How to Regulate Online Platforms: Why Common Carrier Doctrine is Inappropriate to Regulate Social Networks and Alternate Approaches to Protect Rights

Concerns about the “concentrated control of so much speech in the hands of a few private parties” and their ability to suppress some user speech have led to calls to regulate online platforms like common carriers or public accommodations. Advocates of that regulation theorize that social media platforms host today’s public forum and are open to all comers and so should have a responsibility to be content neutral and allow all voices to be heard. Traditionally, the argument that private players, as opposed to only government actors, can violate individuals’ free speech rights was a progressive cause, but recently conservative voices have embraced it as well, leading to seemingly unified policy across the aisle. Classifying platforms as common carriers would place them in the sphere of public actors and impose nondiscrimination policies, preventing them from censoring the speech of their users. On the surface it is an appealing position that could limit Big Tech’s power to control content and shape the public conversation. Unfortunately, however, not only are these platforms likely outside the scope of existing common carrier doctrine, but even if such obligations were imposed on them, this would not address the underlying problem: the role the platforms play in developing the harmful content in the first place. Common carrier regulation may be appropriate in cases where information intermediaries are mere conduits of information, but it would not work in the social media context because those platforms are not mere conduits; instead, they actively participate in the facilitation and amplification of user content

'Setting the boundaries of acceptable behaviour'? South Australia's latest legislative response to revenge pornography

The complex contemporary issue of revenge pornography has attracted extensive media, law reform and academic commentary and concern, especially as to the perceived failures of both the civil and criminal law to keep up to date with social and technological changes and to adequately respond to this issue. This article considers the existing remedies under the criminal law to revenge pornography and examines the Summary Offences (Filming and Sexting Offences) Amendment Act 2016 (SA) that came into operation on 28 October 2016. The new Act updates and strengthens the criminal law in South Australia in this area. This article notes that the criminal law is not the exclusive means to address revenge pornography and that there is a need for a wider approach that includes effective civil legal remedies and education and cultural change. However, the criminal law still has a vital role to play in setting the boundaries of acceptable modern behaviour. In this light, it is argued that the new South Australian Act is a timely and welcome legislative addition in addressing revenge pornography.David Plate

FOSTA: A Hostile Law with a Human Cost

The Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”) rescinded legal immunity for websites that intentionally host user-generated advertisements for sex trafficking. However, Congress’s mechanism of choice to protect sex-trafficking victims has faced critique and backlash from advocates for those involved in commercial sex, who argue that FOSTA’s broad legislative language does far more to harm sex workers—a group distinct from sex-trafficking victims—than it does to end sex trafficking, chilling significant protected speech in the process. These critics posit that FOSTA’s results toward eradicating sex trafficking have been negligible and that its chief outcome has been to eliminate digital screening and security protections that consensual sex workers rely upon, thereby forcing the industry back into a far more dangerous street-based model. By eliminating protections for consensual sex workers, however, FOSTA endangers trafficking victims as well, and without online advertisements serving as a “smoking gun,” law enforcement has struggled to find trafficked individuals. This Note explores FOSTA’s effects on consensual sex workers in the United States from two angles. First, it analyzes how FOSTA’s chill on speech that advocates for sex workers’ health, safety, and right to work in their industry contributes to the law’s unconstitutional overbreadth. Second, it compares FOSTA’s practical effects that are in line with its stated goals with the harmful consequences the law has inflicted upon the sex work community and beyond. While this Note proposes amended language to improve FOSTA, it ultimately advocates for FOSTA’s repeal and suggests that if sex work were decriminalized and more pragmatic legislation were implemented to better inculpate traffickers, mitigate harm to trafficking survivors, and reduce future victimization, FOSTA’s stated goals could be realized

Tailoring Election Regulation: The Platform Is the Frame

According to conventional wisdom, legislative efforts to limit platform-based electoral manipulation—including especially laws that go beyond simply mandating additional disclosure about advertising expenditures—are most likely doomed to swift judicial invalidation. In this Essay, I bracket questions about baseline First Amendment coverage and focus on the prediction of inevitable fatality following strict scrutiny. Legislation aimed at electoral manipulation rightly confronts serious concerns about censorship and chilling effects, but the ways that both legislators and courts approach such legislation will also be powerfully influenced by framing choices that inform assessment of whether challenged legislation is responsive to claimed harms and appropriately tailored to the interests it assertedly serves. I identify three frames conventionally employed in evaluating the design of speech regulation—the distribution bottleneck, the rational listener, and the intentional facilitator—and explain why each is ill-suited to the platform-based information environment, which presents different incentives and failure modes. In their place, I offer the platform itself as a new frame. I identify the harms and interests that frame brings into focus and offer some preliminary thoughts on the kinds of legislation it might permit

The Future of Freedom of Expression Online

Should social media companies ban Holocaust denial from their platforms? What about conspiracy theorists that spew hate? Does good corporate citizenship mean platforms should remove offensive speech or tolerate it? The content moderation rules that companies develop to govern speech on their platforms will have significant implications for the future of freedom of expression. Given that the prospects for compelling platforms to respect users’ free speech rights are bleak within the U.S. system, what can be done to protect this important right? In June 2018, the United Nations’ top expert for freedom of expression called on companies to align their speech codes with standards embodied in international human rights law, particularly the International Covenant on Civil and Political Rights (ICCPR). After the controversy over de-platforming Alex Jones in August 2018, Twitter’s CEO agreed that his company should root its values in international human rights law and Facebook referenced this body of law in discussing its content moderation policies. This is the first article to explore what companies would need to do to align the substantive restrictions in their speech codes with Article 19 of the ICCPR, which is the key international standard for protecting freedom of expression. In order to examine this issue in a concrete way, this Article assesses whether Twitter’s hate speech rules would need to be modified. This Article also evaluates potential benefits of and concerns with aligning corporate speech codes with this international standard. This Article concludes it would be both feasible and desirable for companies to ground their speech codes in this standard; however, further multi-stakeholder discussions would be helpful to clarify certain issues that arise in translating international human rights law into a corporate context