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October 11th | #46

This week in Europe: Free speech and unintended consequences

Robert Moses was an American public official who spent over 50 years shaping New York City as we know it. 

Other than the amassing power, one of his main goals was alleviating traffic on an extremely congested, post-war New York City. And to do that, he put his power to build an impressive network of highways, connecting all five boroughs, at a ridiculously fast pace. 
Maintain such a pace, Robert Moses had no option but to concentrate the majority of federal and state funds available to New York City.

Up until this point, it’s all good. But the problem is that these highways were often built parallel to mass transit lines. This lured passengers away from these mass transit lines that, due to lack of funding (remember Moses had it all), were already falling apart. 

Pouring money over and over again to highway but to public transport meant that it could only be one outcome, reinforced by a negative loop: lines lost more and more passengers, those losses made it more difficult for their owners to sustain service and maintenance, service and maintenance declined, the decline cost the lines more passenger, and the loss in passengers would further accelerate the demise

In the end, the passenger would have to do their traveling instead by car, further increasing (instead of relieving) highway congestion.

Whether by design or out of ignorance of the effect of his policies, Robert Moses ended up making the problem he wanted to solve, significantly worse. And the kick to it all? Robert Moses never drove a car in his life.

That, my friend, is the story of second-order consequences. Every change you make to a system will have unforeseen effects, which may affect the system's functionality. 

We’ll come back to it in a second but for now, bare with me.

 Eva Glawischnig v. Facebook

In 2017, Eva Glawischnig, chair of Austria’s Green party and former member of the Nationalrat , filed suit against Facebook after the company refused to take down posts she claimed were defamatory against her.

That same year, an Austrian court ruled Facebook should take the said posts down and do so worldwide. 

However Glawischnig, not content with the result, also wanted it to remove similar posts, not just identical copies of the illegal speech, which she argued were equally defamatory.

And the court agreed.

According to the Court of Justice of the European Union’s decision, platforms such as Facebook can be instructed to hunt for and remove illegal speech worldwide — including speech that’s “equivalent” to content already judged illegal.

This means that EU law may be used to force Facebook to proactively remove content on its platform previously declared to be illegal. 

Here’s Natasha Lomas from TechCrunch:
"The ruling has implications for how speech is regulated on online platforms — and is likely to feed into wider planned reform of regional rules governing platforms’ liabilities."
“The ruling has implications…” – no shit. Two big problems. 

Problem #1 – Confusing country lines and its consequences on censorship

A big reason why democracy works is that countries don’t have the right to impose its laws (at least, directly) on another country.

Yes, China can strong-arm the NBA and a bunch of companies into shutting down speech, but the United States as a country is in no obligation whatsoever to adopt China’s laws on speech.

But this ruling, forcing platforms to take down speech (or similar copies of said speech) worldwide paves the way for a single nation to act as a global censor and require that online platforms act as its minions in doing so.

Here’s part of Facebook's statement in response: 
"It undermines the longstanding principle that one country does not have the right to impose its laws on speech on another country. It also opens the door to obligations being imposed on internet companies to proactively monitor content and then interpret if it is ‘equivalent’ to content that has been found to be illegal."
In theory, it makes sense. But in practice, this means that countries that play fast and loose with censorship can start affecting speech on a global scale.

Here’s Slate:
"In so ruling, the court demonstrated a shocking ignorance of the technology involved and set the stage for the most censor-prone country to set global speech rules."
And that’s not all: in order to get this right national courts will have to set out very clear definitions on what ”identical” and ”equivalent” means in practice, something they haven’t done.

Second-order consequences are a problem from someone else I guess.

Problem #2 – An unintended step towards proactive monitoring

Requiring a company to take down similar instances of illegal speech means that platforms need, under threat of liability, to proactively monitor every single piece of content being uploaded, and then interpret if it is “equivalent” to content that has been found to be illegal.

Let me repeat that - a platform need to proactively monitor EVERY SINGLE piece of content and then decide if it looks like something illegal.

This opens the door to a plethora of problems, but most notably, it forces tech companies to filter speech under threat of getting sued. I have warned constantly that it will result in tech platforms pre-filtering user-generated content uploads.

The problem is that if you make them liable, and because companies don't have the technology or the capacity to accurately filter only what EU regulators demand, they will over filter. 

And you know what happens when a for-profit platform for speech over filters to cover its ass against a suit? Unintended censorship.

Another blow against Big Tech (and free speech)

It might not look like from my writing, but I believe it’s laudable that the EU is leading the charge against Big Tech, privacy and fair competition. 

I certainly don’t agree with everything Margrethe Vestager says or does, but I applauded her initiative to ensure protection and competition, and her understanding of second-order consequences.

Here’s Vestager talking about dismantling Big Tech:
"Also before we reach for the very, very far reaching remedy to break up a company — we have that tool in our toolbox but obviously it is very far reaching… My obligation is to ensure that we do the least intrusive thing in order to make competition come back. And in that respect, obviously, I am willing to explore what do we need more, in competition cases, for competition to come back."
That's a refreshing take compared to Elizabeth Warren's vote-seeking battle cry to dismantle Facebook.

But back to our topic...

In an effort to take a swing at Big Tech and ensure protection to their members, European regulators are creating up a ripple effect that can end up with unintended consequences and defeating the entire purpose of their efforts – protecting its citizens. 

If you compel a for-profit company to define and monitor speech under threat of liability, the pendulum will swing heavily towards filtering, and that can jeopardize free speech. 

Another wonderful, Robert Moses-que display of second-order consequences.
 
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 The ruling has implications for how speech is regulated on online platforms — and is likely to feed into wider planned reform of regional rules governing platforms’ liabilities.

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