Google and Facebook are worth more than a trillion dollars and all that value hinges on this sentence tucked away inside a law passed in 1996:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”

It’s called “CDA 230," and The Electronic Frontier Foundation says it the most important law protecting internet speech. It’s a huge reason why the internet took off in the United States and without it, Google and Facebook would be finished.

But CDA 230 has a dark side. It’s the same law that allows Google and Facebook to promote defamatory content, extortion schemes, fake news–whatever third-party content they want–without the annoyance of fact-checking or fear of lawsuits. Thanks to CDA 230, Google and Facebook can plaster the internet with ugliness and there’s not a darn thing anyone can do about it.

But CDA 230 has a weak point–something Google and Facebook don’t like to talk about. It’s what to do about lists.

The List-Makers

At their core, Google and Facebook are list-makers. They source and compile lists of other people’s content, and all that hunting and gathering they do raises an interesting question: If CDA 230 protects Google and Facebook from third-party content that’s in their lists, what about the lists themselves? Are list-makers legally responsible for the way they select and arrange their list items?

According to legal experts I spoke with, the answer depends on the list. Generic lists, like numerically ordered zip codes, can’t be copyrighted and therefore have no responsibility attached. But other lists are original and creative (even if the items in the list aren’t): Scrabble words, US News college rankings, and Forbes 400 to name a few. In a famous 1991 case, the Supreme Court ruled it takes only minimal creativity to compile a list that’s original.

To understand what the courts mean by original and creative, and why it matters to Google and Facebook, consider the following list of names:

Noah, Liam, William, Mason

It’s a government list of the four most popular U.S. male names. It’s in the public domain and considered neither creative nor original.

Now consider this list:

William, Noah, Mason, Liam

It’s a list of names ranked by their likelihood of being a convicted criminal. You may ask how this list was created. The answer: with cherry-picked data and a homegrown algorithm.

In this example, names were selected from federal and state databases, and plugged into the following algorithm:

popular_names = [(35, ‘Noah’),(2, ‘Liam’), (2226, ‘William’),(6, ‘Mason’),] print sorted(popular_names, reverse=True )

Since it required a small amount of ingenuity to scrub the data and write the algorithm, this list meets the Supreme Court’s test of having a minimal degree of creativity. The list is nonsense but this creativity means if I were a search engine or a social media site and someone was harmed by the list (for example, if someone named William was turned down for a job or a mortgage) I wouldn’t be able to hide behind CDA 230.

But creating flawed lists then hiding behind CDA 230 is exactly what Google and Facebook do! They’re peddling billions of original (flawed) lists then claiming no responsibility for their originality.

What can be done?

I would propose making guidelines that hold Google and Facebook accountable, not necessarily for the veracity of third-party links, but for how they are prioritized. Laws should be strengthened to prevent Google and Facebook from delusively boosting slanderous content—especially from anonymous sources—to near the top of their search results and news feeds. I would also advocate for fines and penalties if Google and Facebook ignore victim requests to discount or de-prioritize demonstrably false and defamatory content.

One last thing…

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