§ 230 and the Protecting Americans Against Dangerous Algorithms Act

My PDF testimony, as well as the testimony of other witnesses is available. I also thought it would be interesting to post the text. I have commented on five proposals separately so I thought it best I break down the information. My plan was to provide an impartial analysis of the proposals. I will, however, be focusing on non-obvious consequences. Although I have included some personal opinions on the proposals, I intend to keep these separate from my objective analysis.

[IV.]Act to Protect Americans Against Dangerous Algorithms

The bill would strip platforms of their immunity.

  1. SS 1985), conspiracy to violate civil rights claims (42 U.S.C. § 1985), failure to prevent conspiracy to interfere with civil rights (42 U.S.C. § 1986), and international terrorism (18 U.S.C. § 2333) when
  2. “This claim involves an instance in which the interactive computing service applied an algorithm. . . To rank . . recommend, [or]Increase. . . More information . . If the data is relevant directly to the claim, it will be provided to the user.

Respondents to the user’s request for “specifically searched”[ing]Information services are not allowed.

The bill would also exclude recommendations that come from simple and nonpersonalized algorithms—sorting “chronologically or reverse chronologically,” “by average user rating or number of user reviews,” “alphabetically,” “randomly,” and “by views, downloads, or a similar usage metric.” These algorithms are likely to be replaced by more complicated algorithms, which, in turn, can take into account a user’s viewing history. However, platforms won’t want to replace more sophisticated algorithms.

[A.]Pressure Platforms to Not Recommend Material that Looks Like It Might Have Been Published by Terrorist Organizations

PADAA will make social media platforms responsible for any material they recommend that is later discovered to be put out by foreign terrorist organisations (or individuals working with these groups). The issue is, however, that social media platforms cannot know for certain whether material has been put out (by Hamas employees and associates) or is simply a protected expression of support of Hamas. These uncertainties mean that any material appearing similar would be flagged by platforms internally. Could a foreign terrorist group, so they exclude this from their recommendations.

[B.]Pressure Platforms to Not Recommend Pages that Look to Be Involve
Conspiracies to Infringe on Civil Rights

It allows for liability to 42 U.S.C. § 1985 violations is likely to have no real effect, because § 1985 basically just covers conspiracies to violate civil rights; to intimidate parties, witnesses, or jurors; to intimidate people to affect federal elections; or to injure people based on their advocacy of federal candidates. An intention to support a criminal shared goal is required for conspiracy.[9]These platforms will not serve any particular purpose.

However, the bill permits liability for violations of 42 U.S.C. § 1986 violations, and § 1986 imposes liability for failure to prevent others’ conspiracies:

  • “Any person knowing that any wrongs were being conspired to do, as mentioned in section 85 of this title,”
  • “and being able to prevent the commission or aid in the prevention thereof, neglects/refuses to do so.”
  • “if such wrongful act be committed, shall be liable to the party injured ….”

It’s hard to tell for sure, since successful § 1986 claims against private entities are so rare; but in principle, it seems that, under PADAA, once a platform learns of material that appears like it could violate § 1985, it would need to exclude it from any recommendations, or face the risk of liability. These exclusions from recommendations may help “prevent the commission of the conspiracy”

It is difficult to know what to make of these proposals for enlisting platforms to investigate potential foreign terrorist advocacy or conspiracies to perpetrate domestic crimes. Such proposals might make it difficult for domestic and foreign conspirators to organise and promote their crimes. They could also lead to platforms that are cautious about suppressing constitutionally protected advocacy. The platforms won’t have much information on who posted the material, what they were posting, and how they intend to be interpreted by their readers.

[9]Ocasio V. United States,136 S. Ct. 1423-1429 (2016)