41391868 instead of https://news.ycombinator.com/item?id=41391868 https://news.ycombinator.com/item?id=41391868

klik99 2y ago

Specifically NetChoice argued that personalized feeds based on user data were protected due to first person speech. This went to supreme court and supreme court agreed. Now precedent is set by the highest court that those feeds are "expressive product". It doesn't make sense, but that's how the law works - by trying to define as best as possible the things in gray areas. And they probably didn't think through how this particular argument could affect other areas of their business.

remich 2y ago
It absolutely makes sense. What NetChoice held was that the curation aspect of algorithmic feeds makes the weighting approach equivalent to the speech of the platforms and therefore when courts evaluated challenges to government imposed regulation, they had to perform standard First Amendment analysis to determine if the contested regulation passed muster. Importantly, this does not mean that before the Third Circuit decision platforms could just curate any which way they want and government couldn't regulate at all -- the mandatory removal regime around CSAM content is a great example of government regulating speech and forcing platforms to comply. The Third Circuit decision, in a nutshell, is telling the platforms that they can't have their cake and eat it too. If they want to claim that their algorithmic feeds are speech that is protected from most government regulation, they can't simultaneously claim that these same algorithmic feeds are mere passive vessels for the speech of third parties. If that were the case, then their algorithms would enjoy no 1A protection from government regulation. (The content itself would still have 1A protection based on the rights of the creators, but the curation/ranking/privileging aspect would not).
- phire 2y ago
  Yeah, I agree. This ruling is a natural consequence of the NetChoice ruling. Social media companies can't have it both ways. > If that were the case, then their algorithms would enjoy no 1A protection from government regulation. Well, the companies can still probably claim some 1st Amendment protections for their recommendation algorithms (for example, a law banning algorithmic political bias would be unconstitutional). All this ruling does is strip away the safe harbour protections, which weren't derived from the 1A in the first place.

zerocrates 2y ago

So, yes, the TikTok FYP is different from a forum with moderation. But the basis of this ruling is basically "well the Moody case says that curation/moderation/suggestion/whatever is First Amendment protected speech, therefore that's your speech and not somebody else's and so 230 doesn't apply and you can be liable for it." That rationale extends to basically any form of moderation or selection, personalized or not, and would blow a big hole in 230's protections. Given generalized anti-Big-Tech sentiment on both ends of the political spectrum, I could see something that claimed to carve out just algorithmic personalization/suggestion from protection meeting with success, either out of the courts or Congress, but it really doesn't match the current law.

Yeul 2y ago
[flagged]
- rstuart4133 2y ago
  [flagged]
lupusreal 2y ago
"well the Moody case says that curation/moderation/suggestion/whatever is First Amendment protected speech, therefore that's your speech and not somebody else's and so 230 doesn't apply and you can be liable for it." I see a lot of people saying this is a bad decision because it will have consequences they don't like, but the logic of the decision seems pretty damn airtight as you describe it. If the recommendation systems and moderation policies are the company's speech, then the company can be liable when the company "says", by way of their algorithmic "speech", to children that they should engage in some reckless activity likely to cause their death.

pessimizer 2y ago

Doesn't seem to have anything to do with personalization to me, either. It's about "editorial judgement," and an algorithm isn't necessarily a get out of jail free card unless the algorithm is completely transparent and user-adjustable. I even think it would count if the only moderation you did on your Lionel model train site was to make sure that most of the conversation was about Lionel model trains, and that they be treated in a positive (or at least neutral) manner. That degree of moderation, for that purpose, would make you liable if you left illegal or tortious content up i.e. if you moderate, you're a moderator, and your first duty is legal. If you're just a dumb pipe, however, you're a dumb pipe and get section 230. I wonder how this works with recommendation algorithms, though, seeing as they're also trade secrets. Even when they're not dark and predatory (advertising related.) If one has a recommendation algo that makes better e.g. song recommendations, you don't want to have to share it. Would it be something you'd have to privately reveal to a government agency (like having to reveal the composition of your fracking fluid to the EPA, as an example), and they would judge whether or not it was "editorial" or not? [edit: that being said, it would probably be very hard to break the law with a song recommendation algorithm. But I'm sure you could run afoul of some financial law still on the books about payola, etc.]

Majromax 2y ago
> That degree of moderation, for that purpose, would make you liable if you left illegal or tortious content up i.e. if you moderate, you're a moderator, and your first duty is legal. I'm not sure that's quite it. As I read the article and think about its application to Tiktok, the problem was more that "the algorithm" was engaged in active and allegedly expressive promotion of the unsafe material. If a site like HN just doesn't remove bad content, then the residual promotion is not exactly Hacker News's expression, but rather its users'. The situation might change if a liability-causing article were itself given 'second chance' promotion or another editorial thumb on the scale, but I certainly hope that such editorial management is done with enough care to practically avoid that case.

phire 2y ago

It's worth noting that personalisation isn't moderation, An app like TikTok needs both. Personalisation simply matches users with the content the algorithm thinks they want to see. Moderation (which is typically also an algorithm) tries to remove harmful content from the platform altogether. The ruling isn't saying that Section 230 doesn't apply because TikTok moderated. It's saying Section 230 doesn't apply because TikTok personalised, allegedly knew about the harmful content and allegedly didn't take enough action to moderate this harmful content.

cdchn 2y ago
>Personalisation simply matches users with the content the algorithm thinks they want to see. These algorithms aren't matching you with what you want to see, they're trying to maximize your engagement- or, its what the operator wants you to see, so you'll use the site more and generate more data or revenue. Its a fine, but extremely important distinction.
- bryanrasmussen 2y ago
  What the operator wants you to see also gets into the area of manipulation, hence 230 shouldn't apply - by making algorithms based on manipulation or paid for boosting companies move from impartial unknowing deliverers of harmful content into committed distributors of it.
fasa99 2y ago
"harmful content" is such a joke word. if a piece of text or media could harm people the military would have weaponized it long ago. Even monty python made a satire of such a "harmful content" scenario: https://www.youtube.com/watch?v=Qklvh5Cp_Bs https://www.youtube.com/watch?v=Qklvh5Cp_Bs Big tech's hyperbole of the word is even more severe than Monty Pythons absurdist satire. Sadly it's not a joke.
- vlark 2y ago
  Let me introduce you to the concept of psychological warfare. . .