The Perilous Public Square by David E. Pozen

Author:David E. Pozen
Language: eng
Format: epub
Tags: LAN008000, Language Arts & Disciplines/Journalism, SOC052000, Social Science/Media Studies
Publisher: Columbia University Press
Published: 2020-06-02T00:00:00+00:00

Discriminatory Design and What to Do About It

Sylvain wisely urges us to think more broadly about the costs to historically disadvantaged groups wrought by Section 230’s overbroad interpretation. Platforms disadvantage the vulnerable not just through their encouragement of cyber mobs and individual abusers but also through their design choices. As Sylvain argues, conversations about Section 230’s costs to equality should include the ways that a platform’s design can “predictably elicit or even encourage expressive conduct that perpetuates discrimination.”

Sylvain’s focus on discriminatory design deserves the attention of courts and lawmakers. More than twenty years ago, Joel Reidenberg and Lawrence Lessig highlighted code’s role in channeling legal regulation and governance.147 A platform’s architecture can prevent illegal discrimination, just as it can be designed to protect privacy,148 expression,149 property,150 and due process rights.151

As Sylvain has shown, platforms have instead chosen architectures that undermine legal mandates. Airbnb’s site, for instance, asks guests to include real names in their online profiles even though the company knows illegal discrimination is sure to result. As studies have shown, Airbnb guests with distinctively African American names are 16 percent less likely to be accepted relative to identical guests with distinctively white names.152 Facebook’s algorithms mine users’ data to create categories from which advertisers choose, including ones that facilitate illegal discrimination in hiring and housing.

Sylvain’s normative argument is compelling. Platforms are by no means neutral, no matter how often or loudly tech companies say so. They are not merely publishing others’ content when their carefully devised user interfaces and algorithms damage minorities’ and women’s opportunities. When code enables invidious discrimination, law should be allowed to intervene.153 Facebook has built an advertising system that inevitably results in fair housing violations. Airbnb’s user interface still requires guests to include their names, which predictably results in housing discrimination. Sylvain is right—platforms should not enjoy immunity from liability for their architectural choices that violate antidiscrimination laws.

The question, of course, is strategy. Do we need to change Section 230 to achieve Sylvain’s normative ends? Section 230 should not be read to immunize platforms from liability related to user interface or design. Platforms are being sued for their code’s illegality, not for their users’ illegality or the platforms’ subsequent over- or under-removal of content. What is legally significant is the platform’s adoption of a design (such as Facebook’s algorithmic manipulation of user data to facilitate ads) that enables illegal discrimination.

Sylvain’s argument finds support in recent state and federal enforcement efforts.154 For instance, in a suit against revenge porn operator Craig Brittain, the Federal Trade Commission (FTC) argued that it was unfair—and a violation of Section 5 of the FTC Act—for Brittain to exploit individuals’ personal information shared in confidence for financial gain.155 The FTC’s theory of wrongdoing had roots in prior decisions related to companies that unfairly induced individuals to betray another’s trust.156 Theories of inducement focus on acts, not the publication of another’s speech. Section 230 would not bar such actions because they are not premised on platforms’ publication of another’s speech but rather on platforms’ inducing others to breach a trust.

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