Cyber & Technology

‘Transcendental Nonsense’ and Technology Companies: Reframing the Content Regulation Debate

By Alan Z. Rozenshtein
Friday, November 3, 2017, 7:00 AM

On Tuesday, top legal executives from Facebook, Google and Twitter testified before the Senate Judiciary Committee, offering the latest updates on the extent of Russian meddling in the 2016 election and receiving a bipartisan shellacking from frustrated senators. One of the most revealing moments came when Sen. John Kennedy asked Richard Salgado, Google’s head of law enforcement and information security, whether Google was a “media company.” Salgado replied that Google was a “technology platform,” and when Kennedy pressed him that Google might be more akin to a newspaper, Salgado responded, “We are not a newspaper—we are a platform . . . [that collects information] that can include news from sources such as newspapers.”

In the ongoing debate over what obligations technology companies should have to police their sites, this is a recurring question: Are technology giants neutral platforms that simply host user content, or are they instead media companies that exercise editorial control (and thus responsibility) over what they publish? From a legal perspective, how these companies are categorized has real stakes. When companies face potential liability for what others post on their sites, they are quick to emphasize that they’re merely platforms, citing the ur-law of internet, Section 230 of the Communications Decency Act, which prohibits them from being “treated as the publisher or speaker of any information provided” by other users. But the companies, led by Google, are increasingly defending their algorithms as First Amendment–protected speech, which suggests a closer affinity to publishers like the New York Times or CNN than to pure communications platforms like AT&T or Verizon. All of this has led to extensive head-scratching among academics, policymakers and journalists as to what technology companies really are: platforms or publishers?

Unfortunately, when it comes to policymaking, the platform-or-publisher question is a prime example of what the early-twentieth-century legal realist Felix Cohen called “transcendental nonsense”: the counterproductive attempt to answer practical questions through conceptual analysis. One of Cohen’s famous examples was the debate over whether a labor union was a “person” and thus could be sued. Instead of torturing ourselves about the essence of labor unions or personhood, Cohen argued, we should instead ask whether we’d rather live in a world in which labor unions could be sued; if yes, then we’ll say that labor union are persons, and if not then we’ll say that they’re not. In this view, the label “person” isn’t driving the analysis but is rather just a shorthand way of describing those entities that the law allows to be sued. And since all definitions are just arbitrary conventions, there’s no purely logical reason to prefer one categorization over another. The real work has to be done by a combination of facts—what is the state of the world and what are the various options for changing it—and values—what sort of world do we want to live in.

In the case of technology companies and their obligations to moderate content—whether of foreign interference in elections, terrorist and extremist speech, or just everyday bullying and harassment—debating over whether companies are platforms or publishers is as backwards a strategy as is arguing over whether labor union are people. Instead of having a theoretical discussion over what kind of entity a technology company is, and then, using that categorization to determine its obligations, we should ask what obligations we want the company to have, and then use whatever label is most convenient to remind ourselves of what we decided. And to answer this latter question, we need to focus on facts—how many users, what kind of content, what sort of algorithms—and values—what tradeoffs are we willing to make between policing bad content and the inevitable infringements on user privacy and free expression that such policing entails. These are hard questions, and definitional debates over whether a technology giant is more like a newspaper or a telephone network won’t help.

In other words, let’s retire the tired debate over whether Facebook or Google or Twitter is a platform or a publisher (or some third, hybrid category). It’s just distracting us from the real issue: not what these companies are, but what they can do.