Restriction of Speech Online is Solvable

Even in the early days of the Internet, there were some trolls and even some danger, but we used to see the Internet as this potential utopia. Today, with so many of us living out so much of our lives online, and the explosion of disinformation and hate speech and even terrorist propaganda, the internet can be a horrible place to spend time. Basically, we don't know how to regulate speech on the Internet. Here in the US, we hold tight to our First Amendment, but we agree that some things

should be censored, but which things? Right now, we're leaving it up to the platforms and the social media companies that serve it up. This past decade has seen three giant American companies Facebook, Twitter, and Google, which owns YouTube, become the way that most of the world experiences the Internet and the conveyors of much of its disturbing and dangerous material. So how should online speech be governed? What law should apply to global companies? Should companies make the

rules or should governments step in to regulate? Also consider this. Freedom in the World is an annual global report on political rights and civil liberties, and they reported that last year was the eighth consectut it a year of global Internet freedom decline. Seventeen governments have approved or proposed new laws restricting online media in the name of fighting fake news, and eighteen countries have increased surveillance, often skipping any independent

oversight and pushing to weaken encryption that protects privacy. This is nobody's dream Internet. David Kay is working on that. For the past five years, he's been the United Nations Special Rapporteur of the Promotion and Protection of the Right to Freedom of opinion and expression. He has traveled the world talking to victims of takedowns and to government censors

and to platform policymakers. He works to promote human rights law, believing that that provides an authoritative global standard for protecting freedom of expression online. This is an absorbing conversation on a topic that can seem too fraught to tackle, So have a listen, David. I wanted to start by asking you about your public role. I was delighted when I first heard some time ago that the UN had a special Rapporteur for freedom of expression. How do you get

that job and what is it? So the Human Rights Council, which is the central body for human rights in the UN system, it's a part of the General Assembly. Over the last fifty years, basically they've increasingly developed these mechanisms of independent experts who monitor different human rights around the world, and now it's up to about fifty individuals and a few working groups. Some of them handle issues like arbitrary

detention or summary executions. So mine focuses on freedom of expression and I monitor free speech issues around the world. You think the internet was better before? Maybe there was a kind of golden age or healthy on early days when expression with free or people felt more empowered, it with more democratic. Is that right? I think that's right, although I don't want to overstate it, right. I mean, there has always been not only a potential, but a

reality of harassment online. If you go back to online bulletin boards of the nineteen eighties and nineteen nineties, there was always some sense of a bro culture, a culture that excluded women in particular, excluded minorities, that was harassing. So that's always been there. Now, back in the old days of the internet, this sort of pre social media age, we had the blogosphere. So if you had a blog,

you would write up your blog. You might have let's say, fifteen hyperlinks in it, two different people that you also like to read, or articles that you've seen, and as a reader, you had control of your information environment. You would go to a blog and you'd go from one link to another to another, till suddenly you won't share how you got there, but you had this kind of

glorious experience of exploration that you've had. It's changed, and social media has been a major driver of the change, in particular Facebook, Twitter, YouTube, or if you think about China and Russia, there versions and now we have a centralization of the information environment, and that's a problem. It's a problem because the companies which have grown to such

enormous extent, they have control over the information environment. But it also gives repressive governments in particular a kind of one stop shopping opportunity to impose restrictions on speech. Right. So in repressive countries it makes censorship easy. But in countries like ours that don't have censorship, why don't you have the same sense of freedom. You have these big dominant platforms, obviously, and they're filtering things in certain ways, maybe to give you more of what you agree with

and less of what you disagree with. And those are all issues, But is censorship per se an issue? So, I mean, I think you're hitting on a really important point, which is the companies are global and there's extraordinary variation among the places where they operate. So in the United States, it's not that I'm concerned about sense ship per se.

I suppose the way I would put it is in democratic societies, I'm more concerned about the rhetoric of harm on the internet and the sense that these are spaces that need to be protected and in which people need to be protected from online harms. And think about it in terms of speech harms that increasingly narrows the amount

of information that we're able to get. It increases, or let's say it limits our ability to grapple with ideas perhaps, and over time it could get worse and worse, And that's to my mind, that's the direction things are heading. But that is very different from repressive societies, which are in a place like Egypt, for example, or Turkey. They might look to Twitter or to Facebook and say to the company, your terms of service provide this, They provide

that there can be no hate speech on your platform. Well, we think that this criticism of this minister is hate speech. Take it down. So the kind of pressure that's put on companies by the repressive societies is very different from the kind of pressure we see in the democratic societies. But they have changed even in the democratic societies. Like a lot of journalists, I'm mainly on Twitter, that's my

social media platform of choice. And I remember maybe ten years ago Dick Costello, who was the CEO of Twitter. I remember him saying, he said it a lot publicly. Twitter is the free speech wing of the free speech Party, right. He meant that Twitter was a place for almost absolute freedom of expression short of things that would actually be illegal in the United States, protected by the First Amendment.

They've been under a lot of pressure to not be so accommodating a free speech or not to prioritize the value of free speech so highly above other values, including the important value of not being harassed and not being abused. So what's happened on Twitter and other platforms to the free speech which they used to at least defend more resoundingly.

So I would frame it in a way, as you know, these were companies that were founded basically fifteen years ago, and they were founded by people and then managed at sort of the legal and policy level by people who

were marinated in a First Amendment culture. Right, So they came at these issues from the perspective that we need robust debate, and think about it also from the business perspective, the more content the better, Right, The more content we have, the more robust the debate, the better we have an opportunity to capture the attention of an audience, which in turn translates into more individual users for advertising dollars. So there was kind of an alignment of the business model

with these ideas of free speech. The problem is that I mean a couple of things. One is, they were extremely slow to recognize that their platforms could also be used even in a free sp each environment to exclude voices. So there are too many examples to note around journalists or celebrities or others with not a great platform being harassed off the platform. Basically, that's an exclusion that we might not think of in the public square, like if you went to a corner in central Park to speak.

That's not necessary, that's not going to happen, and government can't do anything about it. But if the platforms really did genuinely want to create space for debate, the availability of harassment or the enabling of harassment actually undermine that. I think that commitment to a First Amendment culture was part of that, and it was very different from the way people around the world sought these issues. Which around the world and now Facebook's eighty five percent of its

users are overseas. They don't come from that same environment, even in the human rights respecting countries. They just have a different vocabulary for thinking about these problems, and their vocabulary allows them to deal with some of those harms

in a way that also creates space for speech. So if you're schooled in anti trust and anti monopoly thinking, you kind of think, well, the problem here is these companies are too big, and they have too much power, and there's a movement now either to break them up or regulate them big platforms, but there's a voice in the back of my head saying, I'm not sure that's going to help. Would if we had five pieces of Facebook instead of one Facebook, would we be better off

on this issue? Would those smaller companies be making better decisions than no one of them would have as much power. But on the other hand, when someone comes up with a good solution, you don't just have to give in Facebook to do it. You'd have to convince lots of companies to do it. So, you know, one of the questions I have is whether there are ways to think about the platforms not just in terms of breaking them up,

but in terms of breaking them down. So, in other words, how do we bring them closer to the users around the world who really need to have access to the companies, who need to have access to the rules, who need to understand the rulemaking. And then the second part that we really need, and this is where I think competition is useful, is to have a zone in which you could have access to different platforms. Some might be more

restrictive on speech, some might allow more robust speech. But if there's more of a choice and they're somehow interoperable, so you can choose, but you can also communicate across platforms. That's an approach that actually I think diminishes in some respects some of the concerns, because people right now feel like if they are harassed off the platform, they don't

really have anywhere to go. If you're harassed on Twitter and Facebook, you're probably not going to go to YouTube to be a video creator, But where else do you go to have an audience and a voice. That's a real problem, maybe less so in the United States than in places where the platforms really dominate public space. In democratic theory, it's recognized that certain decisions need to be insulated from politics. Right you don't want a plebiscite to

decide what interest rates should be. In fact, you don't even want the president or the Treasury Department to decide what it interest rates should be. That's why we have the FED, you know, It's why we have a system of laws and courts to decide guilt or innocence and legal questions. We don't want those to be political questions at these platforms now, pretty much everything is a political question in the sense that they're thinking about public relations,

about what's going to happen in Congress. Are they going to be attacked? Is there a way to insulate some of these dish decisions, to create a judicial body to decide at the end of the day, what you should be allowed to post or not post on YouTube or Facebook. I think this is a really important part of the debate that is not being discussed very often. Governments have been increasingly seeking to reclaim this space, not in the United States. This is one of the oddities about the

moment because Washington is basically dysfunctional. The debate hasn't really matured in the way that we've seen it in Europe, and so what Europe has been doing is really thinking about moving towards a regulatory regime that would require the companies to apply their rules. Unfortunately, they're not doing the insulation that you're talking about. So, for example, there's a

relatively recent law in Germany that's called nets DG. They basically say to the companies, and it's to the biggest companies, you need to regulate your space according to German law. But they don't involve public institutions in deciding what is and is not German law. They basically say to the companies,

you're now the adjudicators of German law. That is anti democratic at the end of the day, and then the companies are subject to the political pressures, whether it's in Germany or elsewhere in Europe that don't insulate them from the ability to actually perform their job in a neutral way. So that's fundamental problem, and I think there are ways to move forward and to move away from that, to move into a space that we in a way depoliticize some of these issues. Where do you see examples of

that happening. Unfortunately, there aren't too many really good examples right now. So we've seen some, i would say problematic

examples in democratic space. We've seen, for example, the UK has something called a white Paper which is kind of a plan for legislation in the future, and it doesn't distinguish between illegal harm and offenses like things that would just be offensive online but are not illegal, and so it seems to be leading towards requiring the companies to make those decisions, which again is not particularly democratic and

will move them towards highly political decision making. There is an example, a current one, but it hasn't materialized yet. It is a task force in France that was commissioned by Emmanuel McCrone that actually is thinking, I think, in very helpful ways about how to use public institutions to deal with these kinds of problems. So, for example, could you use public law in order to require the companies

to be more transparent about their decision making? Because right now, as you are suggesting, we look at the companies and it seems like they're making their decisions on an ad hoc basis. But if we had more access to their decision making, almost like a case law of their decisions, we at least would be on the same information level. We know what they took down and why they took it down. Yeah, and in some cases they do publish

that data, don't they. I know, Twitter makes the point of doing that in countries that have censorship laws exactly, so they do that, although not at the granular level that I'm thinking about. But they do publish transparency reports about government demands for takedowns, but they publish very little. I mean, they're moving in the direction of publishing more, but it's still at an aggregate level, and it's hard for researchers to understand the specifics of the case law.

Let's say they publish little about their own terms of service, their own regulation of their own space. If you were in charge of this at Facebook, instead of being in charge of yelling at Facebook for the UN, what standards would you fundamentally apply? These companies are not bound by the First Amendment. They're private companies, and there are many cases in which I don't think people would argue that a First Amendment standard would be appropriate. They don't allow nunity.

They don't even allow naked breasts on any of these platforms, right, and people are pretty comfortable with that. But around political decisions around hate speech, everything is highly contested. What are the rules which you think should be incumbent to bond them? Maybe not legally but ethically. So there's actually been a move in the UN and internationally over the last twenty

twenty five years to impose more responsibilities on businesses. It actually developed out of the extractive industries in West Africa during the wars of the eighties and nineties. There is part of this move. The UN's Human Rights Council actually adopted a set of what are called guiding principles on business and human rights, and it actually provides some very good guidance for the companies. So one measure, for example, would be for the companies to conduct something like a

human rights impact assessment. The companies should do an evaluation what does it mean for this country. Let's say a country like Ethiopia on which significant press restrictions have been lifted and that so there's been a kind of robust new debate that started just over the last year, which

also includes threats of ethnic violence. So going into that environment, Facebook or YouTube or Twitter could evaluate if our product is available to people in Ethiopia, are the risks of that, what are the kind of harms that we could expect, and what are the ways that we should mitigate those harms. They don't do anything like that right now. They have

no playbook. If they rooted their rules around human rights standards, I think they could better articulate to Ethiopians, for example, but also to the world about why their platform should be accessible to people in this kind of newly vibrant environment, but that it will take steps in order to deal with the problems that are naturally going to take place. But Facebook just congenitally seems to believe that the solution to all the problems caused by Facebook is more Facebook.

I mean, when you say they should do a kind of social impact statement to weigh the pros and cons that seems to me what they're totally incapable of doing, because they're sort of incapable of seeing how much harm they cause, and that on balance, a lot of people and a lot of places might be better without it than with it. I think what you're articulating in many

ways is a need for public oversight. So because the companies are multinational, and because these are non binding norms that I'm describing, there may be a need for government to step in and to regulate these kinds of assessments actually require them. I actually think that having government regulate the content, like having government say to the companies, you should allow this kind of speech or disallow this speech. To my mind, that's problematic because that will almost always

move towards repression. However, if there is requirements on the companies that are more neutrally oriented, right they're more focused on process and on providing information to the public, I think that at least pushes the companies to articulate their role and to observe their own impact in these countries in a way that clearly interferes with their business model.

But I don't really care about that. I mean, they're making enough money as it is they can afford to do some of this, and I think they have a

responsibility to the people and the places that they're engaging. Yeah, I mean, India rejected Facebook's Free Basics plan, which is a way of providing kind of a minimal Internet i e. Facebook only or mostly Facebook only to developing countries where most people can't otherwise afford access, and the Indian regulatory bology whatever that was, said, no, you can't, you can't do it here. It's anti competitive or I forget what the exact reasoning was. And that's not only fine, that's

that might have been a really good move. I mean, Facebook is still really quite dominant, especially what's app in India. But if you think about Facebook Basics and its use in Myanmar, right, So Facebook became the Internet, but it was much more than I think. Saying Facebook is the Internet understates the role of Facebook. So Facebook was the only platform that was available to people basically and everybody online was on Facebook, and they were on Facebook Basics.

But it was also at a moment when the lid had come off of the repression of the past, the military rule in Myanmar, and the Facebook Basics program became

the only way people accessed information at all. It became the public space, and so in that environment, Facebook had an enormous responsibility to deal with the kind of not just hate speech in some vague way, but the actual incitement to ethnic violence against the Rohinga that the government itself was participating in, and they did nothing even when

they knew about it. So I think imposing some responsibility, accountability and framing it around human rights standards, I think actually allows us to assess their roles in a fuller way and also allows us to measure their ability and their willingness to meet these obligations and to protect people in the places where they're operating. David, different generations think about social media and the Internet really differently. Right, someone my age and my mid fifties versus someone in their

teens to twenties. Absolutely, I mean, I think this is one of the points that we need to be thinking about. In the sense that social media is dynamic. Right now, what we think of as the place for social media for social discourse today, which might be Facebook or or

what's app, it might vary five years from now. So I do think that as we think about what principles we want to apply, because the principles of what's available to people online should be constant, right, they should be rooted in freedom of expression values, and if we can think of those in a way that allows them to transfer as the Internet develops, I mean, that's what we

need to be aiming towards. Because it's true, it's not just the current generations that are using the Internet differently, but as time moves on, we're going to see issues, We're going to see frameworks, We're going to see platforms that we probably can't even envision at the moment. Yeah, and the regulators tend to be old and the innovators tend to be young. It's very hard to keep up

with the pace of innovation in this space. Absolutely. I mean this is an argument for technologists and for others who are really well versed in the technology and in the policy around the technology, to be an important part

of the policy discussion. I mean, they should be involved in educating legislators where we've seen time and again, and I mentioned a situation in Kenya where a lawyer said to me, really accomplished internet lawyer said, it's very hard to have these discussions in the Kenyon legislature because the legislators don't really understand the technology or the social uses

of the technology. So we need to have ways for those people who understand it to be a part of not just the legislature and the legislative process, but also the judicial process, because people at the judicial level are making decisions. They're having a huge impact on speech online. Your solvable references this sense of greater autonomy that people had at an earlier stage of the Internet, and I know you have some optimism about this getting better rather

than worse. What else has to happen. I think our goals should be realistic. So there are some people who say platforms need to eradicate hate speech, for example, or

eradicate disinformation. I think that's a goal that is not particularly achievable, and so I mean I think in terms of the way forward, some of the ideas I think have to be focused on how do the companies get more access to the communities in which they're operating, or really put another way, how do the activists, users, individuals, civil society and countries where these companies operate. How do they get more ownership, like small ownership of the platforms.

How do they get ownership of the public space. That's tricky to do because you don't want to do that in a way that gives the government the power to capture that process. So I mean, I think that the companies, with a significant nudge by governments, should be essentially creating non governmental oversight that would be a cross industry that would allow evaluation of what they're doing, that would allow criticism, and that would allow remedy where they screw it up.

It's so easy to feel hopeless in face of these trends and the gigantism of these platforms. And I wanted to ask you, what are some things individuals can do, not just to say, protect themselves from harassment, but to foster a more democratically healthy internet. Well, I think that there are several things that individuals can do in this space, although it's very difficult to imagine some of them just because the powers seem so great. So one is, in

terms of thinking about public responses. I think individuals should be really considering on their own what they think, and so part of this is educating themselves about what they think would be the proper role of government in terms of its evaluation of the right place to insert the public into these tough questions. And once they've decided, Once each individual has decided, you know, connect with your legislator, whether it's in the United States or anywhere around the world,

and articulate your viewpoint. I think that's one way to kind of claim a sense that we have public ownership, that there's some democratic control over these platforms. I think another thing that everybody should be doing is really trying to consider the information that they're sharing. Right when you see information that ends up in your news feed, I think it's important not to simply look at the click

baity headline and just share it. Really you do your best, but do your best to understand where that information is coming from. Do you think that that information is accurate. If you do, you share a way, and you share

with the sense of your own responsibility. But if you have concerns about it, or if you think that this might be a part of an incitement to violence, for example, you know, forbear, you know, don't share, and and we're necessary report to the companies what you think is the problem. But those kinds of things, it's not that we are disempowered at all. I mean we need to be retaking control.

I think the third thing I would say is that individual Jules particularly let me say Americans, should really understand that these are global companies now, and so part of that means that our solutions for the US space might not work everywhere, and we need to be more mindful of the fact that a rhetoric around this, which is again rooted in a kind of First Amendment culture, might not work everywhere in the world, and that the way others want to solve these problems might be fully legitimate

within even their own democratic space. And until we're able to get to that point, and this is particularly true for legislators and the companies, I think that we're going to continue to face these major problems that the companies themselves are going to find very difficult to solve at the global scale that they operate. Do you think opting out is part of the solution. In the United States, it might not be a problem, or in Europe it might not be a problem to say I'm just leaving

Facebook or Twitter or YouTube. I'm going to actually have human relationships again. You know, that's totally doable, but outside of these environments, it's not exactly possible. So in the book, I tell this very brief story of meeting a guy in Cambodia who had like, very sophisticated views about government repression and I was curious how he had that information because the government essentially controls state media in Cambodia, and

without missing a beat, he set Facebook. So for somebody in that environment, he doesn't really have another place to go for potentially truthful, potentially disinforming information, but it's essential to his understanding of his own civic space. So for him, delete Facebook is not really an option. And I think we just need to be mindful that it's probably not

the global solution to this. Yeah, and that's the potential that made us optimistic about these platforms in the early days, right that it was going to break through censorship walls in certain countries that didn't have independent media. Absolutely, And I mean that goes back to the very crux of what we're talking about the beginning and what the book

is about. And that is we need to find ways to deal with the harms that are caused by all the platforms and that we are participating in causing, if we're honest with ourselves, without undermining all of the good

things that the Internet has offered. The optimism that I have is that the Internet still provides a place for groups that have an affinity for one another, so it could be LGBT groups or minority groups, and the risk of overdoing the confronting of hate speech and disinformation is that we will make it harder for those people to find each other. So we want to figure out a way to protect those people while dealing with the harms.

It's not an easy problem to solve, but I do think that steps of transparency, public control, human rights principles that actually could lead us in the right direction. Optimism about the Internet's future. That's how you know you're listening to solvable. I was so intrigued here David's argument for it, and it was cool to hear too about that person he met in Cambodia who needed Facebook to figure out

what was actually going on in his country. And while I myself I don't use Facebook, but I would be so lost without WhatsApp and Instagram. I don't know. I'm scared of the insanity brought on by the spread of fraudulent news and terrorism, but i don't want to go without the Internet, so I'm glad to hear of a

possible way towards a safe and fun online world. Once More Solvable is a collaboration between Pushkin Industries and the Rockefella Foundation, with production by Laura Hyde, Hester Kant, Laura Sheeter, and Ruth Barnes from Chalk and Blade. Pushkin's executive producer is Neil LaBelle, Research by Sheer, Vincent, engineering by Jason

Gambrel and the great folks at GSI Studios. Original music composed by Pascal Wise and special thanks to Maggie Taylor, Heather Fine, Julia Barton, Carly Mgliori, Jacob Weisberg, and Malcolm Gladwell. You can learn more about solving today's biggest problems at Rockefeller Foundation dot org slash solvable. I'm Mave Higgins, now got solve it.