Advice for new General Counsels (GCs)

Here’s some advice I give first-time General Counsels (GC) or, as the kids today call themselves, Chief Legal Officers. These are written from my perspective as someone who had worked as an Associate at a law firm and in-house at Google before going to Twitter as the GC. Your mileage should vary.


Being a GC is lonely, you need colleagues.
Once you become a GC you have no colleagues. Your CEO and Board are your boss. You may have lawyers who work for you, but you are their boss. Your colleagues are the other members of the management team, but they don’t really care about legal stuff the way you do. They’ll be friends, but you need to also have GC friends, and you’ll need to find them outside of the company.


Eventually (on my last day), I formed a network of SF Tech GCs that would have been WONDERFUL to have had before I left. At the time I met with a bunch of peers outside of work and they were a godsend. These folks should be struggling like you. That way you’ll feel free to ask them anything and you’ll be as helpful to them as they are to you. They are your support group as well as your knowledge base. Plus they’ll remember being as clueless as you, which will make them good teachers. These are not your mentors. You need good mentors too, but these are your colleagues.


Arabella Mansfield, 1870.
Public Domain image from Wikipedia.
You are the boss and the end of the line.
When you are the GC, you are it. Yes you can “escalate” things to your CEO or Board but doing that a bunch will not build respect with either. For many hard decisions, you are the decision maker. You cannot just let something slide or say “here are three options.” You are being paid to be responsible for this stuff and have an opinion. Also, there are some things that only you can do, especially before you have a team. When the CEO is freaking out about the CFO deciding to go to your biggest competitor, talking to somebody else likely will not cut it. Vacation purity will go down. Stress will go up. You will need a way to deal with that and it is very important that it is not alcohol, drugs, or other bad things.


You are your company.
If you come from being an outside counsel, you may misunderstand the ethical issues involved in being at a company. At an outside firm you might have had a bunch of ways to distance yourself from a bad thing that a firm clients does. You might not work on their matters. Or not advise them on that subject matter. And, in any case, even bad actors need legal defense. When you are in-house that is no longer the case. You are your company. If they do something unethical or illegal, that is you doing it. Another way to say that is that there is no they, only we. So… you need to be VERY comfortable with the company you are joining. Both what they are now and how they might change over the time you are there. Your only remedy will likely be to quit quietly. Quitting quietly is not a good remedy. Especially if you need the job and the money it provides.

Interior of H.A. Goodrich & Co.'s Store. Public Domain
illustration from Fitchburg, Massachusetts
Past and Present
via Internet Archive.


You are the establishment.
You likely came from being a part of a team and not being in the very senior part of management. You might even have complained about the Partners or the management team at your last company. That ends now. You are the management. If the company has a problem, then it is your problem. You whining is not a good thing. You are not a victim and you need to fix what you don’t like, not complain about it. That goes for even things that the CEO or Board do that you don’t agree with. Make sure you had your say. Quit if you need to, but if you are not going to quit, you need to take ownership of it with the rest of management.


You work for the Board (and the CEO).
GCs have a weird dual reporting structure because they represent the corporation, not any particular person in the corporation. Your day-to-day boss is the CEO, but the Board is also your boss and you need a relationship with the Board. This can be tricky because the CEO often thinks of themselves as the only person who “reports” to the Board. You need to have your own relationship with the Board for a bunch of reasons and a wise CEO will understand that your relationship with the Board is helpful to them as well. You should help the CEO manage getting the board deck together and with the basic stuff that goes comes with managing the Board. In that sense you will act a bit like a Chief of Staff and Executive Assistant. You have a legal role too, and may be the Board Secretary as well, but you should do the other, more mundane stuff as well in order to ensure that you are part of the company having a good relationship with its Board. For example, you should have periodic informal meetings with your board members. You should know how many kids they have and where they like to take vacations. FWIW, CFO’s have a similar need for that type of direct relationship.


Crocker Block. Public Domain
illustration from Fitchburg,
Massachusetts Past and Present

via Internet Archive.
You are also an owner of the company & member of the management team. 

Your CEO and the rest of the team will look to you for your legal opinion. That is very important. If you screw that up, you will not be GC for very long.


However, you are also (hopefully) a significant owner of the company through your stock grant, as well as a member of the senior management team. In those roles the CEO is looking for you to have an opinion on what is the right thing for the company to do. If you come from being an outside counsel, you may be used to giving opinions of the form: “Doing X is a legal risk.” or perhaps “Doing X is a legal risk and I would quantify it in the following way.” Once you are a GC you need to be ready to say things like: “Doing X is a legal risk but is important for us to do because Y” or “Doing X is a legal risk that is not worth pursuing because Y.” What you fill in for Y will not be legal analysis but business, customer, user, employee, etc. analysis. Get to know those parts of your business and start making contributions that have nothing to do with legal.


Be careful about acting in your non-legal capacity.
Now that I’ve told you not to only act like a lawyer, I need to flag some important pitfalls. First, you need to do a good job of labeling and calibrating your non-legal advice. You’ll make more mistakes and tread on other management team members expertise in your non-legal role. If you are not clear about it, the management team may start treating your non-legal advice like your legal advice (or vice versa), and that is usually unhelpful. This can be as simple as saying, “this isn’t a legal issue but…” or “there is nothing legal that requires X but…” and “here I’m speaking directly about our legal requirements under the contract.” You needn’t do it all the time, but being able to be clear can help a lot.


Second, we lawyers are somewhat spoiled by the protections that our legal advice affords us under the law. We can have conversations with people that won’t be revealed in lawsuits. When you venture out into the world of non-legal advice those protections fade away. Some lawyers have gotten into bad habits based on their attorney-client relationships and have gotten used to saying really dumb things in email that they (a) don’t mean, and (b) would never let a client say in email. Remember that your non-legal work is not protected by your special status as an attorney. Do what you tell your clients to do. Imagine your email on the front page of the Wall Street Journal.
Legal is a cost center.
If you came from a firm, legal advising was the profit center. Lawyers were extremely important and probably ran the show. That is not true now. You are a support service. Act like it. Don’t waste your clients time (ie. arrive to meetings on time, with an agenda, etc.). Respond to their emails. Do the things you said you were going to do when you said you were going to do them. Provide value. Make sure your internal clients are happy. And, understand that winning at the Supreme Court and establishing precedent are not the purpose of your business. They shouldn’t be your purpose.


Thurgood Marshall, 1976.
Public Domain image from the
Library of Congress via Wikipedia.
Set yourself up to be constructive.
Some people say GCs shouldn’t say no. I strongly disagree. There will be times when you need to say a flat no. Those times will be bad for the company and for you. But the flat no you enforce may be a moment where you are providing your greatest value to the company. Don’t shy away from those times, but don’t welcome them either.


Try to set yourself up so that you do not get into a flat no situation by understanding legal issues early, and by understanding product goals enough to suggest solutions that will meet the product goals and legal constraints.


Understanding legal issues early, particularly in a startup, means having a very good understanding of who is working on what. Many startups spend a large amount of time transitioning from everyone knowing everything to having processes so that people can know what they need to know. That in-between stage is a hard one for the GC. If you find out about a feature launch from reviewing the launch blog post, you are likely too late for a product redesign. Your product team will have spent a bunch of time working and dreaming about the feature implemented exactly the way they have implemented it. They will be looking to you to say yes (or no). That may be a valuable “no” but it will hurt a lot. And if you say “yes but…” then at that point you may only be putting lipstick on a pig. It is FAR better to be able to understand what is going on when the feature is just an idea. Product managers, designers, and engineers are really good with constraints. They design within them all the time. Having them understand the legal constraints and desires when designing is essential. To do that, you need to be really in tune with whatever part of your company first thinks up new features. Google’s first lawyer, Kulpreet Rana’s practice of taking one afternoon a week to just wander around introducing himself to people and asking them what they were working on is brilliant in that respect (and also helps with the culture points below).


Equally importantly, once you see a legal issue, don’t just issue spot. Know enough about what the teams are trying to do to get your hands dirty in a design setting to help them understand the legal constraints and design within them. Sometimes this looks like working with the engineers to implement variable public domain rights for very old books in Google Books and embedding local copyright law into code. Sometimes it is jumping from a legal constraint to value creation, such as when Glenn Brown, Zahavah Levine, and I helped design the YouTube DMCA system to also allow content providers to leave content up and get a share of revenue. There is almost always more than one way to do something. Help your product teams choose the way that helps users and will survive legal challenges.


You have a decision to make about who to hire when.
As you build your team, you need to decide who to hire when. You will eventually be middle management and do very little legal thinking. You also came into this job not knowing most of the legal areas you will supervise. Do you hire what you know first, or what you don’t? Do you start building with someone who could be the next GC, or someone more junior who can churn through more basic stuff so you don’t have to? If the company is getting bigger, do you start with an employment lawyer? There is no right answer, other than that employment lawyers tend to get hired really early because very few GCs love dealing with employment issues, and good employment lawyers are really good.


Your team(s) are everything.
As your team grows and perhaps you take on a few extra responsibilities (public policy, trust & safety, communications, corporate development, business development, human resources, etc.) because you are a competent leader at a growing company, your teams will be much more important than you in terms of the company’s success. Many lawyers never get management training and didn’t start out life wanting to be managers. That is your life now. It is difficult and you need to want to do it extremely well. That means training, intentional focus, and making sacrifices on other things to make sure that you are doing the management part well. It also means understanding, valuing, and actually achieving diversity from the get-go. Start growing your leaders and empowering them. Get out of the way.


If you don’t like management and would prefer to be doing law stuff, being a GC probably isn’t the right job for you.
Clara Shortridge Foltz. Public Domain
image from History of the Bench and
Bar of of California
 via Internet Archive.


You define the culture of the Legal department, and likely the culture and ethics of the company.
Many of you will get the privilege of being at a very small company, or being the first or second attorney at the company. When I joined Twitter we were around 50 people and had one other intrepid lawyer (the great @tyip!). You will define the relationship between the company and legal. You will define what legal is. Those are probably your most important jobs other than ensuring the company continues to exist. If you establish that legal should be consulted last, heard to say no, and then overruled by others without consequences, that will be the way legal is treated by the company for a very long time. If you are teammates who provide value and help get stuff launched, it will be hard to lose that reputation. Make sure that legal’s relationship with the company is something you focus on. Have goals. Do things that help. For example, Ben Lee and I created the Innovators Patent Agreement as a way to signal to engineers that Twitter was in line with their ethics on patents so that legal could contribute to the company’s #1 priority of hiring great engineers. Another one of my favorite hacks is to set up a desk by wherever your team gets coffee for the post lunch afternoon coffee time. Sit there. Answer questions. (Yes, it is amazing how many engineers have “friends” with weird legal issues and need to be told to get a lawyer.) Being a GC is not a popularity contest, but you need to be known and you need to make sure people understand you are on their team, especially when you disagree with them.


GCs are also often the oldest and/or people who have the biggest vocabulary for ethics at the company. I don’t think we are necessarily the folks who care the most about ethics or have the best ethical compass, but we have the hubris / common sense to have been thinking about ethics and how it applies to our work for a long time. That often makes the GC the de facto Chief Ethics Officer. The important part of that often unofficial role is to understand the difference between ethics or values, and law. When a GC says something is OK to do, we sometimes mean legally OK but the company will frequently hear that it is both legally and ethically good. Ideally everyone at the company is thinking about ethics and your founders, CEO, Board, and management team all provide a solid tone from the top on ethics. That is not always the case. You should ensure that you are the backstop on ethics. Consider making that part of your job official. Definitely talk to the company about its ethical responsibilities and always consider those in your analysis. “That’s legal but completely unethical” is extremely important advice from a GC.


Conclusion
You are not an impostor. Nobody was born a GC. No GC knows every area of law. There is no perfect way to manage people. There is no secret to being a GC that is not something that was learned through trial and error on the job. The truly incredible GCs that I have met may have been better at the job than I but they weren’t superhuman. They started out just like me and you.


Finally, have fun. I found being a GC to be really interesting, challenging, and rewarding. I still love the various teams I helped build. I still have trouble not referring to my old companies with the pronouns “us” or “we.” Being a GC can be a phenomenal job (but it is only a job). Congratulations and good luck!

P.S. Thank you to the SFGCs email list for their useful comments on a working draft of this paper. Ken Carter and others on that list have grown it and made it into something great since I left SF. If you are an SF GC, DM me on Twitter (@amac) and I’ll forward to the right person to add you. If you are a D.C. GC, I’d also love to hear from you.

P.P.S. I got another great suggestion for a pic to add to this post, Laura de Force Gordon.
Laura de Force Gordon
Public Domain image via Wikipedia.



Recent Podcasts & Articles on Content Moderation

One of the great things happening now is that more and more attention is being focused at one of my favorite subjects: content moderation by internet platforms. It's an important subject because a large amount of online speaking and listening happens through platforms. There has been a ton of good writing about this over many, many, years but I want to focus on four relatively recent bits here.

Radiolab, Post No Evil, Aug 17, 2018

Radiolab tells a sweeping story of the development of Facebook's content removal policies, deftly switching perspectives from people protesting its former policy against breastfeeding, to the headquarters workers developing policy and dealing with high-profile controversies, to the offshore contractors on the front line evaluating thousands pieces of disturbing content every day.

Post No Evil is a great introduction to the issues in this space but I think its most insightful moment is relatively buried. At 1:02, this exchange happens:

    Simon Adler: What I think this [controversy around a beheading video] shows is that Facebook has become too many different things at the same time. So Facebook is now sort of a playground, it's also an R-rated movie theater, and now it's the front page of a newspaper.
    Jad Abumrad (?): Yeah, it's all those things at the same time.
    Simon Adler: It's all those things at the same time and what we, the users, are demanding of them is that they create a set of policies that are just. And the reality is justice means a very different thing in each one of these settings.
I've tried to emphasize when I talk about content policies that there is no one perfect set of policies that should exist for every service but rather that the policies serve the product or service goal that the platform is trying to create. The type of experience Google web search is trying to create ("you can find whatever you are looking for") is very different from the experience that the Disney was going for when it launched a social network for pre-teens where users could only talk to each other through a set of pre-chosen phrases ("this place is REALLY safe for kids").

Think of the content policies you might want at a library versus a dinner party. When I go to a library, it is very important to me that they have books about the tiny niche of the world that I am interested in at that moment. For example, books on bias in machine learning or Italian Amaros. It doesn't really bother me if they have books on things I don't care as much about, like American football. For books that I disagree with, such as To Save America, or think are evil, such as Mein Kampf, I may question the curators' choices but I expect breadth, and the inclusion of those books is less bad than if the books I cared about were not included.*

Change to the dinner party context and my preferences are reversed. Dinner parties that don't hit on bias in machine learning are fine by me but if I was at a dinner party where someone couldn't shut up about American football, I would not call it a success. A dinner party where a guest was espousing the views of Mein Kamfp would be one I would cause a scene at and leave. Over-inclusion is a huge problem and outweighs inclusion of my specific niche interests.

I've never been a big Facebook user, but it used to remind me of a dinner party. I thought that's what it was going for with its various content policies. Now, as Simon Adler says, it is trying to be many things (perhaps everything?) to many people (perhaps everyone?) and that is really hard (perhaps impossible?). It also has made the decision that some of the types of moderation that other platforms have used to deal with those problems (blocking by geography, content markings for age, etc.**) don't work well for it's goals. As Radiolab concludes starting at 1:08:
    Robert Krulwich (?): Where does that leave you feeling? Does this leave you feeling that this is just, that at the end this is just undoable?
    Simon Adler: I think [Facebook] will inevitably fail, but they have to try and I think we should all be rooting for them.
Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, 131 Harv. L. Rev. 1598, last revised Apr 17, 2018

Professor Klonick does an excellent job of describing why platforms may want to moderate content, how they do it, and the legal framework and regulatory framework that underpins it all. This is a very large expanse of ground, covered extremely well.*** If you are new to this area and want an in depth briefing, I highly recommend The New Governors. Her proscriptions are to push platforms towards greater transparency in their content moderation decision making and policies, as well as greater accountability to users. As in Post No Evil (for which she was a source), Professor Klonick identifies the popular concern about platform policies and locates it as a mismatch between platform policies and user expectations.

Professor Klonick also draws out the similarities and differences between content moderation and judicial decision-making. She writes:
    Beyond borrowing from the law substantively, the [Facebook content moderation rule documents called] the Abuse Standards borrow from the way the law is applied, providing examples and analogies to help moderators apply the rules. Analogical legal reasoning, the method whereby judges reach decisions by reasoning through analogy between cases, is a foundation of legal theory. Though the use of example and analogy plays a central role throughout the Abuse Standards, the combination of legal rule and example in content moderation seems to contain elements of both rule-based legal reasoning and analogical legal reasoning. For example, after stating the rules for assessing credibility, the Abuse Standards give a series of examples of instances that establish credible or noncredible threats. “I’m going to stab (method) Lisa H. (target) at the frat party (place),” states Abuse Standards 6.2, demonstrating a type of credible threat that should be escalated. “I’m going to blow up the planet on new year’s eve this year” is given as an example of a noncredible threat. Thus, content moderators are not expected to reason directly from prior content decisions as in common law — but the public policies, internal rules, examples, and analogies they are given in their rulebook are informed by past assessments.
(footnotes omitted). Content moderation rules are always evolving and changing. Just as there is no one perfect set of content policies for all services, there is also no one perfect static set of rules for any given service. Instead, just like the law, the rules are always changing and being adapted to deal with new realities.

Ellen Pao, Let's Stop Pretending Facebook and Twitter's CEOs Can't Fix This Mess, Wired, Aug 28, 2018; and Kara Swisher and Ron Wyden, Full Q&A: Senator Ron Wyden on Recode Decode, Recode Decode, Aug 22, 2018

I include these two as good examples of the current mood. Both Ms. Pao and Senator Wyden are friends of tech and highly tech knowledgeable. Ms. Pao was the CEO of Reddit. Senator Wyden was one of the authors of the original statute that encouraged content moderation by protecting platforms that moderate content from many types of liability. Nevertheless, Ms. Pao believes that the tech CEO's don't care about and aren't trying to solve the issue of bad speech on their platforms. She calls for legal liability for falsity and harassment on platforms.
    If you’re a CEO and someone dies because of harassment or false information on your platform—even if your platform isn’t alone in the harassment—your company should face some consequences. That could mean civil or criminal court proceedings, depending on the circumstances. Or it could mean advertisers take a stand, or your business takes a hit.
Senator Wyden says that he is working on legislation that:
    ... lay[s] out what the consequences are when somebody who is a bad actor, somebody who really doesn’t meet the decency principles that reflect our values, if that bad actor blows by the bounds of common decency, I think you gotta have a way to make sure that stuff is taken down.
I strongly disagree with legislating "common decency" because I think there is good evidence that it would do more harm than good, particularly to suppress the speech of unfairly marginalized groups. More broadly both Wyden and Pao seem to believe that these problems are relatively easy to solve, if only the CEOs cared, or were legally liable. I don't agree that this is an easy problem to solve in part because I don't see examples of it having been solved in spite of the value of solving it. As I have written previously:
    ... I don't know of many good examples outside of heavily editorial ones with a relatively small set of content producers, that have been able to be both extremely inclusive and progressive towards what I think are the "right" kind of marginalized ideas while keeping out the ones that I think are marginalized for very good reason. ... Many of the larger Internet platforms are trying, with varying degrees of success and failure, to do this right, as I was when I worked at Google and Twitter. That said, I don't have a great example of a platform or community that is working exactly as I would like. And it seems like that is a big and worthy challenge.
(footnotes omitted). As I said in that post, if you have a good example, please send it my way. In the meantime, my belief is that this is difficult, there is no silver bullet, and we should continue trying.

Nevertheless, it is important to understand that this is where public opinion is headed and these two pieces are a good indication.

Finally, 

If you want to find out more about content moderation, here's a twitter list of content moderation folks on Twitter. If I'm missing someone, please let me know.

* This is really specific to me and your mileage may vary widely. I am a white male with lots of privilege. Take what I say about evil content with a huge grain of salt. I am relatively unthreatened by that content compared to someone who has had their life impacted by that evil. I get that some societies will want to ensure that books like Mein Kampf are not available in libraries. I don't believe that is the right way forward, but I may not be best situated to make that call.

** Facebook does use some of these tactics for advertising and Facebook Pages but, as far as I know, not for Facebook Posts or Groups.

*** Professor Klonick's description of Twitter's early content policies as non-existent is mistaken. Even early in Twitter's history the company had content policies which resulted in the removal of content, for example, for impersonation or child pornography. I think she just didn't have a good source of information for Twitter.

Hallin Spheres, Overton Windows, Constitutional Interpretation, and Online Platforms (oh my!)

Hallin Spheres, Overton Windows, and certain theories of constitutional interpretation[1] are all ways of thinking about what can and cannot be argued successfully, or at all, within different contexts. They are very applicable to our current discussion about online platforms and the types of speech they contain. This post aims to briefly describe all three, and how they might apply to online speech. One thing that seems to follow from thinking about the Internet and online platforms through these lenses is that the widening of participants that the Internet brought tends to increase the types of arguments that can be had and tends to decrease the amount of consensus available. While I am generally optimistic about the change as a way of accelerating social progress and bringing more, previously marginalized people into the "room where it happens," some people and ideas were marginalized for very good reason. Implementing global platforms or communities inclusively, but only towards progress seems possible but I don't yet know of a good example of it being done successfully at scale. (If you know of more, I'd love to hear about them!)

Hallin Spheres
Daniel Hallin is a journalist and professor of media systems who wrote The Uncensored War: The Media and Vietnam about the way journalists covered the Vietnam war through a description of three spheres of ideas on which journalists report. At the two extremes are the sphere of consensus, for ideas journalists assume their readers accept and agree with; and the sphere of deviance, for ideas that the journalists believe their readers disagree with vehemently. Between the two is the sphere of legitimate controversy where a journalists assumes her readers believe that there may be debate. These spheres come together like a donut, with the sphere of deviance outside the donut, the sphere of legitimate controversy making up the dough, and the sphere of consensus, the hole in the middle (the Canadian in me can't help but think of it as the Timbit of consensus).

Hallin observed that within the spheres of deviance or consensus, journalists would deviate from "objective" journalism in a variety of ways, such as adopting sphere of consensus views without challenge, excluding sphere of deviance sources and ideas from any mention in their stories, and generally reinforcing the divisions between the spheres. For more specifically on Hallin Spheres and the effect of the the Internet on mainstream media ability to maintain them, see Jay Rosen,  Audience Atomization Overcome: Why the Internet Weakens the Authority of the Press (more on that below). A diagram from Hallin's book discussing the spheres is below from Google Books.

From Hallin, Daniel, The Uncensored War: The Media and Vietnam,
University of California Press (1989), p 117.


The Overton Window
Joseph Overton was writer and think tanker who proposed the window as a metaphor for understanding which ideas are viable from a political perspective in a certain community. Ideas in the window are viable and can be debated and adopted. Ideas outside the window cannot. Overton appears to have seen the window along a continuum of more and less government intervention (which many on the right would call "less free" and "free") and believed that while the window constrained policy discussions, it was political and social forces that could change whether ideas were inside or outside of the window. The Overton Window has been in the news a lot lately as a way to explain that normalizing extremely radical ideas can move the whole window towards those ideas and thereby move some slightly less radical ideas into the center of the window. For example, see Politico's How an Obscure Conservative Theory Became the Trump Era’s Go-to Nerd Phrase and Vox Media's description.

Image of the Overton Window from
Wikipedia.
Constitutional Interpretation
I've had a harder time coming up with a good source or pithy name for these same ideas in constitutional interpretation. The first time I learned about them was in an Advanced Constitutional Law class I was lucky to take from Professor Lawrence Lessig. My recollection / understanding is as follows, but all errors are mine, not his. First off, the Constitution is made of words. A lot of constitutional law is about interpreting those words and how they might apply to situations in a particular case. For example, is death by a particular lethal injection "cruel and unusual punishment" and therefor illegal under the Eighth Amendment? There are a bunch of different ways to go about this and some significant disagreement among jurists, however the question that Lessig was asking was, is there a context behind all of this that makes some thoughts thinkable by the Supreme Court Justices, while others are not?[2] For example, how do all but one of the Justices in Plessy v. Ferguson, not understand that separate is not equal, whereas almost sixty years later, all of the Brown v Board of Education Court does? Compare:
"The object of the [fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced." Plessy v Ferguson, 163 U.S. 537, 544 (1896)
with:
"To separate [students] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs: Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system. ... We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal." Brown v Board of Education, 347 U.S. 483, 494-5 (1954)
For more on these cases, listen to the difference between the oral arguments in Plessy and Brown, and read Justice Harlan's dissent in Plessy.  In the language of Hallin Spheres, segregation being detrimental and not "equal," moved from pretty close to the sphere of deviance for the Court, to the Sphere of consensus. And, there have been similarly important, radical, and progressive shifts in Supreme Court understanding of specific words in the constitution in many other areas that I care about.[3]

Enter, the Internet
As Jay Rosen and Shaun Lau have said better than I ever could, the Internet and its propensity to allow for many more speakers to join the conversation[4] have had a significant effect on windows and spheres in the mainstream media, on internet media, and in society at large.

Rosen gives a great description of Hallin Spheres and argues that the "audience's" increased ability to talk among themselves and talk back to bigger media players weakens the big media players ability to maintain the spheres without challenge:
"Now we can see why blogging and the Net matter so greatly in political journalism. In the age of mass media, the press was able to define the sphere of legitimate debate with relative ease because the people on the receiving end were atomized— meaning they were connected “up” to Big Media but not across to each other. But today one of the biggest factors changing our world is the falling cost for like-minded people to locate each other, share information, trade impressions and realize their number. Among the first things they may do is establish that the “sphere of legitimate debate” as defined by journalists doesn’t match up with their own definition. ... what’s [] happening is that the authority of the press to assume consensus, define deviance and set the terms for legitimate debate is weaker when people can connect horizontally around and about the news." Jay Rosen,  Audience Atomization Overcome: Why the Internet Weakens the Authority of the Press
Lau makes the same point before expanding on it to a bigger point about how internet communities affect discourse in this excellent thread. He's writing about how Jemelle Hill's description of Donald Trump as a white supremacist was seen by ESPN as in the sphere of deviance, whereas many on the Internet disagreed. You should go read it.
Among the many good points Lau and Rosen make is that Hallin Spheres are also about understanding consensus. As more people are included in a community, the sphere of legitimate controversy tends to grow. As it grows, it likely takes some space away from the sphere of consensus. As Lau says:
"Put only Montagues in a room, and you have consensus. Now put a few Capulets in. 'What happened to all the consensus?' The answer is that there never was consensus; there was only agreement among those with access or those represented by those with access. "Internet pushback" when the internet- and very specifically twitter- is more meritocratic than, let's say large corporations like ESPN? That's not "the internet" pushing back. It's those who you didn't allow in the room before we forced our way in via new technology. PEOPLE." From @NoTotally Twitter thread, Sept. 15, 2017.
Both of these observations mean that it can be harder to create spheres of consensus, that it is harder to maintain them once created, and that we might expect spheres of legitimate controversy to grow.[5]

This is good?
Years of forward societal progress based in part on expanding and shifting the Overton Window and sphere of legitimate controversy may make you think, this is great! But hold on, some ideas are in the sphere of deviance for a reason. Racism is one good and sadly timely example. Same with some people. The Internet and its platforms have created many spaces for marginalized people to congregate and become less marginalized by removing gatekeepers who might enforce spheres and windows to exclude.[6] On the internet, nobody needs permission to speak. Again, that's often good progress. But, some groups are marginalized for a very good reason. Nazis are a good and sadly timely example. Bringing racism and Nazis back into the window is VERY, VERY BAD, and yet the relative lack of speech gatekeepers in the U.S. Constitution, on the Internet, and on many Internet platforms may make this more likely. This is not a malfunction, but a design feature of the Internet and many of its platforms.

What can online platforms and communities do?
It is worth noting that spheres and windows are a bit of a misnomer for these phenomenon because not only can they be different sizes in different communities, they can also be pretty permeable along the edges and can change size or permeability. Just as importantly, they can change shape. There is nothing that says that a particular society, medium, or context needs to treat all ideas that are equidistant from the center of consensus as equal. The sphere need not be a sphere, it can be oblong and irregular. The window can be slanted and weird looking. In other words, it is not a law of nature that determines that two ideas that are believed by a similar number of people need to be treated the same. That said, I don't know of many good examples outside of heavily editorial ones with a relatively small set of content producers, that have been able to be both extremely inclusive and progressive towards what I think are the "right" kind of marginalized ideas while keeping out the ones that I think are marginalized for very good reason (and I use "I" here as a measure because different people differ quite a bit on these judgments).[7] If anything, there are concerns that attempts to suppress speech by groups that should be marginal are often used against those that shouldn't.[8]

Many of the larger Internet platforms are trying, with varying degrees of success and failure, to do this right, as I was when I worked at Google and Twitter. That said, I don't have a great example of a platform or community that is working exactly as I would like. And it seems like that is a big and worthy challenge. Anyhow, there is probably a whole 'nother post from me on this, but that's for another day, this one is already long enough.

P.S. If you have examples of platforms or communities doing this extremely well at scale, please forgive me for not including them and help me fix my error by pointing me towards them @amac.



[1] I am an expert in none of these, but I have found them to be very useful concepts. [return]
[2] One of the questions that Professor Lessig asked that I think is really interesting, but not quite on point for this post is "What is the thing that we can't really consider today because it almost unthinkable, but our grandchildren will think is so obviously true that it is unthinkable to debate against?" [return]
[3] For example, see Obergefell v. Hodges, 576 U.S. ___ (2015). [return]
[4] This has clearly not been uniform progress. Even as the speech gatekeepers have receded and allowed more people to speak, harassment, trolling, aggressive spamming, false flagging, and other techniques are being used to suppress speech and drive speakers, particularly those who have historically been marginalized, away from these platforms. [return]
[5] I also believe that these two effects have negatively impacted trust in institutions more generally.  [return]
[6] See note 4. [return]
[7] Spam or illegal content might be good examples of this at some of the major services. [return]
[8] See e.g. Daphne Keller, Inception Impact Assessment: Measures to further improve the effectiveness of the fight against illegal content online, Comment to the European Commission, March 29 2018 (discussing the potential for disparate impact of rules requiring internet platforms removal of terrorist content).[return]

A Service I Want

I would like an algorithm or service that would suggest arguments, opinions, and points of view from smart people trusted within their communities but with whom I am likely to disagree or whose communities I am underexposed to. I do not think I am alone in this desire.

I attempt to get some of this out of who I follow on Twitter (and it was a great use for Google Reader -- may it rest in peace), but that is a pretty imperfect system. I also routinely ask others to suggest sources I might like to fulfill these needs, but I have found that many struggle to make good suggestions.

Noble Returns to the Pavilion, from "W.G.", cricketing
reminiscences and personal recollections
 (1899)
Public domain book from the Internet Archive.

One of the tricky things about this algorithm or service is that it would need to distinguish between those arguments and communities that I care about, those that I do not, and those I am repulsed by. For example, I am probably underexposed to cricket enthusiasts but I don’t care much about cricket anymore and don’t want more information. Another example is that I have not read anything about the Parkland victims being actors conspiracy theories but I would be actively repulsed if a service suggested that I should read about it.

My suspicion is that one of the reasons services serve up filter-bubble content based on the engagement metrics of friend groups and similar users is because it is much easier than finding good, challenging material to suggest to users. That said, I wonder if the later might be more fulfilling to the user over the long term and result in a stickier service if it could be achieved.

Do you know of a service doing a good job of this? Do you have ideas for users or publications that would fit this bill for me? If so, please send them my way at @amac.


C.L. Townsend, Playing Forward, from "W.G.", cricketing
reminiscences and personal recollections
 (1899)
Public domain book from the Internet Archive.

Internet & Jurisdiction

I went to the last Internet & Jurisdiction gathering in Paris. I can’t make it to the one that starts today in Ottawa, but I would have come if I could. I’ve been thinking about the last one all year because it was full of good, smart people trying to make progress on coherent and practical Internet jurisdiction. What I also loved about it was that I came away strongly disagreeing with the direction they were going. More on that below, but first some background.

Dwarf Galaxy Caught Ramming Into a Large Spiral Galaxy
(NASA, Chandra, 08/14/13) from NASA Marshall Space Flight Center.
This and the other space images accompanying this blog post appear
to be in the public domain, in spite of NASA's weird licensey language
to the contrary.
Background: Internet Jurisdiction

Jurisdiction is one of the oldest and thorniest questions for Internet policy: “Which government(s) get to regulate what and who, where?”

As John Perry Barlow put it in his 1996 manifesto declaring the Internet’s independence from government regulation, “[Cyberspace] is a world that is both everywhere and nowhere, but it is not where bodies live.” In that piece, he argued that regulation of the Internet by governments was both unwise and impractical. Others saw it differently. As Tim Wu wrote in 1997,  “it is possible to regulate the Internet, and ... countries, corporations, organizations, and private individuals are already doing so.” The first important legal cases involving the extent of government jurisdiction over the Internet were decided shortly thereafter.

As the Internet has grown, become more mainstream, and increased in importance, particularly with respect to real world consequences that governments have historically regulated, questions of which governments get to regulate who and what online have become increasingly frequent. These questions get “answered” in courts, as governments make laws, and by corporations and individuals as the architecture, norms, markets, and regulation of the Internet develop.

There has been no straight line of consensus “progress” from one point of view to another. Even now, there are big questions that are being actively fought, including the United States Supreme Court considering Microsoft’s challenge to request by the United States for user data stored in Ireland, and the Supreme Court of Canada asserting the ability to order content removed globally only to have a U.S. District Court disagree.

The technological landscape has also changed dramatically. Over the last twenty years, as billions of people started using the Internet it has morphed from an incredibly decentralized landscape of personal websites hosted from tiny service providers, often at the very edge of the network, to a more centralized set of cloud-storage service providers serving a large percentage of the population. If the FBI wanted to find out whether I had sent an email to a particular person in 1996, they would have had to come to my house to get my computer and take a look at my locally stored email, if I hadn’t already deleted it. Today, all my email is on Google’s servers, just like that of more than a billion other people from all over the world. The public content I created used to be housed on a server in my closet. If someone thought I was saying something illegal, they would have likewise most likely have had to come to me in order to get it removed from the Internet. While it is true that, in some situations, some other avenues existed to get my information or remove my content, they were not very broadly available or used. By contrast, now, most of my online content is served from large U.S. corporations, like Google and Github. If they decide my content shouldn’t be online, they can remove it and force me to go look for another publisher. In some cases the online service providers are so important that no suitable replacement would exist.

Tarantula Nebula (NASA, Chandra, Hubble, Spitzer,
04/17/12) from NASA Marshall Space Flight Center.
Towards a coherent, if abhorrent, Internet jurisdiction policy

The Internet & Jurisdiction Conference (I&J for short) focuses on three broad tracks: data, requests for private user data; content, requests to render content inaccessible; and the internet domain name system. I’m most interested in the first two and these comments are mostly meant for them.

I&J had a wide variety of participants and many more government and law enforcement types than I generally find at the Internet policy conferences. The conversation was therefore more oriented towards those stakeholders than at some other conferences, and it was quite similar in tone to the types of conversations happening in governments and courts all over the world right now.

In both the data request and content removal areas, these conversations are moving towards a coherent, if abhorrent, policy of allowing governments almost everywhere to get data about any internet user or remove any content without needing to engage the users themselves or the court systems of their jurisdictions. Most discussions exclude certain governments from the club that should have this type of power, but the idea that data should be able to be given over and content should be able to be suppressed through interactions between governments and repeat-player intermediaries was so ingrained in many of the discussions as to be an assumption. Convenience and speed are touted as principal advantages.

For example, a Facebook user in Mexico should have their data given to authorities in the England on a request to Facebook. A Canadian Microsoft user should have their post suppressed, at least in Thailand if not all over the world, via a request to Microsoft. Even if the user is known to the complainant, no direct approach to them is contemplated. At some companies under some circumstances the user might get a notice, but that is left to the companies and to the circumstance. This is not just “All your base are belong to us” but “All your base aren’t ever belonged to you in the first place.”
Black Hole Caught in a Stellar Homicide (NASA, Chandra,
GALEX, 05/03/12)
 from NASA Marshall Space Flight Center.
A challenge: Center Internet policy on users citizens

If I were able to come again this year, I would. Indeed, my favorite conferences are those at which a majority of the attendees are smart, passionate advocates with direct experience with the subject matter and with whom I disagree (see e.g. the excellent Fordham Intellectual Property Institute). If I was there, I would challenge the attendees to propose a way forward that centers on the user rather than removing them from the equation. It is more convenient to just go to the big corporate repeat players. They are well known to the governments and can be counted on to pick up the phone. However, an Internet jurisdiction policy that regularly circumvents the user will encourage countermeasures to return power to the user -- the emerging prevalence of end-to-end encrypted services is one good example of this trend. More importantly, those users are our countries’ citizens, they deserve our respect and, at least, to be able to face their accusers and challenge the accusations. There may be cases where expediency trumps all, but this is the tiny minority of cases, not the norm on which policy should be based.

The YouTube clip above is of me trying to make a similar point at the end of last year's I&J.

PS If you want to read more about the current intermediary liability battles, please follow Daphne Keller and Eric Goldman and take a look at their excellent sets of resources on the topic at Stanford and on Eric’s blog. Graham Smith also wrote a couple of posts in the run-up to this year’s I&J.

Star Cluster Cygnus OB2 (NASA, Chandra,
11/07/12) from NASA Marshall Space Flight Center.

Screens, Images, and Attention (a thing I'm working on)

Many of us have more than a few screens. Mostly they lay idle. A tablet for plane trips, an old phone, a Chromecast connected LCD TV.

I also have a bunch of images I want to see more of. More than 100,000 personal digital photos. And, lots more incredible images out in the world. Millions.

One of the things I loved about the Obama White House was that Pete Souza and his team's wonderful photos were everywhere and changed relatively frequently. Walking to a meeting you'd see a picture of a co-worker and her kids hugging the President. In a meeting room there would be a beautiful photo of Half Dome in Yosemite and Marine One. It was great.

President Barack Obama visits with Natalie Quillian,
Advisor to the Chief of Staff, and family in the Oval Office,
 Aug. 27, 2014. (Official White House Photo by Pete Souza).
Public Domain.
I'm working on using idle screens to bring more of that into my home with my images and those from incredible online collections. The idea would be that the screens could show a playlist (automatically generated or hand-curated) of images from a wide variety of sources and on a wide variety of devices / screens. Incidentally, I haven't been able to find the equivalent of .m3u for images. I don't think it exists. It would be wonderful if people could trade image playlists.

Automatically generated playlists could show images relevant to the day of the year, or types of images, or ones that will look good on that particular screen, or ones I might like based on what I've liked before. An earlier version of this was surprisingly good if it just showed images from Christmas, New Year's and Thanksgiving.

Solar Flare, August 31, 2012, Nasa Goddard Space Flight
Center. Hosted by Wikipedia. Public Domain.
I don't know of a thing out there that does this across image collections. Do you?

I mostly program to learn things. This project will help me really learn the techniques I've been studying through the Andrew Ng's Coursera on Machine Learning. It will also brush up some of my full-stack web development skills as the database will be Mysql, the backend will be Python 3 and Django 2, the frontend will be HTML and CSS with a lot of Javascript (including ajax, which I haven't used too much). And, I'll get to know both JQuery and Cycle 2 well. It has been fun so far and I will share updates as I go, and, eventually, the code.

I'm not doing this as an "entrepreneur." The idea isn't to make a bunch of money or get a million users. Mostly I'm doing this for myself and to learn. I have found that deeply understanding technology is really helpful to my legal and policy work (not to mention my life). I also really enjoy coding for fun. If you haven't tried that, you should!

I'm writing about it here to further commit to finishing it and so that others can share their good ideas.

153rd New York Infantry, ca. 1861, from Metropolitan Museum
of Art. Hosted by the Internet Archive. Public Domain.
If you are interested in using or working on this, please let me know. I'd be interested in understanding other use cases. I would also love pointers to great image repositories (preferably public domain). And eventually, I'd like people to help me rate the pics from some of the public repositories. My email is "lawyer" @ the popular email service run by Google. Or you can @reply me on twitter @amac.

Recap & Response to a Thread on Speech

Sometimes a Twitter thread is easier to read as a blog post.

The below was originally posted on Twitter.

1) Good thread by @yonatanzunger with a bunch of useful truths. Recap & comments from me below.

2) Speech can be used as a weapon against other speech: https://twitter.com/yonatanzunger/status/914609013722984448
https://twitter.com/yonatanzunger/status/914609721696559109
See also @superwuster arguing that the 1st Am is obsolete in an era of attention scarcity.

Fight between Rioters and Militia, from Pen and Pencil Sketches of the Great RiotsImage in the Public Domain.

3) People bear diff costs of bad speech & harassment, disadvantaged often most affected:
https://twitter.com/yonatanzunger/status/914609927729147904
https://twitter.com/yonatanzunger/status/914610451782156288

4) Understanding & combating speech that reduces engagement can further a speech maximizing policy goal:
https://twitter.com/yonatanzunger/status/914611676497899520
https://twitter.com/yonatanzunger/status/914611742247809024
https://twitter.com/yonatanzunger/status/914612024126038016

5) Having + stating an “editorial voice,” gestures, public perception & examples also can be important:
https://twitter.com/yonatanzunger/status/914612173023744001
https://twitter.com/yonatanzunger/status/914611921038409729
https://twitter.com/yonatanzunger/status/914612262790402048

The Frame, from TypographiaImage in the Public Domain.


6) Also, he gives great pointers to smart folks in the online community field:
https://twitter.com/yonatanzunger/status/914609375523852288
https://twitter.com/yonatanzunger/status/914611296150188032
https://twitter.com/yonatanzunger/status/914611486881808384
And of course there are many more, incl: Heather Champ, @juniperdowns, Victoria Grand, Monika Bickert, Shantal Rands, Micah Schaffer, @delbius, @nicolewong, @zeynep, @zephoria, @StephenBalkam, @unburntwitch, @noUpside, @EthanZ,  @jessamyn, @sarahjeong + many many more incl great non-US folk. And including the folks & orgs on the various advisory councils:
https://blog.twitter.com/official/en_us/a/2016/announcing-the-twitter-trust-safety-council.html
https://www.facebook.com/help/222332597793306/ (and others)
As @yonatanzunger says, this work is a team sport that advances with help from all around.

7) I have some Qs re his 47 USC §230 (CDA) points. I don't know a case of something like his “editorial voice” breaking immunity or otherwise causing a “huge legal risk.” Indeed that was the point of §230 originally. So, asking experts: @ericgoldman & @daphnehk what do you think?

8) Also, I don’t think “maximizing speech” is quite the right goal or that every service should have the same goal. I want something different when I go to Facebook v Twitter v YouTube.
Also, I want more than one good service whose arch + policies (and, sure, “editorial voice”) support an extremely wide diversity of views being able to flourish, be expressed well & be easy to find & interact with including from outside social circles. But your mileage may vary.

9) Naturally, I also disagree that Twitter folks (including me) “never took [these issues] seriously,” provided “bullshit” explanations, were naive, and chased traffic over good policy. Was there & think I'd know.
But, taking that sort of beating is kinda part of the job. And, maybe I’m too biased from working & learning these issues at platforms incl many at Google, Twitter & in govt w/ @POTUS44.

10) Anyhow, I’m very glad @yonatanzunger chose to post this thread to Twitter & I hope the suggestions part is read widely.

Printing Press, from Typographia. Image in the Public Domain.