Law, Borders, Speech

I took part in a very interesting conference: “Law, Borders, and Speech“, at Stanford Law School last week. I had the honor to be part of a panel discussion with some really accomplished thinkers, in the area of jurisdiction and borders online – including David Post and David Johnson, whose seminal atricle on the topic turned 20 years old (!), this year. How prescient they were..

My take on our panel was from an in the trenches point of view. At Automattic, we deal with tough questions of jurisdiction, international law, and free speech, on a daily basis. The issues themselves can be academic, but the implementation is most certainly not.

My observation on the panel was that internet platforms (like WordPress.com, or Facebook) sit in an important middle ground, between “cyberspace” and the real world. As a result, we can serve as a choke point – an easily locatable recipieint of a subpoena for otherwise anonymous user information, a target of lawsuits for publishing unpopular speech. But we can also have a point of view on important issues like free speech or net neutrality, and can serve as an advocate for these values, for ourselves and our users, especially.

After the conference discussion, I’d modify my message slightly. Companies and platforms not only can have a point of view, they should have one. We are capable of advancing values, or the rights of their users, and we should do this, where possible. The rules of the internet are unsettled and rapidly changing. Some governments are strongly asserting their own views on what speech should be permissible, and what should be censored. But many other governments, including those that should be staunch defenders of these values, are not as involved. This leaves an important vacuum that platforms who value speech can work to fill. It’s interesting, and a bit scary to think that internet companies, even very small ones, can act in this capacity. Essentially shaping and conducting foreign policy. But this is the current situation, and it’s a threat as well as an opportunity for our industry.

I’ve written about a similar idea before, in the context of copyright law.

Until copyright laws change to provide some meaningful penalties for targeting fair use, internet companies need to be more active on copyright issues, serving as the first line of defense in protecting the fair uses of content that have helped to make their platforms so popular. Not to mention profitable, as fair use of content drives consumer demand for online information and services.

I think the same holds true for other speech issues, especially for users outside of the United States. Internet companies, from all countries, can, and should, play a role in shaping the debate and the law.

Video of the panel I was on, discussing a lot of these bigger picture issues is here. Huge kudos to the awesome Daphne Keller of Stanford CIS for assembling such an interesting, diverse, and wide ranging set of views.

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General Counsel @ Automattic

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