The Big Story: Spotlight back on content moderation as Facebook upholds Trump ban. Internet companies' content moderation decisions are back in the spotlight this week as Facebook’s oversight board—a panel of journalists, activists, and lawyers that reviews the company’s content decisions—announced that former President Donald Trump should remain suspended from the platform, prompting criticism and threats of legislation from Republicans in Congress. Facebook banned Trump in January after the insurrection attempt on January 6th, citing the ongoing risk of political violence. The board also said that Facebook was wrong to impose an indefinite ban and called for the company to decide in the next six months whether to restore Trump’s account, permanently remove him from the platform, or suspend him for a specific timeframe.
This week’s decision—and resulting backlash—shows that content moderation is an inherently difficult and often politically fraught task for Internet companies. Republicans have long attacked Section 230 on the grounds that it lets Internet companies censor conservative voices, despite reports to the contrary. Framing any legislative efforts—especially those related to Section 230—around the actions of the largest technology companies, however, will have a disproportionately harmful impact on early-stage companies and the Internet ecosystem as a whole. It’s impossible for any online service—particularly one operated by a nascent startup—to identify and remove all harmful user-generated content, let alone define “harm” and respond in a way that appeases lawmakers on both sides of the aisle. And while large companies might have the resources to hire thousands of content moderators and even establish their own independent boards to review content decisions, startups cannot afford to employ teams of human moderators or purchase unreliable technological moderation tools to identify and remove harmful content.
Section 230’s intermediary liability framework is what allows all Internet companies to host user content and protects startups from potentially ruinous litigation brought on by the actions of their users. If policymakers care about supporting entrepreneurs and promoting competition, then they will seek to preserve the legal framework that has allowed companies of all sizes to grow and thrive online.
Policy Roundup:
Biden administration nullifies the Independent Contractor Rule. The Biden administration announced this week that it is rescinding a Trump-era regulation, known as the Independent Contractor Rule, that would have clarified the distinction between independent contractors and employees. The rule would have provided startups with the clarity needed to navigate regulatory ambiguity when it comes to contract work. As we noted in comments to DOL last month, “the clarity the rule would have provided could have eased uncertainty in making talent decisions that startups may have difficulty shouldering—lessening a burden during the current economic climate.
White House should consider startups when selecting the next USPTO director. President Biden has yet to nominate a new director of the U.S. Patent and Trademark Office (USPTO). But a recent ArsTechnica piece reports the administration appears to be considering a range of candidates, including some who have former ties to patent assertion entities and others with experience in the Obama White House. The USPTO director has a role to play in supporting the nation’s innovators, but the agency—under the previous administration—increasingly allowed low-quality patents to remain in force and contributed to an uptick in abusive litigation against startups. In contrast, as we outlined in a letter earlier this year, President Biden should nominate a director who will “promote patent quality and balance, engage diverse stakeholders, and embody the diversity we want to see in the nation’s innovation ecosystems.”
Including intermediary liability provisions in trade deals helps startups thrive. House Energy and Commerce Committee Chairman Frank Pallone (D-N.J.) and Ranking Member Cathy McMorris Rodgers (R-Wash.) sent a letter to U.S. Trade Representative Katherine Tai this week calling for U.S. officials to exclude Section 230-like language in international trade agreements “while such serious policy discussions are ongoing.” As we previously noted, the inclusion of intermediary liability frameworks in trade deals simply ensures that companies of all sizes have the certainty they need to compete across the world.
Court ruling against Snap raises possibility of Supreme Court weighing in on Section 230. A federal appeals court in San Francisco ruled this week that social media company Snap Inc. can be held liable for harm caused by specific features of its Snapchat app, overturning a lower court ruling that the company could not be sued as a result of Section 230’s intermediary liability limitations. The decision increases the likelihood that the U.S. Supreme Court will take up the case and weigh in on Section 230.
Startup Roundup:
#StartupsEverywhere: San Francisco, California. Onfleet is a tech startup that uses logistics management software and route optimization to power last mile delivery services for thousands of companies across a wide range of industries. We recently spoke with Mikel Carmenes Cavia—Onfleet’s Co-Founder and VP of Engineering—to learn more about his company’s work optimizing last mile delivery operations, policy concerns related to the legal delivery of cannabis, and how a European court decision last year invalidating the EU-U.S. Privacy Shield has impacted their business.
