Jonathan Zittrain: Hi. My name is Jonathan Zittrain. I teach here at the Berkman Klein Center for Internet and Society. Sounds more nor­mal every time I say it. And first an admin­is­tra­tive announce­ment, we are being record­ed. Not just by the usu­al panoply of sus­pects but by inten­tion. And we are live web­cast­ing. So be aware that any­thing you say will be record­ed for­ev­er and might be used against you. I always like to bring out the Miranda warning.

It’s my plea­sure to intro­duce Kendra Albert for today’s talk. I’m so pleased to have a chance to intro­duce my col­league, friend, some­time men­tor Kendra. When I first met Kendra, they had been study­ing the Daubert case and its rela­tion­ship to the Fry stan­dard of evi­dence in the fed­er­al courts. Which was a lit­tle sur­pris­ing because Kendra was under­grad­u­ate and not a law stu­dent or law grad­u­ate. And Kendra car­ried on that tra­di­tion through a sum­mer at the then Berkman Center pro­gram work­ing not only on our OpenNet Initiative but lat­er our H2O project for open case­books. And they took not only to help­ing to for­mat the cas­es and such and doing some basic research, but start­ed edit­ing the cas­es and then read­ing all of the cas­es for a course on torts. 

For those of you who are law stu­dents, you’ll real­ize that vol­un­tar­i­ly read­ing all the cas­es for a course on torts is an extra­or­di­nar­i­ly unusu­al thing for some­body to be moti­vat­ed to do. And I think that did inevitably, despite Kendra’s efforts at times to avoid it, point Kendra towards law school. Which to our great for­tune Kendra attend­ed here.

And while here, for those of you again think­ing about how to be involved in cyber-related top­ics, Kendra punched a tick­et in so many dif­fer­ent won­der­ful places. The Public Citizen Litigation Group, the Electronic Frontier Foundation, and an unlike­ly third in that tri­umvi­rate, Cloudflare, the orga­ni­za­tion that will help you avoid get­ting DDoS’d when you least expect it. It will tell you you’re going to get DDoS’d and then you’re DDoS’d. It’s also a good oppor­tu­ni­ty to thank Cloudflare for their pro bono sup­port of our Perma project. Cloudflare, we love you.

And it’s inter­est­ing that while work­ing there, Kendra took up an exam­i­na­tion of some of the boil­er­plate legalese passed around like Christmas fruit­cakes from one com­pa­ny to anoth­er with­out attri­bu­tion. Is that still a good ref­er­ence, that the fruit­cakes just get passed on because nobody else wants to eat it but they’re still an appro­pri­ate gift? And they nev­er expire. And the same is true of legal boilerplate.

But then Kendra actu­al­ly decid­ed to read it. And think about how it might apply to not just terms of ser­vice of the usu­al sort about you know, if you do some­thing to the com­pa­ny then you’re war­ranties are void, or what­ev­er it usu­al­ly says. But rather what is the role of the com­pa­ny in try­ing to enforce basic humane behav­ior among users of a ser­vice for which oth­er­wise the com­pa­ny might pre­fer to be invis­i­ble? And to what extent can that be gov­erned by boil­er­plate, to the cus­tomer, to the com­pa­ny itself inher­it­ing that boil­er­plate from some­where else? And to what extent is it a chal­lenge to every com­pa­ny to actu­al­ly sit back and think about, as Terry Fisher would say, what are the pre­req­ui­sites for human flour­ish­ing? And how should we embody that in our terms of service? 

And I think, not to antic­i­pate too much Kendra’s talk, the answer may lie dis­arm­ing­ly clos­er to the sec­ond answer than to the first. And that of course pos­es some real­ly tough ques­tions for the com­pa­nies and for all of us as we try to put com­pa­nies into a role of polic­ing some of the most pro­found ques­tions that face us in the dig­i­tal space as peo­ple com­mu­ni­cate with one anoth­er, get into con­flicts, troll one anoth­er. How to medi­ate that is just an unan­swered ques­tion. Nobody has fig­ured this out yet. And I’m hop­ing out by the end of this talk we will have done so thanks to Kendra. 

So with that mod­est intro­duc­tion, I turn it over to Kendra for [their] vale­dic­to­ry lap back at the home team after [they] had gone to the Zeitgeist Law firm, a technology-oriented law firm that’s think­ing about this stuff. Kendra, take it away. Thank you.

Kendra Albert: Thank you. And Jonathan, that was an amaz­ing intro­duc­tion. And I’m not sure the talk lives up to the promise of the intro­duc­tion, but maybe it does some­thing dif­fer­ent and hope­ful­ly that’s how all good talks work, I suppose. 

But before I get start­ed I want to just take a moment to express sol­i­dar­i­ty with Unite Here Local 26, who are the folks who are protest­ing out­side. I think it’s impor­tant even as we prob­lema­tize and decon­struct notions of free speech, to rec­og­nize that it has an impor­tant role in some of the things that are most valu­able, includ­ing ensur­ing peo­ple who rep­re­sent work­ers can strike and be heard. So, I’m about to do a lot of things beat­ing up free speech, but first I want to rec­og­nize its role and sort of express sol­i­dar­i­ty with them. 

So, when I use the phrase ​“legal tal­is­man,” what I mean to sug­gest, as Jonathan sort of allud­ed to, is that I’m talk­ing about a legal term of art, a legal word, that’s out of place. And it’s invoked to make or jus­ti­fy sub­stan­tive deci­sions that don’t involve for­mal legal process, right. Decisions that are made in a way that does not involve the court sys­tem, does not involve leg­is­la­tures, does not involve admin­is­tra­tive pro­ce­dures. It’s a legal term that shows up in sort of the places you would least expect it, the argu­ments that you would least think that it’s justifiable.

Naoise Dolan, ​“Freeze Peach”

And I start­ed look­ing into this, as Jonathan said, because I was spend­ing a lot of time think­ing about online abuse. And often what you see in online abuse is legal tal­is­mans every­where. The most com­mon of these, as point­ed out by the work of Sarah Jeong and oth­ers in decon­struct­ing the role of speech argu­ments, is free speech, or ​“freeze peach” as it is some­times known. And you can see both this com­ic as sort of a fun­ny a joke about the role of free speech online, but this idea of nuance-free or self-righteous Paine com­par­isons, real­ly points to this idea that free speech has come to mean some­thing in online dis­course that is sep­a­rat­ed from the First Amendment real­i­ty, or from the law. That it’s invoked in places that we might think of as rather unlike­ly for a First Amendment rhetoric. 

And so if we imag­ine why that hap­pens. If we imag­ine the mag­i­cal pow­ers that the free speech tal­is­man can embody, it sort of wards off reg­u­la­tion, respon­si­bil­i­ty, and lia­bil­i­ty. It’s ide­al for use in the United States. And it’s craft­ed to be espe­cial­ly effec­tive to respond­ing to claims of ram­pant on-platform abuse. Like, what does invok­ing the term free speech allowed us to do? Well, it allows us to shift the con­ver­sa­tion in a way that’s real­ly mean­ing­ful, and in a way that changes our rela­tion­ship to reg­u­la­tion and liability.

Randall Munroe, ​“Free Speech”, XKCD

Of course, I’m not the first per­son to point out that the use of the term free speech is not real­ly legal. I think the now-obvious coun­ter­ar­gu­ment is this XKCD, which actu­al­ly not new, which invokes the legal­is­tic respons­es to free speech. Well, it’s not the gov­ern­ment doing the cen­sor­ship, or that plat­forms are not gov­ern­ment speak­ers, peo­ple don’t have to lis­ten to you. That’s all the sorts of thing that come along with these invocations.

Ted Cruz, ​“Obama Should Not Put Free Speech on Internet at Risk by Giving Up US Oversight”

And it’s not just con­fined to trolls online. This is our friend Ted Cruz, who was talk­ing about the ICANN tran­si­tion, which was the process by which the US was ceas­ing its con­tract with the International Assigned Corporation of Names and Numbers. (I prob­a­bly got that wrong, sor­ry.) But any­way, what he says is that the Internet is the Internet. It’s an oasis of free­dom today because of the First Amendment? Which is a sort of strange claim, because I think most folks who are actu­al­ly involved in ICANN would argue that although First Amendment prin­ci­ples may be involved in deci­sions that ICANN made or under­ly­ing plat­form or tech­ni­cal thoughts, the First Amendment was not like, super involved in the ICANN contract. 

Before I go any fur­ther, espe­cial­ly since Jonathan men­tioned Cloudflare, I want to say this is just me talk­ing, not my employ­ers or my clients.

So, some oth­er places we see free speech are in cor­po­rate respons­es. So, ​“Apple To FBI: Forcing Us To Unlock iPhone Violates Free Speech”; ​“Cloudflare and Free Speech,” which is a blog post that Matthew Prince, the CEO of Cloudflare wrote about how they dealt with Islamic ter­ror­ism and rad­i­cal Islam and jiha­di posts on the plat­form; ​“Verizon: net neu­tral­i­ty vio­lates our free speech rights,” which was one of their respons­es to the FCC’s net neu­tral­i­ty rules; and then per­haps maybe the most famous quote of these four is from Twitter’s Tony Wang, where he said, ​“We are the free speech wing of the free speech par­ty,” some­thing I’m sure he regret­ted for pret­ty much the rest what came after. 

And some of these are actu­al­ly about legal pro­ceed­ings. Apple to the FBI, and Verizon are about court pro­ceed­ings where they were mak­ing a First Amendment argu­ment about what they had the poten­tial to do. But ​“Cloudflare and Free Speech” and Twitter’s free speech posi­tion are not. This is not in ref­er­ence to a par­tic­u­lar court pro­ceed­ing. This not because they’re putting for­ward an argu­ment about their par­tic­u­lar lia­bil­i­ty or lack of lia­bil­i­ty or how they should nec­es­sar­i­ly be reg­u­lat­ed. In fact, it’s just a short­hand. It’s a ref­er­ence to a body of knowl­edge that’s stored else­where. And it’s a short­hand for a big­ger, more com­pli­cat­ed set of ideas, a set of rehearsed argu­ments about like, free speech, and the mar­ket­place of ideas, and allow­ing every­one to speak, and the heck­ler’s veto, and sort of this whole long set of things that you might hear if you sat in on a First Amendment class or read a First Amendment case. 

And it’s also a way to make things feel a lit­tle less arbi­trary, right. If Twitter had said, ​“We take down what­ev­er we feel like,” that maybe would present a less com­pelling state­ment of their posi­tion on the sub­ject, even if it was just as true as, ​“We are the free speech wing of the free speech party.” 

Legal tal­is­mans also avoid def­i­n­i­tion­al prob­lems. They allow for us to look at this body of law as a way of under­stand­ing what exact­ly is going on. But with it comes its own prob­lems. So, this may be famil­iar to most of you as the text of part of the First Amendment, which says ​“Congress shall make no law abridg­ing the free­dom of speech.” Of course, the real­i­ty is that Congress makes law abridg­ing the free­dom of speech all the time. And so when we look at what this means in practice— 

Alexandra Sasha, ​“Free Speech Flowchart”

I actu­al­ly stole this out­line from a law stu­dent, but I think it’s actu­al­ly a very pow­er­ful illus­tra­tion of all the things we have defined as not speech in order to abridge them. All of of the things that we claim are lower-value speech like com­mer­cial speech or employ­ee speech. All of the things we claim are not speech at all: defama­tion, true threats, incitement. 

And how real­ly, this is kind of much more what the First Amendment looks like. There’s an aster­isk after every word, with which comes a very long set of def­i­n­i­tions of what that means. Like, even ​“Congress” real­ly also means “…and the states,” right, because of the Fourth and Fourteenth Amendments. So when we unpack the mean­ing of these words, we under­stand that they actu­al­ly have all of this con­text, and all of these things that come with them that aren’t nec­es­sar­i­ly obvi­ous from the face of the Amendment.

Moreover, and to ref­er­ence the XKCD again, legal tal­is­mans invoke the pow­er and oblig­a­tions of the state. And I feel kind of sil­ly say­ing this because it’s so obvi­ous. Like, ​“when we talk about law, we’re talk­ing about the state.” But I mean, per­haps obvi­ous­ly, plat­forms don’t have the same oblig­a­tions to their users that the state has to its cit­i­zens. Terms of ser­vice are not con­sti­tu­tions. And for the most part, plat­forms don’t grant users pos­i­tive rights. And so when we think about the legal frame­works that take into account state pow­er and state con­straints, that’s what all of those aster­isks in the First Amendment are about. State pow­er, state con­straint, how do we think about the rela­tion­ship of the state and the pow­er dynam­ic with peo­ple? That’s why we have a First Amendment in the first place. We have to under­stand that law exists in a world where the actor that’s enforc­ing it is the state.

And some­times users might want those state-like restric­tion in the con­text of plat­forms. If you believe that use of Twitter is so fun­da­men­tal to your iden­ti­ty that actu­al­ly you want it to be treat­ed like a util­i­ty and you want due process for get­ting blocked, then maybe you actu­al­ly would love all of the sort of restric­tions and the costs of the First Amendment that come along with the use of these words. But some­times users def­i­nite­ly don’t want all of the same things that we want from our gov­ern­ment when we’re think­ing about our online ser­vices. Or all of the same pro­tec­tions for par­tic­u­lar peo­ple that we want from the government.

So that’s how I’m defin­ing a legal term of art out of place, invoked to make or jus­ti­fy a sub­stan­tive deci­sion that do not involve a for­mal legal process. And I’ve said a lot of things about the First Amendment because I think for many peo­ple it’s the most tan­gi­ble, easy to think of way in which this man­i­fests, right. We’re used to the idea that these legal oblig­a­tions… That peo­ple talk about the First Amendment and free speech inde­pen­dent of the actu­al legal oblig­a­tions or legal con­tent of those words.

But what I’m about to do is to apply crit­i­cal legal stud­ies prin­ci­ples to a more spe­cif­ic legal term in the reg­u­la­tion online spaces. So, crit­i­cal legal stud­ies, for those who aren’t aware, was a legal move­ment that con­cen­trat­ed on sort of unpack­ing some of the bag­gage that these words come with. Most famous­ly, one of the prac­ti­tion­ers was Duncan Kennedy, who taught here for a very very long time. But oth­er peo­ple from Martha Chamallas to Derrick Bell have all used the tools of crit­i­cal legal stud­ies for fem­i­nist pur­suits, for queer pur­suits, for crit­i­cal race the­o­ry pur­suits, in order to defa­mil­iar­ize the famil­iar. To take the words that we think we under­stand and to show us how we real­ly don’t under­stand them at all.

And so when I talk about some­thing like defama­tion, I think it’s real­ly worth defa­mil­iar­iz­ing. Because to most peo­ple, defama­tion means say­ing nasty, untrue things about peo­ple is ille­gal. Like if we want to talk about the most basic def­i­n­i­tion you could pos­si­bly give, that’s the best one I’ve got. I tried to make it short­er and I think I need all of those words, or about a per­son, even.

But it shows up every­where. The first one of those is the terms of ser­vice of Slack. So if you have ever said any­thing defam­a­to­ry about any­body on a pri­vate Slack, that’s against their terms. The sec­ond one of those is Dropbox. So, no defam­a­to­ry mate­r­i­al in Dropbox. And then the third one of those, per­haps maybe even most iron­i­cal­ly, is Yik Yak. So, you’re not allowed to defame peo­ple on Yik Yak, which as folks may know is a sort of ser­vice for peo­ple to anony­mous­ly com­ment on things that was pri­mar­i­ly used by col­lege stu­dents. I’m sure Rey Junco is prob­a­bly turn­ing over…like, just had a The Force moment in Indiana as I char­ac­ter­ize it that way.

But the legal stan­dard for defama­tion, to do my best at putting it slight­ly more pre­cise­ly, is that the defen­dant, who is the per­son who you’re suing, pub­lished a state­ment. The state­ment is about the plain­tiff. The state­ment harms the rep­u­ta­tion of the plain­tiff. The state­ment was pub­lished with some lev­el of fault, which depends on who the plain­tiff is. And the state­ment was pub­lished with­out some privilege.

Now, even that, a slight­ly more pre­cise def­i­n­i­tion, is hard. This is William Prosser in Prosser and Keeton on the Law of Torts. And what he says—which you do not need to read, you just need to take my word for it that an old white dude who’d spent a lot of time think­ing about torts also thinks defama­tion is real­ly com­pli­cat­ed and dif­fi­cult, and that we’re real­ly bad at it. 

But defama­tion’s gor­geous tra­di­tion­al design hides deeply sex­ist, racist, and whore­pho­bic (which means anti sex work­er) con­no­ta­tions. The real­i­ty is defama­tion is a tal­is­man. And I mean it as a tal­is­man because the actu­al analy­sis is so legal­ly spe­cif­ic as to be unac­tion­able in a prac­ti­cal mat­ter dur­ing a con­tent review. It is incred­i­bly dif­fi­cult for the sort of con­tent review­er that we think about Facebook or Twitter hav­ing, the click­work­er in Malaysia who’s try­ing to fig­ure out whether some­thing is okay or not okay, to fig­ure out if some­thing’s defama­tion under US law. That’s just not a thing they could actu­al­ly pos­si­bly do. In part because truth is an absolute defense, so you have to know whether the thing’s true or not to know if it’s defamatory.

But the his­to­ry of defama­tion is pret­ty damn sex­ist. In England, under the under the Slander of Women Act of 1891, female plain­tiffs that alleged slan­der for words that impute unchasti­ty or adul­tery need not show oth­ers rep­u­ta­tion­al harms. And that law was repealed in 2014. Which like, yay for that, I guess. But 2014? And this his­tor­i­cal con­text is not just unique to England. Defamation law in gen­er­al is deeply invest­ed with notions of bina­ry gen­der and appro­pri­ate roles for women. In fact, many of the first defama­tion statutes in the US specif­i­cal­ly not­ed that impugn­ing on a wom­an’s chasti­ty false­ly was per se defam­a­to­ry. And this is why I say defama­tion law is whore­pho­bic. Because it assumes that being called a sex work­er is inher­ent­ly harm­ful to some­one’s character.

It’s sex­ist in prac­tice and sex­ist in the­o­ry, because the real­i­ty is that even if the statutes are not sex­ist on their face, when libel and slan­der actions are brought by female plain­tiffs they are more like­ly to suc­ceed if they are talk­ing about things that are in the pri­vate sphere, like accu­sa­tions of being unchaste as opposed to talk­ing about their busi­ness role. So when we see defama­tion law in prac­tice, it enforces a sort of sex seg­re­ga­tion of roles for women.

Oh, by the way. I did­n’t add this to my list orig­i­nal­ly, but it’s also real­ly homo­pho­bic. In 2012, New York final­ly over­turned the law on its books that sug­gest­ed that being called gay was per se defamatory.

And so when we look at his­to­ries of how this plays out, you can see this is Virginia da Cunha. She’s an Argentinian enter­tain­er, and she won a low­er court rul­ing against Google for search results for her name that led to porn web sites. We can see that it actu­al­ly does play out as defama­tion law hav­ing a focus on wom­en’s chasti­ty as a suc­cess­ful mod­el for legal inter­ven­tion. And so the moral of the sex­ism sto­ry is that defama­tion can work for you as a woman so long as you’re con­cerned about your chasti­ty, but much less so if you’re con­cerned about your busi­ness rep­u­ta­tion or any of these things that involves sort of pub­lic sphere roles.

As if that was­n’t enough unpack­ing or defa­mil­iar­iz­ing, we can also talk about the ways in which defama­tion law is racist. Was racist and is racist. So, defama­tion per se by racial misiden­ti­fi­ca­tion, which is if you call a white per­son black that is per se defam­a­to­ry and harm­ful to their char­ac­ter, was the law in many parts of the US up until real­ly real­ly recent­ly, which is the sad part. The tort was ana­lyzed by John C. Watson in his land­mark arti­cle ​“Defamation by Racial Misidentification: A Study of the Social Tort.” In it he talks about many things, but this case real­ly stuck out to me from 1957 in South Carolina, which is, “…is it libelous per se to pub­lish in print of a white per­son that she is a Negro? … That such pub­li­ca­tion is libelous per se is sup­port­ed by the very great weight of authority.” 

So, facial racism, facial sex­ism, facial whore­pho­bia. Also, you get all be inher­ent struc­tur­al prob­lems of the rest of civ­il lit­i­ga­tion, right. Just because a law is not dis­crim­i­na­to­ry on its actu­al face does­n’t mean that it does­n’t end up being dis­crim­i­na­to­ry in the way it’s prac­ticed. So, what we know about the struc­ture of civ­il lit­i­ga­tion is that it favors the rich over the poor. That it favors, in the words of Marc Galanter, repeat play­ers over one-time lit­i­gants, peo­ple who are famil­iar with the legal sys­tem and who under­stand how it works. And it favors, frankly, peo­ple who are con­sid­ered more like­able by juries. Defamation, as I said before, is real­ly fact-specific. If you end up going to a jury tri­al, under­stand­ing that sex­ism and racism are still things with­in the United States, we have to look at how like­ly a black woman plain­tiff who’s suing over her busi­ness rep­u­ta­tion might be to suc­ceed ver­sus a white male plain­tiffs who’s suing over his busi­ness rep­u­ta­tion. So, peo­ple from his­tor­i­cal­ly mar­gin­al­ized groups or peo­ple who are seen as reach­ing above their sta­tion are gen­er­al­ly not nec­es­sar­i­ly like­able by juries.

So, I want to come back to this, because it’s sort of fun­ny in one way that these terms pro­hib­it this kind of mate­r­i­al. But at the same time, I’d like to think that if Slack under­stood what the his­to­ry of the term ​“libelous” was, that maybe that’s not exact­ly how they would choose to frame their terms of service.

But the real­i­ty is that this isn’t just about defama­tion. Legal tal­is­mans white­wash real prob­lems in all sorts of dif­fer­ent ways. And when we invoke these legal words, we can’t invoke them with­out the bag­gage. In the words of Inigo Montoya, you keep using that word; I don’t think it means what you think it means. 

And the law is not neu­tral. The law is not some neu­tral force that we reach out to and we can pull into our terms of ser­vice or into our online spaces with­out bring­ing with it its long, long his­to­ry of oppress­ing the oppressed. The law is both some­thing that shapes the world, for exam­ple we know what rep­u­ta­tion­al harm looks like because it is defam­a­to­ry. And it’s shaped by it. We know what defama­tion is because we know what rep­u­ta­tion­al harm looks like. 

And so when we talk about these laws, they’re also con­test­ed sites. The ques­tion of whether mate­r­i­al is defam­a­to­ry, the ques­tions of whether these laws apply at all is also a thing that we need to do some seri­ous reck­on­ing with. So, although these tal­is­mans may appear to be ready-to-wear, per­fect with every out­fit, their invo­ca­tion sug­gests a bright-line rule that, in prac­tice, it’s real­ly messy. Both in the law and in its enforce­ment. And the pow­er of the words is what makes them dan­ger­ous. The fact that they feel neu­tral is what means that we should give them a sec­ond look.

So, I want to turn back to our head­lines from ear­li­er. Has any­body seen the movie They Live? Okay, at least one per­son. Well then, this joke is worth it. So, in They Live, which is a cult movie that I’m not sure every­one should go see but every­one should go watch this clip. John Carpenter, the lead char­ac­ter, puts on these sun­glass­es which allow him to dis­cov­er, and I quote Wikipedia, ​“the rul­ing class are in fact aliens con­ceal­ing their appear­ance and manip­u­lat­ing peo­ple to spend mon­ey, breed, and accept the sta­tus quo with sub­lim­i­nal mes­sages in mass media.” So, I’m going to ask us to put on our They Live glass­es and turn back to these headlines.

So, ​“Apple to FBI: Forcing us to Unlock iPhone Suddenly Politicizes Engineering Decisions That We Framed as Technical.” ​“Cloudflare and How our Business Model is Protected by a Non-Interventionist Position.” ​“Verizon: net neu­tral­i­ty vio­lates our vision of how to make mon­ey.” To be fair, that’s actu­al­ly pret­ty obvi­ous from the face of the rest of the argu­ment. And ​“Twitter’s Tony Wang: ​‘We have no clue what con­sti­tutes appro­pri­ate con­tent on our plat­form, nor should we have to decide. Because Because that’s hard and would piss peo­ple off.”

And I both mean these as jokes and not as jokes at all, because I sym­pa­thize deeply. And I actu­al­ly share the posi­tions of many of the peo­ple I’m mak­ing fun of. But I under­stand that for a com­pa­ny like Cloudflare, or a com­pa­ny like Apple, the free speech argu­ment may be what they have. They’re using the tools that they have in order to make the argu­ment that they feel is actu­al­ly just nor­ma­tive­ly for the best outcome.

But once we under­stand that legal tal­is­mans are pro­tec­tive invo­ca­tions, we have to be crit­i­cal of them. Even the ones we like. Because they come from this his­to­ry of using these terms in ways that actu­al­ly don’t cre­ate— The short­hand is not com­pre­hen­si­ble to users. And the short­hand is not com­pre­hen­si­ble to peo­ple more generally. 

So, when legal tal­is­mans import dif­fi­cult con­cepts, we see the dis­tri­b­u­tion­al effects of offload­ing legal respon­si­bil­i­ty. We see that there are real con­se­quences to Twitter, who has lawyers, to push off deci­sions about what con­sti­tutes defam­a­to­ry to peo­ple who use Twitter. Who gen­er­al­ly don’t have lawyers. And that legal tal­is­mans can both be over­broad and yet too nar­row. There are lots of things— I don’t feel like I have to say this too much, but there are lots of things that are per­fect­ly legal that are still harm­ful. And that’s some­thing that comes up in the online abuse space a lot. And indeed, fram­ing abuse around what’s legal­ly per­mis­si­ble and imper­mis­si­ble is deeply ill-advised. 

The inser­tion of legal lan­guage cre­ates the idea that law, not ethics or empa­thy, is what gov­erns. And it sub­sti­tutes for real dis­cus­sions of the val­ues that define com­mu­ni­ty spaces. I’m not say­ing that you can’t come to the exact same con­clu­sion about what is appro­pri­ate on your plat­form or what you should do that you would if you invoked the idea of free speech. But I’m say­ing that the short­hand of say­ing, ​“Well, we’re mak­ing all the same argu­ments they made in all of the free free speech cas­es that most peo­ple haven’t read,” is not com­pre­hen­si­ble to users. And nor is things like the real ques­tions that I feel like we should ask, like what legal struc­tures does this pol­i­cy invoke? And what val­ues do those legal struc­tures take for grant­ed? When we talk about defama­tion, it’s pret­ty much impos­si­ble to sep­a­rate defama­tion his­tor­i­cal­ly from fear of sex work­ers. Is that what you meant? Is that the val­ue that you want your legal struc­ture to take? And whose inter­est do those legal struc­tures serve?

And again, we may come to the same answers. But just going through this process of under­stand­ing our own nor­ma­tive val­ues in a con­text that’s oth­er than legal argu­men­ta­tion allows us to ask why? And why is hard­er. Why no defama­tion? Why free speech? Why these process­es? Why these dis­tri­b­u­tion­al outcomes? 

And it’s much hard­er than this. Because the tal­is­mans are so pret­ty, right? They’re shiny and they’re dis­tract­ing and we get caught up in whether they’re the right tal­is­man or whether there’s some ugly thing on them. They’re real­ly deeply appeal­ing. But if we want our online spaces to avoid repli­cat­ing the mis­takes that our legal sys­tem has already made, we have to move past them. Thank you.

Kendra Albert: So, I was asked to end with a ques­tion, because this is meant to pro­voke a dis­cus­sion and I have all the faith that this will pro­voke a dis­cus­sion inde­pen­dent of whether I end­ed with a ques­tion or not. But I do have a ques­tion, the one that I’m real­ly strug­gling with now, hav­ing spent a lot of time think­ing about the bag­gage of legal sys­tems, which is: Are the alter­na­tives worse? And so, thank you so much for your time and atten­tion. And I think I’m going to call on peo­ple and then some­one will come around with a micro­phone. So are there ques­tions, or if you’re going to do a com­ment, tweet-length, please. Otherwise oth­er folks won’t nec­es­sar­i­ly get to speak. 

[No one volunteers]

Well, I guess I’ve con­vinced everybody.

Audience 1: I hope you don’t take this the wrong way, but do you want to address the fact that most peo­ple don’t even read this infor­ma­tion to begin with? And—

Albert: Sure, I’d be hap­py to. I mean, I think it rein­forces my point about offload­ing con­se­quences onto users, right. The sort of fic­tion that the terms are bind­ing whether you’ve read them or not is real­ly con­ve­nient from a sort of con­trac­tu­al busi­ness per­spec­tive. Because if busi­ness­es or com­pa­nies or peo­ple had to make sure some­one under­stands the con­tract before it was bind­ing, it’d be a lot hard­er for courts, right, because that’s a deeply fac­tu­al ques­tion. And it would be a lot hard­er for us to make the kinds of con­trac­tu­al trans­ac­tions that many argue are what make cap­i­tal­ist sys­tems work.

So I think it just rein­forces my point, that peo­ple don’t read this stuff. Because it does­n’t not bind them because they don’t read them, and it just offloads respon­si­bil­i­ty for— Like, the enforce­ment can hap­pen inde­pen­dent of whether you knew the thing or not.

Audience 2: So, fol­low­ing up on that, if enforce­ment is let’s say inde­pen­dent of whether the user is real­ly cog­nizant of what’s in the TOS, then does it mat­ter that the TOS is speak­ing in legal terms instead of in terms that the user might be more famil­iar with? And the oth­er point I kind of want­ed to bring in was that I think it’s easy for non-lawyers to think of of lawyer­ing as kind of rar­i­fied and obscure. And so I won­der if you can talk about the val­ue of includ­ing the broad­er com­mu­ni­ty in the nor­ma­tive dis­cus­sion that nec­es­sar­i­ly under­lies all of those legal concepts.

Albert: Yes. Sorry, I’m going to address the sec­ond part first and then talk about the TOS. I think that obvi­ous­ly there’s some irony to giv­ing this talk as a lay­er, because my val­ue propo­si­tion is like, ​“Hey! I know these words. You should hire me.” But I do think that real­ly good lawyer­ing is not around legal terms. And I think good terms of ser­vice don’t just use these legal terms. Sometimes you kind of can’t get away with not, because actu­al­ly you can need all the bag­gage. There is no oth­er set of words that sort of comes out to mean the same thing.

But I think that com­mu­ni­ty involve­ment is, as you said, real­ly impor­tant because that can help peo­ple fig­ure out what the pain points are in terms of peo­ple not under­stand­ing what their oblig­a­tions are. I was try­ing to think of some oth­er exam­ples, just in case some­body quizzed me, before this. And one of the things that I kept com­ing back to is the sort of ​“no copy­right infringe­ment intend­ed” that you see kind of often in fan­dom. Which is sort of total­ly tal­is­man­ic, and it’s like, ​“Please don’t sue me. I did­n’t mean it.” Which unfor­tu­nate­ly does­n’t real­ly mat­ter a ton for many copy­right infringe­ment lawsuits. 

But yeah, so I think when you see that kind of com­mu­ni­ty out­put, where peo­ple are clear­ly try­ing to engage on the legal sub­stance or try­ing to come up with a bet­ter way to explain what they mean, that’s a place where lawyer­ing can be real­ly help­ful in trans­lat­ing what the com­mu­ni­ty wants into words that are cog­niz­able to the legal sys­tem, because that’s kind of what lawyer­ing’s about.

In terms of the terms of ser­vice and enforce­ment… So, I admit I actu­al­ly orig­i­nal­ly did struc­ture this talk around things in the terms of ser­vice. But then I sort of fig­ured I would make it a lit­tle more broad because terms of ser­vice are in some ways actu­al legal doc­u­ments. They’re con­tracts, right, and although they’re not usu­al­ly enforced by the courts, they are usu­al­ly writ­ten as enforceable. 

So I think what actu­al­ly wor­ries me more is the pres­ence of these words in spaces where like, not even terms of ser­vice. Like in Yik Yak, it’s in the con­tent guide­lines, which are incor­po­rat­ed by ref­er­ence into the terms of ser­vice but are sort of meant to be the cog­niz­able easily-understandable like, you can fol­low these things. 

And I’m sor­ry. I’m not sure I answered your ques­tion cor­rect­ly. I maybe talked around it for a while. But if you want to re-ask it I will try my best to answer it direct­ly. Or I can just move on.

Audience 3: So, speak­ing of users not read­ing terms of ser­vice, let’s say that you read it but you dis­agree with it. Right now there’s not cur­rent­ly a mech­a­nism where you can say, ​“Actually I don’t agree to this part.” So it’s like, ​“Okay, well then you don’t like our terms of ser­vice at Slack? Then don’t use Slack.” And as some­body who’s not involved in the com­pa­ny or not a lawyer, what recourse do I have? Is that some­thing that com­pa­nies are inter­est­ed? How would I as an engaged com­mu­ni­ty mem­ber go about mak­ing some kind of change?

Albert: So, the sort of legal answer is don’t use the ser­vice. The sort of actu­al answer is I do think there are some com­pa­nies and some groups who actu­al­ly real­ly care deeply what their users think about their terms of ser­vice, and are respon­sive to user feed­back. I’ve been in con­ver­sa­tions where folks were like, ​“Well, some­body real­ly said they’re not join­ing our ser­vice because of our arbi­tra­tion clause. Can we get rid of out arbi­tra­tion clause?” That is an actu­al con­ver­sa­tion that I’ve seen hap­pen, so it’s not just a fig­ment of my imag­i­na­tion. (Although some­times it feels like it was.)

But users do have the recourse of reach­ing out and being like, ​“Hey, I don’t like this thing that you’re doing.” Realistically, part of the prob­lem is all of the stuff we talked about with respect to defama­tion, some of that same stuff holds true in con­tract law. Like the his­to­ry of con­tracts of adhe­sion, which is con­tracts that are non-negotiable. And sort of the way that that’s come to gov­ern in terms of ser­vice is kind of…in some ways not par­tic­u­lar­ly rec­on­cil­able with a mod­el that empha­sizes user agency. Like, you could try to send them back ver­sions of their terms of ser­vice with parts crossed out. Good luck. But our body of con­tract law either is not well-equipped if you think the goal should be agency by third par­ties, or is very well-equipped if you think the goal should be hav­ing com­pa­nies bind peo­ple as eas­i­ly as pos­si­ble to contracts. 

So, unfor­tu­nate­ly there aren’t a ton of answers, but I do think you can, espe­cial­ly if you know the com­pa­ny is one that maybe cares about users, or think the com­pa­ny is one that cares about users, reach­ing out to them and being like, ​“Hey, I real­ly want to use your ser­vice but you have this thing like…you know. Sorry.” 

Audience 4: So, this is a half-baked idea, so I may regret bring­ing it up. I’m won­der­ing if your cri­tique of legal tal­is­mans could be extend­ed to the way that courts them­selves apply legal terms to con­clu­sions. And I’m think­ing of the way that the Supreme Court will decide what is obscen­i­ty or not, what con­duct is speech or not. Is that also a cul­tur­al per­spec­tive that is hav­ing a label slapped on it at the end, sort of con­ceal­ing what’s real­ly going on?

Albert: Yeah, the secret prob­lem with this argu­ment is it applies to all law. I mean, or it’s not a prob­lem at all with this argu­ment, that putting things into cat­e­gories that are com­pli­cat­ed, that peo­ple don’t under­stand, and then apply­ing arbi­trary rules to them is kind of what judges do and what lawyers do all the time? That this prob­lem is not unique to online plat­forms. And so, some peo­ple would con­sid­er that a flaw in my argu­ment, but I con­sid­er it a strength.

And what I mean by that is that yes, it turns out like, all of these sys­tems have this bag­gage and have these roots that if we dig deep enough we’re gong to find the creepy crawlies that—this metaphor got away from me—that are under the law, right? That the bag­gage is not unique to one area of law. And I think often, actu­al­ly, when we talk about the Internet, we all can come to it from this per­spec­tive that every­thing is new and noth­ing has hap­pened before. 

And I think that the argu­ment here is that we should take the lessons that we’ve learned from all of this oth­er stuff about how you know, we don’t like it when judges mis­un­der­stand tech­nol­o­gy and then come to the wrong deci­sions. Well, it turns out judges have been mis­un­der­stand­ing things since time immemo­r­i­al. And the the prob­lems are not unique to tech­nol­o­gy, but we can learn a lot from the schol­ar­ship that has already crit­i­cized these phe­nom­e­nons, and that’s part of why I invoked Duncan Kennedy.

Audience 5: Seems like to avoid falling into the trap you describe if I was to write a set a set of terms of ser­vice are just guide­lines for some­thing I run, I would have to avoid any ref­er­ence to any legal ter­mi­nol­o­gy what­so­ev­er. I can’t say ​“harass­ment.” I can’t say ​“libel.” I can’t say ​“defama­tion.” Even if I go to real­ly like, fourth-grade plain English, it seems like I can’t real­ly avoid these terms, so what do I do?

Albert: I mean, I do think you can avoid these terms. I actu­al­ly think since I’d start­ed think­ing about this, I actu­al­ly think Twitter and Facebook have made huge progress on their con­tent guide­lines about remov­ing legal terms. And part of that is because I think they real­ized that the legal terms were not actu­al­ly serv­ing a good pur­pose for what they want­ed to accom­plish. But if you look at Facebook’s con­duct guide­lines, Facebook’s con­duct guide­lines do not con­tain the word ​“defame.” Their terms of ser­vice might, but their con­tent con­tent guide­lines don’t.

Audience 5: [inaudi­ble]

Albert: The word ​“defame.” They don’t talk about defamation.

Audience 5: Does it say ​“harass­ment,” because that also has a lot of legal…

Albert: Yeah, but harass­ment… You usu­al­ly need a word in front of harass­ment before you get a very spe­cif­ic set of legal tech­ni­cal terms in a way that’s dif­fer­ent than defama­tion or libel or slander.

So I do think it’s pos­si­ble to move away from those. And I actu­al­ly think that for— Speaking of half-baked ideas. Forcing peo­ple to write their terms of ser­vice in ​“explain it to me like I’m five” style might actu­al­ly not be a bad idea for forc­ing peo­ple to actu­al­ly reck­on with what they’re putting in there. Because the real­i­ty is that peo­ple often are doing this in such a way that they’re not spend­ing a ton of time— That as Jonathan sug­gest­ed it’s sort of the fruit­cake, right. It’s like you know, they grabbed it, they copied it from some oth­er site, mod­i­fied the parts that obvi­ous­ly should be mod­i­fied and then turned it over. And I know none of the lawyers in this room would ever do that. But I’ve I’ve heard that it happens.

And so I think that the process of actu­al­ly hav­ing to sit down and think about what you mean is like, real­ly impor­tant. And being inten­tion­al about the process by which you come up with the terms that gov­ern your com­mu­ni­ty and the behav­ior that’s accept­able in your com­mu­ni­ty, forces your instincts into ten­sion with the sort of real­is­tic focus of what you’re doing. So I do think it’s actu­al­ly pos­si­ble. It may be hard, but so are a lot of things that are worth doing.

Audience 6: Thank you. This was a great talk. I find it real­ly fas­ci­nat­ing that I did­n’t real­ly know any­thing about the…basically the more prob­lem­at­ic mean­ings of phras­es like defama­tion and oth­er types of things you brought up. And so apply­ing crit­i­cal legal stud­ies must be a real­ly key part of this argu­ment, and real­iz­ing that lit­tle tal­is­mans are an issue.

So I’m won­der­ing how you bridge the gap between peo­ple kind of glibly or not glibly using legal terms casu­al­ly, whether or not it’s in news reports, or in terms of ser­vice, or in oth­er capac­i­ties online, and get­ting to the part where you actu­al­ly start to see that it’s prob­lem­at­ic not just in a legal sense and the fact that laws are com­pli­cat­ed, legal terms are com­pli­cat­ed, but they also have even more under­ly­ing issues beyond that.

Albert: Yeah, I think there are some folks who write like… It’s hard because I think most crit­i­cal legal schol­ar­ship would not nec­es­sar­i­ly char­ac­ter­ize itself in the terms I have char­ac­ter­ized. The sort of defa­mil­iar­ize the famil­iar, or with the express pur­pose of com­pli­cat­ing these terms. Although I think that that is one of the very pow­er­ful things it brings to the table, is the sort of his­tor­i­cal under­stand­ing of where these words come from. And it’s actu­al­ly some­thing I think that peo­ple should learn more in law school. Thank you, Jon Hansen.

So I do think law school is actu­al­ly one real­ly good place for peo­ple to learn the his­to­ry of these terms. And it’s sort of some­thing that does­n’t real­ly hap­pen in the tra­di­tion­al doc­tri­nal sub­jects, where every­one’s so wor­ried about mak­ing sure that you under­stand what strict scruti­ny is (which is a First Amendment test) that they for­get to talk about why we have incite­ment law, or what defama­tion means. In fact I’m pret­ty sure my First Amendment course did not cov­er defama­tion very much at all.

So I think it is pos­si­ble to write per­sua­sive­ly for the pub­lic on this. It’s def­i­nite­ly hard, because they can often seem like this his­tor­i­cal per­spec­tive is real­ly like, ​“Oh, well that was the past and things are bet­ter now,” right. When we’re talk­ing about the his­to­ry defama­tion, ​“Oh, in 2014 they got rid of that part about wom­en’s chasti­ty. And like 2012, homo­sex­u­al­i­ty is no longer per se libelous, hur­ray!” So it can seem sort of his­tor­i­cal, but I think—to be trite—those who don’t know his­to­ry are doomed to repeat it. Like that we think of these new terms and we come up with these new legal con­cepts, and we make the same mis­takes that we often had made before.

So I think you can write pub­licly on the sub­ject, and I think just lit­er­al­ly read­ing a law review arti­cle in then writ­ing a blog post about being like, ​“Wow, I found out all these things about defama­tion.” Or, ​“Wow, it turns out the his­to­ry of incite­ment is full of a lot of peo­ple want­i­ng to kill com­mu­nists,” is a use­ful con­tri­bu­tion to unpack­ing some of these things.

Audience 7: Hi. Thanks. So, this was super inter­est­ing. I work a lot with crit­i­cal legal stud­ies, and I have a ques­tion regard­ing the con­tent that legal con­cepts car­ry. Which is sort of what you’re unpack­ing and crit­ics unpack. And sort of like the more gen­er­al­ized con­tent that peo­ple have about those tal­is­mans and how they use them to com­mu­ni­cate and achieve things in their dai­ly lives, which does­n’t nec­es­sar­i­ly match the unpacked con­tent which you’re doing.

And I won­der how you see the inter­ac­tion of this unpacked con­tent, which usu­al­ly comes from the past and this con­stant con­struc­tion of con­cepts that hap­pens in dai­ly life that does­n’t real­ly have to be relat­ed and that actu­al­ly leads to many legal out­comes that strate­gi­cal­ly peo­ple in the head­lines that you showed… I don’t know, Apple or Twitter used. And how you see how they relate and how to…I don’t know..

Albert: It’s a great ques­tion. And I think one thing to be real­ly care­ful of is to not talk about the legal def­i­n­i­tion as the right one? Like, I think espe­cial­ly lawyers have this idea that we have found the one true mean­ing of this term and it comes from this his­to­ry, and I apol­o­gize if that’s what I was sort of sug­gest­ing. Because that is one true mean­ing of the term, but it is not the one true mean­ing of the term to sort of rule them all, right?

Cultural under­stand­ings of defama­tion actu­al­ly car­ry huge amounts of weight in how we under­stand how these things work. We can’t just ignore them because we like the legal one bet­ter. And this hap­pens straight up con­stant­ly in dis­cus­sions of free speech. Because peo­ple who talk about free speech are often using it as a short­hand for, ​“I feel like my voice isn’t being heard,” or, ​“I’m being denied due process by Twitter,” or what­ev­er. And whether you agree with them actu­al­ly or not, the sort of facile, ​“Well, the gov­ern­men­t’s not here so what are you com­plain­ing about?” I think is just not nec­es­sar­i­ly con­struc­tive as a response.

So I think it’s real­ly impor­tant to think about pop­u­lar def­i­n­i­tions and legal def­i­n­i­tions as both valid for dif­fer­ent things. And that the legal def­i­n­i­tion is prob­a­bly going to win in court, right? That the virtue of it is that courts apply legal def­i­n­i­tions, and knowl­edge of those legal def­i­n­i­tions can be used very effec­tive­ly as a source of author­i­ty in ways that can sort of silence more pop­u­lar cul­tur­al con­struc­tions. That’s the ​“no copy­right infringe­ment intend­ed” thing, which is sort of a tag that peo­ple put on fan works like fan­fic­tion, where they’re using oth­er peo­ple’s copy­right­ed char­ac­ters that may or may not be copy­right­ed, in ways that may or may not be Fair Use. 

It is tempt­ing as a lawyer to be like, ​“Hey, I don’t have to pay atten­tion to that because that’s not real copy­right.” But cul­tur­al con­struc­tions mat­ter. And how peo­ple think about the law mat­ters, in some cas­es more than what the law is… I think it’s Jessica Silbey who’s been doing a lot of work on what peo­ple mean when they talk about copy­right, and what cre­ators mean when they talk about copy­right. And I think that sort of more ethno­graph­ic work is a real­ly pow­er­ful way to look at cul­tur­al con­sen­sus around what legal terms mean in a way that, because of the con­struc­tions of aca­d­e­m­ic knowl­edge, gives it author­i­ty that’s maybe com­pa­ra­ble to legal authority.

So to sort of sum up a sort of ram­bling answer, it’s just real­ly impor­tant not to talk about one term as cor­rect, because one term might be enforce­able with­in the law, and that the cul­tur­al under­stand­ings of these terms are in many ways more impact­ful on on peo­ple’s dai­ly life than the sort of real­i­ty of what what may be on the books. 

Audience 8: Hi, thanks for that. I got a lot of thoughts going through my head because I actu­al­ly spent the morn­ing look­ing at the com­mu­ni­ty stan­dards of three of the biggest social media plat­forms and said, ​“Wow, awe­some. [inaudi­ble] for me.” And one of the things that actu­al­ly I want­ed to draw out is what you began with by talk­ing about the com­pa­nies aren’t pro­vid­ing us with a pos­i­tive right.

And one of the things that actu­al­ly stood out for me is when you look at their com­mu­ni­ty guide­lines, or the Twitter rules, they real­ly invoke all this very flow­ery lan­guage about, ​“We’re pro­vid­ing you with the oppor­tu­ni­ty to share and exchange in this boun­ty of good­ness.” And it seems like they would argue, right, that that is a pos­i­tive right, just the abil­i­ty to be able to go forth and pros­per. And we can roll our eyes and we know it’s a bit ridicu­lous, but I’m won­der­ing if that has any kind of stand­ing in terms of how that makes us think about this notion of rights. And if that has any kind of legal fram­ing in that question.

Albert: So, one of the things law school talks a lot about it is there’s no right with­out a rem­e­dy. This idea that with­out some sort of con­se­quence for the vio­la­tion of a right, that the right might as well not exist. And so although often… Obviously hav­ing just read them, you’re total­ly cor­rect. There’s all this kind of flow­ery lan­guage about ​“using our infor­ma­tion ser­vice to spread you glob­al peace and flow­ers and choco­late world­wide, and like pets and kit­tens” or what­ev­er. The reality—and this is sort of where the cul­tur­al con­struc­tion ver­sus legal real­i­ty kind of butt heads—is that if you look at the terms and not the com­mu­ni­ty guide­lines, what they’re going to say is that ​“we can ter­mi­nate your ser­vice at any time” and like, ​“if we do, your rem­e­dy is we’ll give you the mon­ey we might owe you back.” Which in the con­text of a free ser­vice is like, ​“Okay, great. So I get nothing.” 

So, with­out reme­dies pos­i­tive rights are not nec­es­sar­i­ly mean­ing­ful. And this is some­thing that comes up in all kinds of dif­fer­ent forms of jurispru­dence. But if we talk about these doc­u­ments as sort of try­ing to give peo­ple a sense of foun­da­tion­al rights, then the ques­tion is actu­al­ly like, do they pro­vide due process or things that we could attempt to under­stand as due process rights? Or like, do they pro­vide reme­dies for not being able to access the ser­vice any­more? And I’m going to pret­ty much that’s that the answer is prob­a­bly no. So in the absence of a rem­e­dy, what is a right?.

Audience 9: Thanks, Kendra, so much for a lot of this. Certainly, your last ques­tion got me think­ing a lit­tle bit about the alter­na­tives. And it kin­da led me to a place which I guess is going to be a ques­tion for you, and that’s real­ly how much is the role of the terms of ser­vice to sort of set com­mu­ni­ty val­ues and stan­dards, and com­mu­ni­cate ​“this is what we do here” and give notice, ver­sus how much is sim­ply, ​“Oh, this is a shield in case Angry Person wants to lit­i­gate against us because we arbi­trar­i­ly boot­ed him off,” or her, they. And kind of what rule…like, should there be two sep­a­rate things, or some­thing like that?

Albert:

Yeah. I think it’s a great ques­tion, and I think actu­al­ly many plat­forms have sort of gone to two sep­a­rate things which I’ve been maybe allud­ing to some­what, com­mu­ni­ty guide­lines ver­sus terms of ser­vice rate, and how those dif­fer. I mean, I think terms of ser­vice are fun­da­men­tal­ly legal doc­u­ments, and they’re often draft­ed— Not always, cer­tain­ly not always, and I don’t mean to impugn the good names of many of the lawyers who draft up terms of ser­vice, of which I am one. So, they are often draft­ed with an eye toward shield­ing from lia­bil­i­ty, and not with the sort of foun­da­tion­al doc­u­ment in mind. 

And I think that the… I have not seen, although I wel­come sug­ges­tions on where to look, peo­ple who have done the sort of foun­da­tion­al doc­u­ment thing in a way that passed the sniff test. Like Facebook’s sort attempt at like, glob­al gov­er­nance where like, 1% of all Facebook users would have to vote on some­thing. Which is just an enor­mous amount of peo­ple that was unre­al­is­tic in every way to think that they would engage with the issues Facebook was pushing. 

So I do think yeah, there’s sort of this idea of split­ting them off, and these have two sep­a­rate audi­ences, and this is our legal­ly bind­ing one. But I mean, if your com­mu­ni­ty guide­lines are all pup­pies and rain­bows, and your your legal­ly bind­ing doc­u­ment is all like, ​“we reserve the right to ter­mi­nate at any time, we can kick you you off for any rea­son,” I think you may be try­ing to say one thing out of one side of your mouth and anoth­er thing out of the oth­er side of your mouth. And in maybe some con­texts that’s total­ly appro­pri­ate and total­ly okay. But you have to ques­tion whether that rep­re­sents the val­ues that you want to try to pro­mote through the inten­tion­al process of actu­al­ly think­ing about ​“what is it we’re try­ing to do here?” 

And that there are costs to being inten­tion­al and think­ing about val­ues. Like yes, not hav­ing an arbi­tra­tion clause in your con­tract may cost you a lot more mon­ey because you’re going to get sued by a bunch of plain­tiffs’ lawyers for a class action. But if you think arbi­tra­tion claus­es are bad, then that’s maybe a deci­sion you make. All of these deci­sions involve tradeoffs.

So I think that indi­vid­ual com­pa­nies do need to reck­on with the real­i­ty that we’ve con­struct­ed. And why I ask if the alter­na­tives are worse is that in some sense it’s like, ​“Well, am I now ask­ing com­pa­nies to do the kind of soul-searching that our democratically-elected gov­ern­ment has failed at?” And I am. And I real­ize that that’s a pret­ty hard posi­tion for me to take on a lot of days, and in a lot of places. Because I don’t nec­es­sar­i­ly trust com­pa­nies that at the moment— They’re mak­ing val­ue state­ments any­way, right. Whether I like it or not. And I’d rather they were more inten­tion­al about their val­ues. So I’m answer­ing my own ​“Are the alter­na­tives worse?” question.

I think we may be at time. So, see­ing no peo­ple with their hands stren­u­ous­ly up, I want to thank you all so much for com­ing. And I’m hap­py to talk to folks after.