{"id":28319,"date":"2023-01-06T21:03:24","date_gmt":"2023-01-06T21:03:24","guid":{"rendered":"https:\/\/mailinvest.blog\/index.php\/2023\/01\/06\/if-you-dont-want-eu-style-censorship-to-take-over-the-internet-support-section-230\/"},"modified":"2023-01-06T21:03:24","modified_gmt":"2023-01-06T21:03:24","slug":"if-you-dont-want-eu-style-censorship-to-take-over-the-internet-support-section-230","status":"publish","type":"post","link":"https:\/\/mailinvest.blog\/index.php\/2023\/01\/06\/if-you-dont-want-eu-style-censorship-to-take-over-the-internet-support-section-230\/","title":{"rendered":"If You Don\u2019t Want EU Style Censorship To Take Over The Internet, Support Section 230"},"content":{"rendered":"

<\/a>\n
<\/p>\n

\n

from the the-eu-approach-is-dangerous<\/i> dept<\/h3>\n

Last summer, I mocked the EU<\/a> a bit for setting up a new office in Silicon Valley, and sending an official here to \u201cliaise with Silicon Valley companies affected by EU tech regulation,\u201d noting how it felt weird to have EU internet police setting up shop in Silicon Valley. Given that, I was a bit surprised that the new office invited me to \u201cmoderate\u201d a panel discussion last month about the Digital Services Act (DSA), a bill I have regularly criticized<\/a> and which I think is going to be dangerous for free speech<\/a> on the internet.<\/p>\n

There was no recording of the actual panel, but much of it involved me, as moderator, and Berkeley\u2019s Brandie Nonnecke (who was a panelist, but could have just as easily moderated the panel) quizzing the EU official sent to Silicon Valley, Gerard de Graaf, about how the DSA would actually work in practice, and specifically about our concerns regarding the potential censorial nature of the law. de Graaf insisted, repeatedly, that the DSA is \u201cnot a speech regulation,\u201d but then he basically kept going back to effectively admitting that it very much is a speech regulation. That is, he said it\u2019s not a speech regulation, it\u2019s just asking companies to have in place some practices to deal with \u201cbad\u201d speech. And, even as he kept insisting that it wasn\u2019t a speech regulation, he admitted that if it didn\u2019t lead to less misinformation online, EU officials would be disappointed. <\/p>\n

Which\u2026 means it\u2019s a speech regulation.<\/p>\n

Any time either Nonnecke or I tried to pin de Graaf down on exactly what kind of speech was problematic, he did a neat little dance, where he\u2019d pivot from \u201cdisinformation\u201d to content that was clearly illegal: child sexual abuse material and other criminal behavior. He would say \u201cof course, everyone agrees that this content is illegal.\u201d But the issue is that it\u2019s not always so clear which content<\/em> is illegal, and the DSA is clearly targeting more than just \u201cillegal\u201d content, but rather also requires a variety of processes and plans for companies to deal with legal<\/em> content that EU officials deem problematic.<\/p>\n

My takeaway is that the EU really wants to have it both ways. It wants to have speech regulation, but they know they can\u2019t call it speech regulation, so instead it\u2019s all just winks and nudges, telling companies they need to effectively disappear \u201cunwanted\u201d speech\u2026 or something bad might happen to them. I understand the bureaucratic impulses that got the EU to this point, but I still find it extremely dangerous. While it\u2019s certainly not the same,<\/em> it\u2019s not all that different from the original version of the Chinese Great Firewall, in which the government wouldn\u2019t tell service providers specifically what<\/em> to censor, but just let it be known that they\u2019d be displeased<\/em> if the service providers got it wrong.<\/p>\n

I don\u2019t think it\u2019s exactly the same here, obviously, and I do think that the EU officials honestly believe that they\u2019re \u201cthe friendly regulators\u201d who are trying to work in a more cooperative<\/em> manner with the companies. That is, after all, more of the EU approach to things. Sometimes. But we\u2019ve certainly seen EU officials suddenly decide that this or that company is somehow bad<\/em>. Or, sometimes, bad for Europe<\/em>. And suddenly while they can tell a sensible narrative about why they\u2019re doing what they\u2019re doing\u2026 it still boils down to \u201cbecause we don\u2019t like you.\u201d<\/p>\n

So it\u2019s great to see the EU-based Jacob Mchangama (former Techdirt podcast guest<\/a> and author of a wonderful book on the history of free speech<\/a>) calling out the EU\u2019s approach to regulating the internet, and warning that America should not get too enamored with the EU\u2019s plan to regulate<\/a>.<\/p>\n

\n

The European law, by contrast, may sound like a godsend to those Americans concerned about social media\u2019s weaponization against democracy, tolerance and truth after the 2020 election and the Jan. 6 insurrection. Former Secretary of State\u00a0Hillary Clinton<\/a>\u00a0enthusiastically supported the European clampdown on Big Tech\u2019s amplification of what she considers \u201cdisinformation and extremism.\u201d One columnist in the New Yorker\u00a0hailed<\/a>\u00a0the Digital Services Act as a \u201croad map\u201d for \u201cputting the onus on social-media companies to monitor and remove harmful content, and hit them with big fines if they don\u2019t.\u201d<\/em><\/p>\n

But when it comes to regulating speech, good intentions do not necessarily result in desirable outcomes. In fact, there are strong reasons to believe that the law is a cure worse than the disease, likely to\u00a0result in serious collateral damage<\/a>\u00a0to free expression across the EU and anywhere else legislators try to emulate it.<\/em><\/p>\n

Removing illegal content sounds innocent enough. It\u2019s not. \u201cIllegal content\u201d is defined very differently across Europe. In France, protesters have been fined for\u00a0depicting<\/a>\u00a0President Macron as Hitler, and illegal hate speech may\u00a0encompass offensive humor<\/a>.\u00a0Austria<\/a>\u00a0and\u00a0Finland<\/a>\u00a0criminalize blasphemy, and in Victor Orban\u2019s Hungary, certain forms of \u201cLGBT propaganda<\/a>\u201d is banned.<\/em><\/p>\n<\/blockquote>\n

As Mchangama notes, the DSA goes well beyond \u201cillegal\u201d content as well (and even if it didn\u2019t, the EU\u2019s ever shifting definition of what is illegal is problematic in its own way):<\/p>\n

\n

The Digital Services Act will essentially oblige Big Tech to act as a privatized censor on behalf of governments \u2014 censors who will enjoy wide discretion under vague and subjective standards. Add to this the EU\u2019s own laws\u00a0banning Russian propaganda<\/a>\u00a0and\u00a0plans to toughen EU-wide<\/a>\u00a0hate speech laws, and you have a wide-ranging, incoherent, multilevel censorship regime operating at scale.<\/em><\/p>\n

The obligation to assess and mitigate risks relates not only to illegal content, though. Lawful content could also come under review if it has \u201cany actual or foreseeable negative effect\u201d on a number of competing interests, including \u201cfundamental rights,\u201d \u201cthe protection of public health and minors\u201d or \u201ccivic discourse, the electoral processes and public security.\u201d<\/em><\/p>\n

What this laundry list actually means is unclear. What we do know is that the unelected European Commission, the EU\u2019s powerful executive arm, will act as a regulator and thus have a decisive say in whether large platforms have done enough to counter both illegal and \u201charmful\u201d content. You don\u2019t have to be a psychic to predict that the commission could use such ill-defined terms to push for suppression of perfectly lawful speech that rubs it \u2014 or influential member states \u2014 the wrong way.<\/em><\/p>\n<\/blockquote>\n

Mchangama notes, as we have, that Elon Musk\u2019s public embrace of the DSA<\/a> seems wholly at odds with his recent attempts to (misleadingly) call out government involvement in Twitter\u2019s content moderation, which is way<\/em> less heavy handed than anything in the DSA. Yet, Musk (falsely<\/a>) claims that the US government is violating free speech, while the EU\u2019s approach makes sense?<\/p>\n

\n

For instance, Thierry Breton, a powerful European commissioner responsible for implementing the Digital Services Act,\u00a0has already taken aim at\u00a0<\/a>Twitter, now run by Elon Musk. Last month, Breton gave Musk an ultimatum: Abide by the new rules or risk getting banned from the EU.<\/em><\/p>\n

Such moves will only lead to excessive content moderation by other social media companies. Most large platforms already\u00a0remove a lot<\/a>\u00a0of \u201clawful but awful\u201d speech. But given the legal uncertainty, and the risk of huge fines, platforms are likely to further err on the side of safety and adopt even more restrictive policies than required by the new law. In fact, Musk\u00a0called<\/a>\u00a0the Digital Services Act \u201cvery sensible,\u201d signaling his intent to comply in response to Breton\u2019s warning. This flies in the face of Musk\u2019s techno-optimistic\u00a0commitment to only remove<\/a>\u00a0illegal content and his\u00a0condemnation<\/a>\u00a0of Old Twitter\u2019s untransparent dealings with politicians and government officials seeking to influence content moderation.<\/em><\/p>\n<\/blockquote>\n

But all of this is why Americans \u2014 and American tech companies \u2014 really should strongly embrace<\/em> Section 230. Section 230 is, in many ways, the anti-DSA. Even as a bunch of very ignorant, very foolish people insist that Section 230 was how the US government pressured internet companies to \u201ccensor,\u201d the opposite is true.<\/p>\n

Section 230 gives companies the freedom<\/em> to moderate how they want<\/em>, without fear of facing liability or regulatory pressure for their decisions and non-decisions. Take that away, and suddenly lawmakers and bureaucrats \u2014 and anyone who can file a lawsuit \u2014 gain tremendous power to suppress speech. With 230, the companies get to decide, and if there are people who disagree with them, their options are to take their business elsewhere, not to create a legal punishment for the company.<\/p>\n

But the DSA approach is vastly different. It starts from a stance that the government needs to be hovering over companies, with the ever-present threat of punishment for making (vaguely described) \u201cbad\u201d decisions. And that, by its very nature, leads to much more widespread actual censorship, because the companies feel compelled to suppress speech to avoid state enforcement and punishment.<\/p>\n

Over the past year or so, I\u2019ve heard (somewhat tragically) that the big American internet companies (beyond Twitter and whatever it is that Musk thinks he\u2019s doing), recognizing that they\u2019re going to have to live with the DSA in the EU, are becoming more open to importing that model to the US.<\/p>\n

They should not. That\u2019s not a model that the US should want, and it\u2019s a model that is dangerous for the American approach to free speech. Section 230 and the 1st Amendment, combined with normal business pressures, provides the exact right balance. Private companies moderate how they see best to do so, recognizing that allowing too much garbage will often drive away any business prospects. But without the extremely heavy hand of government (and its questionable motives) telling them what to take down and what to leave up.<\/p>\n

The US doesn\u2019t need the DSA. We already have a better, more speech-supporting approach.<\/p>\n

\nFiled Under: brandi nonnecke<\/a>, content moderation<\/a>, dsa<\/a>, eu<\/a>, free speech<\/a>, gerard de graaf<\/a>, jacob mchangama<\/a>, regulation<\/a>, section 230<\/a>, speech<\/a>, speech regulation<\/a>
\n<\/p>\n<\/div>\n