Re Section 230: A Key Legal Shield For Facebook, Google Is About To Change

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: "Jonathan S. Shapiro" <jonathan.s.shapiro () gmail com>
> Date: March 27, 2018 at 1:24:42 PM GMT+9
> To: David Farber <dave () farber net>
> Subject: Re: [IP] Re Section 230: A Key Legal Shield For Facebook, Google Is About To Change
>
> [For IP]
>
> > On Mon, Mar 26, 2018 at 7:18 AM, Dave Farber <farber () gmail com> wrote:
> > > From: "Savage, Christopher" <ChrisSavage () dwt com>
> > > Date: March 26, 2018 at 9:53:09 AM EDT
> > > To: "dave () farber net" <dave () farber net>
> > > Subject: RE: [IP] Re Section 230: A Key Legal Shield For Facebook, Google Is About To Change
> > >
> > > Dave:
> > >
> > >  
> > >
> > > I’d ask members of the IP community to consider the following analysis.
> > >
> > >  
> > >
> > > 1/            The useful public purpose of Section 230 immunity is for online services to be safe permitting 
> > > unrestricted user comments.
> > >
> > > 2/            That public purpose is not particularly well-served by permitting online services to monetize those 
> > > comments (other than by making them available),
> > >
> > > 3/            That public purpose is also not well-served by permitting online services to escape liability for 
> > > content they actively promote to users, even if the online services did not create that content.
> > >
> > > 4/            Similarly, it is not well-served by permitting online services to escape liability for the content of 
> > > advertisements or other content for which the online service is paid.
> There are several problems with this analysis:
>
> 1. Things that the carrier cannot monetize are things they have no incentive to do. We need to be careful in this not 
> to proceed in a way that makes comments undesirable to the carrier.
>
> 2. When a carrier promotes something, they become an active participant in the publication of that thing. Any entity 
> is responsible for its promotions (directly) and at the very least should share liability in the subject matter that 
> it promotes. Conceptually. But see below.
>
> 3. Advertising is a form of promotion. It is not, in any sense, "neutral" content. Promotion is an active choice 
> rather than a passive carriage, which is the basis under which liability criteria should be set.
>
> 4. It is important to distinguish between "promotion" (actions in which the carrier or it's agents have a financial 
> interest and/or an editorial role) and "ranking" (algorithms designed to present to a user the things most relevant 
> to that user). The two are somewhat confused by the existence of "payment for ranking" schemes. Barring payment for 
> ranking, the carrier clearly should not be liable for correctly identifying me as a C-level startup executive and 
> presenting items to me in some ordering designed to maximize their interest and utility to me. Less comfortably, but 
> equally clear, they should not have liability (again barring paid re-rankings) for presenting to my (hypothetical) 
> Nazi neighbor items that are of interest and utility to that neighbor.
>
> We should be cautious about the difference between a carrier monetizing comments in a generic sense vs. being paid to 
> influence in editorial decision-making. All of the abuses I'm currently aware of (which is probably not a 
> comprehensive list) fall into the latter category.
>
>
>
> Jonathan Shapiro, Ph.D.
> COO
> Buttonsmith Inc



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