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0	5140	And thanks, everybody, for having us here to talk about some of our favorite subjects,
5140	11060	online speech and privacy. I'm Cathy Gellis, half of this duo, and I'm going to be going first
11060	16500	because if we're going to be talking about potential changes to Section 230, which is what
16500	22860	the EARN IT Act does in part, we should have a good idea about what Section 230 is, how it works,
22860	27940	and really understand it before we break it and find out that maybe that was a mistake.
27940	34120	It will be a mistake. Stay tuned. We will explain why. By way of introduction, I am a solo cyber
34120	40180	lawyer in the San Francisco Bay Area. I like to work on online speech issues, including Section
40180	46580	230 issues. I am a lawyer. Rihanna's a lawyer. We are not your lawyers. If we were your lawyers,
46580	50320	we would have all signed letters saying so, and there's been no letters. So just to make that
50320	56340	clear. But we do know what we're talking about. So this presentation has two parts. The reason I'm
56340	60840	going first, doing the crash course, and then I will be joined by Rihanna to talk more.
178300	183960	Hi, everyone. We are back again with more technical difficulties. But have no fear,
183960	189500	I've got everyone back. I don't know if anyone's ever done OBS over a virtual desktop. Apparently,
189500	196760	tip for the other folks learning from this stream, if you are logged into a Zoom in a virtual machine
197560	203700	using OBS, and somebody else logs into that virtual machine, Zoom disconnects the user
203700	208380	that is connected to Zoom on that virtual machine. So we're back. We've learned this new
208380	213800	thing about technology. I will give it back over to Kathy, who's going to talk about the
213800	221020	overarching principles. Okay, thanks, Whitney. I'm not quite sure where we got cut off. But
221020	226260	Rihanna and I, both lawyers, not your lawyers, but it does mean we know what we're talking about.
226760	231460	The first bit that we're going to do is crash course in Section 230. Because speaking of
231460	237860	learning curves, stuff breaks, but it'd be really stupid to break it on purpose, because we didn't
237860	242540	understand this really great and important law before we start changing it with proposals like
242540	247200	the earn it and various other things that are floating through the halls of our government.
247520	254900	So getting into it, as we go into this lesson, this crash course, couple of things to keep in
254900	261560	mind, overarching principles. The first thing, Section 230 is a really hot topic these days.
261680	266320	Everybody's talking about it. Everybody's complaining about it. Bear in mind that much
266320	270900	of what people are complaining about, because people are saying bad stuff, saying and doing bad
270900	276460	stuff on the internet, is really a byproduct of we've got a First Amendment. Freedom of speech
276460	282080	tends to protect an awful lot of stuff that we are upset about. And if we were going to try to
282080	285940	change the law to change it, that means we'd have to get rid of the First Amendment, and that's
285940	291840	probably not a really good idea. So it also means that basically, if we're unhappy about something,
291840	296960	the correct policy choice is not to change Section 230, because it's not actually Section 230's fault.
297540	303480	A second overarching point that we need to bear in mind is that litigation can be cripplingly
303480	309140	expensive, even when the position that you've got as a defendant is the better one.
309140	315440	The fact you might win the lawsuit doesn't necessarily help. Lawsuits are expensive and
315440	321140	potentially bankrupting, and what Section 230 is designed to do is to make sure that
321820	326040	platforms can stay in business without feeling like they're going to be financially obliterated
326040	330580	because one of their users says or does something stupid, and somebody tries to hold them responsible
330580	337040	to it. Because if you think about the tremendous volume of what even the smallest platforms end up
337040	343280	facilitating in terms of user-generated content, that's enormous. Even if they just had to, like,
343280	348780	call up a lawyer to find out, do we need to really respond to this? That gets expensive. That meter
348780	355340	ticks. It's not realistic. And what Section 230 is designed to do is make sure that a platform
355340	363180	cannot be bled dry financially by getting called into court by legal threats, real or even
363540	370180	actual ones as well. Put another way, the overall goal of Section 230, and we're going to get back
370180	375760	to this a lot, is to ensure that we get the most good stuff online and the least bad.
376080	382700	There are a lot of really cool things that people say or do over the internet. We want to make sure
382700	388820	that the internet remains as available as possible to get the most of that. If platforms had to fear
388820	394580	liability, they would not be in the position to facilitate all that good stuff. It would end up
394580	400120	much more limited or maybe not be possible at all. At the same time, there's a lot of crap on the
400120	405160	internet, and we would like to minimize the crap. So the other point of Section 230 is to put
405160	410340	platforms in a position where they can minimize the crap without worrying about getting into trouble
410340	416080	if they actually do the best they can on that front. So in order to optimize the most good and
416080	422940	least bad, we have Section 230. It doesn't mean that we'll ever hit optimum on either front,
422940	428320	but it gets us as close as we can reasonably get. And that gets to the fourth point.
428600	434360	Effective regulation doesn't need to be punitive. Carrots can work best with sticks. And what Section
434360	439560	230 is best understood as is all carrot, no stick. That basically, we want the platforms to be there
439560	444620	to get us the most good stuff and the least bad stuff, and we're going to make it... we're going
444620	448900	to incentivize them to do the best they can on both fronts. And the reason they're going to be
448900	453760	able to do the best they can is because they're not scared. They're not scared of being punished
453760	460040	financially through liability, etc. That's the magic of Section 230, to make it possible that
460040	466200	the platforms and policy can all be aligned to do the best that we can. That's why we have the
466200	474580	Internet today. So let's take a look at our next slide and talk about how we got Section 230.
474580	480440	So if we get in our time machine and go back to 1995, a couple of things were happening. The first
480440	484120	thing that was happening was that the Internet, which had been existing for quite some time,
484120	490220	but was starting to enter the public consciousness. And as it hit the public consciousness,
490220	495420	Congress became aware of it and started to become concerned that, oh my gosh, the Internet,
495420	501940	there's porn on the Internet. Oh no, this is terrible. Some of it, probably not so great,
501940	505260	but some of it is maybe a little overreaction. But in any case, they were very concerned about
505260	510200	the amount of porn on the Internet and didn't want any of it there. Meanwhile, there was also
510200	516500	this lawsuit that came up in a state court of New York involving the system Prodigy. So Prodigy,
516500	522260	at the time, there were a number of dial-up, bulletin board-type services. Some were somewhat
522260	530580	large and commercial. Prodigy, CompuServe, eventually AOL. They were small in the sense of
530580	535860	not as big as today's platforms, but they were relatively big. Prodigy had been around for
536480	541140	10 years, at least, at that point. And they handled an awful lot of user-generated content.
541540	547920	And a user had arguably defamed the plaintiff in this lawsuit. But the plaintiff decided to
548400	555020	Prodigy, basically under the theory of how dare you produce a system that allowed a user to defame
555020	560660	me. And they filed this lawsuit. And a judge in a state court in New York said, well, that sounds
560660	565460	good. Go ahead with your lawsuit. Sure, Prodigy should be in trouble for allowing this to happen.
565740	570840	And a couple of members of Congress looked at that case with alarm. Senator Wyden and then
570840	575660	Congressman Chris Cox. And they said, this is not going to be good. The Internet is coming. We've
575660	582080	got all these cool services. And they're going to not be able to be available to provide,
582080	587040	to facilitate user-generated speech. Nor are they going to be in a position to take down the
587040	592920	terrible stuff. So again, we have a crisis. If this law becomes a thing, we won't get the most
592920	598360	good stuff. We won't be able to minimize the most bad stuff. This is a problem. So these two ideas
598360	604060	came together and formed the Communications Decency Act of 1996. And then there was a lawsuit
604060	610440	challenging most of it because the getting rid of porn parts happened to infringe on the First
610440	617420	Amendment quite severely. And in a case called Reno v. ECLU, the U.S. Supreme Court said, nope,
617420	622720	those parts go away. They made clear that the First Amendment applies to online speech just
622720	628300	as much as it applies to offline speech. Those parts of the CDA went away, but Section 230
628300	634100	survived. And it survived, and it did its job clearing the way to make sure that people
634100	643980	continue to innovate internet services. So we're now looking at statute. Don't worry. If you're
643980	648440	not a lawyer, you will survive. This is okay. It's a good statute. It's pretty readable by
648440	653900	normal human beings. But I will give you a scenic tour of some of the parts. So this particular
653900	658920	page that we're on, they put in the beginning of the statute some preamble text, and it basically
658920	665060	boils down to Congress finds that the internet is pretty awesome. They go through two pages worth
665060	669760	of awesomeness, and then they get to their policy, and that the policy of the United States is to
669760	675260	keep the internet awesome. So this sort of sets what Congress is trying to accomplish. And one
675260	679520	of the things that it kind of articulates, most good stuff, but it also puts in some, we want to
679520	685940	make sure that there's some leverage so we can get rid of the bad stuff. Here we go. That's what
685940	697560	I just said. Okay. This is the most magnificent part of section 230. It is 26 words. Professor
697560	703000	Jeff Koseff wrote a book called the 26 words that created the internet. And I've tried to read it
703000	708820	out loud at conferences before, and it sounds terrible when pronounced, but it is fantastic.
708820	714720	And if I'm to summarize it in more understandable language, it basically means whoever creates the
714720	721080	problematic content is totally responsible for the problematic content, but not the service they used
721080	727320	to express it. And if we look at the bits that I highlighted, the bit at the bottom, the information
727320	732860	content provider, that's who created the content. And that other bit, the interactive computer
732860	739380	service, that's the platform. Internet platforms, interactive computer services,
739380	743460	it can be a lot of different things, but it's basically the platform that facilitated
743980	752940	a third party's expression. Here we go. Okay. This is the part of the statute that looks at
752940	757300	those definitions and basically says what I just told you. The information content provider is the
757300	762260	person who created it, and the interactive computer service is the part that facilitated it.
762260	767360	And that first part basically said the facilitator's not liable, but the people who
767360	774560	created it are. And so there's some question about what sort of, you know, who gets to be counted as
774560	779800	an interactive computer service. And, you know, we think a lot about social media. That's the easiest
779800	784700	thing to kind of get our heads around. But an email provider, they're facilitating other people's
784700	792180	expression, a bulletin board service like Prodigy, comment sections on blogs and online newspapers,
792180	798560	these are things that, you know, whoever posted the article is responsible for the content of the
798560	802980	article, but the things that the community provides to comment on the article, that's a
802980	808160	textbook case of Section 230. And then there's also a lot of courts that have looked at this
808160	813240	and said, you know, it also could apply to you, individuals. If you have a Facebook post that
813240	819440	takes comments on it, and somebody posts a comment, you're not responsible for the comment if
819440	825240	something is wrong with it. That's an important thing. I think when people talk about Section 230,
825240	830860	they tend to think of it in terms of, well, Google, Twitter, Facebook, and however you feel about
830860	836520	these companies tends to color your view. But understand that it's not about them. A, yes,
836520	841840	true, it was a law that allowed these innovative companies to come and exist. But it's also what
841840	847880	allows any company to come and exist. And it also is enabling an awful lot of online behavior that
847880	857560	ordinary people actually do themselves. There is a companion piece to Section 230. It's not
857560	863840	something that has actually, like, carried as much weight as the Section C1 part. But that whole bit
863840	868600	of, we want the companies to, we want the platforms to be able to do two things, keep the most good
868600	874900	stuff and the least bad stuff. And so what we've done with that carrot approach is said, okay,
874900	881100	here's the carrot. You're not liable if something wrong gets posted on your systems. And that's a
881100	885580	carrot because it basically means that the companies can say, I'm fine. I don't have to
885580	889600	worry if I'm not able to keep something bad off the internet. And that means that they're safe
889600	895420	to sort of be as expansive as possible to allow the most good stuff. If they had to fear the
895420	899960	punishment, then they would scrutinize a lot of content and take down a lot of content that
899960	905080	probably would have been just fine and completely lawful. So carrot-based approach to make the
905080	910500	platforms feel safe to leaving content up. But we also wanted to make them feel safe to take
910500	916920	content down because that's the other part, least bad stuff. If companies had to fear that they could
916920	923000	be punished or held liable for taking content down, they wouldn't bother at all. It would just
923000	927720	be too risky. But we want them to be partners in helping maintain internet hygiene. So we've also
927720	934840	given them a carrot in this department to say, go ahead. So here we are next. The other part of the
934840	938960	statute is there's section E where they threw in a couple of other things that end up being really
938960	944640	important. This particular clause is not really important. They sort of thought back then that
944640	950020	there would be a collision with another law that was on books, ECPA. And so they basically wrote
950020	956160	this text to say, no collision, no issue, go away, let's move on. And so indeed, let's move on.
956760	963640	This is an important clause because if we stop and think about the internet, this is inherently
964600	970000	interstate. It's very difficult to put something on the internet that stays in any one locality.
970000	973400	If you put something on the internet, it's available everywhere, everywhere throughout
973400	979560	the country, even throughout the world. And so we kind of ruin this whole policy if we let each
979560	985700	individual state pass a law that will somehow impact it. So if the companies are feeling safe
985700	990660	in Iowa to like, well, we're not going to be liable here, it really doesn't help them if
990660	995180	Illinois passes a law that says, no, no, if it happens in Illinois, you're in trouble.
995180	999760	So this is essentially a preemption statute. And so Congress put this in to say, look,
999760	1004360	it's federal government, we got it, states sit this one out. And that's important because
1004360	1010040	internet policy is complex enough. It really would be overwhelming if all 50 states plus
1010040	1016440	territories and local jurisdictions could have their say. Okay, but they did put an exception.
1016440	1023180	So Section 230 applies for almost everything that could be legally wrong with user content with a,
1023180	1027680	but there's a few exceptions. And one of the big ones that they baked in originally was
1028120	1034060	the thing wrong with the content is that it potentially infringed on an intellectual property
1034060	1039060	right. Easiest one to get our head around is it might have infringed a copyright. Then
1040040	1045480	Section 230 doesn't apply. No protection for the platform. They might, they're going to be on the
1045480	1051380	hook for the liability in the user. Now it turns out that shortly thereafter, Congress passed
1051380	1057400	another law, the Digital Millennium Copyright Act, which does give platforms some protection.
1057400	1064180	But the reason I've put up this slide is this is a tiny piece of a tiny section of just one of
1064180	1070160	pieces of the Digital Millennium Copyright, Section 512 alone, and this isn't particularly
1070160	1077400	readable. It's not even particularly understandable. And companies go bankrupt trying to litigate.
1077400	1082360	There is a terrible situation like if you think that it's a problem that YouTube is so big, you
1082360	1087620	should know that there used to be a competitor to YouTube that got sued for copyright infringement
1087620	1093200	allegedly in their users content. And they went bankrupt in the process of litigating it
1093200	1097180	to the point where the Ninth Circuit Court of Appeals actually said there's no infringement.
1097180	1101200	They're not liable for this. They should have been just fine. At that point, the company was gone
1101200	1106240	and we lost a competitor, which now we're missing because it actually might be nice to have more
1106240	1111840	competition online. So when we think about messing with these liabilities or making these liabilities
1111840	1116980	complicated or conditional, this is what happens. We tend to obliterate them, and that's not what
1116980	1122500	we want to have happen. There was also an exception from the very beginning that said
1122500	1128620	there is no effect on federal criminal law. So that means that if the thing that was wrong with
1128620	1134820	the content is that it violates a federal criminal law, also section 230 wouldn't apply.
1134940	1141200	And for a while that was fine. I basically sort of said like child porn. That's bad. That tends
1141200	1146760	to violate federal criminal law. And so we would impose on the platforms that they needed to
1147580	1154040	do something about it. But that was one ask of a platform. And it's difficult and it's got some
1154040	1159720	issues tied up in how do you do that effectively, but basically it was a single ask, our most
1159720	1163740	important ask of what we could ask for a platform, and at least they could focus their resources on
1163740	1171580	that and not have to be dragged into any other things that they might have to look for. But then
1172220	1180160	things changed recently. A couple years ago, Congress put forth the first significant change
1180160	1186360	to section 230 since it was passed. You might have heard it called SESTA, but by the time it
1186360	1191820	got passed, it was referred to as FOSTA. And FOSTA basically said, you know, there's another type of
1191820	1198880	bad content. We don't want sex trafficking either. And that's true. That's bad. But they
1198880	1203880	poked a big hole in section 230. And one of the things to note, just looking at the slide,
1203880	1211320	is they poked a very complicated hole in section 230. That's hard to read and understand. And you
1211320	1216700	can see those hyperlinks are pointing you to other areas of the U.S. Code where they've put
1216700	1225020	another criteria. It's made platforms really unsure about what sort of content is okay for
1225020	1231400	them to facilitate and what sort of content is not. And as a result, they've started taking down
1231400	1238040	or making themselves unavailable for content that would be totally lawful. A very famous example is
1238040	1244860	Craigslist took down entire sections of classified ads, like dating ads. Dating ads are... they've
1244860	1250680	been around for ages. Couples have met that way. There's nothing inherently wrong about an ad
1250680	1257580	looking for dates and matchmaking. But because this is sort of adult content that can, you know,
1257580	1262840	tip into the period, Craigslist quite reasonably got scared because they didn't really know,
1262840	1267280	I think we might be held responsible for it. And that's just too big a chance to take.
1267540	1272640	The other thing that this law did is it made it somewhat unsafe, and actually more than somewhat,
1272640	1279400	it made an unsafe for a platform to take stuff down. Because... and we'll talk about this as
1279400	1284760	we talk about other attempts to reform Section 230. They tend to mess with the idea of, like,
1284760	1288980	if you knew it was there, then you're on the hook for it. So if you didn't know it was there,
1288980	1294180	you might be okay. But then why should a platform take the time and energy to look for what might be
1294180	1298500	there? Because it's just tempting trouble for themselves. So all of a sudden, now the platform
1298500	1304460	is not a partner in dealing with the internet hygiene. And that's not constructive. It's not
1304460	1310880	going to help us get the most good stuff or the least bad stuff. So remember these thoughts,
1310880	1316700	how cripplingly expensive it is to be sued, even if the lawsuit is without merit. Remember that
1316700	1321160	we want the most good stuff and the least bad stuff. And that carrots are more effective than
1321160	1325900	sticks to helping us get that. And when we think about what some of these other laws are,
1325900	1331080	you know, tested against that notion, and I think you'll find that most of these proposals fail.
1331080	1338100	So with that, we're about to bring up Rihanna to talk to her. And one of the things we'll tip on
1338100	1345060	is there is one proposal floating out there, which is okay. The first one, the examination
1345060	1350300	of secondary effects for sex workers study. One of the things is that FOSTA kind of got rammed
1350300	1353960	through where people said, I think we have a problem. But instead of really understanding
1353960	1358820	the dynamic of that problem, they went ahead and changed the law around it without really
1358820	1364360	understanding if that was a good solution, an effective solution, or one that didn't actually
1364360	1368740	make the problem worse. Because it turns out there's a lot of evidence that it's actually made
1368740	1375220	the problem they were trying to fix worse, worse. Women, there's a body count attached to FOSTA,
1375220	1380000	sad to say. And this is a proposal to basically let's figure out what the effects are before we
1380000	1385760	do anything else to it. But the rest is not okay. We're hearing executive orders trying to challenge
1385760	1391900	Section 230. The DOJ has put out a guidance document that doesn't really understand it at all.
1391900	1397580	The PACT Act is the most plausible where it seems to at least understand the statute,
1397580	1402720	but it still creates problems. It seems like every week Senator Hawley is producing a bill
1402720	1407760	to change it. And then there is the ERNED Act, which is sort of the bane of our existence,
1407760	1413000	because it does more than change Section 230. I'm going to bring up Rhiannon now.
1413000	1420260	We're going to close the sides and hopefully things don't break. And did I succeed?
1421460	1430000	Okay. So, do we have Rhiannon? Yay! Okay, we're back to a single person.
1430400	1438560	Great. Well, I was going to suggest we've gotten a few questions coming in over the Discord. Thanks,
1438560	1445120	everybody. Maybe we could try knocking out a few of these, Kathy, before we get to talking a bit
1445120	1453560	more about ERNED. Okay, excellent. Let's see. I see that... I'm seeing questions about moderation
1453560	1459960	by bot and whether that is somehow bad or not, or that 230 speaks to it. And basically,
1459960	1464440	230 has a deliberately very light touch. It can apply to a whole bunch of systems
1465900	1470560	in a whole bunch of contexts, and it's not very specific, which makes it very flexible. It was
1470560	1474980	written in the mid-90s, and the internet has obviously changed quite a bit ever since,
1474980	1483000	and it's flexible. It doesn't directly speak to AI, but if we stop and think about what AI is,
1483000	1489440	AI, in theory, is the computer outsourcing of the brain of the people in the company.
1490200	1494620	They have made decisions about how they want things moderated, and they deploy their bots to
1494620	1501000	do it. The fact that you have technology pressing the button instead of a human being pressing the
1501000	1508220	button, it doesn't change it. The core thing about Section 230 is that the intermediary is not
1508220	1516600	responsible for the wrongfulness of the content that somebody else created, and the bots don't
1516600	1521920	change that. They're still connected to the editorial discretion of the platform, and
1522520	1527500	no, 230 is fine. It's not like it's an end run around it. They had an essential equation of who
1527500	1532680	created the content and who made it wrongful. That's still core Section 230 stuff the way it
1532680	1541700	was in the 1990s. And then I see the question about who gets to determine bad stuff. You know,
1541700	1546580	I like to use the general term just to help people get their heads around it, but basically,
1546580	1550900	the platform does. Because remember, I brought up that example of, like, you have a Facebook post
1550900	1556560	and somebody posts a comment on it. You know, if they come and they insult your kid, you want to
1556560	1562300	be able to delete that comment. Whereas if they come and they say your kid is awesome, you want
1562300	1566340	to be able to leave that comment up. That is sort of the editorial discretion that the First Amendment
1566340	1572520	protects. Same thing if you extend that. Instead of your own personal Facebook post, it applies
1572520	1578500	to Facebook as a whole. They get to decide, because essentially, it offends the First Amendment
1578500	1586180	to have an external government entity force anybody to carry speech. Minor exceptions to this,
1586180	1590140	if we want to quibble, but they are very minor and they tend to be applied to things that are
1590140	1595040	not the internet. So no, that's something that does get talked about a lot, where people are like,
1595040	1601500	wait a minute, who gets to decide this? A private platform is a private platform, whether they're a
1601500	1605800	large corporation of a lot of people who got together or a single person with their own post,
1605800	1613240	it's the same equation. And the name of the YouTube competitor who got sued out of existence is,
1613240	1618400	I don't know, the lawsuit ended up changed to shell, it was Veo Networks. That was the name of
1618400	1627400	the video system. Veo Networks ceased to be, it is no longer a platform. So now my question is to
1627400	1634720	Rihanna, what is wrong with the EARN IT Act? Thanks, Kathy. So everything is wrong with the
1634720	1639160	EARN IT Act. Okay, end of stream. We're done here. We can all go home now. Thanks, everybody. Good
1639160	1646140	night. No, so to be serious, the EARN IT Act is, I think, one of the most serious challenges
1646700	1652880	and threats to online privacy, security, and freedom of speech that we have seen come across
1652880	1658120	the transom in Congress for quite some time. It is one of, as Kathy mentioned, a bumper crop of
1658120	1665000	anti-230 bills that would aim to narrow or even repeal Section 230 entirely. And sadly, it's also
1665000	1670420	not the only anti-encryption bill out there right now, as I'll discuss in a moment. Kathy touched
1670420	1676060	upon SESTA-FOSTA, which created a carve out from the 230 immunity with regard to sex trafficking
1676060	1683020	offenses. In its current instantiation, the EARN IT Act bill is kind of similar, except instead of
1683020	1689400	sex trafficking is child sex abuse material. Now, I'll call this CSAM for short. Child sex
1689400	1694480	abuse material is a pernicious and difficult problem on the internet. It has been around
1694480	1699280	ever since the days when people were allowed to transmit one file to another through some of the
1699280	1706800	earliest services that you can think of, many of which I am too young to have used. And it's
1706800	1710800	something that platforms have struggled with and that they've had to go through evolutions in their
1710800	1716440	approaches to try and cut down on and prevent. The important thing to understand about CSAM is
1716440	1721960	that it is illegal on the federal level, on the state level, across the entire planet. It's not
1721960	1729380	legal anywhere. And as such, it is already subject to federal criminal statutes that impose duties
1729380	1738040	on providers and platforms to report it and remove it when they learn about it on their services.
1738040	1741940	That learning about it is important because it is what we would call an actual knowledge
1741940	1747820	requirement in the law. Platforms are only required to take action about CSAM if they find out about
1747820	1752000	it. That could be because a user reports it. It could be because they have an automated scanning
1752000	1758540	service that looks at attachments that are in email or files that are uploaded to a cloud storage
1758540	1767920	account to try and match against a database of hashes of known CSAM images. When they
1767920	1771740	find something like this, they are required to report it to the National Center for Missing and
1771740	1778960	Exploited Children, or NCMEC for short, which is a quasi-NGO, quasi, it's been deemed at this point
1778960	1788080	to be an agent or an arm of the state, that handles reports of child, excuse me, of CSAM.
1788420	1793520	Also, you might know NCMEC from the images on the side of milk cartons, the Have You Seen Me
1793520	1799660	images. But I think at present, they're probably mostly associated with their really difficult
1799660	1806200	role of having to process these reports that come in from providers. And providers do report CSAM
1806200	1812340	that they learn about on their services millions of times a year. There's also federal requirements
1812340	1817920	that say that the Department of Justice is supposed to provide funding for, conduct studies,
1817920	1823100	conduct reporting with respect to all of these reports that are coming in with respect to trying
1823100	1828240	to fight and minimize the abuse of children and other crimes against children online. They've been
1828240	1834420	falling down on the job. They have not been filing their federally mandated reports most of the years
1834420	1839880	that they have been required to do it over the last decade or so. And I think one of the motivations
1839880	1844780	for the EARN IT Act bill is to try and point a finger away from DOJ's own shortcomings and away
1844780	1849100	from how overwhelmed NCMEC is because they do not have the resources, they do not have the personnel
1849100	1854760	they need in order to take on this task and deploy that platforms instead. And the way that they've
1854760	1860440	chosen to do that is by taking kind of the, you know, the whipping boy do short, which is Section
1860440	1866680	230. Right now there's a lot of kind of popular discontent, I think, with Section 230, much of it
1866680	1873520	ill understood. And so thank you to Kathy for trying to explain a bit better why Section 230 is a
1873520	1881440	important force online. But by going after Section 230, it enables, I think, the DOJ to try and both
1881440	1886520	direct attention away from its own shortcomings and also to promote an agenda that has long had
1886520	1891340	for greater surveillance of online speech, and in particular to go after encryption, which is
1891340	1899760	an area that I focus on in particular in my role at Stanford. So by curtailing immunity for under
1899760	1906260	Section 230 for CSAM, there's nothing about that that is not something that DOJ can already do.
1906480	1912140	Kathy discussed how one of the limitations on 230 immunity is that it already does not bar
1912140	1917140	enforcement of federal criminal law. You even saw where she noted that child sexual abuse materials
1917140	1923920	explicitly called out in that particular clause in 230. So it is already the case that if platforms
1923920	1928720	are not complying with those aforementioned reporting duties when they learn about CSAM
1928720	1932560	on their services that I mentioned, nothing at all is stopping the Department of Justice
1933200	1939720	from penalizing those platforms. All Section 230 currently does is to bar state AGs, state
1939720	1944840	attorneys general, from bringing criminal charges against platforms because Section 230 bars state
1944840	1952280	criminal law, and it bars private plaintiff lawsuits by individual people with private right
1952280	1957620	of action because those two are barred by the Section 230 immunity. So we're in a situation
1957620	1964960	where providers are subject to statutorily mandated duties with respect to CSAM by all
1964960	1969020	of evidence they are complying with those things, but there's a sense that they should be doing
1969020	1975000	more. The fact that they are reporting millions of pieces of CSAM a year to NCMEC is taken not
1975000	1978640	as evidence that they are finding and reporting things, but that they aren't doing enough,
1978640	1988340	which is a bit curious. So the point of the Grant Act bill in its current instantiation since its
1988340	1994140	introduction earlier this year kind of doesn't make sense under the name anymore because originally
1994140	1999740	what the bill would have done would have been to make continued immunity under Section 230
1999740	2006660	contingent upon compliance by providers with some to-be-determined best practices. If you follow
2006660	2012120	these best practices, you jump through the hoops, these would be set by an unelected commission of
2012120	2017680	people headed by the Attorney General, then you could maybe continue to be eligible for continued
2017680	2024380	Section 230 immunity for CSAM. Otherwise, you might just be sort of thrown to the wolves. That
2024980	2030080	link between following the best practices set by the commission and continued immunity is taken
2030080	2035180	out in the current version of ERNIT. Current ERNIT is much more like SESTA-FOSTA in that it abrogates
2035180	2040600	the immunity full stop. It still has this commission, this 19-member commission, who are
2040600	2045280	still charged with coming up with best practices for fighting CSAM online and protecting child
2045280	2051520	safety online. However, those are now just non-binding voluntary recommendations that are
2051520	2058800	not tied to any particular carrot or any particular stick under the bill. So there's nothing left to
2058800	2065700	earn. There's no more immunity left to earn. And the ultimate upshot of all of this is because
2066540	2073360	the removal of the 230 immunity bar opens up potential liability under what could be 50 or
2073360	2079860	more state and territorial laws that deal with CSAM, there's a lot less certainty for platforms
2079860	2085260	about what their duties are. Right now, they know what they have to do as specified under the federal
2085260	2092940	reporting law. But under the ERNIT Act, there could be a variety of state laws that might open
2092940	2098480	them up to liability for CSAM and to private civil lawsuits and to state AGs going after those
2098480	2103520	platforms under what could be much lower bars. Going back to what I mentioned about the actual
2103520	2111800	knowledge requirements under the federal reporting statute, that's a fairly permissive bar for
2111800	2118920	platforms. It's not that low. Whereas, we know from a survey that a group called NetChoice has
2118920	2126880	done of state CSAM laws, that some state level CSAM laws impose liability on those who trade or
2126880	2134500	host or transmit CSAM under a much lower standard, such as negligence or recklessness. So platforms
2134500	2140120	could easily potentially be held liable for CSAM on their services if they negligently or recklessly
2140120	2146360	host it, transmit it, allow it to be promoted or presented or distributed, etc., etc.
2147800	2151960	You might be asking yourself, wait a second, doesn't that just mean the ability to transmit
2151960	2157500	files? Why, yes, it does. All of the things that we do online, such as talking to each other,
2157500	2162200	such as sending files to each other, this is what the internet is for, those can also be used in
2162200	2166660	ways that can lead to the exploitation of children or that can involve the transmission of CSAM
2166660	2173080	online. So by potentially exposing platforms to liability for negligently or recklessly
2173080	2178320	transmitting CSAM, they're really potentially exposing platforms to liability for hosting user
2178320	2183160	contributing content at all, for the ability to transmit files, for the ability to speak online
2183160	2189760	and speak to other people, some of whom may or may not be over the age of 18. So the chilling
2189760	2194820	effect of this bill's potential cannot be overstated. We already saw with regard to
2194820	2201240	FOSTA how it led to the shutdown of large swaths of completely legal speech on the internet.
2201240	2205260	You may recall that Craigslist immediately shut down its entire personal section.
2205260	2210760	They also shut down their section that allowed for therapeutic services. So massage therapists
2210760	2216200	were suddenly out of that part of their livelihood that came from finding clients on Craigslist,
2216200	2220600	for fear that somewhere in those personals ads, or somewhere in their massage therapy ads,
2220600	2225660	there might be somebody who was being trafficked and exposed those platforms Craigslist to
2225660	2230780	liability under SESTA-FOSTA. Here, similarly, we can predict that there would be a similarly
2231800	2237680	large chilling effect on the ability of people to speak to each other online. Because again,
2237680	2243340	what if any particular file might sneak through? What if some communication between two users on
2243340	2249780	the service might be exploitative or enticement between an adult and a minor? These are all
2249780	2253200	things that platforms are going to be wrestling with in the event the EARN IT Act passes,
2253200	2260060	because they now may be exposed to liability under 50 or more state laws. So the fact that
2260060	2265340	there have been some changes that were made to the EARN IT Act don't really fix the core problems
2265340	2270960	with the bill. When we think about how this bill relates in particular to encryption,
2270960	2274960	the changes that were made between the early version of the bill and the current version of
2274960	2281500	the bill were intended to placate concerns somewhat. I'm here to tell you, it doesn't fix it.
2281500	2288420	There's an amendment offered by Senator Leahy that was intended to protect encryption and take away,
2288420	2294200	basically restore immunity from suit for the use of encryption, for deploying it in encryption,
2294200	2302000	for providing device encryption, and so forth. It's not really enough, though, in my opinion.
2302000	2310280	Both because it does not protect other forms of providing user security and would still allow
2310280	2316060	lawsuits to arise if somebody who was determined to bring a criminal charge as a state AG or a
2316060	2320100	private plaintiff were determined to bring a lawsuit. All they'd have to do would be to come
2320100	2325520	up with some reason for suing, let's say WhatsApp, let's say Signal, that wasn't directly about the
2325520	2329600	encryption. Any other pretext that they could find or any other security measure that was in use,
2329600	2335580	even, say, data minimization practices, for example, if that would potentially get in the way
2335580	2340960	of fighting CSAM, maybe that's something that you use as the basis for trying to make a platform
2340960	2346700	liable. And on the other hand, I don't think that the way the Leahy amendment that is supposed to
2346700	2352300	protect encryption is structured would necessarily mean that platforms would be safe from being
2352300	2359100	pressured or induced into introducing other forms of user surveillance that don't touch the
2359100	2364540	encryption. One of the moves that we have seen in the encryption debate over the last few years
2364540	2369840	has been, as we've pushed back against proposals to weaken encryption, to insert mandatory backdoors
2369840	2374560	into encryption, we have instead seen law enforcement proposals come out that say,
2374560	2378660	well, how about this other idea? It doesn't involve breaking the encryption at all. And those
2378660	2383420	include things like the so-called ghost user proposal proposed by GCHQ, the spy agency in
2383900	2390320	the UK, which would silently add a law enforcement user to an otherwise end-to-end encrypted
2390320	2394820	conversation while suppressing notifications to the people who are present in the conversation
2394820	2399780	that this silent ghost law enforcement user has been added. It doesn't touch the encryption,
2399780	2403760	right? It's still a way of undermining the privacy guarantees and security guarantees
2403760	2409000	that you expect from using an end-to-end encrypted app. That's just an example of how the Leahy
2409000	2415440	amendment doesn't really do enough to protect encryption and to keep providers from being
2415440	2420440	disincentivized to continue offering end-to-end encryption and other security measures to their
2420440	2427420	users. So I know I get a little head up about these things. It's hard to restrain. I could
2427420	2431960	talk about this all day. But before I wrap up and we go on to maybe having a bit more of an
2431960	2438060	actual fireside back and forth, I want to mention, I noted that Section 230 bills aren't the only
2438060	2443200	threat to our encryption and privacy and online speech rights that are out there. There's another
2443200	2448360	companion bill that was introduced by the same sponsor, Senator Graham, of the EARN IT Act. He
2448360	2454560	introduced it just a few days before releasing the amended version of the EARN IT Act a few weeks ago.
2454560	2459320	It's called the Lawful Access to Encrypted Data Act, or I like to say the L is silent, and it's
2459320	2465380	the Awful Access to Encrypted Data Act. And that is just a flat-out backdoor bill. It is something
2465380	2471180	that we have been waiting for, hoping wouldn't come out. Dreading, I think, is the word. Dreading
2471180	2477660	is absolutely the word. It is really the full frontal nuclear assault on your ability to just
2477660	2483380	be able to use encryption and move on with your life that we have gotten used to in recent years
2483380	2489680	as encryption by default has become the norm in the devices that we use and in the apps and
2489680	2495620	services that we use. So what is so dangerous about the LAED Act, or the Laid Act if you want
2495620	2502540	to sound a little bit naughty about it, is that it would require basically any sort of larger
2502540	2509660	provider, anybody who sold a million devices in the United States in a given year, or who has a
2509660	2515800	million monthly active users in any given month dating back to 2016, so even retroactively,
2516520	2522560	would have to proactively re-engineer their services to be able to comply with warrants or
2522560	2526820	other legal process they received from law enforcement to decrypt information that was
2526820	2532380	encrypted. They'd have to proactively redesign to build a backdoor in. If you are a smaller provider
2532380	2537740	that's not part of that million plus club, let's say a very small handset maker or the provider
2537740	2542420	of an end-to-end encrypted app or other encrypted service that does not have a million users,
2542420	2547980	you still might, you're still covered by this bill because then the Attorney General would be
2547980	2552480	able to serve a notice on you telling you to re-engineer your service and add that backdoor
2552480	2558860	into your service, even though you would not be forced to re-engineer it proactively. So this
2558860	2565580	bill was introduced, as I said, same sponsor, right before the EARNET amendments were made,
2565580	2570920	clearly intended to make EARNET look more reasonable by comparison and make it look
2570920	2575300	less like an attack on encryption by comparison because this is an overt rather than covert
2575300	2580100	attack on encryption. But the lesser of two evils is still evil. Like the EARNET Act is bad
2580100	2585980	and the LAED Act is worse. It's not as though Congress members have to pick between one or the
2585980	2589480	other. They could just pick neither and, oh, I don't know, focus on making sure that millions
2589480	2593940	of Americans don't become fucking homeless, you know, in the next few weeks and, you know, do
2593940	2598420	something to fix the epidemic that is ravaging this country. Instead, lawmakers have been deciding
2598420	2603600	to focus on what really matters, which is Google and Facebook are apparently annoying to some
2603600	2608360	people. Whatever. Go and focus on what really matters, Congress, and start leaving the internet
2608360	2613800	alone. Leave my right to encrypt alone. So please contact your Congress members. I wrote it down
2613800	2619060	here. I'm making this very small so that nobody can just, you know, photoshop me and say something
2619060	2624200	stupid. Know EARNETact.org. That's where you need to go. Call your Congress members. Call your
2624200	2629720	senators in particular, because the EARNET Act bill has advanced fairly far within the Senate
2629720	2633460	already. It's already gotten out of the committee in which it was introduced. It passed out
2633460	2639520	unanimously out of that committee. And there has been efforts just this week by Senator Graham,
2639520	2644480	its lead sponsor, to try and force it through by what's called unanimous consent so that it would
2644480	2648480	pass out of the Senate without all of those members of Congress actually having to stand up
2648480	2652940	there on the floor of the Senate and be seen on C-SPAN voting in favor of this terrible, destructive
2652940	2658380	bill. So please contact your senators. Contact your House reps, too. And make sure that while
2658380	2662700	you're at it, you tell them to oppose the Lawful Access to Encrypted Data Act as well. That bill
2662700	2666140	hasn't gotten as far in the Senate. It hasn't gotten out of committee yet. But it has already
2666140	2670960	had a companion bill introduced in the House by one of the same people who was behind the SESTA-FOSTA
2671620	2677300	precursors and is also a threat to online speech. So make sure, tell your senators,
2677300	2682360	tell your House reps, oppose both of these bills. And now that I can just stop being a little
2682360	2688700	verklempt, I think we can move on and have this chat. We're not going to completely move on. We're
2688700	2694520	going to tease out some of the reasons why this is bad. Because I think we need to, the same way
2694520	2698620	we need to understand how 230 works, I think we need to understand what went wrong and what goes
2698620	2705920	wrong here. So I think one of the things that's come up is, this is not a small thing. That basic
2705920	2711440	thing we talked about, about what should Congress want from the internet providers?
2711440	2715980	Them to help us get the most good stuff and the least bad stuff. And one of the things you talked
2715980	2723740	about is that it does the exact opposite. You talked about how it will make platforms completely
2723740	2730680	afraid to remain available to intermediate good content because anything could set off the
2730680	2737020	liability threat, especially now when we're adding all those different states. So remember that
2737720	2742980	one of the things I pointed out was there was a preemption clause in section 230 because it would
2742980	2747740	be a mess if you had 50 different state attorney generals with 50 different opinions about how
2747740	2753400	things should be, essentially getting to decide what internet policy was. And so you point out
2753400	2759080	that the internet essentially does away with that preemption and now puts an awful lot of power
2759080	2764960	among individual state attorney generals to essentially censor the internet and it'll
2764960	2770440	essentially become a situation of the least common denominator of, you know, that may be great that
2770440	2775520	49 states are like, yeah, yeah, whatever, be reasonable, it's fine. But if one state is like,
2775520	2779980	I'm coming to get you if you do something that offends what I've declared to be the policy so
2779980	2784280	that I can get re-elected next term, that's going to be a problem. And basically the rest of the
2784280	2790780	United States, their internet experience will get shaped by that single, it's the least common
2790780	2796520	denominator thing that if one state, you know, wants to have something that's irrational, but
2796520	2801260	it's on the books, they've got the power now to do it because the section 230 protection goes away.
2801260	2806020	And when that protection goes away, the choices that platforms make to have the most good stuff
2806020	2812540	and to minimize the bad stuff goes out the window. You also talked about how it messes
2812540	2819420	up them being partners and getting rid of the bad stuff, because right now we've already left
2819420	2824520	because of that carve out for federal criminal law, we've told them, go ahead and, you know,
2824520	2831160	we want you to get rid of the child porn, get rid of that. Platforms are making an effort to do it,
2831160	2836760	but now you've sort of created a weird incentive of like, if you look for it, now you might be
2836760	2842960	in trouble for having found it. So why would a platform now want to look for it? That seems like
2842960	2846980	it would just be begging for trouble. Why wouldn't they just encrypt everything so that they could
2846980	2853840	see nothing? And now we mess up your encryption. And yeah, so I mean, let's talk a little bit about
2853840	2859480	the politics because I think one of the things and one of the reasons why we wanted to do this talk
2859480	2863700	is because section 230 has become this very hot topic that everybody is banding about
2863700	2868340	because it's become the easy scapegoat for anything that's wrong online and anything that's
2868340	2872840	wrong online that's affecting the rest of our world, which is difficult these days for a variety
2872840	2880560	of reasons. So you have people who have differing agendas, but we're all kind of unhappy these days
2880560	2886120	and we've now found something to blame. And so you end up with these weird bedfellows of,
2886120	2893380	Ernact Act is sponsored in part by Senator Graham, who is a Republican, but it's also
2893380	2900620	equally pushed by Senator Blumenthal, who is a Democrat. How on earth did we get a Republican
2900620	2907820	and Democrat in this incredibly polarized world to agree that messing up section 230 with this
2907820	2914360	law is a good idea? How does this have appeal to both parties at the same time? And does that maybe
2914360	2919560	suggest for each camp that maybe they should rethink it? Because if the thing they want is
2919560	2925840	making the other side happy, maybe that should cause some concern about what it is they actually
2925840	2930240	want. I mean, the easy answer there is this is a bill that's supposed to be about child safety.
2930240	2935120	It's not actually going to help protect children on the internet because if major platforms like
2935120	2939440	Facebook or like Twitter now know that they are exposed to liability unless they get a lot more
2939440	2943660	intrusive in terms of the amount of information that they collect from users, in terms of the
2943660	2948640	surveillance they do of their users, then everybody who is treating in this material on these major
2948640	2952620	platforms is just going to be forced off and they're going to be using Tor hidden services
2952620	2957640	and they're going to be on other sites that don't comply with federal CSAM reporting laws because
2957640	2962580	they exist in order to host this kind of material, don't qualify for section 230 because they are
2962580	2969680	themselves engaged in violating the law, and don't care. So it's not going to achieve the stated goal
2969680	2974800	of helping protect children. By the way, this does not provide the sorts of services for housing
2974800	2979320	stability, for removing children from abusive homes, all the stuff that you could try to do to
2979320	2984620	prevent abuse from happening in the first place. It's just meant to be another thing of the children
2984620	2990580	bill. And so it doesn't achieve those goals that it sets out to do. But by being out there as a
2990580	2997280	bill that's purporting to protect child safety, it makes it much more bicameral friendly in terms of
2997280	3004060	getting a bipartisan buy-in from each side of the aisle. And it makes it a lot harder for members
3004060	3007480	of Congress to vote against it, because who wants to be seen as voting against something that helps
3007480	3011160	the children? Do you hate the children? You must hate the children. Well, it prompts the two
3011160	3017540	questions. One, this isn't actually going to help them, it's going to hurt them, correct? Right.
3017680	3021660	Yeah. Okay. So first of all, it's not going to accomplish what it set out to do, just like FOSTA
3021660	3026960	didn't accomplish what it set out to do. But I think the big problem is, yeah, who wants to vote
3026960	3032320	against keeping children safe? So if it's got that banner bumper sticker, think of the children,
3032320	3038000	vote for this, it's a very difficult thing politically to say no to. But that means that
3038000	3044800	it becomes a really convenient cover for people who have other agendas. Because they've now made
3044800	3051060	the poison pill that the other side can't say no to. And I mean, that was happening even with
3051060	3058240	SESTA-FOSTA, where people who had agendas for why they wanted to get Section 230 off the books,
3058900	3064420	were able to push that. Do you have any thoughts about what some of these agendas are?
3064640	3069400	I mean, I absolutely agree. And you know, there's an organization of sex workers,
3069400	3074240	and allies who have been really vocally working against EARN IT ACT, as they did against SESTA-FOSTA
3074240	3078640	called Hacking and Hustling. And one of the slogans that they use when they are describing
3078640	3084260	both the impact of SESTA-FOSTA and the likely impact of EARN IT, is that it punishes people
3084260	3089460	because we want to punish platforms. Not you and I, we, but you know, the general...
3089460	3091360	We personally, no, we're cool with them. Yeah.
3091680	3095920	Don't punish people because you want to punish platforms. If the idea is somehow that Google
3095920	3099740	or Facebook or whoever is too big for their britches, or they're making too much money,
3099740	3104100	our tax code allows them to make it. Or they're somehow acting above the law, the law permits them
3104100	3108520	to do everything that they're doing. That's what Section 230 does. Then, you know, you pass a bill
3108520	3116800	that ends up making it more dangerous for sex workers to be alive, to exist, to work. And that
3116800	3124040	will make it harder, potentially, to prosecute CSAM traders if this bill passes. I agree with
3124040	3128180	you that there is an ulterior agenda in each of these cases. And one thing that I thought was
3128180	3133460	really problematic, in particular, about the use of the EARN IT bill, as what was clearly just a
3133460	3139540	Trojan horse for trying to ban encryption, or at least strongly discourage it, was that we're
3139540	3143580	talking about such a wide range of services that would be covered when really we're talking about
3143720	3149160	a couple of different things. The thing that makes people angry about the way that the internet kind
3149160	3153040	of sucks is the stuff that's not encrypted. It's the comments that you see on Twitter,
3153040	3157900	it's the comments you see on YouTube, it's why we have emoji-only chat in our Twitch stream this
3157900	3162200	weekend. You know, it's the things that are happening in unencrypted spaces, I think,
3162200	3166460	are largely what motivate people being just kind of sick and tired of what the internet feels like
3166460	3174000	these days. And yet, the thing that is being attacked by efforts to sort of be a backdoor to
3174000	3179060	an encryption backdoor mandate is encrypted private communications. It's private spaces.
3179060	3185020	So it's trying to take this popular anger at something that doesn't have to do with the
3185020	3189560	private communications that we have in one-on-one spaces and sort of misdirect it. Again, this is
3189560	3195080	all a big game of misdirection between the DOJ, which I'm convinced largely wrote both of the
3195080	3200040	bills I'm talking about, especially the second one, to try and push that agenda. And, you know,
3200040	3205060	I do believe overall that, you know, it would be very difficult. We talk in the encryption debate
3205060	3209660	sometimes about finding some sort of middle ground proposal or some sort of compromise.
3209840	3213320	But it seems like the only compromise, the only middle ground is only ever demanded
3213320	3218960	from the people who have the right and now the ability to protect themselves and to exercise
3218960	3225600	their rights. It's never a law enforcement offering to give ground. I'm very dubious. I mean, I've been
3225600	3230260	called an absolutist, but the reason I'm an absolutist is I'm really dubious about that
3230260	3235840	there's a way to have a compromise. I mean, I pulled up, I did this slide about the Digital
3235840	3241660	Millennium Copyright Act, which in theory is a type of conditional safe harbor. If you do X, Y,
3241660	3247900	and Z, okay, then you're not in trouble for your third party content. But it's a mess. It's very
3247900	3252000	difficult to figure out the conditions. It's very difficult to meet them all. It's not necessarily
3252000	3259020	realistic. The point I didn't make for that is how much censorship of lawful speech happens because
3259020	3265340	we've made this, the platform protection so conditional where people send garbage takedown
3265340	3271060	notices that the platforms really have no choice but to take down, even though the copyright claims
3271060	3275820	behind them are garbage, sometimes because they're not even really copyright claims at all. But a
3275820	3281980	platform handling voluminous content with and potentially expensive liability doesn't have the
3281980	3287040	ability to say no to them. I mean, sometimes they do. But it's rare, because it can't happen all
3287040	3294780	that often. It's just not practical. So I don't see how we can, this is kind of an all or nothing
3294780	3299980	thing. And that's why I go back to the, do you want the most good stuff and least bad stuff? I
3299980	3306420	think there's really only one way to achieve it. And that's by aligning the incentives of
3306980	3313720	we have more tools in our regulatory tool belt to regulate, it doesn't have to be penalty based.
3313720	3319320	And somehow I think we're not good at that. I think we don't understand how to regulate effectively by
3319320	3326640	making parties partners, where acting consistent with their own interests happens to get them to
3326640	3333200	do what we want. The reason the internet sprouted and did so well in 20 years is because that's how
3333200	3338580	we regulated because that's how we made it work. And that's how we went from basically no internet
3338580	3343660	to an awesome internet. I mean, it's got wrinkles, but you can connect the whole world, we can
3343660	3349560	connect like an infinite amount of knowledge and ideas and make connections. By and large,
3349560	3354500	it is incredibly awesome. Maybe part of the problem we have is that, you know, if you've
3354500	3360560	got 7 billion people on, you know, connected to each other, some of them suck, some of them are
3360560	3366140	not good people, some of them say terrible things. And when these terrible things happen, we become
3366140	3371360	hyper aware of them, because a we now can be aware of them, because the internet is providing us with
3371360	3376720	that information. And they end up with this outsized effect, like, oh, my gosh, I can't
3376720	3382440	believe what that person did. And we're upset about it. And we look at what existed that allowed the
3382440	3386800	bad thing to happen. Well, that was the internet. And the internet got to exist because of Section
3386800	3393440	230. So therefore, 230 is bad, let's get rid of it. And it's really hard to sort of call time out
3393440	3397400	to reasonable people and say, hang on, maybe that's not the best way to think about it. Although,
3397400	3401680	that's why we're doing presentations like this, to kind of walk people through the thinking,
3401680	3406260	so that they understand that, like, no, this is really important and really valuable.
3406260	3411460	And maybe the things that are going wrong are things that we should target our regulation
3411460	3417820	to. That if we're upset about something, let's carefully define the problem and come up with an
3417820	3424080	appropriate solution that helps, you know, fix the thing that's wrong without just taking away the
3424080	3427900	whole thing that's created the internet, good things and bad things, because now we won't have
3427900	3432700	the internet at all. Right. Human terribleness has been around since well before there was an
3432700	3438740	internet. People have been terrible for as long as they have been people. Nevertheless, I like
3438740	3444000	your point about how we tend to sort of focus on the bad parts without thinking about the vast
3444000	3449440	majority of perfectly fine content. The same is true of encryption. You know, I feel that
3450220	3456640	the focus on the use of encryption to to commit crimes or to hide evidence of crimes gets blown
3456640	3462160	all out of proportion compared to how rare the instance of crime really is when you compare it
3462160	3468580	to the fact that more than one out of seven humans on this planet use WhatsApp. One billion
3468580	3474500	people aren't criminals. Right. So most of the usages, most of the people using encrypted apps,
3474500	3478380	most of the people using encrypted devices, which at this point is basically everybody,
3478380	3483740	just by default, most of that is not for crime. And so we lose sight of placing these things into
3483740	3490100	context and thinking in more big picture about what the cost benefit analysis is of trying to
3491900	3496160	increase surveillance and reduce free speech rights for everybody through bills like this.
3496260	3500160	I want to make sure we get to some of the questions that have been coming in. We have maybe
3500160	3504340	about five or ten minutes left to take questions. I know we've run over a little bit, but it's the
3504340	3512000	end of the day. There's no rules. Well, wait till Congress gets at it. But OK, so I think some of
3512000	3517220	these questions now, some of them are sort of technical to 30 questions. I almost can globally
3517220	3523080	say, yes, 230 totally applies, although, yeah, if we can get to them, we'll be more specific.
3524480	3528860	Actually, the most interesting one is one that I've been putting forth. And since I'm a speaker,
3528860	3533180	I can say that somebody asked a question about 230 and Amazon. One of the things that's starting
3533180	3538060	to happen is some of Internet services have started to look more like actions than speech,
3538060	3542880	because people sell things on Amazon. And is that a different sort of activity?
3542880	3549000	And I've argued in briefs before courts that basically it still boils down to speech,
3549000	3553300	that if you're on Airbnb, what you're really saying is, I have an apartment to rent.
3553340	3558460	That may be the only thing you're really saying on Airbnb, because it's a very hyper-focused
3558460	3563560	platform. But again, that whole slide about 230 is kind of general in its application,
3563560	3568900	and it applies to a whole bunch of things. It can apply to Amazon when you regard that
3569000	3574460	a third-party seller is really a seller saying, I have a thing to sell. And that when we start
3574460	3581280	imposing liability for attacks to the sale, that ripples through and affects every platform that
3581280	3586600	hosts every type of expression, because there's no real contingency of whether 230 applies to
3586920	3592240	a broad-based platform that takes all sorts of speech, or a narrow-focused platform that
3592240	3597240	takes very specific, I'm only selling this kind of thing type of speech. So that's a lot of the
3597240	3603540	230 things. On the EARNET side, people are asking, and maybe this is the way to phrase the question,
3603540	3609440	if EARNET passes, what happens? Does signal go offshore? Does something go offshore? Does the
3609440	3615880	internet die? I mean, it kind of died. Well, it didn't completely die with FOSTA, except it really
3615880	3621320	took a very severe hit, and so did an awful lot of the users who used it. Like, that body count of
3621320	3627700	sex workers is significant and real. So let me ask you, what happens if EARNET passes?
3627900	3633160	If EARNET passes, I think we will immediately see even more shutdowns of portions of services,
3633160	3637820	or even maybe entire services, just as we saw immediately the moment SESTA-FOSTA was signed
3637820	3643760	into law. I think we'll see a lot of litigation, including over this encryption safe harbor that
3643760	3651160	Senator Leahy tried to insert in. It basically creates kind of a license to litigate,
3651160	3655720	where because it is narrowing what should be a broad immunity, and which already takes quite
3655820	3659700	a lot of litigation often to just get to the point of saying, no, Section 230 bars this lawsuit and
3659700	3667120	kicking it out of court. I think we'll see a lot of litigation over whether a lawsuit is trying to
3667120	3672120	hold a platform accountable for CSAM on its service on the basis of encryption or some other
3672120	3676080	thing. If it's encryption, then the lawsuit is barred. If it's some other pretextual reason
3676080	3679720	that the plaintiff or the state AG can come up with, then it's not going to be barred.
3679720	3684060	So we'll see platforms drawn into quite a lot of litigation, and that's for the ones that
3684060	3690980	dare to continue providing any kind of functionality for user-generated content at all. I think we may
3690980	3696100	see small platforms start to shut down. It's true that Signal has threatened to go offshore
3696960	3701400	and move to another jurisdiction. This is one of the limitations with this bill.
3701400	3707100	I don't know how it could possibly purport to touch open source tools. Most of the encrypted
3707100	3712280	tools out there are either open source or housed overseas outside of U.S. jurisdiction. So these
3712280	3717560	tools would still be available, and those who want to use encrypted tools for bad acts would
3717560	3723500	flock to using them. There's another question in the stream about that. But the people who are
3723500	3728800	just everyday average users probably won't take the time to seek out services that have not been
3728800	3734240	intentionally weakened in order to try and avoid the specter of liability that EARNET would raise,
3734240	3737900	in the event that that is in fact what platforms do. I think we'll see a difference between the
3737900	3742500	response, as you were talking about earlier, between the large well-resourced platforms
3742500	3749340	that can handle the deep pockets needed to face this kind of litigation and try to make that
3749340	3753460	calculation that they would rather protect their users and continue keeping these kinds of security
3753460	3759200	protections in place and just deal with, you know, paying for the stuff that they don't catch.
3759260	3764860	And we might see smaller services either shutting down or, as mentioned, potentially offshoring.
3764860	3769800	So we'll see. But all the uncertainty that that opens up is just another reason to, like, keep
3769800	3775300	fighting against this bill, because everything about the world is uncertain right now. I would
3775300	3780380	like to know that, like, my ability to just use my phone and use whatever you signal is still certain.
3780380	3786580	So I think this boils down to that, you know, understand how the law works and the basic
3786580	3791280	mechanics of it. That's how 230 works. And then definitely understand how the statute
3791280	3796960	messes with that. I think it boils down to also, like, I asked the question about, like, what is
3796960	3801100	the political motivation behind some of these things? And to the extent that there's genuine
3802020	3806820	displeasure with some of the larger internet companies, the point you're making also is that
3807520	3811280	they'll probably be able to survive. But if one of the things we really want to have, like,
3811280	3814980	if we don't like Google, we really need a new Google. And this is not going to help us get a
3814980	3819500	new Google. This is going to help us double down and entrench the Google with everything we don't
3819500	3824840	like about it doubled down. So it doesn't actually solve any of our problems. And I think the thing
3824840	3829440	is, like, the internet might limp along, it's pretty great. But I mean, to the extent that
3829440	3835920	the internet facilitates human speech among 7 billion of us, that's a great thing. And when
3835920	3842580	we take that away, I think we will miss it greatly. And so I think our final thought is,
3842580	3848460	we need to be a lot more careful. We can't do legislation based on convenient bumper stickers.
3848460	3854320	We really have to understand very carefully the dynamics of how law works, how human beings work,
3854320	3860840	and how we start driving behavior when we start imposing punishments or even just uncertainty
3861400	3867900	on people who are talking, expressing themselves, or facilitating that expression.
3867980	3875340	Any other final thoughts? Yeah, I mean, just to say again, like, please take action,
3875340	3879860	please call your senators, take action against both of these bills. There's a question about
3879860	3883720	whether this would be bad for the US economy. I think the other bill, the LAED bill is a greater
3883720	3887640	threat to the economy on the basis of a similar bill having been passed in Australia a couple
3887640	3894400	of years ago that has really helped to screw up their tech economy sector there. So I think we
3894400	3901400	would see, yes, a negative impact from the LAED Act, but also from EARNET, because of the lesser
3901400	3907160	amount of vibrant services that we'd be able to see online. So anyway, I could rant about this all
3907160	3913860	day. I can rant about 230, my favorite thing. I mean, I want people to understand it. I want,
3913860	3917480	you know, right now, there's an awful lot of people with an awful lot of agendas saying,
3917640	3923720	Section 230 bad. And I think the general populace is like, I don't understand. Yeah, that sounds
3923720	3929100	good to me. I want everybody who's listening to be somebody who says, Aha, maybe that's not good.
3929100	3934520	Maybe I should really rethink that. And to start, I think if people really understood what is being
3935500	3941640	threatened by this legislation, they would not be for it. But I, you know, laws is kind of scary
3941640	3947620	and complex system. And you leave it to other people to do that thinking for you. But I think,
3947620	3953660	is make it that you can understand the mechanics of how this works, to draw an opinion. And I think
3953660	3957560	that opinion will be that this is not a good idea. It's just that it's not always intuitive
3957560	3962700	to understand this dynamic. How does the law work? Why do things respond to it? So hopefully,
3962700	3968840	we can demystify it. And there's an awful lot of advocates out there, me, Rihanna, EFF, other
3968840	3974560	organizations who, you know, are happy to sort of answer questions and help sort of make people
3974560	3981980	understand what's really at stake with any of these bills. So I think that actually brings us
3981980	3986940	to an end. Thank you so much, Village, for having us. And thank you, Rihanna, for doing this with
3986940	3995320	me. I think this was great. And hopefully everybody watching thinks so. Great, thank you so very much
3995320	4002420	to both of you. It was a pleasure to wrap up our very first day with you both. And so thank you,
4002420	4010520	again, for speaking at the Village. Folks, this is the end of the day for us. We have survived
4011120	4016380	day one of Virtual Crypto and Privacy Village, which frankly took more years off of my life
4016380	4023960	than maybe all of 2020. No, I'm just kidding. But I will say, like an influencer, because I've never
4023960	4031480	really streamed, if you like and subscribe below, we have various different avenues that you can
4031480	4038340	communicate with us, reach out to us, engage with us. Since we can't be with all of you in person
4038340	4045760	this year, please feel free to reach out to us on Twitter. For volunteers, I'm reaching out to you
4046360	4053360	about a happy hour tonight. And to all of our speakers, thank you, thank you so much again.
4053360	4058980	And if I haven't said this enough, thank you so much to everyone else who makes the Crypto and
4058980	4064140	Privacy Village possible. There are a ton of folks who spend a lot of time, who have done
4064140	4070160	so much work for the Crypto and Privacy Village this year to make it happen as we shifted gears
4070160	4077360	from going live to going virtual. I could list all of their names now, but I'll save that for
4077360	4083340	another time when I get to host and see you all again. So I'm going to transition and hopefully
4083340	4094640	not break OBS because I'm doing both. So let's see if we can go to something that is a little more
4095940	4099880	on five. Thank you, everyone, and I'll see you soon.