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Tomorrow’s tech policy conversations today

Due to the coronavirus pandemic, Franklin County Common Pleas Judge Julie M. Lynch presides over courtroom 7E from a remote location via a large video monitor with video conferencing capabilities at the downtown Columbus, Ohio, courthouse on July 1, 2020. (Adam Cairns/Columbus Dispatch/TNS/ABACAPRESS.COM - NO FILM, NO VIDEO, NO TV, NO DOCUMENTARY)
August 6, 2020
Due to the coronavirus pandemic, Franklin County Common Pleas Judge Julie M. Lynch presides over courtroom 7E from a remote location via a large video monitor with video conferencing capabilities at the downtown Columbus, Ohio, courthouse on July 1, 2020. (Adam Cairns/Columbus Dispatch/TNS/ABACAPRESS.COM - NO FILM, NO VIDEO, NO TV, NO DOCUMENTARY)

Today, our lives happen in video conferences. The big events we used to share in person with friends and family—graduations, weddings, and birthdays—now take place in small boxes on a screen. While increasing our ability to be in multiple places at once, video conferences have come with hair-pulling frustrations: the garbled connection, people talking over each other, the family members that can’t unmute themselves or start their camera.

While the stakes are low for personal calls, these same issues gain far greater magnitude in virtual court hearings in which judges decide on the fate of defendants. This new reality of virtual criminal hearings around the country has created problems ranging from the embarrassing to the potentially unconstitutional. While we should applaud efforts to keep the justice system running during the pandemic, we must assess the impact of these changes and guarantee that new technologies and processes comply with the Constitution and provide equal access. If we don’t, these developments will exacerbate existing power dynamics that favor the prosecution and punish those with the most to lose: defendants.

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A man in the crowd holds a QAnon sign with the group's abbreviation of their rallying cry "Where we go one, we go all" as crowds gather to attend U.S. President Donald Trump's campaign rally at the Las Vegas Convention Center in Las Vegas, Nevada, U.S., February 21, 2020. REUTERS/Patrick Fallon
A man in the crowd holds a QAnon sign with the group's abbreviation of their rallying cry "Where we go one, we go all" as crowds gather to attend U.S. President Donald Trump's campaign rally at the Las Vegas Convention Center in Las Vegas, Nevada, U.S., February 21, 2020. REUTERS/Patrick Fallon

Ben Collins and Brandy Zadrozny are NBC News reporters focusing on mis- and disinformation in health and politics. Here, they speak with Lawfare’s Quinta Jurecic and Evelyn Douek about QAnon, a far-right conspiracy theory built around anonymous internet posts heralding Donald Trump as the righteous leader of a struggle against a cabal of “deep state” elites running an extensive child sex trafficking operation. They discussed how social media platforms have allowed QAnon to spread and how its ability to plug into other conspiracy theories, permeate the mainstream, and incite offline violence have made it particularly pernicious.


A protester with tapes over his mouth attends a protest against a new citizenship law in Delhi, India, December 19, 2019. REUTERS/Adnan Abidi
A protester with tapes over his mouth attends a protest against a new citizenship law in Delhi, India, December 19, 2019. REUTERS/Adnan Abidi

Jillian C. York is a free-expression activist and Director for International Freedom of Expression at the Electronic Frontier Foundation. Here, she speaks with Kate Klonick, Assistant Professor of Law at St. John’s University, and Lawfare’s Quinta Jurecic about ongoing debates over disinformation and internet governance. They discuss platform accountability and transparency issues, content moderation as a broken concept, and the problem with focusing platform governance conversations on the United States to the exclusion of much of the rest of the world.


Restorative Justice Approach

As public pressure has increased for social media platforms to take action against online harassment and abuse, most of the policy debate has centered around Section 230 of the Communications Decency Act, which provides immunity to social media companies like Facebook and Twitter from being sued over most content users publish on their sites. The presumptive Democratic presidential nominee, Joe Biden, is ready to revoke it because of platforms’ tolerance of hate speech. President Donald Trump appears to agree but for different reasons: because of what he claims is the platforms’ anti-conservative bias.

Whether Section 230 is tweaked, repealed, or unchanged, platforms will likely respond to online harm in fundamentally the same way they are now. Echoing the American criminal justice system, the main strategy that platforms use is to remove offensive material—and sometimes the users who post it—from communities.

Instead of removing content and users, we argue for a different approach to content moderation, one based on the principles of restorative justice: focus on repairing harm rather than punishing offenders. Offenders are (usually) capable of remorse and change, and victims are better served by processes that meet their specific needs rather than on punishing the harmers. Transformative justice—a closely related idea—emphasizes that an incident of harm is an opportunity for a community to work on changing conditions and norms to try to prevent the same harm from happening again. By building content moderation policies and practices around restorative and transformative justice, social media platforms have the opportunity to make their spaces healthier and more resilient.

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Associate professor of computer science at the University of Southern California Hao Li showcases a 'deepfake' video with Britain's former Prime Minister Theresa May during the 50th World Economic Forum (WEF) annual meeting in Davos, Switzerland, January 22, 2020. REUTERS/Denis Balibouse
Associate professor of computer science at the University of Southern California Hao Li showcases a 'deepfake' video with Britain's former Prime Minister Theresa May during the 50th World Economic Forum (WEF) annual meeting in Davos, Switzerland, January 22, 2020. REUTERS/Denis Balibouse
Associate professor of computer science at the University of Southern California Hao Li showcases a ‘deepfake’ video with Britain’s former Prime Minister Theresa May during the 50th World Economic Forum annual meeting in Davos, Switzerland, January 22, 2020. REUTERS/Denis Balibouse

Hany Farid, a professor in the School of Information at the University of California, Berkeley, speaks with Lawfare’s Quinta Jurecic and Evelyn Douek about deep fakes—realistic AI-generated content in which a person’s likeness is altered to show them doing or saying something they never did or said. They discuss the danger posed by deep fakes, whether the danger stems primarily from the technology itself or the way platforms amplify the content, and what the tech industry response should look like.


Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, listens as U.S. President Donald Trump addressses the daily coronavirus response briefing at the White House in Washington, U.S., March 31, 2020. REUTERS/Tom Brenner?
Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, listens as U.S. President Donald Trump addressses the daily coronavirus response briefing at the White House in Washington, U.S., March 31, 2020. REUTERS/Tom Brenner?

Since the COVID-19 pandemic began, the search for an effective treatment has been fraught. In the United States, public attention has focused on the anti-malarial drug hydroxychloroquine, in large part because of President Trump’s endorsement of the drug. After he amplified a small study in France that suggested the drug could be an effective treatment, prescription sales of hydroxychloroquine skyrocketed. Well-developed, randomized clinical trials have since found that hydroxychloroquine is not an effective treatment for COVID-19, but this has done little to reduce interest in the drug—especially in the White House, where Trump and his aides most recently latched on to a less rigorous, observational study that purported to demonstrate the drug’s effectiveness.

The debate over hydroxychloroquine has become deeply politicized, which has obscured more nuanced debates within the scientific community over what constitutes actionable evidence. With social media platforms acting as key arbiters in the circulation of health information, these nuances are particularly important for the major platforms to understand. By framing decisions around removing content related to hydroxychloroquine as a choice between harmful medical misinformation vs. science, platforms may be closing off space for inquiry and debate and incentivizing the consumption of more medical misinformation instead of less. We advocate an approach that gives voice to experts and allows dialogue on different approaches to medical uncertainty.

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Disabled women talk together
Overhead shot of six disabled people of color at a rooftop deck party. An Indigenous Two-Spirit person with a prosthetic leg smiles directly at the camera and gives a thumbs up while everyone else is engaged in conversation.
Photo courtesy of Disabled And Here.

Across the United States, COVID-19 has had unequal impact on different communities. As numerous studies have shown, Black people, immigrants, and low-income people are more likely to contract the disease and more likely to suffer hospitalization and death when they do. Such disparate impacts also extend to the disabled community, which has similarly experienced far higher rates of hospitalization and mortality.

Advocates for social justice and civil rights have repeatedly called for the policy and technology sectors to effectively address COVID-19’s unequal impact on marginalized communities. Yet those advocates, as well as policymakers and technologists themselves, first need to understand the specific concerns that disabled people have. As a disabled person who is also queer, trans, and East Asian, I would argue that centering disability justice as a framework is necessary for achieving racial, gender, and economic justice, especially in light of COVID-19.

Nowhere is that framework more necessary than the technology industry. On the one hand, technology holds enormous promise for helping disabled people to cope with, and perhaps even thrive amid the pandemic, such as by enabling consistent access to meaningful social interaction. On the other, however, technology threatens to exacerbate long-standing structural problems, such as widespread medical discrimination resulting in denial of care. For disabled people, the stakes have never been higher, and this requires the tech policy community to make careful, well-designed proposals in collaboration with the most impacted communities. 

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A Donald Trump supporter protests the extension of the stay-at-home order outside the Thompson Center in Chicago on May 1, 2020. The modified stay-at-home order by Illinois Governor J.B. Pritzker runs through the end of May to slow the spread of COVID-19 and now requires people to wear a face covering when entering businesses or when social distancing in public places is not possible. (Photo by Max Herman/Sipa USA)No Use UK. No Use Germany.
A Donald Trump supporter protests the extension of the stay-at-home order outside the Thompson Center in Chicago on May 1, 2020. The modified stay-at-home order by Illinois Governor J.B. Pritzker runs through the end of May to slow the spread of COVID-19 and now requires people to wear a face covering when entering businesses or when social distancing in public places is not possible. (Photo by Max Herman/Sipa USA)No Use UK. No Use Germany.

Jane Lytvynenko, is a senior reporter at BuzzFeed News and a noted debunker of online hoaxes and misinformation. Here, she speaks with Lawfare’s Quinta Jurecic and Evelyn Douek about analyzing and reporting on mis- and disinformation in real time especially in the context of COVID-19, where “fake experts” espousing misleading stories about the virus, and conspiracy theories such as the “Plandemic” video, have proliferated.


Community members take 8 minutes and 46 seconds of silence during a Solidarity Vigil held in the fire bay at the Carmel Fire Department at 2 Civic Square on Wednesday, June 3, 2020. The public was invited to attend and show support for George Floyd, his family and all those who have suffered unjustly in the black community.Cent02 7av4fk1s9j9113dg6hjs Original
Community members take 8 minutes and 46 seconds of silence during a Solidarity Vigil held in the fire bay at the Carmel Fire Department at 2 Civic Square on Wednesday, June 3, 2020. The public was invited to attend and show support for George Floyd, his family and all those who have suffered unjustly in the black community.Cent02 7av4fk1s9j9113dg6hjs Original

Brandi Collins-Dexter is the senior campaign director at the advocacy organization Color of Change and a visiting fellow at the Harvard Kennedy School of Government. Here, she speaks with Lawfare’s Quinta Jurecic and Evelyn Douek about her new report with the Shorenstein Center, “Canaries in the Coal Mine: COVID-19 Misinformation and Black Communities,” which follows the emergence and dissemination of coronavirus-related mis- and disinformation among Black social media users in the United States. They also discuss Color of Change’s role in the #StopHateForProfit Facebook ad boycott.

Facebook and Twitter provide financial support to the Brookings Institution, a nonprofit organization devoted to rigorous, independent, in-depth public policy research. 


United States Senator Lindsey Graham (Republican of South Carolina), Chairman, US Senate Judiciary Committee, left, US Senator Richard Blumenthal (Democrat of Connecticut), center, and US Senator Dianne Feinstein (Democrat of California), Ranking Member, US Senate Judiciary Committee, right, chat prior to the committee markup of the "Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act of 2020," and judicial nominations in Russell Senate Office Building on Capitol Hill in Washington, DC, USA, Thursday, July 2, 2020. Photo by Rod Lamkey/CNP/ABACAPRESS.COM
United States Senator Lindsey Graham (Republican of South Carolina), Chairman, US Senate Judiciary Committee, left, US Senator Richard Blumenthal (Democrat of Connecticut), center, and US Senator Dianne Feinstein (Democrat of California), Ranking Member, US Senate Judiciary Committee, right, chat prior to the committee markup of the "Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act of 2020," and judicial nominations in Russell Senate Office Building on Capitol Hill in Washington, DC, USA, Thursday, July 2, 2020. Photo by Rod Lamkey/CNP/ABACAPRESS.COM

This is a cruel summer. The COVID-19 toll increases daily. Millions are out of work and risk losing their homes. The senseless loss of Black lives continues despite weeks of mass protests. Behind it all lurks the climate crisis. Amid these pressing issues, members of the Senate have decided to spend their time creating their own threat to Americans: legislation that would make Americans less safe, while simultaneously harming online speech, privacy, and encryption.

This threat comes in the form of two bills: the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act, which the Senate Judiciary Committee unanimously voted to advance out of committee last week; and the Lawful Access to Encrypted Data Act, which was introduced the prior week by Sen. Lindsey Graham, the South Carolina Republican, who is also a co-sponsor of EARN IT. The EARN IT Act is described as an attempt to crack down on child sexual abuse material online but ends up drastically undermining user security and privacy in the process. The LAED Act, meanwhile, represents an attempt to outright ban strong encryption technology.

Taken together, the two measures represent a serious threat to online security, and the LAED Act’s outlandishness, timing, and lack of bipartisan support have been interpreted to mean that it is a go-nowhere bill intended to make EARN IT look reasonable by comparison. That’s no excuse. The LAED Act doesn’t make the EARN IT Act OK. Both of these bills threaten core freedoms online, and moving an attack on encryption from one bill to another is not progress.

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