Big Tech platforms: mall, newspaper, or something else?

A state law writing assigment, direct from the Supreme Court

The mall or newspaper question has been in the news lately because of the Supreme Court’s decision in Moody v. Netchoice, which is largely a writing assignment for state legislators. (full decision PDF) The task that the Court has set for legislators is to come up with laws that can somehow take a whack at Big Tech’s multifarious villainy—mental health harms, child exploitation, national security threats, fraud, and all the rest—and to draft those laws in a way that clearly treats an online version of the Pruneyard Shopping Center, a place where the rights of the users outweigh the rights of the platform owner, differently from a site that works like a newspaper.

But instead of getting too far into the weeds on the mall or newspaper question, what about other options? Big Tech has qualities more similar to other businesses that are covered by other kinds of laws.

• slot machine companies pioneered the development of addiction design later copied by Big Tech—and slot machines are extensively regulated.

• Credit reports are commercial speech, but so far the Fair Credit Reporting Act has held up in court.

Regulation is justified by the scale and impact of the gambling and credit reporting industries. Even though a hypothetical Techdirt for slot machine designers or Techdirt for credit bureaus could stretch out a First Amendment argument to cover those two cases, in reality they’re regulated. State legislatures need to identify and regulate a Big Tech business practice in a way that will also hold up in court. Fortunately, there is one that’s far enough away from speech to clearly avoid First Amendment issues: surveillance, or cross-context tracking.

Cross-context tracking includes using pixels, SDKs, or “conversion tracking” APIs as a way for any business to send information about any person to the Big Tech company. (More about conversion tracking, from Consumer Reports). Cross-context tracking also takes place within Big Tech companies, when, for example, the same company owns both a video sharing platform and a web browser, and uses data collected by the browser to personalize ads on the video sharing platform.

Cross-context tracking affects hundreds of billions of dollars in advertising and content, as well as people’s opportunities in housing, employment, and other areas. So we should be able to avoid asking mall or newspaper? as much as possible and work toward building a consensus: a company that collects or accepts tracking data about people’s actions in one context in order to inform decisions that affect them in another context is holding itself out as a networked meeting place for other people’s transactions, and in need of licensing. The tracking is in no way expressive by the Big Tech company. It’s an inbound flow of data, not outbound, and the company has no knowledge or control of what the tracking events will be.

Just as states regulate and inspect any business with a gambling or liquor license, a state licensing agency for cross-context tracking would be able to handle citizen complaints about Big Tech platforms. Even if you believe that cross-context behavioral advertising is a net economic win, the people subject to it face more than enough risks to justify a state-level licensing system. For the state whose legislature can get cross-context tracking licenses into law, it’s a win-win:

• Licensing decisions for cross-context tracking could take into account policy goals such as requiring adequate staffing for security support.

• Costs to the state government could be minimized. A company would be required to disclose its own cross-context tracking in its license application, state regulators wouldn’t have to go try to figure it out. And objections to licenses could be raised through public comment forms and meetings.

• A site could cleanly avoid regulation by staying out of the cross-context tracking business and not applying for a license.

• Can promote fair competition because the tracking that requires a license would be across contexts, not owners. A Big Tech company that gained a new context, such as a site or app, by acquisition would need to update its license.

A licensing bill covering cross-context tracking could get support from a variety of interests, including people who already believe in the harms of cross-context tracking and want fewer, better-run companies doing it, and people who are neutral or even slightly positive about the tracking part but want to use future public meetings about tracking license renewals as a way to get Big Tech to improve their behavior toward their state’s citizens and businesses. Small business owners could show up at a license renewal meeting and have real impact, not just get rounded up to advocate for Big Tech and against privacy one day a year while their support tickets go to oblivion the rest of the time. And maybe, as Big Tech platforms increasingly resemble the spawn of the arbitrary top-down decision-making of a credit report and the psychological manipulation of a slot machine, the answer to the mall or newspaper question is neither.

More: surveillance licensing in practice

Related

The NetChoice Decision Shows the First Amendment Is Out of Control by Tim Wu Judges have transmuted a constitutional provision meant to protect unpopular opinion into an all-purpose tool of legislative nullification that now mostly protects corporate interests. Nearly any law that has to do with the movement of information can be attacked in the name of the First Amendment.

In NetChoice Cases, Supreme Court Labels a Surprisingly Narrow Class of Online Platform Company Activities as Protected Expression The general guidance that can be pulled here is that courts need to drill into the expressiveness of a curatorial activity at a granular level of specificity. Not everything companies do to select and display content is inherently expressive.

Supreme Court protects the future of content moderation The decision elaborates that the compilation and curation of “others’ speech into an expressive product of its own” is entitled to First Amendment protection and that the government cannot get its way just by asserting an interest in better balancing the marketplace of ideas.

Supreme Court sends Texas and Florida social media regulation laws back to lower courts The Supreme Court is sending both cases back to the lower courts for further review, noting that lower courts had failed to properly analyze the First Amendment challenges to the laws.

BRIEF OF LAW AND HISTORY SCHOLARS AS AMICI CURIAE IN SUPPORT OF RESPONDENTS IN NO. 22-555 Facebook, Twitter Instagram, and TikTok are not newspapers. They are not space-limited publications dependent on editorial discretion in choosing what topics or issues to highlight. Rather, they are platforms for widespread public expression and discourse. They are their own beast, but they are far closer to a public shopping center or a railroad than to the Manchester Union The proposed NetChoice trigger of “editorial judgment” is misplaced.

Meta’s ‘pay or consent’ model fails EU competition rules, Commission finds (From here in the USA this looks like a brilliant piece of legal work: allowing European publishers to continue using “pay or consent” while putting this model off-limits to Meta. Remember, think about European tech policy in context. Big Tech isn’t in trouble in Europe because companies are failing to comply with whatever the EU laws are today. They’re in trouble because they’re more of a part of the problem than a part of the solution on the big issues.)

Judges Rule Big Tech’s Free Ride on Section 230 Is Over As one judge wrote, Today, § 230 rides in to rescue corporations from virtually any claim loosely related to content posted by a third party, no matter the cause of action and whatever the provider’s actions. There’s a shape-shifting element here as well. When corporations want to avoid being regulated, they call what they do speech and claim First Amendment rights. But when someone tries to hold them liable for defamation or unlawful speech, they claim they are mere vessels for others, and thus immune under Section 230. This dynamic creates what one court called a lawless no-man’s-land. (this case (PDF) is another example of the circuit split between common sense no wonder new college graduates don’t want to go into advertising now that so much of the job description is about paying the People’s Republic of China to [child harm redacted] and the US court system which keeps stretching Section 230 and the First Amendment to give legal cover to Big Tech even as the industry really commits to its heel turn.)

Bonus links

My reply to the people who want to designate my neighborhood a “historic district” Having a house in a city with a lot of homeless people, and one where essential workers can’t afford to live, will also depress property values. It’s not as obvious. It’s not as acute. But it’s a much bigger problem and one that’s harder to deal with.

Mastodon is actively courting journalists (The underrated asset of Twitter was that they owned the “byline namespace” for mass and trade media. The pro-Putin direction over there is creating an opportunity for a new journalist directory, and I hope not a single point of failure this time.)

New Web Development. Or, why Copilots and chatbots are particularly bad for modern web dev “Training data sets implicitly represent the status quo – the old paradigm. By definition, it is useless for modelling of a new paradigm.” (Maybe you’re better off with using “view source” and developer tools on a few sites you like and want to understand better.)

Scientists Implant Radioactive Material Into Horn of Living Rhinoceros to Poison Anyone Who Consumes It (If it’s easier to catch people smuggling radioactive isotopes than rhino horns, make the rhino horns set off the radioactive isotope detectors. Brilliant. Also metal.)