Another Section 230 Reform Bill: Dangerous Algorithms Bill Threatens Speech

from the another-problem dept

Representatives Malinowski and Eshoo and have introduced a Section 230 amendment called the “Protecting Americans from Dangerous Algorithms Act” (PADAA). The title is somewhat of a misnomer. The bill does not address any danger inherent to algorithms but instead seeks to prevent them from being used to share extreme speech.

Section 230 of the Communications Act prevents providers of an interactive computer service, such as social media platforms, from being treated as the publisher or speaker of user-submitted content, while leaving them free to govern their services as they see fit.

The PADAA would modify Section 230 to treat platforms as the speakers of algorithmically selected user speech, in relation to suits brought under 42 U.S.C. 1985 and the Anti-Terrorism Act. If platforms use an “algorithm, model, or computational process to rank, order, promote, recommend, [or] amplify” user provided content, the bill would remove 230’s protection in suits seeking to hold platforms responsible for acts of terrorism or failures to prevent violations of civil rights.

These are not minor exceptions. A press release published by Rep. Malinowski’s office presents the bill as intended to reverse the US Court of Appeals for the 2nd Circuit’s ruling in Force v. Facebook, and endorses the recently filed McNeal v. Facebook, which seeks to hold Facebook liable for recent shootings in Kenosha, WI. These suits embrace a sweeping theory of liability that treats platforms’ provision of neutral tools as negligent.

Force v. Facebook concerned Facebook’s algorithmic “Suggested Friends” feature and its prioritization of content based on users’ past likes and interests. Victims of a Hamas terror attack sued Facebook under the Anti-Terrorism Act for allegedly providing material support to Hamas by connecting Hamas sympathizers to one another based on their shared interests and surfacing pro-Hamas content in its Newsfeed.

The 2nd Circuit found that Section 230 protected Facebook’s neutral processing of the likes and interests shared by its users. Plaintiffs appealed the ruling to the US Supreme Court, which declined to hear the case. The 2nd Circuit’s held that, although:

plaintiffs argue, in effect, that Facebook’s use of algorithms is outside the scope of publishing because the algorithms automate Facebook’s editorial decision‐making.

Facebook is nevertheless protected by Section 230 because its content-neutral processing of user information doesn’t render it the developer or author of user submissions.

The algorithms take the information provided by Facebook users and “match” it to other users—again, materially unaltered—based on objective factors applicable to any content, whether it concerns soccer, Picasso, or plumbers.

The court concludes by noting the radical break from precedent that that plaintiffs’ claims demand. The PADAA would establish this sweeping shift as law.

Plaintiffs “matchmaking” argument would also deny immunity for the editorial decisions regarding third‐party content that interactive computer services have made since the early days of the Internet. The services have always decided, for example, where on their sites (or other digital property) particular third‐party content should reside and to whom it should be shown

Explicitly opening platforms to lawsuits for algorithmically curated content would compel them to remove potentially extreme speech from algorithmically curated feeds. Algorithmic feeds are given center stage on most contemporary platforms – Twitter’s Home timeline, the Facebook Newsfeed, and TikTok’s “For You” page are all algorithmically curated. If social media platforms are exposed to liability for harms stemming from activity potentially inspired by speech in these prominent spaces, they will cleanse them of potentially extreme, though First Amendment protected, speech. This amounts to legislative censorship by fiat.

Exposing platforms to a general liability for speech implicated in terrorism and civil rights deprivation claims is more insidiously restrictive than specifically prohibiting certain content. In the face of a nebulous liability, contingent on the future actions of readers and listeners, platforms will tend to restrict speech on the margins.

The aspects of the bill specifically intended to address Force v. Facebook’s “Suggested Friends” claims, the imposition of liability for automated procedures that “recommend” any “group, account, or affiliation,” will be even more difficult to implement without inhibiting speech and political organizing in an opaque, idiosyncratic, and ultimately content-based manner.

After I attended a Second Amendment Rally in Richmond early this year, Facebook suggested follow-up rallies, local town hall meetings, and militia musters. However, in order to avoid liability under the PADAA, Facebook wouldn’t have to simply refrain from serving me militia events. Instead, it would have to determine if the Second Amendment rally itself was likely to foster radicalism. In light of their newfound liability for users’ subsequent actions, would it be wise to connect participants or suggest similar events? Would all political rallies receive the same level of scrutiny? Some conservatives claim Facebook “incites violent war on ICE” by hosting event pages for anti-ICE protests. Should Facebook be held liable for Willem van Spronsen’s firebombing of ICE vehicles? Rep. Malinowski’s bill would require private firms to far reaching determinations about diverse political movements under a legal Sword of Damocles.

Spurring platforms to exclude organizations and interests tangentially linked to political violence or terrorism from their recommendation algorithm would have grave consequences for legitimate speech and organization. Extremists have found community and inspiration in everything from pro-life groups to collegiate Islamic societies. Budding eco-terrorists might be connected by shared interests in hiking, veganism, and conservation. Should Facebook avoid introducing people with such shared interests to one another?

The bill also fails to address real centers of radicalization. As I noted in my recent testimony to the House Commerce Committee, most radicalization occurs in small, private forums, such as private Discord and Telegram channels, or the White Nationalist bulletin board Iron March. The risk of radicalization – like rumor, disinformation, or emotional abuse, is inherent to private conversation. We accept these risks because the alternative – an omnipresent corrective authority – would foreclose the sense of privileged access necessary to the development of a self. However, this bill does not address private spaces. It only imposes liability on algorithmic content provision and matching, and wouldn’t apply to sites with fewer than 50 million monthly users. Imageboards such as 4 or 8chan are too small to be covered, and users join private Discord groups via invite links, not algorithmic suggestion.

The Protecting Americans from Dangerous Algorithms Act attempts to prevent extremism by imposing liability on social media firms for algorithmically curated speech or social connections later implicated in extremist violence. Expecting platforms to predictively police algorithmically selected speech a la Minority Report is fantastic. In practice, this liability will compel platforms to set broad, stringent rules for speech in algorithmically arranged forums. Legislation that would push radical, popularly disfavored, or simply illegible speech out the public eye via private proxies raises unavoidable First Amendment concerns.



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Comments on “Another Section 230 Reform Bill: Dangerous Algorithms Bill Threatens Speech”

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47 Comments
Stephen T. Stonesays:

Legislation that would push radical, popularly disfavored, or simply illegible speech out the public eye via private proxies raises unavoidable First Amendment concerns.

Semi-related question: If this legislation becomes law and forces the speech of self-identified conservatives off platforms such as Facebook and Twitter, who should take the blame for that decision???the admins of those platforms, the lawmakers who forced the admins? hands, the conservatives whose speech fell within the parameters of this law, or some other party entirely?

Anonymoussays:

Re:

If this legislation becomes law and forces the speech of self-identified conservatives off platforms such as Facebook and Twitter, who should take the blame for that decision???the admins of those platforms, the lawmakers who forced the admins? hands, the conservatives whose speech fell within the parameters of this law, or some other party entirely?

Obama.

Or Hillary’s email server.

Anonymoussays:

Re:

I’m fairly sure it would cover anything google suggests based on knowing who you are, so at the very least it would have to act like Startpage.

It might also cover that level of "do what I mean".

I think the other curlicues are supposed to allow just responding based on word matching etc., or Facebook’s old time- and subscription-based wall (which was originally just called a timeline).

Bruce C.says:

Ridiculous...

As usual, the politicians try to induce and capitalize on moral panic to enact unconstitutional drivel.

I would certainly be in favor of legislation that requires more transparency about algorithms in use and more robust appeals processes to address the errors caused by the inherent limitations of these algorithms. The companies spend too much time trying to protect their secret sauce and not enough time protecting the public from automated bullshit – whether instigated by bad input like fake DMCA claims, or by inability to understand the nuances of honest debate vs. trolling, or reporting and analysis vs. exploitation.

Sure, moderation at scale is impossible, but maybe it’s time for FANG to sacrifice a little of their profit margins for better customer service in addressing the moderation issues that can be addressed. Everyone has hated on ISPs for their service delivery failures, and now, for better or worse, the eyes of government are on the platforms.

Anonymoussays:

Re: Ridiculous...

Everyone has hated on ISPs for their service delivery failures,

Who are escaping from all regulation.

and now, for better or worse, the eyes of government are on the platforms.

Driven by the same ISPs, all of who have associated publishing operations, and who hate on the platforms because they compete for people attentions.

Jojosays:

Ugh, a new day of people thinking that scapegoating is progress

Hey, Congress, how about instead of focusing on nonissues and utterly retarded bills, maybe you could focus on something like economic Stimulus for businesses hit by the pandemic, signal to the Supreme Court to not destroy Obamacare in one fowl swoop, help hospitals overwhelmed with finances and patients. Or maybe, MAYBE if you do visit laws around the World Wide Web, maybe you should get your thumbs out of your asses and actually listen to experts to do everything BUT gut section 230 with a scalpel, a hammer, or a nuke.

Scary Devil Monasterysays:

Re: Ugh, a new day of people thinking that scapegoating is progr

"…maybe you could focus on something like economic Stimulus for businesses hit by the pandemic, signal to the Supreme Court to not destroy Obamacare in one fowl swoop, help hospitals overwhelmed with finances and patients."

But none of those issues are important to republicans these days. All that matters, the first priority, is to make sure that calling black people the N-word on social forums becomes acceptable again and those folk stop whining about their natural place on the bottom of society. That women stop getting uppity and get themselves back to the kitchen and the marriage bed where they belong. That all the bloody brown people leave.

Everything else, including the pandemic killing off more americans than world war 1, korea and vietnam did combined, is a complete non-issue.
Health care for everyone is, in itself, evil, according to the people of the party of "No We Can’t".
As for the overwhelmed hospitals, well, if people are sick and dying that’s not really a problem because those who are "good christians" will go to heaven and everyone else, particularly the black and the jewish, will go to hell and be tortured forever, so it’s all good.

I wish I could put an /s here, but that’s exactly what the current GOP and their base thinks.

Anonymoussays:

Re: Ugh, a new day of people thinking that scapegoating is progr

I read speculation the gop does not want the second stimulus on their watch, they think the next admin will get the cost blamed on them. Why not, it worked in the past. Two and then Four years from now the gop, if they still exist, will be crying over the huge libtard bailout, it will all be someone else’s fault.

Anonymoussays:

I do see platforms leaving the United States. and there will some country somewhere that will welcome them and tell the United States to up theirs when they try to enforce their laws there.

If you own any property in California, you might want to sell now, because if anytthing happens to section 230, home values will plummetwhen tech companies take their jobs and go to some country that will not cooperate with the United States.

Anonymoussays:

Re:

If you own any property in California, you might want to sell now, because if anytthing happens to section 230, home values will plummetwhen tech companies take their jobs and go to some country that will not cooperate with the United States.

The sky is falling, the sky is falling!!!

Also, one thing the COVID pandemic has shown, tech companies can still operate when their workforce is remote. So, even in your dooms day scenario of all these silicon valley companies leaving the country, how many employees are going to want to up-root themselves and move to a different country in order to continue working from home?

Anonymoussays:

Re: Re: Re:

Another thing, too, if CalExit ever gets approved by the voters, is California quickly becomiong three countries, Jefferson, California, and Siliconia

Siliconia would be Silicon Valley, the SF Peninsula, the East Bay(south of the Carquinez Strait), capital San Francisco.

Websites in Siliconia would not be be subject the jurisdiction of the remaining United States.

Google, YouTube, Facebook and Twitter would in Siliconia, and would only have to obey Siliconian law, as long as none of their servers were anywhere in the remaining United States,

Anonymoussays:

Re:

Republican California bashing might be enough to get enough mugs in the rest of the country to agree to it, or at least put their politicians in a very awkward spot when they have to explain why they don’t want to get rid of all those nasty expensive commies who vote against them.

The democrats in the rest of the country have more reason to oppose it (that they can admit to their voters), unless other blue states could go with CA.

PaulTsays:

Re: Re: Re:

That doesn’t necessarily work if the workers and customers are still in the US.

Thankfully, the US is only 4% of the world population so it’s possible to run businesses without them even if they’re a disproportionately large market. When they make it impossible to run your business there effectively, the decision to move is fairly clear.

PaulTsays:

Re: Re:

"Also, one thing the COVID pandemic has shown, tech companies can still operate when their workforce is remote."

Yes. Then, once working remote, who wants to be paying Silicon Valley prices? Then, when nobody has to be physically in that area to do the job, why would those prices not plummet and destroy the market for those who still live there?

"So, even in your dooms day scenario of all these silicon valley companies leaving the country, how many employees are going to want to up-root themselves and move to a different country in order to continue working from home?"

Some will jump at the chance. Meanwhile, the people they’ve been importing into the country to do a lot of those jobs won’t have to move to the US at all. Are you really dumb enough to think this only goes one way?

Scary Devil Monasterysays:

Re: Re:

"The sky is falling, the sky is falling!!!"

In much the same way the sky was "falling" back in the 80’s when US economists warned that the trend of outsourcing would just about eradicate US manufacturing, yes.
And today, because people kept laughing at the doomsaying, China owns so much of the US supply chains it is literally impossible to start building iPhone components in the US – or, well, Apple officially expects the cost per smartphone to skyrocket to around 30k USD or more.

If section 230 goes away in the US, in the specific way the current crop of GOP wants, then only the major actors will have the investment cash required to still operate. But it will be expensive to do so.

As time has shown, again and again and again, when costs to run a business rises, the company moves those assets to where those costs are still lower. That’s as true for Big Tech as it was for manufacturing. Why should Google operate with a halved margin when moving the company to Iceland, Switzerland or the Seychelles would mean a net surge in profitability instead?

Especially if Big Tech then has the choice of trying to compete in a global business while handicapped by a burden no competitor will suffer?

Anonymoussays:

?Protecting Americans from Dangerous Algorithms Act? sounds like the sort of thing which should stomp on all the intelligenge haystack searches, data scraping, and predictive garbage used by law enforcement from local to federal, as well as facial recognition and whatever else.

But no, it’s another fresh hot bowl of steaming dreck.

Anonymoussays:

it would have to determine if the Second Amendment rally itself was likely to foster radicalism.

Heavens to Betsy! What if it had been a First Amendment rally! We’ve seen what happens at those! Those free speech radicals, openly assembling peacefully! Radical, I say!

And remember, folks, the bill of rights is not an ? la carte menu, it’s a package deal.

Anonymoussays:

This is happening right now, workers are leaving san Fran to go buy nice houses in places where there’s a good quality of life and a fast boadband 100meg per second connection.
Either the republicans are all stupid or else they need to distract the public by saying look here we are doing something about Conservatives getting censored,
Gutting section 230 is mass censorship on a Chinese type scale
And it means people will be forced to go Facebook to talk about anything or YouTube
to discuss any subject

90 per cent of websites will close down forums
In order to avoid legal action or employing 100s of moderators
Websites like 4chan will move servers to other country’s
This bill chills free speech
And makes it harder for the next Facebook, YouTube to appear

America is the home of the Web
2020 is the year of it can only get worse
Mass pandemic looting and people getting shot
The economy is in chaos
Yeah sure why not break the Internet
It’s the jewel of americas economy
Allowing people to stay safe and work from home

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