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.

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—

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.


Discussion

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.

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