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Tomorrow’s tech policy conversations today

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Whether Section 230 is tweaked, repealed, or unchanged, platforms will likely respond to online harm in fundamentally the same way they are now.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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A demonstrator stands in front of New York Police Department (NYPD) officers inside of an area being called the "City Hall Autonomous Zone" that has been established to protest the New York Police Department and in support of "Black Lives Matter" near City Hall in lower Manhattan, in New York City, U.S., July 1, 2020. REUTERS/Andrew Kelly     TPX IMAGES OF THE DAY
A demonstrator stands in front of New York Police Department (NYPD) officers inside of an area being called the "City Hall Autonomous Zone" that has been established to protest the New York Police Department and in support of "Black Lives Matter" near City Hall in lower Manhattan, in New York City, U.S., July 1, 2020. REUTERS/Andrew Kelly     TPX IMAGES OF THE DAY

Civil rights protesters have long been the target of state surveillance. Recent efforts to keep tabs on Black Lives Matter protests and demonstrations against family separation, for instance, echo the FBI’s counter-intelligence program used to spy on civil rights leaders from Martin Luther King, Jr. to Huey Newton

Yet today’s surveillance analysts have a new source of information: social media. Consider the recent protests over the police killings of George Floyd and Breonna Taylor. As demonstrations spread across the country, the FBI and local police monitored social media and made arrests based on what people have posted online. In one instance, police in Wichita, Kansas even arrested a teenager on suspicion of incitement to rioting based on a threatening Snapchat screenshot he shared. The teen’s post added a note cautioning readers to “stay tf away from” his hometown—rhetoric intended to denounce the call to violence, not to foment it.

Unfortunately, the surveillance of social media is a growing trend. In recent years, social media posts have landed individuals of color in overbroad and unreliable gang databases, and even been used to justify keeping them imprisoned. One New York teen spent more than a year on Rikers Island, based in large part on the district attorney’s incorrect assessment that he was a member of a criminal gang. The D.A. relied on Facebook photos of the teen with members of a local crew—a group of kids loosely affiliated by block or housing development—and several posts from crew members that he had “liked.” In reality, the teen was simply connected to crew members because they were his neighbors and family members. The extent to which communities of color are viewed with suspicion can create a self-fulfilling prophecy where basic social media etiquette is mistaken for membership in a criminal enterprise. Social media is highly contextual and prone to misinterpretation, magnifying the risk that one person’s innocuous post will be taken as something more sinister.

From protests to public housing, social media monitoring raises civil liberties and civil rights concerns that are currently going unaddressed. Establishing a framework that balances public safety and the right to privacy, free expression, and equal protection under the law requires updates to our existing regulatory controls.

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