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Will the House Judiciary Committee Fairly Question Google CEO Sundar Pichai at Tuesday Hearing?

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WASHINGTON, December 10, 2018 — When Google CEO Sundar Pichai raises his right hand before the House Judiciary Committee Tuesday morning, it’s possible the ensuing hearing will be a sober and judicious look into his company’s data collection practices.

But Pichai is far more likely to become the latest punching bag for House members – of both parties – eager to perpetuate the unproven claims that technology companies are acting to systematically censor conservatives.

Both House and Senate committees have convened hearings on social media companies’ practices over the past year. The hearings haven’t resulted in any bombshell revelations or explosive testimony. But Republicans’ accusations of censorship – or at least tilting the scales in search engine results – have been a constant drumbeat from members of Congress and witnesses.

One Silicon Valley representative dubbed the claims ‘obviously false’

One veteran member of House Judiciary, Rep Zoe Lofgren, D-Calif., called conservatives claims of censorship “obviously false.”

“I can’t speak for my colleagues on the other side of the aisle, but this appears to me to be part of an effort to rile up their base, that is anti-intellectual, anti-technology, and anti ‘elite,’ by saying that those fancy-pants in Silicon Valley are trying to keep them from hearing our message,” said Lofgren.

“For a group that is in charge of the entire government, they do a lot of whining as victims,” she said.

Her colleague, Rep. Jamie Raskin, D-Md., told BroadbandBreakfast that he is hopeful that Tuesday’s hearing will result in an “honest and thorough discussion about the role of these large social media companies.”

“A lot of the [previous] hearings have turned into a free-for-all where everybody complains about perceived or real transgressions by social media companies against different political persuasions, and the Republicans have specialized in that,” Raskin said.

“We need to have an honest and thorough discussion about the role of these large social media companies,” he said. “That basic dilemma that runs through all those conflicts and we have not resolved ourselves as a society on that basic question.”

Is the enforcement of internet companies’ terms of service ‘censorship’?

Raskin said that some conservatives are confusing technology companies’ enforcement of their terms of service with censorship because of an overlap between what some consider conservative values and what many people consider hate speech.

President Trump’s defense of the white nationalists who participated in the August 2017 Unite the Right rally is responsible for blurring the lines between conservatives and the white nationalists who count themselves as part of Trump’s base, Raskin said.

“If you have the equivalent of a Charlottesville march online, and Facebook or Twitter doesn’t want to host it, you have to find somewhere else to conduct your internet hate rally,” he added.

But based on the experience of one previous hearing, Raskin hopes that there is room for agreement on both sides of the aisle to have a serious conversation and not get hijacked by partisan bickering.

Previous hearings have not squarely addressed the ‘conceptual’ debate on this topic

At a previous hearing, members on both sides of the aisle agreed that lawmakers lack the “proper conceptual categories” needed to seriously address the problem of whether big tech companies are “special private actors who deserve different treatment because of their importance to the economy”

“That is the important and interesting conceptual question that we need to put on the table, and we dance around it when we just dive into particular controversies regarding this or that episode.”

The dual issues of how regulators should treat technology companies, and how  technology companies treat conservatives caught the attention of President Donald Trump in late August, when he  threatened three of the largest technology and social media companies in the United States for allegedly working to censor conservatives, despite offering no verifiable evidence that any such censorship is taking place.

“I think Google is really taking advantage of a lot of people, and I think that’s a very serious thing and a very serious charge. I think what Google and others are doing, if you look at what’s going on at Twitter, what’s going on on Facebook, they better be careful because you can’t do that to people, you can’t do it,” Trump said during an August 28 Oval Office meeting with FIFA President Gianni Infantino.

“I think that Google and Twitter and Facebook are really treading on very very troubled territory and they have to be careful, it’s not fair to large portions of the population,” said Trump.

Trump’s remarks came on the same day that National Economic Council Director Larry Kudlow told reporters that the administration was “looking into” Google’s operations.

Though BroadbandBreakfast inquired as to the result of whatever investigation may have been conducted — and whether Trump still thinks Google is “taking advantage of a lot of people” — a White House spokesperson had not yet responded by our deadline.

(Photo of Google CEO Sundar Pichai by Maurizio Pesce used with permission.)

Andrew Feinberg was the White House Correspondent and Managing Editor for Breakfast Media. He rejoined BroadbandBreakfast.com in late 2016 after working as a staff writer at The Hill and as a freelance writer. He worked at BroadbandBreakfast.com from its founding in 2008 to 2010, first as a Reporter and then as Deputy Editor. He also covered the White House for Russia's Sputnik News from the beginning of the Trump Administration until he was let go for refusing to use White House press briefings to promote conspiracy theories, and later documented the experience in a story which set off a chain of events leading to Sputnik being forced to register under the Foreign Agents Registration Act. Andrew's work has appeared in such publications as The Hill, Politico, Communications Daily, Washington Internet Daily, Washington Business Journal, The Sentinel Newspapers, FastCompany.TV, Mashable, and Silicon Angle.

Artificial Intelligence

Automated Content Moderation’s Main Problem is Subjectivity, Not Accuracy, Expert Says

With millions of pieces of content generated daily, platforms are increasingly relying on AI for moderation.

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Screenshot of American Enterprise Institute event

WASHINGTON, February 2, 2023 — The vast quantity of online content generated daily will likely drive platforms to increasingly rely on artificial intelligence for content moderation, making it critically important to understand the technology’s limitations, according to an industry expert.

Despite the ongoing culture war over content moderation, the practice is largely driven by financial incentives — so even companies with “a speech-maximizing set of values” will likely find some amount of moderation unavoidable, said Alex Feerst, CEO of Murmuration Labs, at a Jan. 25 American Enterprise Institute event. Murmuration Labs works with tech companies to develop online trust and safety products, policies and operations.

If a piece of online content could potentially lead to hundreds of thousands of dollars in legal fees, a company is “highly incentivized to err on the side of taking things down,” Feerst said. And even beyond legal liability, if the presence of certain content will alienate a substantial number of users and advertisers, companies have financial motivation to remove it.

However, a major challenge for content moderation is the sheer quantity of user-generated online content — which, on the average day, includes 500 million new tweets, 700 million Facebook comments and 720,000 hours of video uploaded to YouTube.

“The fully loaded cost of running a platform includes making millions of speech adjudications per day,” Feerst said.

“If you think about the enormity of that cost, very quickly you get to the point of, ‘Even if we’re doing very skillful outsourcing with great accuracy, we’re going to need automation to make the number of daily adjudications that we seem to need in order to process all of the speech that everybody is putting online and all of the disputes that are arising.’”

Automated moderation is not just a theoretical future question. In a March 2021 congressional hearing, Meta CEO Mark Zuckerberg testified that “more than 95 percent of the hate speech that we take down is done by an AI and not by a person… And I think it’s 98 or 99 percent of the terrorist content.”

Dealing with subjective content

But although AI can help manage the volume of user-generated content, it can’t solve one of the key problems of moderation: Beyond a limited amount of clearly illegal material, most decisions are subjective.

Much of the debate surrounding automated content moderation mistakenly presents subjectivity problems as accuracy problems, Feerst said.

For example, much of what is generally considered “hate speech” is not technically illegal, but many platforms’ terms of service prohibit such content. With these extrajudicial rules, there is often room for broad disagreement over whether any particular piece of content is a violation.

“AI cannot solve that human subjective disagreement problem,” Feerst said. “All it can do is more efficiently multiply this problem.”

This multiplication becomes problematic when AI models are replicating and amplifying human biases, which was the basis for the Federal Trade Commission’s June 2022 report warning Congress to avoid overreliance on AI.

“Nobody should treat AI as the solution to the spread of harmful online content,” said Samuel Levine, director of the FTC’s Bureau of Consumer Protection, in a statement announcing the report. “Combatting online harm requires a broad societal effort, not an overly optimistic belief that new technology — which can be both helpful and dangerous — will take these problems off our hands.”

The FTC’s report pointed to multiple studies revealing bias in automated hate speech detection models, often as a result of being trained on unrepresentative and discriminatory data sets.

As moderation processes become increasingly automated, Feerst predicted that the “trend of those problems being amplified and becoming less possible to discern seems very likely.”

Given those dangers, Feerst emphasized the urgency of understanding and then working to resolve AI’s limitations, noting that the demand for content moderation will not go away. To some extent, speech disputes are “just humans being human… you’re never going to get it down to zero,” he said.

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Social Media

Must Internet Platforms Host Objectionable Content? Appeals Courts Consider ‘Must Carry’ Rules

Court decisions on Texas and Florida “must-carry” laws disagreed on whether online platforms should be regulated as common carriers.

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Photo of Reese Schonfeld, President of Cable News Network and Reynelda Nuse, weekend anchorwoman for CNN, stand at a set at the broadcast center in Atlanta in May 1980.

WASHINGTON, January 30, 2023 — As the Supreme Court prepares to hear a pair of cases about online platform liability, it is also considering a separate pair of social media lawsuits that aim to push content moderation practices in the opposite direction, adding additional questions about the First Amendment and common carrier status to an already complicated issue.

The “must-carry” laws in Texas and Florida, both aimed at limiting online content moderation, met with mixed decisions in appeals courts after being challenged by tech industry groups NetChoice and the Computer & Communications Industry Association. The outcomes will likely end up “affecting millions of Americans and their ability to express themselves online,” said Chris Marchese, counsel at NetChoice, at a Broadband Breakfast Live Online event on Wednesday.

In September, a federal appeals court in the Fifth Circuit upheld the Texas law, ruling that social media platforms can be regulated as “common carriers,” or required to carry editorial programming as were cable television operators in the Turner Broadcasting System v. FCC decisions from the 1990s.

Dueling appeals court interpretations

By contrast, the judges overturning the Florida ruling held that social media platforms are not common carriers. Even if they were, the 11th Circuit Court judges held, “neither law nor logic recognizes government authority to strip an entity of its First Amendment rights merely by labeling it a common carrier.”

Whether social media platforms should be treated like common carriers is “a fair question to ask,” said Marshall Van Alstyne, Questrom chair professor at Boston University. It would be difficult to reach a broad audience online without utilizing one of the major platforms, he claimed.

However, Marchese argued that in the Texas ruling, the Fifth Circuit “to put it politely, ignored decades of binding precedent.” First Amendment protections have previously been extended to “what we today might think of as common carriers,” he said.

“I think we can safely say that Texas and Florida do not have the ability to force our private businesses to carry political speech or any type of speech that they don’t see fit,” Marchese said.

Ari Cohn, free speech counsel at TechFreedom, disagreed with the common carrier classification altogether, referencing an amicus brief arguing that “social media and common carriage are irreconcilable concepts,” filed by TechFreedom in the Texas case.

Similar ‘must-carry’ laws are gaining traction in other states

While the two state laws have the same general purpose of limiting moderation, their specific restrictions differ. The Texas law would ban large platforms from any content moderation based on “viewpoint.” Critics have argued that the term is so vague that it could prevent moderation entirely.

“In other words, if a social media service allows coverage of Russia’s invasion of Ukraine, it would also be forced to disseminate Russian propaganda about the war,” Marchese said. “So if you allow conversation on a topic, then you must allow all viewpoints on that topic, no matter how horrendous those viewpoints are.”

The Florida law “would require covered entities — including ones that you wouldn’t necessarily think of, like Etsy — to host all or nearly all content from so-called ‘journalistic enterprises,’ which is basically defined as anybody who has a small following on the internet,” Marchese explained. The law also prohibits taking down any speech from political candidates.

The impact of the two cases will likely be felt far beyond those two states, as dozens of similar content moderation bills have already been proposed in states across the country, according to Ali Sternburg, vice president of information policy for the CCIA.

But for now, both laws are blocked while the Supreme Court decides whether to hear the cases. On Jan. 23, the court asked for the U.S. solicitor general’s input on the decision.

“I think this was their chance to buy time because in effect, so many of these cases are actually asking the court to do opposite things,” Van Alstyne said.

Separate set of cases calls for more, not less, moderation

In February, the Supreme Court will hear two cases that effectively argue the reverse of the Texas and Florida laws by alleging that social media platforms are not doing enough to remove harmful content.

The cases were brought against Twitter and Google by family members of terror attack victims, who argue that the platforms knowingly allowed terrorist groups to spread harmful content and coordinate attacks. One case specifically looks at YouTube’s recommendation algorithms, asking whether Google can be held liable for not only hosting but promoting terrorist content.

Algorithms have become “the new boogeyman” in ongoing technology debates, but they essentially act like mirrors, determining content recommendations based on what users have searched for, engaged with and said about themselves, Cohn explained.

Reese Schonfeld, President of Cable News Network and Reynelda Nuse, weekend anchorwoman for CNN, stand at one of the many sets at the broadcast center in Atlanta on May 31, 1980. The network, owned by Ted Turner, began it’s 24-hour-a-day news broadcasts on Sunday in the afternoon. (AP Photo/Joe Holloway used with permission.)

“This has been litigated in a number of different contexts, and in pretty much all of them, the courts have said we can’t impose liability for the communication of bad ideas,” Cohn said. “You hold the person who commits the wrongful act responsible, and that’s it. There’s no such thing as negligently pointing to someone to bad information.”

A better alternative to reforming Section 230 would be implementing “more disclosures and transparency specifically around how algorithms are developed and data about enforcement,” said Jessica Dheere, director of Ranking Digital Rights.

Social media platforms have a business incentive to take down terrorist content, and Section 230 is what allows them to do so without over-moderating, Sternberg said. “No one wants to see this horrible extremist content on digital platforms, especially the services themselves.”

Holding platforms liable for all speech that they carry could have a chilling effect on speech by motivating platforms to err on the side of removing content, Van Alstyne said.

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.

Wednesday, January 25, 2023, 12 Noon ET – Section 230, Google, Twitter and the Supreme Court

The Supreme Court will soon hear two blockbuster cases involving Section 230 of the Telecommunications Act: Gonzalez v. Google on February 21, and  Twitter v. Taamneh on February 22. Both of these cases ask if tech companies can be held liable for terrorist content on their platforms. Also in play: Laws in Florida and in Texas (both on hold during the course of litigation) that would limit online platforms’ ability to moderate content. In a recent brief, Google argued that denying Section 230 protections for platforms “could have devastating spillover effects.” In advance of Broadband Breakfast’s Big Tech & Speech Summit on March 9, this Broadband Breakfast Live Online event will consider Section 230 and the Supreme Court.

Panelists:

  • Chris Marchese, Counsel, NetChoice
  • Ari Cohn, Free Speech Counsel, TechFreedom
  • Jessica Dheere, Director, Ranking Digital Rights
  • Ali Sternburg, Vice President of Information Policy, Computer & Communications Industry Association
  • Marshall Van Alstyne, Questrom Chair Professor, Boston University
  • Drew Clark (moderator), Editor and Publisher, Broadband Breakfast

Panelist resources:

Chris Marchese analyzes technology-related legislative and regulatory issues at both the federal and state level. His portfolio includes monitoring and analyzing proposals to amend Section 230 of the Communications Decency Act, antitrust enforcement, and potential barriers to free speech and free enterprise on the internet. Before joining NetChoice in 2019, Chris worked as a law clerk at the U.S. Chamber Litigation Center, where he analyzed legal issues relevant to the business community, including state-court decisions that threatened traditional liability rules.

Ari Cohn is Free Speech Counsel at TechFreedom. A nationally recognized expert in First Amendment law, he was previously the Director of the Individual Rights Defense Program at the Foundation for Individual Rights in Education (FIRE), and has worked in private practice at Mayer Brown LLP and as a solo practitioner, and was an attorney with the U.S. Department of Education’s Office for Civil Rights. Ari graduated cum laude from Cornell Law School, and earned his Bachelor of Arts degree from the University of Illinois at Urbana-Champaign.

Jessica Dheere is the director of Ranking Digital Rights, and co-authored RDR’s spring 2020 report “Getting to the Source of Infodemics: It’s the Business Model.” An affiliate at the Berkman Klein Center for Internet & Society, she is also founder, former executive director, and board member of the Arab digital rights organization SMEX, and in 2019, she launched the CYRILLA Collaborative, which catalogs global digital rights law and case law. She is a graduate of Princeton University and the New School.

Ali Sternburg is Vice President of Information Policy at the Computer & Communications Industry Association, where she focuses on intermediary liability, copyright, and other areas of intellectual property. Ali joined CCIA during law school in 2011, and previously served as Senior Policy Counsel, Policy Counsel, and Legal Fellow. She is also an Inaugural Fellow at the Internet Law & Policy Foundry.

Marshall Van Alstyne (@InfoEcon) is the Questrom Chair Professor at Boston University. His work explores how IT affects firms, innovation, and society with an emphasis on business platforms. He co-authored the international best seller Platform Revolution and his research influence ranks among the top 2% of all scientists globally.

Drew Clark (moderator) is CEO of Breakfast Media LLC. He has led the Broadband Breakfast community since 2008. An early proponent of better broadband, better lives, he initially founded the Broadband Census crowdsourcing campaign for broadband data. As Editor and Publisher, Clark presides over the leading media company advocating for higher-capacity internet everywhere through topical, timely and intelligent coverage. Clark also served as head of the Partnership for a Connected Illinois, a state broadband initiative.

WATCH HERE, or on YouTubeTwitter and Facebook.

As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.

SUBSCRIBE to the Broadband Breakfast YouTube channel. That way, you will be notified when events go live. Watch on YouTubeTwitter and Facebook

See a complete list of upcoming and past Broadband Breakfast Live Online events.

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Section 230

Section 230 Interpretation Debate Heats Up Ahead of Landmark Supreme Court Case

Panelists disagreed over the merits of Section 230’s protections and the extent to which they apply.

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Screenshot of speakers at the Federalist Society webinar

WASHINGTON, January 25, 2023 — With less than a month to go before the Supreme Court hears a case that could dramatically alter internet platform liability protections, speakers at a Federalist Society webinar on Tuesday were sharply divided over the merits and proper interpretation of Section 230 of the Communications Decency Act.

Gonzalez v. Google, which will go before the Supreme Court on Feb. 21, asks if Section 230 protects Google from liability for hosting terrorist content — and promoting that content via algorithmic recommendations.

If the Supreme Court agrees that “Section 230 does not protect targeted algorithmic recommendations, I don’t see a lot of the current social media platforms and the way they operate surviving,” said Ashkhen Kazaryan, a senior fellow at Stand Together.

Joel Thayer, president of the Digital Progress Institute, argued that the bare text of Section 230(c)(1) does not include any mention of the “immunities” often attributed to the statute, echoing an argument made by several Republican members of Congress.

“All the statute says is that we cannot treat interactive computer service providers or users — in this case, Google’s YouTube — as the publisher or speaker of a third-party post, such as a YouTube video,” Thayer said. “That is all. Warped interpretations from courts… have drastically moved away from the text of the statute to find Section 230(c)(1) as providing broad immunity to civil actions.”

Kazaryan disagreed with this claim, noting that the original co-authors of Section 230 — Sen. Ron Wyden, D-OR, and former Rep. Chris Cox, R-CA — have repeatedly said that Section 230 does provide immunity from civil liability under specific circumstances.

Wyden and Cox reiterated this point in a brief filed Thursday in support of Google, explaining that whether a platform is entitled to immunity under Section 230 relies on two prerequisite conditions. First, the platform must not be “responsible, in whole or in part, for the creation or development of” the content in question, as laid out in Section 230(f)(3). Second, the case must be seeking to treat the platform “as the publisher or speaker” of that content, per Section 230(c)(1).

The statute co-authors argued that Google satisfied these conditions and was therefore entitled to immunity, even if their recommendation algorithms made it easier for users to find and consume terrorist content. “Section 230 protects targeted recommendations to the same extent that it protects other forms of content presentation,” they wrote.

Despite the support of Wyden and Cox, Randolph May, president of the Free State Foundation, predicted that the case was “not going to be a clean victory for Google.” And in addition to the upcoming Supreme Court cases, both Congress and President Joe Biden could potentially attempt to reform or repeal Section 230 in the near future, May added.

May advocated for substantial reforms to Section 230 that would narrow online platforms’ immunity. He also proposed that a new rule should rely on a “reasonable duty of care” that would both preserve the interests of online platforms and also recognize the harms that fall under their control.

To establish a good replacement for Section 230, policymakers must determine whether there is “a difference between exercising editorial control over content on the one hand, and engaging in conduct relating to the distribution of content on the other hand… and if so, how you would treat those different differently in terms of establishing liability,” May said.

No matter the Supreme Court’s decision in Gonzalez v. Google, the discussion is already “shifting the Overton window on how we think about social media platforms,” Kazaryan said. “And we already see proposed regulation legislation on state and federal levels that addresses algorithms in many different ways and forms.”

Texas and Florida have already passed laws that would significantly limit social media platforms’ ability to moderate content, although both have been temporarily blocked pending litigation. Tech companies have asked the Supreme Court to take up the cases, arguing that the laws violate their First Amendment rights by forcing them to host certain speech.

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