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tv   Legal Experts Discuss Social Media Content  CSPAN  July 12, 2021 8:31pm-9:56pm EDT

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tuesday morning and run the discussion with your phone calls, facebook comments, text messages and tweets. ♪♪ now legal experts discussed regulating the moderation of social media content including censorship of conservative voices like big tech, antitrust enforcement and migration efforts best left to the states and not the federal government. the federal society, this is just over one hour and 20 minutes. >> welcome to our series on frei speech and social media. i am vice president for the initiatives the federal society and director of the freedom of thought project. a new initiative to address emerging challenges, freedom of thought, conscience and expression. this afternoon, july 8, we will be discussing how federal preemption state innovation questions competing turns speech
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content a moderation digital platforms and media the fifth a six part series on free speech and social media all moderated by judge and we invite you to join as i two weeks from today, thursday july 223:00 p.m. eastern for a final discussion. as always, please note all extensions of opinion are those of the expert on today's call. after our speakers give opening remarks, we will turn to audience questions, time permitting. if you have a question, enter it in the q&a at the bottom of your screen. if you are registered for cle, don't forget to complete, designing form for this program, the sign in form is available on the cle page and you can find the link on the event page with today's event. i'd like to introduce ourto moderator for today's model.
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after graduating from harvard law school, he serves as waffle, judge, the third circuit andnt just on the supreme court. for 16 years, he practiced where he specialized in a complex civil litigation and serves as assistant attorney general for the justice department and acting associate attorney general and for the president. before joining judge argued more than 75 appeals including three cases at the supreme court. i am not going to turn it over to judge to frame the discussion and introduced our panelists. thank you for being with us today. the floor is yours. >> thank you. this is the fifth of a six part series on free speech and social media. panels are sponsored by federal
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society freedom of thought project explores what seems to be an increasing trend to restrict and punish not only controversial speech but also controversial speakers. the traditional liberal view speech was the remedy for bad speech is speech to express an unpopular view you would expect to be subjected to criticism correction in the fleamarket of ideals. today it seems unpopular speakers face a lot worse if you express politically unpopular view, you are at risk for losing your job, being out that out of the university for losing access
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to various basic services including is relevant here, access social media platforms. ourr last panels look at specifc efforts by governments, to regulate mitigate this censorship by big tech platforms like facebook and twitter and google through common carrier galatian or antitrust. we talk a lot about a couple of big cases in the news including an ohio suit against google services to have declared a common carrier under common law and a suit by i facebook for monopolization based on their allegedly deceptive privacycy practices.
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at some level, the suits were conventional in that they targeted economic aspects of the behavior of the dominant player in some relevant market but today we might get into some more aggressive variations on this which is state efforts to regulate political aspects of content moderation of thesese platforms. one interesting example is a proposed texaco -- would prohibit social media platforms from engaging in viewpoint discrimination if the user of the service resides in texas communication is stored or received in texas. our first two panels look that sources of protection were big
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tech platforms at the federal level and the two most obvious, one is the first amendment which affords some protection to these companies but also may tolerate common carrier type rate galatian under the logic of turner versus fcc which is imposed on cable companies. sources of federal protection against state regular we've already put on the table is section 230 of the communications decency act which seems to get brought immunity to platforms with regard to the decisions about what third-party speech do ipe permit for suppressed. at 230 within a broad range seems to preempt any state law while building either poor
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decisions by the platforms to allow the third-party speech or decisions by the platforms to center third-party speech or to moderate their contents. today we are going to have a broader focus, you're going to look at other possible sources of federal preemption. one of them is looking at what the fcc might do at federal level either to regulate, self regulate content moderation or censorship practices as a platform and/or prevent the state from doing that another source of preemption is the cause of the constitution which is doctrine that congress by authorizing and constitution to
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regulate interstate commerce preempt state regulation and either discriminate against interstate commerce, extraterritorial he or unreasonably burdened in state commerce. we are going to talk more generally about a question that might have a particular residence in that society which is if we think big tech censorship is a problem that some government should respond to, should that response happened at the federal level by state level or perhaps that. we got a great panel to address these issues so let me briefly introduce them. rendon r, commission on the federal communications
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commission and also serves as general counsel of the s fcc as lead advisor to chairman on wireless issues and as an attorney in the fcc's general counsel's office. before joining the commission, telecommunications law to buy). he graduated from catholic university lawdu school work or judge on the u.s. court of appeals on the fourth circuit. daniel francis is a permanent fellow noel fellow at the new york university school of law where he writes about constitutional law, competition law and antitrust. he previously serves deputy director, associate director and senior counsel at the federal trade commission where he focuses on antitrust enforcement and digitalal markets. for ten years, he practiced two
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multinational firms and hold law degrees from cambridge, harvard law school and nyu. paul watkins is the managing director of global partners and focuses on regulatory issues involving financial technology office ofth innovation consumer financial protection bureau headed up civil litigation division of the arizona attorney general office. earlier in his career he was in mna associate after and securities litigation associate graduated from harvard law school worked for judge. before i turn over our speakers, i'mr going to give you the code you will need in order to claim
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see. i will do this now and try to remember to do it again later in the presentation if you don't have a pencil handy. the code is fo tp 579. freedom of thought project 579. the floor is yours. >> thank you much, judge, for that kind introduction, it is great to join you invest panel to talk about vitally important interests. i'm reminded by your opening remarks to align from the new york times editorial board member back in 1970 is that the diversity of opinion is the lifeblood of our democracy.
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back then we were coming out of an era of groupthink and there was a deep embrace particularly on the left of diversity of opinions and range of it yes that's why in 1970 modern-day op-ed page launched in the new york times as they wanted to promote ideas and perspectives not necessarily reflect the within their editorial board and flash forward to today we are on the back and ended a level trend back toward orthodox thinking and a bit of a pendulum but hopefully we can find a way as a cultural matter, not necessarily legal matter but to return to embracing that diversity of opinion. a direct bearing on where we are big tech today for being an industry with haida gaps between for a antibody on the other, and
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regulars of the state and federal level for various things looking and trying to closese te gap in a lot i think that letter has a role to play with section 230 in the communications act and i do think we have authority to interpret and it's too expensive of a really of the lingered up to 30 as justice thomas pointed out but i think it goes beyond section 230, even to 30 reform which i think is necessary is going to be sufficient to address a lot of abuses of power people on the political left and political right taking place within various big tech platforms so i think 230 reform is a great start and we have to do it to go beyond that and it's part of
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where question comes in because on please state limited in what they can do in terms of directly interpreting section 230 and it might be two-week of a phrase there but i do think state can step in and impose transparency obligation on these platforms and what i would describe as nondiscrimination for accountability standards meaning if you applyg, a term of service let's say you don't want on your platform, i think i could step in and they you gotta do it across the board and takedown speech from the political left or right and not vice versa. i do think there is a third level which is affirmative interactive termination rules where you can look to accommodation law and civil rights laws and apply those two big tech including
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antidiscrimination on race, gender and including political ideology, some laws including d.c. hazmat language today and that what we can look to from state law perspective in big tech and theres will be from hurdles and as we talk about previous sessions, first amendment is a strong argument that will be lodged by big tech whether federal reform or state reform and i think the answer is that there are ato series of places where the supremeof court hase recognized that you can regulate entities without infringing free-speech rights. for instance, we got the turner case but it goes beyond that as well, defamation and effectively the regulation speech permissible under the first
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member. without public interest obligation we apply the fec on broadcasters and rules like this data roaming rule that requires nontitle to carriers, operators to carry data traffic of others outside common carrier content so there's a lot of analogies that could be looked in the first and mimic context although that's interesting to me but little besides this panel. this is focused on preemption and when you do talk about state law regulation content moderation practices, federal or state you will have first moment argument butts uniquely when you go through state law, he will have prevention. as i see it from a big tech would likely watch at least two main lines of argument for preemption of either some or all
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state law efforts to regular moderation. one will be section 230 and the other given they could march, there has been a general policy recognized by the fec of non- regulation or deregulation when it comes to what we call information services which arguably you could fit big tech so those are two species of preemption claims that could be run by tech companies almost regardless of the specific form of state bar regulation. in my perspective, i think this strong argument state laws can survive under both of those attacks and briefly put that out. section 230, at least as i interpret it is abroad way that
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says if you leave someone else's speech up on your website, you're not liable for thatt speech. i'm think there's much you can do or shoulds do to disrupt that that think there would be strong preemption if you attempt to do that in state law. there's a second provision of section 230 that allows for good faith, the term is voluntary taken in good faith to restrict access to or availability of material across on the shop for me as i think the second provision up to 30 is the provision that lawfully with the right interpretation take it down and therefore you only have to 30 protection if you do it and good faith which is probably properly defined as a matter of federal law but that means that there is a category takedowns so
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i would think that you could fit regulation of content moderation under that concept of bad faith takedown in which case i think you can survive section 230 preemption claim section 230 is not a provision of content moderation in all of its forms protected by at least as i interpret it your protected, no state law but if you take it down, there is only 233 option or protection if it is good faith in the statute so i think there is a fair, room at state wall level to regulate bad faith onset moderation, some ideas i put down insc terms of antidiscrimination takedowns inconsistent with the terms of service would be, in my view, at least potentially bad for 230.
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the second that iur mentioned is the lineup fec president that talks about the regulation ornd depending on your perspective, non- regulation of information services which could be considered title w two, title oe and briefly, maybe describe the two lines off cases or two lines of president and a couple of cases under each bucket to flesh it out. on the one hand there is a case very strongly recognizes this concept of federal policy not breaky elation, a circuit case that dealt with voice over internet protocol, minnesota tried to impose other obligations on these providers and fec stepped in and said no, we generally have aol policy of appointment and that has preemptive effects and say yes,
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you're right, the decision not to regulate preemptive minnesota state law. the other case i put in that bucket of strong recognition and recent case new york, where new requirementmposed a that required offering $15 a month low income services in the district court there decided new york state law based on this concept of both conflict and field preemption and third the case in that bucket would be our own decision in 2017 where we move internet providers from title to regulation title one and said that decision regulate from title to the title i carries preamp to force and therefore by state law to the contrary. that portion of our 2017
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decision was not upheld by the d.c. circuit and that leads me into the second category which is a less-expensive review of the regulatory or preemptive force of deregulation. one would be 2019 d.c. circuit case that no fec, your decision to move title i to title to, we don't think thate is deserving f at least weighty preemptive force. a second opinion or statement i put in that bucket be justice thomas in a separate case that he found it should start to revisit the broad force is a import has been given to decisions not to regulate and filing a third case i put in that would be a recent district court case in the ninth circuit california, neutrality requirement and district court
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there denies the request that basically said fcc's decision to deregulate andcc move title i to title to does not preempt california neutrality law so interesting lines, i would argue you can put all that together almost regardless of which way you come out either on the broader question justice thomas heat up or otherwise given that 230 has the idea of good faith necessarily fourth state to regulate bad faith content moderation and otherwise there is not sustained comprehensive federal regime an issue in traditional telephone services to displace the field of content moderationon so i'll stop there were questions but i think those are the two species apprehension
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claims that i think are raised against state law antidiscrimination obligations and how i think about the answers. >> thank you. daniel, you are up. >> thank you. happy to talk to you about my favorite in constitutional law. i want to talk about the federal constitution or state that form regulation and give a a sense general terms most important constraints and how our constitutional order particularly economic provisions might react to this wave of state regulatory we are seeing so just take a moment to set the scene, we have seen over the last two decades extraordinary set of technological commercial change throughout and the rise of platform businesses are
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diverse in a lot of different ways butiv sometimes it is a lal for the attack and it true the platform businesses for the digital economy is radically changing everything from retail to the way we get around operating systems and the platform aree direct so the lat four or five years and the framing for this conversation was extraordinary multidirectional backlash against the consequences of the platform that think there is a partisan consensus that we must do something, a radical set of changes, precatory cultural or otherwise, it is, much less abt what exactly needs to be done and why so easy wave of conversations and in our federal system, one of the benefits of the way our little system is organized is state government
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not just coequal but on some occasions, preeminent in that discussion so we've seen lauren at the state level, antitrust led by state coalitions and a lot of legislation, privacy legislation here in california and censorship and you touched earlier on texas, florida, capitation measures digital businesses in ways that are a little unusual and as we also mentioned earlier, designating google so with state on the conversation and framing productive conflict, what does the federal constitution have to say about this i think the baseline is we are used to having it propagated regulatory.
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state bar, common law, protections, there is a certain level of diversity and complexity that comes with any healthy federalism, individual statesl , citizens and businesss and find a place they like best and room for greg latoya x fermentation and learning classic benefits of life in a n federal system but there are limits to what the federal constitution will tolerate so on at least two occasions in our history, the emergence of integrity of national economicty space has been fiercely jeopardized by diversion state relations. one is under article of confederation in the 80s when notoriously they've adopted a variety of inconsistent or conflicting trade relations and
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a lot of political differences. the other within the 19th century when national market was emerging, but that system of bindividual states reg lady tes and rates and discrimination by railroads and the integrity. on both of those occasions, the federal constitution came to the rescue. those commercial problems under the articles of confederation were a key driver of what led to come together under the constitutionit but it's the commerce of what we have today. as we sit here in 2021 thinking of those are the basis for affirmative legislation but at least at the time the
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constitutional convention, the balance just the focus is on james madison short time later ander prevent inconsistent reglt for actions and the decisions in the 19th century is that understanding. ...th y burden interstate commerce particularly interstate networks important to the national economy, most famously in a decision called wabash in 1886, the supreme court held even intrastate portions of interstate railroad could be regular by states. that prompted the creat creation of the first federal regulatory agency and
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commission. in both of those cases when the national market was threatened, it was the claws that took a little t while for the legal framework to settle down but for the 20thth century had done so d the modern consensus became discrimination against out of stators, territorial regulation or access contingent on what you do or do elsewhere and unreasonable burden. something funny happened over the last few years. that model continued to play lip lipservice but what has been focused on more than others is intentional protectionism where the state prefers internal over out-of-state or interstate commerce. part ofrt the reason is what we haven't seen is a wave of state
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measures that threatened the national market. more or less to focus on intentional protectionism. today that may be changing and we may see the raindrop of the same kind of thing that led to those to the commerce clause in the past. to be sure i want to be clear about what i'm suggesting. there's a lot of room in the constitution. they taught law even interstate companies intentionally into the state to a particular state it is absolutely fine but i see in the sum of this modern wave of assets extra territoriality and
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undue burden in exactly the ways that have animated the clause in the past and i want to get to it. the first one is the maryland taxing measure on digital advertising. there's examples of different regulatory efforts and we can talk about each of them, but the extraordinary thing about the maryland digital advertising act is that it exerts the taxing authority over all advertising both in the state of maryland and defining whatever digital advertising is. that is a theme that runs through many of these regulatory efforts and that is a really remarkable reach on m the clause it's been ford the last three
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years the supreme court has recognized the nexus within the activity if somebody physically ships goods into your state. for a long time that wasn't enough to create a taxable. they would say you have to have physical premise. three years ago they said well all right if you are shipping the goods into a state. no way no how on that framework is the fact of the user in the state able to visit either a website so it is a remarkable reach exemplified by maryland. the other one i want to mention is in texas, most of the online censorship act. to talk about the first amendment law that has been preliminarily joined by federal district court.
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it's pretty radical obligations with respect to activity that has such minimal contact with the reading about the statutes apply as long as the relevant activity can be viewed by a user in texas. so if you are regulating each by a michigan user then you fall within the reach of these pretty remarkable speech obligations in the statutes. so those go far beyond the context where the states were focus on the interstate portion. so, that is pretty much all i wanted to say. i predict while we've gotten away from this clause for the last 40 or 50 years, that may be ending and i predict we will see a term as businesses and other entities look back at the extra
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territoriality in a way that might reinvigorate the clause. >> thank you, judge and to the federal society for the chance to be part of this panel. my contribution to the discussion comes from having experience at the companies and then being in the regulatory rules promoting innovation that i think these two elements are the key to what i expect the states to do in response to going forward, lawsuits and promotingin innovation. but i want to back up and talk about how i think red states find themselves in this circumstance where they are having to do these platforms and to a large extent, i think it is because the blue states have absolutely crushed their competitors in venture capital
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investment and developing emerging businesses. the numbers are astounding if you look just at california they received more than 50% of the measured capital investment just about every year from 2010 to 2020 in new york and massachusetts it is over 70% in some places 80%. the closestt competitor is texs in 2010 getting around 5% of the venture capital investment. although the numbers may have increased, they have not kept pace in 2020 the share of the venture capital investments drop down to 2.7%. so these are subject to primary regulators that reflect those and i think that shapes a lot of policycy particularly a few yeas ago when many companies said we are going to depart from sort of
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the friedman doctrine of shareholder capitalism. we are going to reflect the values of our stakeholders and we are going to have these extensions of policy. those are drawn from that culture from the geographic culture, from the regulatory so it is no surprise that red states look at this and say where did this come from, this doesn't match what we are hoping to see and that they treat these extensions from companies the same way they would treat an extension of thens preferences from the federal government, from another state which is to respond with a bunch of lawsuits. now, i want to talk a little bit about how some of these lawsuits could be modified a little bit, some of the regulatory structures could be modified a little bit. but i hope the states focus on
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what they can do to do a much better job promoting innovation because that is the sort of activity that i think will lead to long-term solutions and will be beneficial. these are going to be filed and we talked a little bit about some of these laws. explicit preemption like section 230 or under the dormant clause i'm surprised more states haven't utilized the consumer protection statutes. there is a reference in the florida law for the statutes but then they impose their own structure. texas doesn't reference them all. they create a separate fine structure. they are extremely powerful statutes. what professor francis was talking about the fact you can see certain activities in a certain state, that is a misrepresentation in a state. you can change the way a company
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displays the content. we brought a lawsuit against a company that had an ad in the super bowl when it was seen by just about everybody at the state. each viewing of an ad is a violation you can find each one for up to $10,000 so you just put that together and have findings that are close to $100 billion and then you say okay if you buy them now you can settle for tens of millions. states do this sort of thing all the time and it is extraordinarily powerful and effective. i'm really surprised that it's not being used in the structure. you can think departing a little bit but some of you are familiar with a case that came up through washington. a woman was selling sunflowers for a wedding ceremony that sold
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them for other things and there ended up having penalties in the case because the discriminant of violating the law is considered a violation of the consumer fraud statute and that is why they were so large. the consumer fraud statute it seems to me would be productive for the states to go down. but i think the real concern and the productive activity is encouraging innovation because we are in this historical moment where the platforms have power and the technology is moving at a new direction. this is the way technology has proceeded in the past. you are on top one decade and nobody needs your product the
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next decade. through smart contracts there are many folks who are trying to build a competing, social platforms where the users have more control over their own content and can be paid directly for their content. my fear is that in the regulatory responses or the judicial decisions that we somehow solidify these platforms for the regulatory structure and i think this is something the platforms would very much like to see and that's why you see companies say we are fine with reforming 230 because they need to be needed. so whatever the states to do, it is essential that they do not take action that would require some sort of moderation by a platform and then the states opened the door for competitors and have an example of what not to do and the facts just fit together. while i think you couldn't make
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it up, one of the big innovations going up is the block chain crypto currency under the trump administration and the secretary of the treasury there is very little guidance given to the industry. there was a protection brought against a social media company that almost no one had heard of at the time. it was trying to launch a token that could be done through its messenger service and they did it according to a generally accepted framework that brought action that says we are going to shut d down your token offering. fast forward one year, they are kicked off social media. what does donald trump junior say? no fault of the telegram. it would have been a viable competitor to facebook if
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trump trump let them have their offering and go in a new direction to compete onn the new ground with the incumbent. but if the folks that are upset about the social platforms are not willing to allow this competitive activity, i think they are going to solidify the monopolies. for the states again that are upset about this to coordinated the regulatory frameworks that have traditionally been allowed under preemption like the statutes to coordinate what thet are planning to do which gives them joint market power and then i encourage innovation in all sorts of areas and a number of other areas so that the innovators are moving into these states and so the states jointly
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have market power within a country that i think will trend towards bifurcated markets. so, those are my brief remarks and i will turn it back to you to continue the conversation. >> before we continue, let me read the code for anyone who's interested. once again, it is sot p as in freedom of the project 579. let me give each of the panelists about two minutes to respond to anything they heard from their co-panelists.
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>> one thing i will touch on is the recent statements that you shouldn't classify big tech providers. my view is we need to apply antidiscrimination obligations on big tech and i would say they are past examples where we have applied some forms of antidiscrimination requirements on those types of entities. but it doesn't necessarily flow from that and we need to classify big tech either as common carriers or places of accommodation rather we just take the core concept and apply and bring them forward into
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these websites. >> all right. daniel? >> thank you. i would have a word or two by way of reaction, commissioner. two things. number one, i agree with what i take you to mean about common carriers that have been traditionally understood as radically different from those we associate with.s the competition doesn't work between the monopoly by the state the common carrier has a
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lot more to do with it than is revealed given the digital platforms today in light of the product differentiation. i take the idea to be central to your view of the right way forward and i wonder if i could invite you to say more about that and how we identify with it. if we believe certain types of speech or viewpoints are pernicious o or harmful, it's uncongenial to that social or religious missionul would it be bad faith to moderate on that basis, so it is unfair to me why that would be. i strongly agree we need to look at ways to sponsor competition.
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it didn't become clear to me why allowing crypto currency for the social media network would enable the social media network to be more competitive in the provision of social media anymore than allowing it or prohibiting it from providing any others that were not clear to me why we see that as the case for the platform monopoly problem in the antitrust act. thank p you. thank you so much for that question. it comes down to a phenomena around the embedded finance which is the benefit of being able to engage in commercial activity in one a single portal.
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when you have your own currency tied to that there are efficiencies around taking that stepre into commerce and it maks it efficient for the users to be able to monetize that content because they can potentially charge and sell around a particular digital representation. people can transact and get the right to particular posts or artwork. so there's a lot of functionality that could allow an insurgent to compete. they will need to something like that so i do think the regulators have to be mindful that they are not preventing that activity and it's a particular area of concern by
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one of the commissioners getting into the weeds to answer the question i apologize for that. to regulate the activities that occur and i think it is a common regulatory structure you can see it in the anti-money laundering. the regulators don't impose all thosedo things but financial institutions and then the financial institutions impose them on the customers. if you don't need the institution anymore and its customers interacting remotely, that can cause them to be worried because they've lost a lot of their authority because they are depending on the platform. so, my fear here is the folks come in and say we need this
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very comprehensive regulatory structure that facebook and twitter and so forth is imposing on all the content. the content wasn't sufficiently regulated, so that's the think should i cause some caution on the part of regulators. some of the new yorkhe regulatos say we want you to either reduce or stop the lending to energy companies if you are a financial business doing business in new york and i believe i saw some related commentary by eugene on
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recent lawsuits saying they are a stretch unless there are regulators directing the companies to ban the president or saying this would be a good idea. i'm curious if you think that there are certain factors that might be discovered involving the regulators pressuring platforms that would then be a dormant commerce clause going thee other way where they would say we are alls trying to extend your policy into our state and doing it kind of informally and directly but we are excited about it and we are going to sue so what sort of facts.
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with that sort oful regulatory news in principle what the court would be looking for would be number one finding protectionist and favoring in-state activities. it's not obvious to me. youyo can only sell your cigarettes in our state if you manufacture them in a way that i prescribe or you can only operate your network if you conduct out-of-state content moderation in the way that i prescribed today so that could be an angle.
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>> okay. brendan. the national review genuinely believe that right-leaning speech is a good thing and they limit access to their platform to contributors who share that view. and the new republic, same thing on the left. it seems like something we would want to affirmatively protect, so why is it any different when a platform when you genuinely believe it is going to speak and they act on that. there's a couple answers here. put forth for the transparency antidiscrimination and
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nondiscrimination, would allow carveouts or only apply to what i would describe as general-purpose websites, so places like facebook, twitter, youtube. if you are a specialized website and you are very clear but where you hold yourself out in a general platform particularly where you say we do not engage in partisan political takedowns. people can disagree whether they do that in practice. if you passed the law to say don't moderate content based on the political ideology, twitter and facebook will say we don't
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do that so i would think that you would need some type of look behind but certainly leave room. this would only apply to the general-purpose. it is an isp but in terms of the spectrum of speech interest i would say they are on that side of the spectrum. the websites are somewhere in this realm as opposeda to a newspaper route as you would indicate a newspaper or
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magazine. >> let's talk about things that the fcc might do building on that spectrum and let's talk about some of the history with net neutrality in the supreme court so the dc circuit has said that the commission has a choice to treat broadband's internet providers as either telecommunication services or icinformation services and my hd kind of spins when i read those definitions and the thomas and scalia opinions on which is which. it turns out it is a critically
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important distinction because whatever falls under title i we have said can't be regulated as a common carrier and whatever falls under title ii, the communications act does regulate as a common carrier. so, do you have the discretion to treat the broadband providers under the common carrier. is there any room to argue that you can do the same thing for the platforms, and if you can, is that an idea to impose on them net neutrality in the sense of the rule against viewpoint discrimination? >> it's a good question. whether something is a title ii
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or title i has all kinds of interesting and sometimes circular definitional reasons but one way to dumb it down is are you operating in economic considerations. there are certainly arguments you can make that there are versions of what big tech is doing although some of that approach but it's not a position i'm advocating for to apply antidiscrimination requirements which is what really matters to big tech you don't need to sort of pound them into the accommodation. those are examples of where we apply it consistently with the
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principles and otherwise but it's important in the requirements to bigg tech becae when you classify something under title ii you strip the commission of jurisdiction there's externalities from that perspective. >> do you think you all have authority to do that under title i? the communications act i think we do have an authority to interpret section 230 for the case it contemplated speeone and c2. we could issue the rules either way and say here are some
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guidance on the good faith that congress chose to draw on0. the line in pursuant to that. we can take action and define good faith bad faith. obviously take down inconsistencies and at the furthest degree with race, gender and political ideology. i think we can do that but obvious terms of service. there's going to be a stronger first amendment argument and a path forward to winning that
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case. >> anyny thoughts? you read my mind, commissioner, describing the carveout from the jurisdiction on the act for the common carrier, so another unintended consequence to reclassify other platforms would have significant consequences for the antitrust project not least of which they've been in the lead of in the recent years. >> let's talk about extra territoriality forut a minute. when i was in private practice of doing a lot of work on the federal statutory presumption against the extra territoriality it turns out at least in that context it's very easy to specify the rule that they are
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presumed not to apply extraterritorial he. i am sure the analogous problems in dormant commerce context. so, could you just speak a little more on how we would think about looking at this statute as limited, it appears limited to users to preside over the state which is clearly some attempt to deal with extra territoriality and then there's an independent requirement for the expression has to be shared
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so what should be the touchstone. is it that the users computer is located in texas at the time does it turn on where facebook is or is that even a meaningful question. how do we think of that and how that would be appropriate commerce clause between texas managing what happens but not what happens in california. >> you are exactly right to highlight the intransigence that
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the whole exercise on the digital privacy economy and between the lines that are framed in the territorial attempts. it's going to be an i enormous mass like regardless even on the most optimistic assumptions about the cases abroad there's no way that for everybody sorting through the variousth claims. let me just acknowledge that by way of starting. second, i think what we are talking about here with many discussions in the economic regulatory, we can talk about the strengths and weaknesses and levels of risk so with that in mind i think it is clear at least my view is reading the statute.
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somebody in a texas bar the bill might protect the user's ability to exceed the expression of another person. you can be in a situation where somebody in oregon is posting something online and the content moderation decision made by a company in california and about how thatis is treated, that activity falls within the reach so the fact they can reach out across the internet and connect brings it into scope of the regulatory reach you are right it is a user but if you look at the censorship, it's the ability to receive the expression of
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another person. at least as i read it if there's more than one person in texas who can find it on the internet then it falls within the reach of the statute and that is remarkable again to touch back to what we were talking about in the content. there is sufficient contact with the promise built up so that goes beyond. what it also does it's not going to be true of all platform regulatory efforts it's the opportunity or inconsistent contradictory regulatory efforts by states. so it requires no imagination to imagine the effort or the common law call of action that would make somebody responsible for failing to the republishing of the communications including
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contentic. another reason i feel so confident and think that this would animate so much is that it raises the idea of the legislation. so if i were to give kind of boiled off guidance to a state. that raises many viewer concerns. so if what you really want to do is create a sort of protected rights for citizens in your state then number one should be confined only to those citizens. there's an interesting case held
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that it didn't violated the clause for the price gouging law that only applied to sales and people in kentucky and as amazon business is currently fed up, this would interfere in the practice of the price that is just a feature of the model. but it's over the consumers in kentucky see the kentucky regulators price and it doesn't affect what's going on elsewhere. so that kind of thing is feasible both technically and commercially for platforms to comply with that law without it touching the activities would be a huge bounce forward. another thing that is going to be safe is the disclosure obligations, so the labeling requirements and consumer notice requirements for a very long time in the platform regulation just recently enactedd a rule
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that the marketplaces have to disclose their information as part of the experience on the market place so that consumers know who they are buying from. that kind of obligation is consistent with some of the protections as well and iseg likely to be much less concerning under the dormant commerce clause. so focusing on direct contact, staying out of the interactions and taking notice or explanations rather than creating, those would be the direction that i encourage them to make. >> brendan or paul, it's a pretty good case that regulation on the state level is going to be awfully messy but they've laid out to what extent is that counsel foral handling this at e federal level?
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>> one uniformed rule that everyone can coherently live under. >> i think there are lots of products that have the variatiot the state level, and i don't know why. just because something is digital and available online that it necessarily needs to be uniform. they have providers to operate in some jurisdictions more than others and so i am not -- i don't necessarily think that this is a horrible outcome if the business decides we don't like this way that a state comes out and they define unfair practices in a way that sort of lines up with what the commissioner laid out and the platform says we don't want to be held to that standard i don't think that is necessarily a horrible result and states need to have the ability to regulate
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themselves. >> if we had federal regulation in this space, one that would decrease the need for public policy regulations at the state level and it would certainly strengthen arguments for preemption. i don't know that it would completely eliminate either the need or the ability for the preemption but we have made a different circumstance. but that is kind of the spot we find ourselves in is this gap in the accountability and part of it is the amassed power in what i would call blind spots for republican and democratic lawmakers alike. i think on the left there is an ideological between the corporations and the democratic party so there's maybe a look the other way onay the concentration of power and on the other hand, there was a sort
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of in our view fundamentalist adherence to the idea that if a large corporation wants to do it or gain the power, who are we to say something. i think republicans are increasingly turning away from thatrn view and becoming increasingly skeptical in the concentrations of power but regardless i think it was that blind spot that the lawmakers resulted in this massive concentration of power in silicon valley. and i think that is why we have the need for action. but yes if there is a federal response it decreases pressure and the need for the policy response and would increase the arguments about the preemption. >> last question i have for paul. the numbers you gave on blue states versus red states, pretty daunting. you said one way to counteract that is for the red states to ban together and jointly act to
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acquire the countervailing's power. is c there any compact law violation there? have youve thought about it? >> this may be a stupid question but it strikes me if two states are forming an agreement to jointly regulate, that might be a concern. >> if i could just respond again my fear i see the only area is about creating something at the federal level is something that cements these platforms in a regulatory role and cements the business model and i think that would be a big mistake. there's a number of ways to do this without having -- most of
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the challenges is not necessarily when they are versus other states and successful compacts around insurance providing for the recent simple licensing and so forth but states can handle this if you don't license in this state then you can operate in other states. the states get together and say we see that some of these platforms have this issue around independent contractors we will resolve that at the beginning. there's a huge gap if you look at investments in facebook occurring in 2004. we don't have the standards for about a decade investments occurring in 2011. so we don't have any ai efforts level until 2020, soso there is a decade where the
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states can act quickly and for good policy and attract investment. and if they doo that i think thy will be reworded and it will be a very productive area for them to focus. >> okay. i just received a question from the audience that i will lay out. we are running over but i am told that is okay. california regulates emissions. this is probably an extra territoriality question. california regulates emissions in california. that seems not extra territory. and yet the effect is to compel
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auto manufacturers to have a national standard. it isn't feasible to have one set of cars. so how was internet regulation any different? it's known under surprisingly in the federal literature as the california affect. california is tailoring its reach as you described on the missions in california that's not attempting to say well because one of my citizens in california might visit in massachusetts i'm going to try to exert regulatory control over what's going on in massachusetts in a way that might conflict with the massachusetts law. then the glorious federalism
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means there is a theory of reaction to that one of which might be that if your state and acts a rule that doesn't make sense, the states say i'm sorry i'm not going to do business that's part of the federalism but another is to say that's how i'm going to do business and for the reasons of scale i'm going to do business that way or globally. that kind of interaction between the regulatory systems into jurisdiction and private enterprises is part of a healthy economic federalism and it does show how states and local governments can play a role in leading the regulatory conversation within the bounds of the constitution.
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>> why can't we think of the regulations in texas simply regulate what shows up on computer screens in texas and that seems interesting in the way that the california conditions are formally and trusting. >> that is a wonderful distillation of what will be one of the most important questions in the next decade. if the answer to that question is yes, two things will follow. number one, virtually every state in the union can exercise jurisdiction over virtually every business in the union. if that is sufficient to
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constitute the commerce clause and the due process clause then it dramatically sets the jurisdiction and what will follow from that is a horrendous array of inconsistencies and conflict. i am skeptical sometimes it will be impossible to comply et cetera. the regulation and part of living in a healthy well-regulated freeli market. but that prospect, the idea that states or even local regulatory jurisdiction would be drawn so farr is going to be held to the supreme court and i think we talkedke earlier about the waivr decision. i think that it is unlikely the court would agree that that is a healthy model for the digital federalism and i would be praying that they are more
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narrowed and tailored but if i'm wrong then it's going to be an extraordinary time. >> we are well over time. let me just give you all a brief chance to give any concluding thoughts that you may have. is that okay? the preemption cases and hopefully some of these issues will be joined because that would mean some initial state law these are some of the most important foundational questions about not just the regulatory system in the constitutional order between private and
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public. we are going to learn a lot from watching these cases play out as a part of the conversation so justsa as we have today we are going to run along so thank you. >> i would ask how far are we from that scenario that you described. if you look at different disclosures that are required to occur may be the difference is that a number of states care about these things just as much as california does and that is what is going to cause the affects but thank you for the opportunity to participate. >> thank you all for a very lively and informative discussion. i've enjoyed it very much and i will turn it back. >> thanks so much. on behalf of the federalist
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society, i want to thank you all for your time and your interesting discussion. also want to thank the audience for joining this discussion. we welcome the listener feedback by e-mail at info and we invite you to join us again two weeks from today for the final gripping discussion. as always, keep an eye on the website and e-mails for announcements about other upcoming telephone calls and virtual events. thank you all forev joining us today. we are adjourned.
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>> now the conversation with diplomats from the u.s. and abroad about the cease-fire between israel and hamas. efforts in gaza and the west bank and the prospect for restarting the israeli-palestinian peace talks from the woodrow wilson center this runs one

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