On Stipulations and Expressiveness

As the reaction to the Supreme Court’s adventure in First Amendment Lochnerism in 303 Creative v. Elenis begins to unfold, I want to make a brief intervention on the issue of stipulated facts. In my view, the majority strips the context of some very banal stipulations by the Colorado defendants, unfairly playing “gotcha” to transform the stipulations into legal concessions and conceal the breadth of its holding.

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Gonzalez, Taamneh, and Section 230’s Interpretive Debt

In the lead up to this week’s doubleheader episode of Supreme Court Internet Law Adventures in Gonzalez and Taamneh, there has been a ton of attention on the potential impacts of altering the contours of Section 230—both for good and for ill—on Internet platforms and users. But one thing that hasn’t been quite so obvious is the impact on the courts, and I think that was really in play during the oral arguments.

Section 230, enacted in 1996, has allowed the courts to accumulate more than a quarter century of interpretive debt. When it comes to the Internet law pattern of “(a) apply [existing law x] to [new user-generated content platform y] and (b) evaluate what the First Amendment has to say about it,” we have shockingly little case law. This is because Section 230 almost always obviates both questions and gives us an outcome in the platforms’ favor.

As a result, we have almost no idea how huge swaths of law—e.g., tort, contract, civil rights, state criminal law, etc.—might (or might not) be applied to user-generated content platforms as a threshold matter. We have almost no idea how the First Amendment might apply. This means that rugpulling Section 230, whatever your policy preferences, is going to create an enormous amount of work for courts.

(How much work is a hard empirical question. But we can look at 230’s exceptions for indicators—and the body of law for platform copyright liability, Section 512, has generated an enormous degree of attention and litigation over the past quarter century.)

Moreover, the work isn’t going to be simple. Because we haven’t had the benefit of evolving a common law over the course of the last quarter century, courts won’t have the benefit of applying law to the primitive Internet platforms of 1996. They’ll have to start from scratch with today’s hyper-complex, multinational, ubiquitous congomerates, the obscure denizens and startups of the Internet’s long tail, and everything in between.

I don’t like to make predictions about how Supreme Court cases will come out, and it’s always hard to surmise what, if anything, oral arguments mean for the ultimate outcome. But I did get a sense of awareness unfolding among the Supreme Court’s Justices this week of what the profound stakes of a broad alteration of Section 230’s contours might be—not just for the platform defendants in the cases—but for the judicial system that the Justices sit atop.

Transitions, Reflections, and Thanks

Some personal news, as they say: starting fall of 2023, I’m joining the tenure-track faculty at Colorado Law, transitioning out of the role that I’ve held for the last decade directing the Samuelson-Glushko Technology Law & Policy Clinic. Most importantly: we’re hiring a new director of the Clinic—please apply to come work with me and the amazing crew of tech and IP scholars and programs at Colorado Law!

A brief reflection: I feel incredibly lucky to have made a long and strange journey from being a not-quite-sure-what-I-wanted-to-do-with-my-life student at Colorado Law through a transformative experience in the Clinic (yep—I was a student attorney there too!), a tour of duty in DC at Georgetown’s Institute for Public Representation, and a decade directing the Clinic before moving into this new position. Academia truly is a team sport; the main thing that has come to mind reflecting on the last 15 years is the amazing community that surrounds every part of my work. Every time I start compiling a list of everyone to whom I owe a significant debt of gratitude, I panic that I’m going to leave someone out.

Nevertheless, I can’t help but single out Paul Ohm, whose teaching inspired me to contemplate that maybe I could be a law professor; Paul has believed in me and mentored and supported me in every step of shaping that vague notion into an actual (however improbable) career trajectory. I also can’t help but single out Margot Kaminski, who has been extraordinarily generous with her time, mentorship, and friendship in helping me find my academic voice, among many other things. Without Paul and Margot, I know I wouldn’t be here today; I’m incredibly grateful to them—and to everyone else who has opened doors and offered advice, feedback, insights, camaraderie, collaboration, collegiality, and support over the last 15 years.

Last thing: I’m committed to paying forward the many chances that folks took on me over the years; my virtual door is open if there’s anything I can do to help you on your journey. Please don’t hesitate to reach out; I’m always happy to chat with folks about tech policy, student notes, clinical teaching, academia, or whatever else.

The Conservative Bias Panic Comes for Gmail’s Spam Detection

Originally written for and cross-posted at Lawfare

Over the past decade, concern over Big Tech bias against conservative speech and speakers has dominated the narrative from the right. From repeated calls to repeal Section 230 of the Communications Decency Act to Donald Trump’s executive order attacking Twitter for censorship and subsequent petition from the National Telecommunications and Information Administration to the Federal Communications Commission (FCC) to reinterpret Section 230 to the passage of state anti-deplatforming laws in Florida and Texas that are now on their way to the Supreme Court, the memetic notion of liberal Silicon Valley tech workers secretly intervening to thwart the interests of conservatives has increasingly manifested in legal challenges to alleged discrimination by technology. The movement has now trained its sights on an unexpected target: Gmail’s spam detection.

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So You Want to Reform Section 230

I’ve had a number of conversations over the past several months that start with a riff on the same central question:

How should we reform Section 230?

My response is always the same:

What problem or problems are you trying to solve?

Invariably, the response will be something like:

There’s bipartisan consensus that we need to reform 230.

Blurg. In the minds of too many smart folks, the contours of Section 230 have transformed from levers and dials to achieve a wide array of policy objectives—broadly speaking, means for intermediating the flow of user-generated content across Internet platforms—to ends in themselves. What’s the problem? 230. What’s the solution? Reform 230.

This dynamic obscures what are, in my view, a fairly wide range of varying, sometimes overlapping, sometimes disparate, and almost always underspecified problems and solutions that are lurking beneath the tautological “we need to reform 230 because 230” framing. It’s not novel to point out that in developing policy, we ought to identify problems, diagnose root causes, and articulate and iterate on solutions, but we’ve almost completely lost that discipline in 230 conversations as they have begun to drown in the froth of partisan power politics.

230 reform looks like a speedrun of what happened with net neutrality, which took more than a decade to transition from a weighty academic discussion to political charlatanism. We’ve quickly glitched our way past the opening levels where we’re supposed to have some serious discussion about what we’re actually trying to accomplish to the part where Senators are literally holding hearings framed as boss fights:

Card advertising a Senate Commerce Committee Hearing as a "FREE SPEECH SHOWDOWN" labeling Sen. Ted Cruz as "THE FREE SPEECH CHAMPION" and Twitter CEO Jack Dorsey as "THE CZAR OF CENSORSHIP."

Nevertheless, I’ll try in this post to distill some themes that have come up in the course of a bunch of “reform 230” conversations. I hoped when I started that perhaps I could pull together an effective taxonomy of problems and solutions, but as I wrote, I became more convinced (and dismayed) that much of what’s being proposed is not much more than flinging things at the wall to see what sticks. There are some good ideas emerging from the primordial ooze, but Cam Kerry’s observation that we need serious thought- and consensus-building before we chaotically rend the Internet asunder is right on the money.

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Section 230 as Telecom Law

Today (June 23), I’m excited to be appearing at a session of the Everything You Need to Know About Section 230 in 5 Hours series, hosted by Kate Klonick and the Yale ISP. My session, with Olivier Sylvain and Tejas Narechania, is entitled What 230 Meant for Telecom and Agencies (agenda here).

The focus of the event is the interaction between the FCC and Section 230, in light of President Trump’s recent Executive Order on Section 230 that in part contemplates the FCC issuing regulations that change the scope of Section 230’s application in various ways. Given that focus, I thought it’d be helpful to poke through the FCC’s history of interacting with 230, which is somewhat richer and more complicated than folks might expect.

Maybe a bit surprisingly, the FCC has opined about Section 230 dozens of times over the 20+ years since it was enacted, which might seem to contradict the notion in 230-world that the FCC has no business saying anything about Section 230. To the contrary, 230’s in the Communications Act, and Democratic and Republican FCC Chairmen alike have found repeated occasion to contemplate Section 230.

Nevertheless, a trip through Section 230’s history doesn’t give a lot of support for the Trump Executive Order’s notion that the FCC can interpret the scope of Section 230 to impose a goofy Rube-Goldberg-style ban on political discrimination by platforms. Instead, I see roughly two eras of Section 230 at the FCC:

  1. 230 as Broadband Policy Support. The first era, starting with 230’s enactment at the Clinton-era FCC and lasting through most of the Bush-era FCC, focused primarily on 230’s findings and policy statements as justifications for a wide array of non-regulation of Internet services as well as preemption of state and local Internet regulations, and overarching broadband competition and deployment policies.
  2. 230 as Regulatory and Classificatory Tool. The second era—perhaps the most promising for the Executive Order’s proponents—includes efforts by Bush-era FCC Chairman Kevin Martin to aggressively interpret Section 230 as a basis for the FCC to punish discriminatory behavior by ISPs, while attempting also to uphold his predecessor’s use of 230 as a basis for interpreting the Communications Act’s classificatory scheme to generally avoid regulating ISPs. But the good news for Trump ends there, as neither of the two Obama-era Democratic FCC Chairmen were willing to revisit the Martin’s use of Section 230 as a substantive basis for a non-discrimination mandate—nor was Trump’s hand-picked Republican FCC Chair, who picked up the Bush-era 230-as-deregulatory-classification-support conception but expressly rejected the use of 230 as a source of non-discrimination authority.

What follows is a mostly complete potted history of the FCC’s opinions citing Section 230. (Apologies for the citations to Westlaw, which I’ll replace with public domain cites if anyone needs it—just e-mail me!) This is mainly intended as a quick reference for folks who are relatively well-steeped in 230 and want to see its intersection with telecom law, but others may find it of more general interest too.

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The Antitrust Concern Troll Bar Association’s Playbook for Not Solving Problems

Hal Singer has a delightful post up on the dynamics of gatekeeper power in the big tech companies and the role that competition has to play. Though I don’t agree with Hal on all the details, I agree in broad strokes that we (a) need stronger antitrust standards and enforcement and (b) need to supplement antitrust law with other regulatory measures that address issues like privacy, security, accessibility, and other public goods that the market and antitrust aren’t well positioned to provide.

However, I’m most delighted that Hal calls out a member of the Antitrust Concern Troll Bar Association, who criticizes the New Brandeisian antitrust movement for trying to make antitrust do too much, but, as Hal puts it:

. . . never explicitly calls for legislation outside of antitrust, such as privacy or nondiscrimination protections, which would demonstrate the sincerity of his argument.

Inject this directly into my veins. This line of argument is raised all the time by folks who ultimately have a deregulatory agenda, but instead of admitting that, always concern troll about the unintended consequences of addressing a problem with any particular solution and argue that it really should be addressed with some other solution that conveniently isn’t on the political table at the moment.

It’s a pattern. Taking a page from Harold Feld’s seminal breakdown of similar behavior at the FCC, I’ve distilled this into the Antitrust Concern Troll Bar Association’s Playbook for Not Solving Problems:

  1. If someone is talking about solving a problem with sector-specific regulation, observe that the problem would really be better solved by a general purpose regulator with a stronger commitment to enforcement that won’t be susceptible to capture or harm innovation within the sector—say, the Federal Trade Commission.
  2. If the general purpose regulator moves to solve the problem, point out the agency’s history of overreach and lack of legal authority, and note that the problem would really be more appropriately addressed by antitrust law. (For bonus points, observe, sadly, that the agency really is susceptible to capture after all.)
  3. If antitrust law is substantively incapable of solving this problem and people start agitating for antitrust reform, you have two options:
    • Point out that the reach of antitrust law is limited for Very Good Reasons™ (I suggest vague, pseudoscientific allusions to neoclassical economics or perhaps a call for deference to Robert Bork’s Force Ghost) and observe that sector-specific regulation would actually be a better solution. (Repeat step 1.)
    • Argue that antitrust law is actually working as intended and that the market will fix this problem. (Go to step 6.)
    • Either way, make sure to label the proponents of fixing antitrust law with a condescending term like “hipsters.” (This will show that you are both principled and cool.)
  4. If antitrust law is substantively capable of solving the problem but its enforcers are corruptly refusing or incompetently failing to act, praise their well-reasoned, grounded, and economically-informed restraint and observe that the market will fix this problem. (Go to step 6.)
  5. If antitrust enforcers look like they might actually act to solve the problem (don’t worry—this hardly ever happens), point out that they are out of control and/or corrupt and observe that the market will fix this problem. (Go to step 6. Really, anytime you’re in doubt, just go to step 6.)
  6. When the consequences of the market not solving this problem get really bad, gaslight the people pointing out the consequences and question whether it’s really a problem at all. Raise a lot of technical-sounding questions about whether This Is Really a Market Failure™ (spoiler alert: it never is!).
  7. If the consequences are so bad that they start to attract attention from powerful politicians, point out that the next Congress might need to begin a painstakingly slow inquiry into sector-specific regulation. (Repeat step 1.)