Michael Petricone 

All right. The mics work good. All right. Good afternoon, everybody. Welcome to day two of CES. I know there are a million exciting things to do outside these doors. And I'm glad you decided to spend your afternoon with us. Today, we're going to talk about a law in Section 230, which is because one of the biggest technology policy discussion areas over the last year, as most of you probably know, section 230 provides broad but not absolute immunity for internet intermediaries that host third party content. Basically, it says that you can't blame service providers for content posted by users. Some believe that section 230 protections are key to a dynamic and thriving internet as a platform for communications and commerce. Others seemingly increasingly lately, believe that section 230 encourages irresponsible corporate action toxic online behavior. Laws are being proposed it would remove or restrict section two, three protections. Today, we have a true rock star panel of internet policy experts to discuss this issue. Let me introduce them. On my immediate left. Lateef Mtima is a professor at the Howard University School of Law. He is also a member of the Advisory Council of the United States Court of federal claims, as well as the founder and director of the Institute for intellectual property and social justice. Jeff Kosseff is an assistant professor at the US Naval Academy cyber security department. He's the recent author of a book on section 230 of the 26 that created the internet. This is I read all the tech policy books. This is the best tech book of 2019. So like I, everybody, everybody who's in this room, if you're in this room, you're interested in the topic, you gotta read this book, like get on Amazon, get on whatever order it now. It's great. Okay, next we have Julie Samuels. She's the executive director of tech NYC, which represents the New York's fast growing entrepreneurial high tech industry. She was formerly with the FF where she helped My favorite job title of all time, the Mark Cuban chair to eliminate stupid patents. And finally, Ashkhen Kazaryan is the director of civil liberties and lit and legal research fellow at Tech freedom, where she oversees policy projects on free speech, artificial intelligence, surveillance reform and the sharing economy. So what we're going to do is we're going to talk among ourselves, and, and then leave about 15 minutes for questions. And I know that people have this hot area, the controversial area, and people probably have a lot of thoughts and opinions questions they want to share. So we're going to do that. But let me start with with Jeff. So your book provides just a fascinating history of Section 230. Just like take us back. How do we get here?

 
Jeff Kosseff 

Yeah, so to understand why we're here you have to think back before the creation of the internet, or really even technology underlying it to the 1950s when we had Lot of bookstores that were facing prosecutions under obscenity laws for selling what police believed were obscene books and magazines. The rule that developed out of that under the First Amendment and common law from the Supreme Court was that book, the distributor of someone else's content could only be held liable if it knew or had reason to know of the illegality because what the Supreme Court said Is it would kill speech to greatly if you were to require a bookseller or newsstand to review every single page that they sold. So that worked pretty well for the next 30 years and a lot of bookstore newsstand cases. But then we get to the early 1990s. And we have these services that none of my students know what I'm talking about called compuserve. And prodigy, and they have very different business models. So they're these bulletin boards and chat rooms and they're closed off at least at first two other services. And the compuserve good was brand new newsletters user posts, and it did very little to no moderation. It didn't have policies. It was really the Wild West. prodigy wanted to distinguish itself. So what prodigy did was hired a lot of contract moderators developed a lot of different policies. And it wanted to be family friendly. So they both get sued, not surprisingly, in the early 1990s, for user content, for defamation, and the compuserve case gets kicked out. Because what the judge says is compuserve is just like a bookseller. It doesn't do any editing. So it receives the same distributor protection. prodigy does not get its case. And the judge says prodigy is more like a newsstand or new newspaper or a book publisher, because it actually exercise editorial control. So this is happening in the 1995. The telecom act is going through Congress and there's already a proposal in the Senate to deal with what's known as indecent material so not not obscene, but indecent. And it was, I think in the Supreme Court agreed the Senate proposal was unconstitutional. It criminally prohibited all of this indecent content, but caught, but two members of Congress, Chris Cox and Ron Wyden and the house, they come up with a different approach, which becomes section 230, which says, you know, we're going to take the government and the courts out of the moderation debate, and we're going to give the power to the platforms and their users make the decisions as to what best serves the needs of the users. So what happened was both the Senate and the House versions and end up in the final telecom act or conference committee, the Senate version gets ruled unconstitutional by the Supreme Court the next year. So what we're left with is section

 
Michael Petricone 

so at that point, going back in your research, with with them with with Ron Wyden and Chris Cox, it was 20 years ago, right? It was like the dawn of the internet age. Was there thinking like, Well, you know, these internet bulletin boards are kind of cool. And right now, these carts left the bad incentive to not moderate. And we need to do something about these internet boards, or was the sense that like, we're on the verge of this, like, astonishing, wonderful society, creating innovation. And, and and if we put this protection in place, then it will, like flourish and

 
Jeff Kosseff 

everything will be great. So they recognized that something big could happen from the internet. This was 95. This was when mosaic was being launched. This was there was a lot of potential. I don't think that they anticipated exactly what that potential would be. But they were both, at least for Congress. They were relatively young. Chris Cox is a Republican, he had experience he ran a company that translated profit, so he used compuserve and prodigy to communicate with his translators Ron Wyden represented in the house, the Portland area, which has a very large tech presence. So they you had this really unique situation have first now it's unique because it was a Democrat and Republican working on something substantive. But you it's also unique that they kind of got the technology and they realized that one of the big themes for section two in the legislative history is they really wanted to avoid having an agency like the FCC, regulate internet content. And that was really one of the big drivers of Section 230.

 
Michael Petricone 

So let me let me go over to ask him. So why is we've got the predicate and we know what happened. Why does this matter to innovation? What was the consequence of this both from an innovation standpoint, and and from the standpoint of the people in the audience who use who use the internet every day? Like because of Section 230? What are they allowed to do or unable to do?

 
Ashkhen Kazaryan 

So I will give a disclaimer that I'm from Europe because I'm about to offend a lot of Europeans, Europe just around the time, section 230. And the CDA was happening at we're actually just kind of adjusting the screws and even making more regulatory policy. And they were being very harsh on the same kind of issues and on the innovation itself. And that's why we saw basically the Silicon Valley boom happened later. I mean, it's one of the reasons I'm not claiming full credit. But if you look at the way platforms developed the way free speech online developed, there is a very direct connection between that and there is a reason the yahoos and then the my spaces and Facebook's and Twitter's of a world are American companies and not European or in any other country. Because most majority of a world does not have a section 230 protections and section 230 I think people again, the associated with the companies I just mentioned the big ones. It's also Every single I'm going to do this experiment that might fail. Raise your hand, if you or your company has a website. Keep your hand up if you have a comment section on your website. Okay, that's actually that's like 40 50% you would not you would be liable. professor who just puts his academic work on his website, and uses Tumblr or any other basic kind of tool to do it, they would have a comment section. Sometimes people sell drugs in those comment sections, because the professor doesn't really check in on the website. He wouldn't be liable for those operations if it wasn't up to Section 230. So yeah, section 230 protects innovation on every level, it protects, not just incumbents but the up and coming business and it also protects just the way you want to do whatever your platform is set to do. So for example, very recently the knot which is a wedding planning website for men in this room and contract Also, maybe some menus Pinterest, I don't know. It's a creative organization inspiration website, they decided that they are not going to allow plantation wedding content on their website, like they're not going to like let it come up in searches and things like that. They wouldn't be able to do that. If it wasn't up to Section 230.

 
Michael Petricone 

So, speaking of smaller businesses, let's go to Julie. So in for those of you those of you in DC know this, but a lot of the discussion of Section 230 comes in the context of larger tech platforms. But what do startups and small businesses, do they have a different set of needs, like how do they interact with section 230? And what is the benefit for them?

 
Julie Samuels 

Well, I think, listen, for a startup, particularly a small growing company, perhaps one that doesn't even have a general counsel yet, one that's got 20 employees, you know, whatever, whatever the framework looks like. The they can oftentimes only exist because of the protections of 230 And as and we'll talk more about this, I think as we talk about where we're going and what's happening with Congress with the kind of uncertainty that we see being inserted into the debate is really troubling for the small companies. And I think, you know, development ash was just saying, I think, when we think about the state of the world looks like right now, we do spend a lot of time talking about the biggest companies and the biggest platforms. And I think that, I mean, I would definitely say and I think most people would agree that we want there to be healthy and robust competition. We want to live in a world where where those companies are, when they should be challenged by competitors. Section 230 is what kind of protects that level of competition in a way that is incredibly crucial. I worry sometimes that that this was, if we don't get it right, we will one day look back and say like, Oh, this was the golden age of startups that we lived in. This was the golden age because it became pretty cheap to start a business. Yes, that is true. on the technology side, they're all of these services that that make creation of business easy, you know, WordPress, Squarespace, Google Apps, you name it, you can you can spin up a business pretty quickly. But on the regulation side as well, CDA 230 and a couple other laws, but primarily CDA 230, if you have any kind of interactive website is what gives these companies the protection, to frankly, try things out. And that is like, this really American thing that that is so unique to our culture. And I hope that we are able to

 
Michael Petricone 

preserve that the protection you're talking about is the protection of having to go to court every time anybody is unhappy, what I

 
Julie Samuels 

mean and you know, How real is the fear? That fear is incredibly real. And you know, you said my, my old FF title and I've been on this very stage talking about the potential problem time and time again, and that is a really real problem. You know, harassment, in litigation or harassment via litigation through litigation is incredibly Real. And and this is, you know, to really kind of narrow in on what I was talking about before this idea of like competitive moats around some of the larger companies. None of the large companies want cd 230 to go away, either they don't want to deal with all the potential lawsuits, but I will tell you that they can afford the potential lawsuits. And the companies who can't afford the potential lawsuits are the smaller ones. And I I hope that as this debate continues that that those needs of the small companies, the upstart companies, the ones who are trying new, interesting, innovative things, I hope their their voices at the table loud and clear, because it's crucial.

 
Michael Petricone 

And from a small business perspective, in a weaker section to 30 world, what would the impact the think of venture capital investment,

 
Julie Samuels 

I think you would see, venture capital really dry up and in this at least in a certain type of company least in the type of company where you got that level of interactivity where you have user generated content where you have a comment section. I mean, when you take a step back, and, Jeff, you, when you talked about the history, and you're obviously the expert here, especially in the history, but you know, I think sometimes we forget that there was a real question in the 90s, about what the internet would look like whether it would be kind of one way communication, which is what we were used to with broadcast and radio and publishing, or it would be two way communication. two way communication that was broadcast, so not just email, not just that you could content communicate back and forth, but that you could kind of put yourself out there to the world. And when widen and Cox put forward to 30, when that became law, we decided as a country, in favor of the policy of you know, you could do one too many and many to one at the same time. And that was really new and that's what the technology enabled that was not technologically technologically possible before. And it's hard. And you know, we're seeing some of that I would argue you're seeing some unintended consequences of that policy decision. However, I still fundamentally believe that was the right policy decision.

 
Michael Petricone 

Yeah, and let's, let's we'll talk more about those unintended consequences later. But I let me move Latif for a second. So we've talked about section 230. And the importance and its importance to innovation and business. But I also want to talk about it in the context of free expression. Right. And one of the things that makes the internet today's internet so just like extraordinary, and I think unique and like all of human history, is that anybody without owning a newspaper or TV station, or radio station, can get online and have a voice and, and and enable like mass communication, right? How to Section 230 interface with this and why is it important?

 
Lateef Mtima 

Yeah, you know, it's a really good question effective. It gives me A chance to pick up a little bit of what Julie was just talking about. So in the early stages of our society, if you wanted to get people together and listen to something that you wanted to talk about, you would do that here. You hear you, right? And anybody within the sound of the cowbell, right could could come the up. So then cities getting really, really big, right? And we lose that sort of neighborly capability. Now, I'm old enough to remember the time when there was in broadcast or like three networks, right? And so in that error, if you wanted to get your voice out, well, you know, you'd have to ask the big newspaper, you'd have to ask the big network. Can I come on those days? First off television wasn't 24 hours. Shocking. It would go off the air and then early in the morning of like six o'clock, right? That would be your chance that if the if the network decided, Okay, let this guy speak. So you'd have it like six o'clock in the morning like when nobody's listening. Alright, this guy coming on said now we're going to hear from local Mr. Jones. That'd be some guy like in a checker jacket and plaid tie, right? I have a grocery store on the corner of and I'm against like the old good Gilda Radner. Saturday Night Live, right. I'm against, you know, that will come on like just before like something like sermonette. For those who even remember that, like the local clergyman to give like the opening prayer, right? With the advent of the Internet, now all of sudden this changes, right? People can now say, Hey, listen, I've got something I want to talk about, right? I don't have to ask anybody's permission. I can get that stuff out there. Right. And now all of a sudden, the average person has a voice. But then you get these cases that Jeff was talking about, right? That all of a sudden, it changes from what anybody can speak. Now it's, well, if anybody speaks, and if somebody is, as you said, unhappy, right. They're going to sue The platform owner right now, this means that we go from this marketplace, this town square, then anybody could get on and anybody can talk about to, oh, wait a second, now we're gonna have to close that door, if we have to be afraid about being sued. We don't think that we have to worry about that because we have the First Amendment. But the First Amendment only works in the internet space, if you've got to 30 to protect it to make certain that that message gets out, make certain that the platform owners will will allow these messages from just anybody to come out because they don't have to worry about what they're going to say. I think, you know, you see examples of this on both what we think of like small personal levels and also on like on big levels. So like small personal level, I remember a couple years ago, there was a story about a mom, right? I mean, to be more controversial a mom, and what was she talking about? She was It's a talk with other moms about natural breastfeeding. Right, you know, you've got a newborn. And so she had a clever way of getting attention for her newsletter. And it was just called breastfeeding, the other white milk. pork industry gets upset. And they say, hey, that's too close to our model. Right? Okay. And what she does is she's able to push back and to bring this issue to other moms, right and to other people, and to say, Hey, come on, guys. Don't you think that the industry is being a little too aggressive here? Like I can't say the other white milk in the absence of 230. She would not have had that opportunity, right? To put this out to let other people because of course, who are some of the people who learn about this? Right? Well, like other moms, right, and moms are a big part of the demographic of deciding what's for dinner. Right? Alright, so to 30 sort of levels, the playing field, but this is also played out in bigger ways. You know, like I I'm one of those like old nerds who will watch the PBS news hour every day. And every day, you know, these days, we hear about political unrest, like all around the world, right? They could be people protesting for democracy in China, people protesting about it in Ecuador. I mean, just all these different countries, the thing of it is, is there certain things that we hear over and over again, that we immediately pay attention to, right? Oh, they're these many deaths, etc, etc. And of course, that's really, really important stuff. But when I'm listening to it, the other thing, sort of a throwaway line that happens in every one of these reports, is they talk about how the government response and I say, well, the government responded with it a lot. And they shut down the internet. And then again, another country and the government responded with tear gas and violence, and they shut down the internet. Well, it's obvious why. Right? See, we think that can't help happened here because we say they'll never happen here because we have the First Amendment or wrong about that. Right? The First Amendment protects free speech in the physical world. What guarantees free speech for everybody in the internet is section 230. Without section 230. Without section 230, the little guy doesn't get a chance to speak anymore. Right? Without section 230. The only people who get a chance to speak are those people that the platforms feel confident that if you say something a little too wonky, I know you've got the money to back it up. Right? So if what we want to see is an internet that consists only of commercial transactions by big players, right, and speech by billionaires lumber can put out all the ads he wants on the internet. Nobody's going to be worried about whether or not he can back it up. But for everybody else who falls below that tier, pretty much I think all of us Okay, that's it, it goes away.

 
Michael Petricone 

What I hear you saying is in a non 3d world, or we can do the real world, specific types of speech are more likely to be targeted and taken down. And it's the kind of speech that is controversial and will cause potentially cause the site owner to be sued. Right? So you're talking about speech, like, like, hashtag me to that hashtag Black

 
Lateef Mtima 

Lives Matter. As a matter of fact, that's there on my list. Is it without the 230? There's no, me too. There's no black lives. There's no Arab Spring, right? None of that stuff, because you gotta remember all of that stuff starts out with people who not only are saying controversial things, but who themselves are identified as controversial people, right? I mean, 20 years ago, for a woman to say, Hey, listen, I fake what's happening to me in the workplace. This wasn't an actual physical assault. It was a made me feel uncomfortable sexual interaction. People would say, What the hell are you talking about? Right? Okay, who's going to want to carry that? In a non section 230 world, right? And so those kernels, those initial whispers, those initial complaint, they become too problematic. And all that stuff goes away.

 
Julie Samuels 

And I just add to that, just that. I mean, take take me too. And what happened with Harvey Weinstein, take that one step. I mean, I don't know if you guys read the book, Jody Kanter and Meghan to his book, which name escapes me right now, but to think there isn't a world in which Harvey would have sued every platform, the first second he could like, hundred percent. It is such an obvious example. It's, it's really instructive.

 
Ashkhen Kazaryan 

Yes. And I basically wanted to, on the example of me to talk about how I mean, this has been happening for decades, centuries forever. The difference is now people who are transmitting the information and then sharing it more and connect or bad information are not like us companies, air and big players. And, you know, like, this is all like one big structure and infrastructure that has existed. And the internet was the disrupter that came in and gave a voice to so many others, including, like, revolution in Turkey because of Twitter and the no drop of blood peaceful turnover of government in Armenia that just happened last year, they would have not been able to organize the way they did and share their ideas and share very structured plans and structure like all the events that they had to do to get there if it wasn't for Facebook. And it's just the reality that we live in right now that unfortunately can be taken away.

 

Michael Petricone 

So we've talked about the benefits of Section 230. And then things that does enhances and for most of the last 20 year life, it has been highly uncontroversial. Right is just Was there the internet thrive speech thrived and didn't discuss it, which is part of the legal architecture of the internet. And now, all of a sudden, is extremely controversial. What happened? Jeff, do you want to take but I'm throwing it over to the panel? Well,

 
Jeff Kosseff 

I mean, I think the short answer is the tech companies have perhaps fallen out of favor with that with Congress and with the general public as they've grown. And section 230 is often an attractive target when you're looking at how to use influence over the tech companies. But there also have been, and this really goes back to the early days of Section 230 just didn't get many much attention. There have been some really severe cases where there there have been some very real harms that have happened to people and the platforms. Some of the platforms have not really acted in very good faith. And the people are unable to recover and be made whole when they see the platform. So they're my book goes through a lot of really horrible examples that I mean, I before I was in academia, I represented companies that operated websites, I used section 230 quite a bit and responses to complaints. But going through these cases and talking with some of these plaintiffs who didn't succeed, it is much more of a gray area than I ever would have thought before I started writing the book.

 
Julie Samuels 

You know, we also I think, sometimes failed to think about it in historical context. And when we talk about the history of free speech in this country, which is unique to America is the history is full of really tough times. You know, one of the most high profile is the the KKK march in Skokie, and ACLU course defended kkk and that was really hard. You know, that was a really shitty situation. And now, like with everything else, that technology and the Internet has brought, we are operating at scale. And I think that is the real challenge. And share is it's not just that one example. But it's all of these examples at once. And it's complicated. It's complicated.

 
Ashkhen Kazaryan 

And I think what also happened is section 230 applies obviously to all of the internet, right? All of internet means in the last 20 years, there has been disruption and innovation in different industries like sharing economy, right, Airbnb and travel tech and Uber and Lyft. And all this people came in and started doing rideshare or you share your apartments like all this things happen, and they piss off different groups of people, right? Who was the most upset about Airbnb, the hotels, like the ones we're all staying at probably, who are the most upset about ridesharing taxi cab companies, it's when you trigger all this very powerful established lobbies, and they come at you from different sides. That's what happens and about 10 years ago, don't quote me on that. There was this big fight. It was called the Top of people fight and it was basically attack on section 230. And it did not succeed because everyone under the sun and it was a huge also activation across the country united and fought it off. And now the problem is a lot of people who were part of that united effort are now listed companies because some companies made bad decisions that have nothing even to do with free speech. Sometimes they're they're about privacy or they're about something else. And now it's there's like no more unity in that just because tack has been part of so many different aspects of our lives that at some point, something might have upset you. I mean, if it wasn't for Section 230 right now, I would sue CS for leaving my like three year old title up there. That's not my title anymore. I would sue them and then I would retire it would be great. To 30 stops me from that. So maybe now switch positions and actually support taking it down.

 
Michael Petricone 

Wow. Okay. Aren't you glad? Yeah, that's wonderful. For a second to 30 seconds microphone works? No, no, but it is you brought up a good point. And it is interesting to me that that some of the some of the industries that are very actively campaigning against section 230, for example, the NPA in the motion picture industry, despite the fact that copyright is specifically excluded from section 230, so maybe they're doing it for academic interest. But also, you know, maybe they have a point and and section 230 was put in place two decades ago, in the context of the very different internet, right. We're like an entirely different world, that a lot of the things and companies and technologies we deal with every day, we're not even, you know, in existence when when section 230 was put into place. So this is still relevant.

 
Lateef Mtima 

You know, I think it's still relevant For a very important reason, I think what section 230 demonstrates is that this is what happens when you put control over people's destinies in the hands of the people. Right? Because when the people get to speak up for themselves, they don't always behave the way the aristocracy wants them to behave. They talk about things that are uncomfortable. They talk about things that are controversial. They shed light on secrets and bad behaviors and bad practices, that it throws the whole system of containing the President's, you know, out of out of whack. Now, to be fair, to be fair, it also opens the door to some bad actors. But of course, first and foremost, well, that's the price of a democracy, right? You don't get to pick and you you know, the first time that that this was tried to be done. To like sort of pick and choose was in the earliest copyright statute, right? The right to publish didn't go to the author. It went to the publishers, right? Because the publishers had to deal with the crown. Right. And the publishers talked with the crown and the crown said, you are only going to publish those books that are okay. Right. Okay. And they says, Yes, of course. Right. So what happens is that when you put it in the hands of the people, yes, a lot of really, really good stuff happens, right? Like talking about things like me to like talking about things like Arab Spring, the law, and then you've got some people who abuse it. Okay, then you got like the hate speech problem and things of that nature, right. And in our now incredibly polarized society, this is why not everybody's rushing towards 230 putting all the blame on 230 and saying, hey, well, if you get rid of 230, then all of this stuff goes away. way, it's really literally haiti's analogy but throwing the baby out with the bathwater. What we need to focus in on is not on how do you get rid of 230? But how do we develop mechanisms so that we can focus on the people who are abusing and misusing 230 and not throwing the whole system at all together?

 
Michael Petricone 

So two years ago, Congress changed section 230 for the first time, through laws called sesto and foster, which remove platform liability protections for speech involving child sex trafficking. How did this law come to pass? And how did it work out? And what lessons of any can we draw?

 
Ashkhen Kazaryan 

I'll start and I'll say that there are two things probably ever that I wish I was wrong about. And the first one is that the Patriots were not going to win the Super Bowl this year. And the second one is that Stephen Foster going to have unintended consequences and hurt people they're trying to protect trying to protect when c'est la vie was being introduced and passed. I think in Senate, two people voted against it out of everyone and one didn't vote. Because if you say we're protecting women and children and men from being trafficked, who was going to say no, or let's slow down the way seska, the draft obsessed and foster that past? It was like a week. There was no stopping. There was no hearing our arguments that, you know, actually, you don't need to amend section 230. How about we just put in an additional crime, how about we help the prosecutors, lawmakers were not even listening to the prosecutors who are saying we don't need this law to prosecute, we actually need other tools. And it was just, it was an effort. There was obviously a lobbying effort. And again, I said section 230 is kind of attack from different angles. So all those interests kind of you know, you pick the first thing that's like very hard to talk about, you know, you pick the Women and children who doesn't want to protect them. And then you just go for that vehicle. I mean, I think the next one right now is opioids that people are going to try to use. But basically my point is it was a very hard subject. And it was hard when the first panel testifying in front of Congress were people who were being trafficked, and who thankfully got out. And then the next one is lawyers, who are like, no, that's not how section 230 works, and you should slow down. It just was a very unfortunate chain of events that led to it. And now we're seeing consequences of now traffickers actually have gone to the dark web. And most of the law enforcement doesn't know how to investigate crimes on the dark web. So they are actually solving less crimes. Now, platforms don't want to cooperate with law enforcement, because if there's any kind of sense that they had any random knowledge about the crimes that were being committed on their platform, they might be opening themselves up to liability and who would want to do that? They're all this things that are going to happen in our house. happening that would never intended.

 
Michael Petricone 

Jeff, I know you have some thoughts on this. Yeah.

 
Jeff Kosseff 

So I actually, when the House Judiciary Committee was holding hearings on the what would become Foster, this was in a much earlier stage, I testified and I gave sort of the law professor, on one hand, on the other hand, and I said, you know, this is a real problem back page, which had been the home to a lot of these ads, had had a case dismissed in the first circuit, and was able to successfully claim section 230 protection for a variety of reasons that I go through in my book. I don't think that that was the right ruling. Separately, there's always a federal criminal law exception, and that's actually how backpage ended up ultimately getting shut down. But what I said is, you know, this is a real problem. This is not just sort of some the tort reform issue. This is this is about, I mean, this is children being sold on the internet, and we need to We need to look at this as a very real problem. What I thought would have been a good compromise would have had a narrow carve out applied to platforms that intentionally facilitate sex trafficking, because then you have intend. And yes, that will still allow certain amounts of litigation. But that gives some clarity and certainty. We don't have that in the final bill. And I've been met, it's known as mens rea, of a state of mind. I've actually, some of my friends who are Criminal Lawyers, I've shown it to them. And they say, you know, I have no idea what to make of this law, because it's one standard on top of another standard. And the response the platforms have had is they say, well, we're just going to take and we're not going to allow any service that even might have this sort of content, because this is too vague. So I think it's a lesson that if there were to be more carve outs to 230, we need to be crystal clear as to what we're actually doing. And I think that the ultimate result with Foster was not really a You was not was not clear at all for any company is and I don't see how it's actually serving the interest that it was intended to protect.

 
Lateef Mtima 

Yeah, I think the problem of unintended consequences as you knew you were, you know, obviously when you have like such a really serious problem as trafficking, everybody wants, and justifiably so wants to deal with it. But, you know, now that we've had it in place for a little while, you know, I am a part of a scholarly roundtable and I happen to know a couple of scholars who are right now they're doing some research, they're getting out, and they're talking to sex workers. Some of whom are people who are like, this is their chosen, this is what they want to do, and they follow whatever I'm hearing Nevada, you know, what that place, you know, to talk about it, and they're finding out through their research that there are people who are saying, you know, I've been doing this sort of work for a long time. With the advent of the Internet, I was able to get off the street. Right? I was able to get out from under pimps and other dangerous situations. And now, you know, channels that I used to use to pursue this. And again, whatever you may think about that profession, we're just talking about people who are making adults making their own choice about how they want to make make their living. And they're finding out that a lot of those people are saying, I have no choice now, like, I can't pursue this on the internet. I've got to get back out on the street. There were a couple of stories that they were sharing with us from the data of people. I mean, we're like, tears, saying that, I gotta go back to my No, I don't gotta go back. I'm back with my pimp. So I don't think anybody intended that. And that's one of the things that we have to think about in the broader context of section two dirty. Yeah, let's deal with bad situations. Let's be careful about how we do that. Right,

 
Michael Petricone 

in a way so the collateral damage is not legitimate speech.

 
Julie Samuels 

I think so. I'm sorry. I'm sorry. I think this is true with so many of the issues in tech policy right now. It's not just 230 though to 30 is a great example of it. Or a illustrative example of it, you know that we're talking about technologies a platform, particularly with regard to do 30. And I think there's this kind of knee jerk reaction right now and like the world feels really messy right now. I think it feels really complicated. I think people feel really uncertain about where things stand and I think that human beings you know, by nature kind of think well, it was better before. Let's put this genie back in the bottle. Let's just go back 10 1520 years and what was different 10 1520 years ago, I mean, largely technology, the internet, you know that that was the one of the huge differentiators over time. But I think that is, I think that is a really foolish way to think about these issues and that you know, you can regulating the technology layer, which if you are kind of getting at this earlier, regulating the technology layer kind of maybe puts a bandaid. But but we have this amazing opportunity as a society right now. And it's hard. And I do not know if we have the political will to address it. But I really hope we do, we have this amazing opportunity to interrogate the underlying problems that we are now seeing that technology has allowed us to see. And if we do not take that opportunity, I think it would be incredibly unfortunate. So I'm gonna

 
Michael Petricone 

ask one more question. And then we'll go to the audience. So please think of your questions. And I want to address this, Jeff, because he talks about in his book, but it's open to everybody. So your book is one of the downsides. You do tell these incredibly compelling stories of people who are being harassed on the internet by people who can't track down and and either there's they have no recourse. Right. So, are there things that can be done to improve section 230? They will not have you know, they will not bring great harm to innovation of free speech.

 
Jeff Kosseff 

Yeah, so it's hard because there's always going to be some trade No matter what you do, I think the question Congress is going to have to answer is do we want to shift a little or a lot further on the spectrum away from the free speech that section 230 has enabled? I think there are some sort of modest thing that you could do for a lot of it gets really sort of technical in the weeds. But back page, for example, one of the reasons that that case was dismissed, it was because the under Section 230, if the platform itself creates the content, then it's not going to be immune from lawsuit. But and there were indications that backpage may have been contributing to the content. But section 230 motions are often made on motions to dismiss which happened before discovery. So I think that in there could be ways for in extraordinary cases where the judge believes there's good cause the platform has been contributing to the content, to allow early discovery just on that issue. That, of course, when I start telling that to reporters or Hill staffer, there's a sale Wow, this is make a great press release. But I do think that those are the sorts of I mean, we need to really get in the weeds here to see how we can go I, I have no problem. There. There are some platforms that are very bad actors, and I have no problem with driving them off the internet. But it's but there are a fraction and what we don't want to do is start driving the well intentioned platforms off the internet and suppressing speech. And that's really hard. And anyone who has an easy answer to that question, has not really thought it through well enough.

 
Ashkhen Kazaryan 

I would say that I spend so much time trying to argue about bad ideas about how to amend section 230. But I have very little time to think about how we can improve it. I will say that I don't think I'm not an absolutist I don't think we should never touch it. Our society changes our values and our needs change. So there's always an open door to discuss more. But the ideas that are on the table right now I think the major one that we haven't touched upon, is actually the political neutrality that should exist on the big platforms like Facebook's and Twitter's of the world. And we can get into this afterwards if you guys want to talk about it's a huge thing. But that's a bad idea. And that's clear censorship. So every time you think, Oh, it's great, like we should make sure that it's like Facebook is politically neutral. No, that's truly censorship.

 
Michael Petricone 

Okay. With that, let's go to the audience for questions. And please let us know who you are and who you're with and who you're addressing the question.

 
Speaker 

Okay, can we repeat that? Can you repeat? Please repeat? Yes. Okay. Whoo. My name is Leanne. I'm with we work labs and early stage startup incubator going off of your last response. I'm wondering if you see anything you wish these platforms themselves would adopt in guidance or compliance, and it almost enforced their own regulation that could help address outside of Section 230. The best, most innovative and empowering behavior on the internet.

 
Michael Petricone 

Those are the audience very echoey. So what I think you're asking is that aside from section 230, what's your platforms obligations be?

 
Ashkhen Kazaryan 

Well, I think

 
Julie Samuels 

implicit in your question is that what to 30? We generally talk about this on the panel, but what to 30 allows is that companies can do moderation and can we talk to It kind of a little bit beginning but not really is one of those important parts about 230 that that in the early cases, Jeff was talking about the question, there was this idea in the world that you would either be responsible for zero moderation or all moderation, and there was no in between. But what 230 did was give companies or platforms, I should say, the ability to say, we're going to have some rules of the road on our own platform. And and we're going to have our own community standards, our own terms of service, whatever it might be, and not open themselves up to additional liability. I think this is kind of the world we live in now. And there's a really big conversation happening about content moderation at scale. And that is, it is not something we've really touched on much today. But as I think the hardest part of this conversation,

 
Jeff Kosseff 

and one thing that I'd really like to see, and we're starting to see a little more is more transparency from the platforms about their moderation practices. I was saying saying Earlier that I, section 230 is and all that I work on him at the Naval Academy. And by the way, none none of what I'm saying is on behalf of the God if that's not clear, but I work in a lot of cyber security and national security contexts. And in my research, it's easy, it has been easier for me to get information from the NSA then from some of the platforms, and that that shouldn't be like that. I mean, that they I think that the platform should recognize, you know, they play an important role in society, a hugely important role. And it's explained more than just like the two page, the state statements, and we're starting to see that more. But unfortunately, we've only started to see that in the past few years after they've come under pressure. So I'm really hoping that we'll see more meaningful transparency.

 
Ashkhen Kazaryan 

I would also say that there's like two levels. To answer your question. The first one is, it's kind of the same you would expect from any other industry like I would like for banks to stop Last. But at the same time, we as a society don't put enough pressure on it because we've kind of just all been okay with status quo. With technology, it's so it's part of our every part of our lives at this point. And so we expect more from them because they're more important to us on everyday basis. And I think Silicon Valley and other tech hubs that started first, were sweethearts because they're like these awesome people who had dreams and they were trying to connect the world or they were trying to cure cancer and all these great things. So we gave them the benefit of a doubt. And now that everyone is kind of beating down on them, they're going on to defensive and a lot of them now have the money to do that. And they're starting to act like the bank's just because they're like, put in a corner and there is nothing you can do. So my suggestion would be that we as a society, kind of take a step back from the aggression and have a conversation because transparency, better practices. Being more responsible for all the influence you have are great things, but I don't think they can be achieved if we try to heavily regulate that.

 
Lateef Mtima 

I think something else that I'd like to see to sort of build upon that legislators do, sort of right now, all of the criticisms of to 30 implicitly presume that platforms are just bad or irresponsible actors, that they aren't doing anything or they aren't doing enough, right? It doesn't take a look at Okay, well, wait a minute, let's let's be neutral. Let's let's do the type of investigation that just presumes that platforms are just sort of like in the middle. And what I'm getting at is that I think I'd like to see legislators start to make some inquiries as to what is it that platforms are actually dealing with, in attempting to try to figure out what is appropriate moderation. In my work, I get a chance because I don't just work to some tech tech stuff, I get a chance to talk with, for example, lots of like civil rights and social activist groups. On the other hand, I also get a chance to talk to groups that would be labeled conservative, right. And oftentimes, I'm hearing something that I'm sure the platforms are hearing. I'm hearing from civil rights groups, you see that that piece of content, that's exactly the type of content that needs to come down, and then I'll have a conversation with somebody new conservatives, you see that that's exactly the type of content that needs to stay up. And these liberal tech companies there, but I think that we need us terms of transparency and legislators. I think legislators need to be exposed to that. I think we all need to have a better understanding as to what the platforms are hearing from both sides. That's not to say that the platform shouldn't have a continued responsibility to deal with that. But I think that it would help us to understand what is trying to be balanced to help us to You too. Okay, so what are going to be the best tools to, quote, fix it?

 
Michael Petricone 

Okay, next. Thank you all. You're welcome.

 
Speaker 

I'm Jennifer Huddleston and I'm a research fellow with the mercatus. Center at George Mason University. You mentioned early on in the panel that section 230, and a lot of ways is a uniquely American law. One thing we did see this year is the usmca included a section 230 like provision. So my question for the whole panel is, what do you think that may mean for the future, both in terms of now that this will potentially have this expansion in the countries that will be joining us MCA or as well as the future of free speech online?

 
Michael Petricone 

Okay, section 230 in usmca.

 
Jeff Kosseff 

Yeah, so I know I'll give the disclaimer. I'm definitely not a trade policy expert. But the most interesting thing from my perspective is how it stayed in Because this was one of the few things in the past six months where you actually had bipartisan agreement in Congress, that they wanted something happen, which was to take it out of the usmca. So I think what that might indicate is that there is a certain level of support for Section 230 that we're not necessarily seeing in the day to day media coverage. So I saw I mean, I think that indicates at least that an outright repeal of Section 230 probably is not in the cards, I still think that allows room for amendments. the very end we ever talked all that much about what what's being floated, but some roll backs of 230. Domestically, I think that still could happen

 
Ashkhen Kazaryan 

as a former international law, person in recovery. I would say that problem with international agreements is that other countries are independent, and you can really force them to enforce them and depending on the way The legal system is structured, often international laws go under their own laws or some at least block of their laws. So I'm not that optimistic that it's going to actually be applied in Canada and Mexico. However, I hope I'm proven wrong.

 
Michael Petricone 

Okay, thank you, Richard.

 
Speaker 

Hi, Richard feller, hedgehog Technology Services, panels. Fantastic. I wanted to maybe bring up more than a question, but an insight into what industry is doing to kind of help within with the SEC with section 230 as well. Whenever we talk about it, child engagement comes up of course, and that's a huge part of it. But industry itself has taken some great steps through best practices to do things. National Center for Missing Exploited Children has a cyber tip line, every provider if you provide Internet services, Michaela, myself, should well because it's a foreign company, but in US companies sign up for this in advance and it gives you some protections. I think You know, Ashton, you were saying that it's a big fear that you're going to be prosecuted as well. And some there are some protections that are that are in there if you proactively take on some of these roles. And so we've talked about section 230, from a very great point of view. But I would be very interested to see more about what industry is doing, and how that industry can help. I'm the last panel, we had Facebook, as well as legislative to kind of see how that goes. And I think that that would be really great. I did do a panel on that one time. And it was very successful, to have internet service providers and FBI on the same stage talking really brought together. So I think industry is making great steps with that. And hopefully it can piggyback on to some of the expertise that you guys bring to that.

 
Julie Samuels 

You know, just to build on that. I think one of the things about 230 that is so important is it gives industry it gives companies and private actors the opportunity to try those things out without the safeguards of 230. You wouldn't have any of that white space to I don't use the word experiment, but actually You know, and that I think is a really crucial ingredient, especially because the technology, you know, what we've seen increasingly, as as one of the things that is so great about 230 is that it is actually quite simple. It is 26 words. But a lot of the more complicated legislative efforts around technology gets outdated incredibly, incredibly quickly. And we all know how hard it is to change legislation. It's hard enough to make legislation. And so I think that that's one of the things that is actually one of the things that is brilliant about 230.

 
Lateef Mtima 

You know, and I think that what you pointed out, that's exactly part of the kind of thing that we need to start looking at. There's a tendency these days in the broader media, to sort of like group all the platforms together, right, and to say, well, they're all like misbehaving, they're all being irresponsible. And the fact of the matter is that each platform, they're each doing different things, right? I mean, some platforms are really trying to like, dig deep into Figure out what's the best way to balance it, we should start giving some encouragement to that, and to some encouragement to transparency as to what each platform is attempting to do. I mean, there are some platforms that just kind of throw up their hands and said, Listen, we're not moderating anything. That's our answer to it, right? And that's not necessarily a particularly helpful way to deal with it. So we need to start encouraging those who are at least trying, the problem that we're having right now is that, you know, if your platform is trying, but you're being cast with the same bad, you know, top brush as the ones who aren't trying at all and then he's like, Well, why should I even make the effort?

 
Michael Petricone 

Okay, so one final question is going to be quick. With it's important, having had this great hour of discussion, what is the future of such into 30? What are we going to be seeing for Section 230 over the next few years?

 
Ashkhen Kazaryan 

I would say that the future of Section 230 is definitely going to be a lot more engagement in conversation like we're having right now. Depending honestly, on the political landscape, it might be amended more, it might not be amended, I can predict elections. That's not just what I do. I would say that section 230, in the form that it exists right now, has brought us to this point. And I'm hoping that we can kind of carry on all the good stuff that it has forward.

 
Julie Samuels 

I would agree. And I would also say that I think I've talked about this a little bit. Lindsay, if you're more of an expert on this than I am, but the culture of freedom of speech in this country is strong. We have an incredibly strong First Amendment. And I remain confident that both as a matter of process that is the right way to govern. And as a matter of substance, it will win out in the end and 230 might, there might be some tweaks, but there will be an interactive internet There'll be free speech on the interactive internet.

 
Jeff Kosseff 

So I'm thankfully not a political expert. I have no insight into what will happen politically. But I also just given the given the fact that you have Speaker Pelosi and Senator Cruz agreeing on not liking section 230. for very different reasons. I think there's a pretty good chance that sometime in the next few years, there will be some sort of further amendments to Section 230. I don't know what form that's going to take. We're starting to see some movement there. So I think there will be some abrogation. Yeah, I

 
Lateef Mtima 

pretty much agree. I think that we're going to see some tweaks to deal with the most extreme loopholes in which really, really bad things are slipping through. There'll be some tweaks to encourage, I think platforms to be a little bit more open about how they're dealing with the situations. But overall, I think it to 30 is not going to disappear. Quite honestly because I think you won't let it disappear. And we're gonna

 
Michael Petricone 

let that be the last word. Our panelists for an awesome panel by the book

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