Thinking through a social-contract framework for reforming Section 230

Mary Anne Franks. Photo (cc) 2014 by the Internet Education Foundation.

The Lawfare podcasts are doing an excellent job of making sense of complicated media-technical issues. Last week I recommended a discussion of Australia’s new law mandating that Facebook and Google pay for news. Today I want to tell you about an interview with Mary Anne Franks, a law professor at the University of Miami, who is calling for the reform of Section 230 of the Communications Decency Act.

The host, Alan Rozenshtein, guides Franks through a paper she’s written titled “Section 230 and the Anti-Social Contract,” which, as he points out, is short and highly readable. Franks’ overriding argument is that Section 230 — which protects internet services, including platform companies such as Facebook and Twitter, from being sued for what their users post — is a way of entrenching the traditional white male power structure.

That might strike you as a bit much, and, as you’ll hear, Rozenshtein challenges her on it, pointing out that some members of disenfranchised communities have been adamant about retaining Section 230 in order to protect their free-speech rights. Nevertheless, her thesis is elegant, encompassing everyone from Thomas Jefferson to John Perry Barlow, the author of the 1996 document “A Declaration of the Independence of Cyberspace,” of which she takes a dim view. Franks writes:

Section 230 serves as an anti-social contract, replicating and perpetuating long-standing inequalities of gender, race, and class. The power that tech platforms have over individuals can be legitimized only by rejecting the fraudulent contract of Section 230 and instituting principles of consent, reciprocity, and collective responsibility.

So what is to be done? Franks pushes back on Rozenshtein’s suggestion that Section 230 reform has attracted bipartisan support. Republicans such as Donald Trump and Sen. Josh Hawley, she notes, are talking about changes that would force the platforms to publish content whether they want to or not — a nonstarter, since that would be a violation of the First Amendment.

Democrats, on the other hand, are seeking to find ways of limiting the Section 230 protections that the platform companies now enjoy without tearing down the entire law. Again, she writes:

Specifically, a true social contract would require tech platforms to offer transparent and comprehensive information about their products so that individuals can make informed choices about whether to use them. It would also require tech companies to be held accountable for foreseeable harms arising from the use of their platforms and services, instead of being granted preemptive immunity for ignoring or profiting from those harms. Online intermediaries must be held to similar standards as other private businesses, including duty of care and other collective responsibility principles.

Putting a little more meat on the bones, Franks adds that Section 230 should be reformed so as to “deny immunity to any online intermediary that exhibits deliberate indifference to harmful conduct.”

Today’s New York Times offers some details as to what that might look like:

One bill introduced last month would strip the protections from content the companies are paid to distribute, like ads, among other categories. A different proposal, expected to be reintroduced from the last congressional session, would allow people to sue when a platform amplified content linked to terrorism. And another that is likely to return would exempt content from the law only when a platform failed to follow a court’s order to take it down.

Since its passage in 1996, Section 230 has been an incredible boon to any internet publisher who opens its gates to third-party content. They’re under no obligation to take down material that is libelous or threatening. Quite the contrary — they can make money from it.

This is hardly what the First Amendment envisioned, since publishers in other spheres are legally responsible for every bit of content they put before their audiences, up to and including advertisements and letters to the editor. The internet as we know it would be an impossibility if Section 230 didn’t exist in some form. But it may be time to rein it in, and Franks has put forth a valuable framework for how we might think about that.

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MuckRock.com and the potential power of crowdfunding

Screen Shot 2012-12-18 at 7.58.38 PMThis interview was previously published at the Nieman Journalism Lab.

The first time I heard of Michael Morisy and MuckRock.com was in 2010, after the site was targeted by a bureaucrat working for Massachusetts Governor Deval Patrick.

It seems that MuckRock, using the state’s open records law, had obtained information about how food stamps were being used in grocery stores. The data, which did not name any individual food-stamp recipients, had been lawfully requested and lawfully obtained. But that didn’t stop said bureaucrat from threatening Morisy and his tech partner, Mitchell Kotler, with fines and even imprisonment if they refused to remove the documents from their site.

They refused. And the bureaucrat said it had all been a mistake.

Now Morisy is preparing to expand MuckRock’s mission of filing freedom-of-information requests with various government agencies and posting them online for all to see. The just-launched Freedom of the Press Foundation has identified MuckRock as one of four news organizations that will benefit from its system of crowdsourced donations. The best-known of the four is WikiLeaks.

The foundation’s board is a who’s who of media activists, including Pentagon Papers whistleblower Daniel Ellsberg, Electronic Frontier Foundation co-founder John Perry Barlow, Josh Stearns of Free Press and the journalist Glenn Greenwald, now with the Guardian.

“The Freedom of the Press Foundation can be a first step away from the edge of a cliff,” writes Dan Gillmor, author of “We the Media” and “Mediactive.” “But it needs to be recognized and used by as many people as possible, as fast as possible. And journalists, in particular, need to offer their support in every way. This is ultimately about their future, whether they recognize it or not. But it’s more fundamentally about all of us.”

What follows is a lightly edited email interview I conducted with Morisy about MuckRock, the Freedom of the Press Foundation, and what comes next.

Q: Tell me a little bit about MuckRock and its origins.

A: I’d been really frustrated that we hadn’t seen much innovation in newsgathering generated by journalistic organizations. You see lots of innovations in how stories are told, but they’ve been generated by companies like Twitter, Facebook, and Instagram — all wonderful organizations, but ones which generate news as a byproduct, and where the journalistic function is by far secondary to business considerations. My co-founder and I wanted to create a startup where creating news was a core part of the business, and where the news was both user-generated and -directed as well as verified.

Since requests on MuckRock come from — and are paid for by — our users, we are able to align our business and editorial goals almost perfectly. We don’t sell advertising, we don’t put up paywalls. We just help people investigate the issues they want to, and then share those results with the world.

We’ve know been growing as a business and as an editorial operation for three years, with a part-time news editor and two fantastic interns.

Q: What sorts of projects are you involved in today?

A: Our biggest project to date is a partnership with the Electronic Frontier Foundation (EFF) called the Drone Census, which has broken a lot of major stories around the country. We let anyone submit an agency’s information and then we follow up with a public records request. So far we’ve submitted 263 requests to state, local, and federal agencies, the vast majority of which were suggested by the public. And it’s helped shed more light on a program that police departments and drone manufacturers are very purposefully keeping quiet.

We’ve also gotten to cover some really interesting local stories, such as getting the late Boston mayor Kevin White’s FBI file and taking an inside look at the timing of a drug raid, as well as national stories.

Q: What is the nature of your relationship with the Boston Globe?

A: MuckRock was invited to be part of the Globe Lab‘s incubator program a little over a year ago. We’ve received free office space and, most important, a good mailbox to receive the dozens of responses we get back every day. It’s also given us a chance to bounce ideas back and forth with their technology and editorial teams, and we’re in the early stages of a collaborative project with them.

They also recently launched The Hive, a section focused on startups in the Boston area. Given my experience running one and my editorial background, when they were looking for someone to manage and report for that section, I was a natural fit and thrilled to be invited to cover startups in the area. It’s a dream job, and it means I now have two desks, and often wear two hats inside the same building.

Q: How did you get involved in the Freedom of the Press Foundation?

A: Trevor Timm has been our main point of contact with the EFF working on the drone project, and he’s been absolutely great to work with. He reached out to us about a week ago and said that he was working on a new venture to help crowdfund investigative journalism projects, and we were honored to be thought of. It turns out he is the executive director of the Freedom of the Press Foundation, so we got lucky to be working with the right people.

Q: Do you have a goal for how much money you’re hoping to raise through the foundation? What kinds of projects would you like to fund if you’re successful?

A: We’re kind of going into this with an open mind and a hopeful heart. Any amount raised is greatly appreciated, but this will help jumpstart several new projects similar in size and scope to the drone effort, which has had an amazing response, including nods from the New York Times and many other outlets. It may also give us the flexibility to fund important stories that maybe are not as sexy. We were really interested in funding an investigation into MBTA price jumps for the disabled, for example, but our crowdfunding efforts on Spot.us are essentially dead on arrival. Having a reserve will allow us to take gambles on stories like that without having to choose between making rent and breaking news.