Speech Maximalism on SESTA is Madness
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This refrain keeps playing over in my head lately: The EFF and its sister organizations are to cyberlaw as the NRA is to rational gun policy in America. That seems like a pretty harsh thing to say about a bunch of progressives (and one must even include the ACLU in this discussion), but in the context of policy debate, the maximalism with which these organizations continue to defend the liability shield (Sec. 230) of the Communications Decency Act (1996) on behalf of a single multi-billion-dollar industry is logically comparable to the maximalism with which the NRA has marketed so much ahistorical nonsense about the Second Amendment on behalf of gun manufacturers.
While it’s hard to look away from the circus playing round-the-clock at the White House, it is certainly necessary to look beyond it. The story of where American democracy is heading is not Donald Trump, though it may be (metaphorically speaking) Elon Musk. The fact that Musk announced he could power Puerto Rico in response to official U.S. dithering is both intriguing and generous, but it is also a frightening commentary on the condition of the American state. Even as an idea, Musk’s offer is a subtle harbinger of the tipping point I fear we may be approaching—that the state becomes so dysfunctional, the people turn to the oligarchy of technologists and say, “save us” from ourselves. At that point, American democracy will come to an end. Cue 21st-century American feudalism.
Before we head quite that far into a sci-fi thriller, though, we are truly at an inflection point when the fate of a couple of bills in Congress will say a lot about how much power and influence Google and the other major internet players have in Washington. H.R. 1865 and S. 1693 (SESTA) would amend Section 230 of the CDA to explicitly prohibit online support of trafficking minors in the sex trade and thus open pathways to both civil and criminal prosecution. These bills are largely a response to allegations stemming from investigations into Backpage, which the National Center for Missing and Exploited Children estimates is how 73% of all children trafficked in prostitution are bought and sold.
I am told by various contacts in D.C. that Google’s lobbyists—parent company Alphabet now ranks among the top five spenders in the country—have been out in force to kill these anti-trafficking bills in committee. Meanwhile, the EFF and other Google-funded organizations have the unenviable task of telling the American people—once again—that free speech on the web will suffer if we pass legislation designed to help protect children from sex-trafficking. As explained in a previous post, SESTA proposes a change in the Section 230 statute that is so narrow it could never affect the vast majority of internet users.
Your site would have to be a lot like Backpage, or would have to be as big as Google or Facebook just to be in the orbit of potential liability under SESTA. Even a pornography site that might inadvertently host video depicting sex acts with trafficked minors (and that’s a big hypothetical) would not necessarily be liable under SESTA because, depending on what actions the site owners were to take, they could still qualify for the safe harbor provisions of Section 230. Any implication that the vast majority of us who do not run globally substantial sites, or who do not use the web to conduct transactions in the sex trade, will somehow feel a tremor in the force of free speech is rank hysteria.
But Google, with all its wealth and influence, would rather not have so much as a pinhole of liability pierced into the CDA shield—even if it means providing a modicum of legal remedy for victims of sex-trafficking by prosecuting individuals who have nothing whatsoever to do with Google. I can only imagine there must be a few members of the EFF who are either experiencing moral crises over this issue, or downing 10 a.m. shots just to quiet the cognitive dissonance because they’ve got to know their free speech arguments against SESTA are complete hogwash.
Overcoming Free Speech Maximalism
In the same way that the NRA markets a message that guns create freedom, the internet industry has sold a very similar maximalist view that the First Amendment is perpetually strengthened by the immeasurable volume of interactions on the internet. Just as the American who owns ten guns is not ten times freer than the American who owns one gun, the American who tweets a hundred times a day is not freer than the American who doesn’t have a Twitter account at all. Nevertheless, when one reads the declarations insisting that every peep uttered in cyberspace is sacred, it is hard to miss the rhetorical similarities between the NRA and the internet activist organizations.
Like anyone with a maximalist view—or a financial stake in espousing one—both the NRA and the EFF reveal a callous disregard for the harm being done by the policies they endorse. The EFF hasn’t explicitly said “child sex-trafficking is the price we pay for freedom,” but that’s effectively the argument they’re making with their overplayed appeals to the First Amendment in context to SESTA. Adding further to this irony is a complete disregard for the fact that the internet as we know it is actually making quite a hash of the democratic principles which the protection of speech is meant to serve.
In almost the same manner in which Citizens United undermines the intent of speech by giving a louder voice to financially empowered corporations, the economics of the web do the same thing more broadly and more insidiously. If it is fundamental to American democracy that the population has access to relevant and accurate information, it is no surprise that the economics of attracting and monetizing web traffic fails to serve this purpose. (Or have I missed something and American democracy is healthier than ever?) Journalism (i.e. information) is supposed to be the practice of telling people what they need to know while the design of the web we have is fundamentally built to tell people what they want to hear.
Adaptive algorithms that anticipate our interests, biases, and desires are relatively innocuous, perhaps even beneficial, if we’re shopping for toasters; but these designs can be toxic to democracy when we’re “shopping” for news. In a solid, concise OpEd for Forbes about the folly of current support for Obama-era net-neutrality policies, Fred Campbell calls the internet as we know it “a mess.” “Policies that net neutrality advocates are clamoring to preserve have facilitated the internet’s roles in undermining fair elections, providing a safe haven for sex traffickers, destroying privacy, nurturing the world’s largest information monopolies (e.g., Google, Amazon), subverting free speech, and devastating publishing industries,” Campbell writes, suggesting that we should let the internet be overhauled because it’s hardly living up to the vision of its founders in the 1960s.
Campbell cites a paper by Professor Shoshana Zuboff of the Berkman Center for Internet & Society; Harvard Business School (an organization typically aligned with internet industry views), who calls the current economics of the web surveillance capitalism. “This new form of information capitalism aims to predict and modify human behavior as a means to produce revenue and market control,” Zuboff writes. That description certainly rings true with experience and hardly seems to jibe with the foundational assumption that the internet is “the greatest tool for democracy ever created.”
In 1783, in the uncertain period between the end of the American revolution and the establishment of the United States, Alexander Hamilton wrote to John Jay, “It is hoped when prejudice and folly have run themselves out of breath, we may embrace reason and correct our errors.” He was referring to the many competing forces driving people away from the establishment of a unified nation. Today, Hamilton could easily be talking about Facebook and Twitter because it would be hard to make the case that the internet is not, on balance, having a centrifugal effect on the electorate. As such, free speech maximalism is not only specifically immoral as a response to a bill like SESTA, but it is also generally untenable as a premise for broader debates about cyberlaw.
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