The fight against COVID-19 hate speech, disinformation, and misinformation may soon shake the Internet to its core. The first steps toward the fracture of the Internet have already been taken.
Unable to let a good crisis go to waste, there is a rising chorus of censorship emerging in the EU. They are pointing to the radical uptick in AI-driven filters limiting the hate speech, disinformation, and misinformation circulating on social media. The conclusions they are drawing? That the crisis proves that content filtering can be much more aggressive and that websites have been dragging their feet on putting these tools to work.
This is dangerous and flawed thinking. For devs, the risk is a wave of extraterritorial regulation that explicitly conflicts with local laws. Developers like you create and code for a transatlantic, if not global, audience. The result is that no matter what you do, you break the law somewhere. Talk about chilling innovation.
Let me say upfront that I agree with the need for regulating hate speech, disinformation, and misinformation. Obviously, there is a line between what should be allowed online and what shouldn’t. Where I would draw that line, and where you might, are likely in different places. There are extreme examples we all would agree on, but those are often already being filtered. The grey zone is and will continue to be, grey. I certainly won’t claim that I speak for you and your value model in making that decision.
I’ll leave it to my Brussels colleagues however to explain the inevitable damage democracy suffers when speech is censored based on the lowest social denominator. Our EU Director of EU Policy and Head of Brussels Office Karina Stan, published her write up on these challenges last week. I’ll provide a personal, outside the EU summary. “If governments can force the removal of everything that offends “someone”, “somewhere”, then democratic speech descends into propaganda and pablum.” What the EU is doesn’t get is the hubris in thinking that “European values” are the high-water mark for the global community. The European Union is a big place, this whole endeavor predicated on the assumption that all EU citizens agree on the uniform values they’d like to impose on others. No country is ever in entire agreeance, not even for a moment. This means one thing for drafting and deciding its own laws. It means something else entirely when creating laws that are thinly veiled attempts at global regulation.
I’ve maintained for many years that the battle between free speech and censorship will eventually fracture the internet. The first steps toward Internet fracture have already been taken. with China effectively isolating itself behind its Great Firewall. The Western world is in universal agreement that Chinese censorship is anti-democratic and repressive. So far, so good. Of course, the fracture is now history. The wall is up. How do we maintain two distinct philosophies? What happens if we build a third?
The US Constitution enshrines people’s right to free speech. While not free from consequences, Americans are free to speak their mind. Importantly, this right only applies to government censorship. Private entities do not have the same restrictions on free speech. For example, newspapers are under no obligation to publish your spiteful op-ed, nor is Amazon obligated to leave your scathing product review in place. Private entities are given freedom over how they choose to police their platforms and the speech occurring on them. They know however that they will be judged by the masses for their policy choices. Further, Section 230 of the U.S. Communications Decency Act provides protections for certain private entities however who are intermediaries in the publishing of this speech.
Under the current rule, while you as an individual can be found liable for inciting terrorism on a blog post (an activity not covered by First Amendment protections given the important exception to this law for certain criminal activities), the blog you posted it on would not be liable as it is you the individual who said it, rather than them, the publisher who put it up. To avoid many of these issues (and PR disasters in tandem), many publishers have quality standards and content filters. Further, manners still count, and people are judged by what they say and do. If you want to say what you please, build your own website. Be prepared for lawsuits and the removal of your site from the infrastructure that hosts it if you cross lines, however. Right or wrong, it’s the law in America and Americans have decided it works for them. Mostly, see my above point.
Here’s the looming quandary: What if a foreign government forces an international service (like nearly all on the internet) to censor all content, everywhere, based on regional values? We’ve seen one of these before with the unintelligible EU “right to be forgotten.” Limited in scale, the problem is managed on a case-by-case basis. No one has seemed satisfied by the litigated outcomes that pop up from the various international jurisdictions impacted by this extraterritorial law. Online censorship though is a whole other beast that will overwhelm any case-wise assessment.
If EU regulators force internet companies to pre-filter private citizen’s online speech based on norms unique to the EU then US-centric services will immediately appear that reflect US values. If the goal is to regulate towards an EU internet, this will be a perfect strategy as the great EU firewall (or more likely, the internet-created moat around the EU) will spring into being. Isolated and balkanized, the EU internet will be free to evolve as it will, while critical discourse migrates to a web of US-anchored VPNs. You can’t convince me that some “universal western values” apply here — there aren’t any, and they don’t.
This is not the choice between stronger or weaker content filters on our various online platforms. This is a choice between the internet we know and a balkanized internet replacement. This is not a forecast, but a certainty. The Great EU Firewall (moat) is just one regulation away.
