From Broadband Barriers to Section 230 - Episode 450 of the Community Broadband Bits Podcast

Ry Marcattilio-McCracken: Retweets, forwards, sharing 40 emails. All of those things are possible because Section 230 means that you, a user, will not be sued for the content of others. Welcome to episode 450 of the Community Broadband Bits Podcast. This is Ry Marcattilio-McCracken here at the Institute for Local Self-Reliance. Today Christopher talks with Berin Szoka, President of the non-profit organization, Tech Freedom, which focuses on issues of Internet freedom and technological progress. Christopher and Berin dive right into the pressing Broadband issues of today and tomorrow. They entangle the biggest barriers to universal high quality Internet access that exists, including the jurisdictional issues facing communities, large and small, and the regulatory solutions, which would facilitate infrastructure deployment.

Ry Marcattilio-McCracken: They discuss whether we should spend public dollars, not just on rural Broadband where there are no options, but in town centers with slowly degrading copper networks, where monopoly providers have signaled little intent to ever upgrade that infrastructure. Christopher and Berin then dive into an issue Berin has been working on for the past few years, the Section 230 debate and what it means for the future of the Internet, if content platforms become liable for the third-party content they host.

Ry Marcattilio-McCracken: Now here's Christopher talking with Berin.

Christopher Mitchell: Welcome to another episode of the Community Broadband Bits podcast. I'm Christopher Mitchell at the Institute for Local Self-Reliance in St. Paul, Minnesota. And I'm speaking today with Berin Szoka, the President of Tech Freedom. Welcome to the show.

Berin Szoka: Thanks for having me.

Christopher Mitchell: Berin, I’m very excited to be having this conversation with you. I've been trying to have it for a few months. You are a person who has been very involved in a lot of issues lately, specifically around Section 230. We're going to come to that, but we'll start by talking about broadband more generally. I wanted to say, I wrote this little introduction that you are the worst person to disagree with because you're smart and you work hard.

Christopher Mitchell: I had different ways of trying to figure out how to come into this, but I want to say that, in my work I've run into people who have no principles, that oppose municipal networks, and for a while, I had categorized you as one of them. And watching what you do, I came to realize that I was very wrong, that you do oppose municipal networks in many circumstances, but that you are a person who has deep principles. You spent years illustrating them unpopularly and standing up against authoritarian politics. And as someone who is now more concerned about authoritarianism than almost anything else in the United States, I am very excited to talk broadband tech with you. So thank you for coming on the show to talk about it.

2:55

Berin Szoka: Well, thanks for having me. And just for context, I spent a lot of time in this area, say from 2012 to 2017, and I basically haven't touched it since, precisely because I've spent the last four years dealing with issues fundamentally about creeping authoritarianism and the growing fixation on the right with controlling speech online. So I will say, everything I say today is somewhat rusty and I will confess I'm not as up to speed as I used to be on what happens. So, I think we'll talk at a high level about how to approach these problems rather than all of the details of particular solutions.

Christopher Mitchell: Yes. And I wish you were more rusty on the consumer welfare standard, which is something that my organization and you probably have about as extreme disagreements on as we could. But I also know you came from Duke, which has the most aggravating sports teams on the planet.

Berin Szoka: I wouldn't know. I've never watched any [crosstalk 00:03:58] sporting event.

Christopher Mitchell: I thought you were going to say that. I appreciate that you're[crosstalk 00:04:01]

Berin Szoka: I am not a sports, ball person.

Christopher Mitchell: Yes. But I am appreciative of having this discussion and I think people should really have a better sense of why you disagree on a number of these issues and why there's a lot of people that have the disagreements you do. And I feel like some of them, we may be closer to agreement on than others, so I wanted to flush those out. But let's start with here it is in 2021, whole new Congress, new administration. If you had a magic ability to make a few changes in Tech Freedom related policy, what would you do in order to improve Internet access or make it possible for more investment?

Berin Szoka: Well, first I want to note that for better or worse and mostly worse, it's not a whole new Congress. It's mostly the same Congress. And I wouldn't assume that things are going to change significantly. And second, I would say that what I find very frustrating about this debate generally is that it usually gets reduced to very dumb binaries. And if anything, if I had to choose a shorthand for how I try to approach my work, it's to be ideologically non-binary. Most issues are really not as simple as being a pro or con and there are a lot of moving pieces. So that's what I'd like to talk about today. So just for example, this debate often gets started as being, are you for or against muni broadband? What should cities do?

5:29

Berin Szoka: Well, I just want to start by noting that there are a lot of other moving pieces that don't get attention when we just focus on that narrow piece of the pie. And I understand why some people do, because cities have agency and they have the capacity to act. And for them it may be a binary choice. Do we build X or do we not build X network? But for years we at Tech Freedom have trying to highlight the broadband challenges of Americans are quite diverse. They're not all the same. And in particular as somebody who is from New Mexico and spends a lot of time out West, I think it's difficult for many people to understand how remote many communities are. And that's true for the Navajo nation and the tribes, but it's also true for towns and small cities, especially across the West where building a local fiber to the home network wouldn't really improve anyone's Broadband service because they don't have long haul fiber lines. Many of these places still rely on microwave dishes to connect them to very remote locations.

Christopher Mitchell: As someone who grew up on the East Coast and has lived in Minnesota for more than 25 years, it’s interesting to me the distances you drive in the Midwest, which is nothing compared to the West, are so far outside the realm of the imaginable that people growing up in New England, for instance, who are driving 50 miles, is nuts. And 50 miles puts you like a quarter of the way across the County in New Mexico or in Washington.

Berin Szoka: Yeah. And it's not just distance, although distance is a big part of that. And maybe in the show notes you can include a link to... There's an excellent graph that was just put out recently just showing you on a heat graph, how far apart towns and cities are around the country and how long you have to drive out West to get to the nearest town and city. And that really helps you understand just how remote many of these places are. But it's not just that they're remote, it's also that getting to those places requires traversing a maze of Federally-owned, State-owned and in some cases, tribally-owned lands. And I just want everyone to understand, just to start, that if you're trying to do a deployment to one of those communities or somewhere along the way, you could run into a single roadblock where a single Federal agency or a single State agency, or whatever, drags its feet, or charges you an exorbitant fee, and that could kill your project.

8:10

Berin Szoka: So, those things are the things that I think we should start thinking about. And our suggestion a few years ago was, first and foremost that... We coined the term, what became the Broadband Deployment Advisory Committee, we called for that years before Pai actually created it. And this was one of the things that we wanted to have scoped out. And my sense again, I have not kept up with all the details since, but my sense is that there's a lot of good talk that's come out of the B-Deck but not a lot of follow through because it's hard to get Federal agencies statute to change their practices, for example. To me, it should be a no-brainer that we should do a conduit along any Federally-funded road project, so that the conduit is there, it's available to anybody who wants it, and the Federal Government doesn't have to do all the work. But if people want to co-locate their fiber while that's being done, then they should be invited to do so, and we should charge them an appropriate rate.

Berin Szoka: That's the thing that, if we did that well, could begin to build out a much denser fiber network across this country. And importantly, that would not only provide better service to local communities, but also provide better wireless service to people who may live so far in very low density areas [inaudible 00:09:37]that they're never going to get a wireline connection, but they might get a better service from that cell tower along the highway.

Christopher Mitchell: One of the things that I've counseled, whenever I've asked about this, is that I do not think that it changes enough to do that. But you raised an interesting point that I hadn't considered, which was just the ability to avoid environmental impact statements along the way is significant. And I think it's worth noting. I think that there's jurisdictional issues that have also plagued this and that, like you have a Federally-owned highway that's crossing lands. And to some extent, I feel we just need to suck it up and put some requirements on a State agency that it can have a light touch approach to managing that, rather than saying, all right, we have to negotiate with these three different Counties that have jurisdiction as you're crossing through it. But those are problems that can be done, and for the life of me, I don't understand why it hasn't gone through.

10:35

Berin Szoka: My understanding is, it's just institutional resistance and a lack of a willingness to put this into Statute. This problem could be solved at the Federal level. The particular problem of doing this along the interstate highways, Federal money funds these road projects. I don't see any reason why this couldn't be made a requirement of doing the road projects. We were told that it was like a penny on the dollar. If you're already doing the work, putting in conduit is really cheap, putting in fiber a little bit more expensive. But those are costs that should be born by whoever wants to build their networks there. I just think that, that's the basic infrastructure that the Government should be providing.

Berin Szoka: So throughout our discussion here... When I said earlier, I don't think this should be a simple binary, I think Government has a role here. And my general preference is for Government to provide the infrastructure at the lowest level of the stack, if you will. And at a minimum, that means conduit, and it means some other things like lamp posts in other places where you might attach infrastructure and maybe the power for that. But in general, I think we should socialize that and have a reasonable rates charge there and see how that goes before we assume that we have to socialize the delivery of the network itself.

Christopher Mitchell: Yeah. And what's interesting is I think, this doesn't have to even be a money loser. My sense is that there's a number of networks who would pay more than they might today to do it themselves, if they would just have the certainty. Part of what you're saying is not just that your permit might take awhile, it's that you don't know if your permit is going to take three months or three years, and you cannot plan under those circumstances.

Berin Szoka: Yeah, it's impossible. Or, when you think about it, it's not... Remember if you're doing deployment, it's not just like, am I going to deploy at all? It's, where am I going to deploy? And so there's a real issue of institutional bias here, where, what ends up happening is that the communities where those risks exist, that you may not get an approval. If deploying in X place requires the approval of 10 State agencies and a bunch of Federal agencies, you're just not going to do it, and you're going to go spend your dollars elsewhere. And then those people don't get served. And that is a terrible inequity that is just worked by the dead weight loss of bureaucracy.

13:09

Christopher Mitchell: My sense is, one of the things that is holding this up is a lack of money, that the agencies aren't just deciding to take this long to process, because they're like, we don't want Internet anywhere. It's more that they've asked Congress to fund budgets that would allow them to hire people to process the permits. And you have Reps and Senators who are happy to grandstand about these terrible agencies, but then vote No on the funding package to allow them to more rapidly go through the permits. Is that your sense of the whole office?

Berin Szoka: It is, I think that's a big part of it. And I think what we need here, you asked me what I wanted to see happen this year. What I think we need is an update to the national Broadband plan from 2010, which I think was one of the best things that came out of the Obama Administration. And it was great in particular because it tried to take a whole of Government approach. I think we need to do that, but this time we need to be much more focused on what you're talking about of, okay. But practically speaking, what will it take to implement this, and what are the roadblocks? So some of this is just pure legal change, like exclusion from... If all you're doing is putting a conduit along the road, there's no reason that you should be subject to any additional environmental review, just for example. That's not a funding issue that may be a legal issue that can simply be changed. In other cases, yes, it may be that some people need more staff to review, but maybe they shouldn't have to make those reviews. Maybe they shouldn't, maybe it should just get done automatically.

Berin Szoka: That's why I say what we really need is an update to national Broadband plan that works through these things, asks what has been done through the Bead Acc. Remember Bead Acc is basically all voluntary, it's just... Here's what should be done at the State level, the Federal level by providers voluntarily. I think we could take this conversation to what should be put into Statute to simplify and ease deployment at all levels.

15:06

Christopher Mitchell: So let's assume for a second we're living three years in the future, and we do not have middle mile as a problem anymore, but we don't have robust competition yet. I have a sense of why I think that hasn't happened. Do you have a sense of it? Would you predict that is the major barrier to more robust competition? Or would you even say that we have robust competition today?

Berin Szoka: Remember we're talking to different markets. So In any parts of the country, everything that I've just been discussing, that middle mile deployment is irrelevant because that's not the issue. I understand that. I'm just pointing out that there are a lot of people who...

Christopher Mitchell: That's not a hard problem to solve. We can get that done like this, let's get it done.

Berin Szoka: Yeah, but in particular, one of the reasons I'm focused on those people is, those are the people who have the least choices today. I think it's a mistake to focus on cities where we already have competition between cable and fiber services. Now, you might not think that's enough, you might have certain complaints about that, but I think we should be focused on those people who have one shity service today. One thing that never gets discussed in this conversation is that there are a lot of people who still rely on their twisted copper pair connection to their home. But it's also worth noting just how much progress has been made in upgrading those connections, using technologies like VDSL2 where, by putting fiber closer to the home, they have in fact been able to get in the huge swirls of the country most of 18D Footprint. The vast majority of it has those speeds of I think VDSL2. If I remember correctly, it's been a long time, but if you're, say within a 2K of the home, you can get speeds of like 75 megabits per second.

Christopher Mitchell: No. I think this is where you might be a little bit rusty.

Berin Szoka: You correct me. I haven't looked at these numbers for a while.

Christopher Mitchell: And I think that there might be cut sheets of vendors that would say that, but in our experience, it's more like 1000 feet for 35, 30, just in part because of the degradation of the copper. And so it depends on again what part of the country you're in. You probably don't rust as fast in the Southwest as we do up North.

17:29

Berin Szoka: Be that as it may, my point is precisely that those are the people that I think we should be focused on because those people are not being served by competition between cable and fiber networks in cities where they don't have a middle mile problem and they have two providers. And I just think that there's there's a real lack of focus on those communities and part of the solution there really is the middle mile solution. It's about pushing fiber deeper into the networks. And I think if you're looking for a way to spend taxpayer dollars, everything that I've seen led me to believe that if you have a limited amount of money, which we do, that you're probably better off doing that than trying to replace all of those connections with fiber to the home.

Christopher Mitchell: Now, I want to talk briefly about Minnesota in relation to this, which I'm now expecting you to be an expert on. But if you'll take my facts as granted, we can talk about them and I'll just say that you're not necessarily agreeing that I'm right, but for the purpose of conversation you are. So the short version is, in Minnesota there's this great idea of like, let's put a lot of money into rural Broadband, by which they meant both farms, but also town centers. And town centers, not where you would have the robust competition of modern cable that's very fast, but a cable system that's limping along at like 30 or 40 megabits a second. It's barely able to provide a good signal. It is often unreliable and may go a day or two with an outage every few months. These are people that show up on the national Broadband statistics as having good service more or less, and yet they don't.

Christopher Mitchell: And in Minnesota, when this program came up, Comcast more or less, with its political power, rewrote it so that it all the money was just going out to the farms and people where they had nothing. And none of the money was really available for the town centers that supported those farms. And so I’m curious what your sense is in there and in terms of, not necessarily, again, the facts, but like ideologically speaking. In my mind, these are areas in which these providers have had, let's just say 10 years, they probably had more than 10 years, to do a better job. Is it just whether they don't care or whether they're just unable to? I feel like we're not getting the job done. And I would like to see Government providing competition with taxpayer dollars there.

Berin Szoka: Okay. What you described sounds realistic to me, I'm not an expert, but I am not going to quibble about your description. I would say that, as I said before with the middle mile problem... So you and I are Town Councilors on some small town in Minnesota, and the question is, how should we spend our taxpayer dollars? And in general, my proposal is that we do something analogous to what I've described for the middle mile approach which is, sure, okay, fine. If the city is going to a wire or build out infrastructure, I think we should do it from the bottom up. And instead of leaping to the assumption that the city itself should do a fiber connection to every home and then provide service to it, I think we should ask ourselves if we can get more bang for our taxpayer dollar by putting conduit under every street, by maybe even going all the way to every home, and then inviting private companies to do the rest.

20:44

Berin Szoka: And I think that if you work your way up the stack, so to speak, getting closer to the home where Government is providing the dumbest parts of the infrastructure, I think you can enable competition to a greater degree than exists today without necessarily going to the city running the network. So that's my approach and I think a lot of this ultimately comes down to cost. Let me put it this way, I can imagine a scenario where, if you're going to do that work anyway, the marginal cost of putting the fiber and the equipment in is so low that it doesn't make sense to expect to have multiple companies do it. But I can also imagine that, that's not the case and that it's easier for the city to just say, look, we built the conduit secure, here are the places where you can plug in your hardware. And then you want to run a local service, go knock yourself out.

Christopher Mitchell: Yeah. I think you're right in that the costs vary on that. And also there's places in which there's local providers that would love to be a part of that and there's other places where they may not have that, depending on the part of the country you're in.

Berin Szoka: And my point is, it shouldn't be an ideological decision. Just as I'm open to the possibility that in some circumstances, maybe it does make sense for local Government to do it, I think it should go the other way as well. And I don't like the way that these conversations unfold, where it becomes a simple binary where if you're not in favor of the Government doing this, then you're just apologizing for the status quo. I think if you look at this from an economic dispassionate perspective, I think you'd get better decisions made. And we ought to be able to enable that with Federal policy.

Berin Szoka: There should be a Federal framework that supports that decision-making. And just for example, the street that I live on in downtown DC is a Federally-funded street. It's not a highway, but it happens to be Federally designated. So the Federal Government could put conduit in this street and that could significantly improve. Even, if this were a small town and all we had was a VDSL service, even if all the Federal Government did was supporting the plan of conduit in the streets that criss-cross the city, that could put the node within 1,000 feet of my house. So that's my approach. I think we should give it a chance.

23:24

Christopher Mitchell: Yeah. And we are starting to see some places that are doing that approach, which I'm very excited about. Western Wayne is one. But I think we'll see more of a conduit type model.

Christopher Mitchell: The last question on this is one that's... Does it make a difference to you from your perspective, whether the city would, for instance, tax everyone like a utility tax to pay for something like this or if they go out and they borrow money from private investors who are then repaid with revenues from the system? It's theoretically in the second case, people's taxes aren't being raised and it's debatable. Then you can argue about a subsidy because of investor expectations of taxes being raised to pay for it or not. But I'm just curious if you see a difference.

Berin Szoka: To me, it doesn't matter, it's revenue today versus revenue in the future. It's still not a level playing field with the private sector. The Government is able to borrow at hugely lower rates. They're able to tax users not just today, but in the future. You're never going to have a private network operating on a level playing field with the publicly-owned network, which is in part why I think we should work our way up from the bottom. And in the model that I described, even the incumbents, they could use the network infrastructure that I'm describing just as easily as anyone else could.

Christopher Mitchell: They could, they have a history of not.

Berin Szoka: Yeah, and you know what, if they don't want to use it fine, it's their loss.

Christopher Mitchell: Right. Well, let me just say, because I want us to move on to Section 230, I will say that we see differences in terms of the abilities of local Governments to borrow money that are not as good as you would say, in part because if you're an investor and you're trying to figure out, like, look, on the one hand I can give this money to Comcast and I can get this return, or I can give this money to this untested local Government.

Berin Szoka: Yeah, the bond ratings vary. I get it. Yeah. And so, by the way, on that note, it does matter whether this is being done at the local level or the State level, because presumably the State is going to have a better bond rating generally speaking.

Berin Szoka: I want to say one more thing about Broadband deployment, which is, I can't not mention that one enormously positive thing has happened since I was last engaged in these debates, which is that we now have the deployment of the first satellite based network that is in fact a real substitute for a Terrestrial Wireline Broadband. The Starlink network is a lower... I'm a former satellite lawyer so I had to just put in a plug for this, does not have the latency that my former clients, back 15 years ago, when I did work for companies like ViaSat... Those services have enormous latency, they’re slow and they never get better over time. The Starlink network is much, much slower, it's not a geostationary orbit, so you don't have to wait a quarter of a minute for paying.

26:24

Christopher Mitchell: Yeah. I think listeners are probably pretty familiar with low-earth orbit, what's happening with Starlink for the most part, but, yeah, it's[crosstalk 00:26:32]

Berin Szoka: Yeah, and without going into all the details, I just want to note that it is a great marketplace success story. And I'm not saying that it means we shouldn't still care about other forms of deployment, but it does address some of the people that I was talking about earlier who might not be in a city where it's going to be feasible to give them a Wireline deployment. And I think what it means is that it allows us to focus our conversation on serving areas of certain amount of density.

Christopher Mitchell: Actually, you might have just proven yourself wrong in the first point, because one of the things I love about Starlink is that it can provide robust backhaul. And so you might want to build those last mile networks without having... I'm really curious to see... In my mind, this is one of the great things that people are missing, is how you could get really high quality backhaul over time from Starlink. And I'll say that I think I've changed my tune on Starlink quite a bit based on real facts that are coming in. It's remarkable.

Berin Szoka: Well, that's why I respect you because clearly for you, this is about technology and economics and not pure ideology. And that's the right way to look at these things.

Christopher Mitchell: Section 230 is something that I have not discussed much in this show, and I've been fascinated. I really like Mike Masnick, I think he's made really good points about it. I'm not someone who totally rejects Matt Stoller's point of view, which is, I think, totally contrary to your point of view on it, which is that he's like, get rid of Section 230, let's just see what happens, it'll be great, screw Facebook. And so it's one of these things that I feel is quite important, but I can't figure out how it's going to go. So let me just ask you pointblank, why does Section 230 matter? Why is this something that's worth so much of the time you've sunk into it?

Berin Szoka: So Section 230 is the law that made today's Internet possible. People think they know what it means, and they generally don't. So first, who's covered? Right. Any provider of an interactive computer service, so that includes Broadband Network. So it's actually really important for local Broadband Networks lest they be sued for content that any of their users provide. Not such a big deal for Comcast, but that could drive out of business a small local provider. So it is directly relevant to your audience. So it provides that immunity, which I'll talk about in a moment, to all providers or users of interactive computer services. So for, example president Trump, himself, despite his complaints about Section 230, invoked the law in order to have a lawsuit against him dismissed, that alleged that he had spread defamation simply by retweeting it. Retweets, forwards, sharing 40 emails, all of those things are possible because Section 230 means that you, a user, will not be sued for the content of others.

29:22

Christopher Mitchell: Let's just make that very clear for a second. So I create a website and I write a bunch of stuff that I wrote. I sign it, Chris Mitchell, and I'm liable for that if I defame someone or something like that.

Berin Szoka: Because you are the information content provider of that content.

Christopher Mitchell: Right. Now, I say, hey, most of my friends should come and invite and sign their names to it. And they do. And then the question is, should I be held liable for something that they say, or should they be held liable for something they say?

Berin Szoka: In Section 230 the answer is, no, you have to sue the people who created the content. So that's what it means to be an interactive computer service provider, is that you're providing access to content created by others and not at all by you. You bear no responsibility for creating it. And here, it's important that Section 230 has two functions. One of them is to prevent you from being sued for hosting content or providing access to content like a search engine does, to others. And the second is to prevent you from being sued for moderating that content, because you find it objectionable.

Berin Szoka: These are the two big debates that are going on. They're both called Section 230 debates but they're very different. And in general, it's mostly the case that Democrats want websites to do more to deal with lawful but awful content. And Republicans in general want websites to do less, to moderate the kinds of lawful, but awful content that they don't like. So they want websites to clean up pornography and profanity and other things they think are bad for kids, but they don't want websites to take down anything that might hurt them politically like misinformation, voter suppression, hate speech, and we go on and on and on with all the things that suddenly Republicans have decided are suddenly conservative speech.

Berin Szoka: Those are the two debates. As I said, I've spent most of the last three years on this topic. The first issue is amending Section 230 in 2017 to allow civil suits for websites who might be somehow facilitating sex trafficking. Section 230 never protected them from criminal prosecution. So the founders of Backpage were already under investigation and were indicted within three days of Sesta becoming law. So Sesta wasn't necessary to get that. Backpage was a bad site doing bad things. We didn't need Sesta to do that. But now we're having other conversations about trying to crack down on anonymous speech online, or the use of encryption through the EARN IT Act. That's something that Democrats and Republicans agree on while Republicans meanwhile, are pushing what amounts to a new version of the fairness doctrine for the Internet that would allow the government or judges to second guess whether websites are being fair or neutral in how they treat speech for political reasons.

32:21

Christopher Mitchell: Would you say it's fair to say that all of these things you've spent your time on, is basically defending the Internet so that it will continue working despite the short-term political calculations of people who are doing it for crass political reasons?

Berin Szoka: You might very well say that. I couldn't possibly comment. No, that's exactly right and it is just disgusting, especially when you see people who know better. Just for example, Cathy McMorris Rodgers in late 2019 said exactly what I would say about all this nonsense, that this is the fairness doctrine for the Internet. Conservatives are supposed to be against this, it's not the Government's job to police fairness or whatever. And then now is leading the House GOPs push for exactly the things that she opposed, and is even going further. She wants to give people who think they've been censored by websites, a private right of action to sue the website.

Berin Szoka: It just typifies this thinking that Conservatives keep saying that Section 230 is to blame for all this "censorship". Well, actually it's the First Amendment. The First Amendment protects websites' right to decide what speech they want to carry, just as it protects the right of newspapers to decide which op-eds they want to run. All Section 230 does with respect to content moderation, is allow websites to quickly vindicate that First Amendment right in court with a simple motion to dismiss, without having to litigate all of the First Amendment questions, which would be monstrously expensive. And it's a very simple proposition, but I've now spent a 2-plus years trying to get people to understand that, and they don't want to.

Christopher Mitchell: I very much appreciate it. I do want to ask you this question, do you pull your hair out when people are like, well, let's just try it without 230 and see what happens?

Berin Szoka: We know what happens. We know what kind of liability websites face in foreign countries. And we also know that none of those countries is as litigious as the United States is. So, just for example, without getting into too much detail, Section 230 essentially superseded the common law, which would have held, and it did hold in two cases, that an ISP would be liable if it tried to monitor or moderate content that would make them more liable. If they had knowledge or should have had knowledge, they could be sued. That is basically the law today in Canada and Britain and so on.

34:57

Berin Szoka: But one reason that this liability hasn't been such a problem there, is these countries have loser pay laws. They have a completely different dynamic of litigation. So Section 230, in my view, is really a tort reform. It is a necessary thing to allow the Internet to exist and to flourish in the United States, given the way our system works and how easy it is to sue. You can file a complaint without really going through any legal analysis, and you can do it yourself, you can pay a lawyer $500 to do it, and then someone may have to spend 20 to $80,000 filing the motion to dismiss and going through the very, very early stages of litigation to get rid of your lawsuit. And then if they have to go all the way to litigation, this could cost millions of dollars. There's such an asymmetry of costs that it's just very easy to weaponize the legal system. So, your listeners might be familiar with anti-SLAPP laws.

Christopher Mitchell: And also I was thinking of the example of whether it's you or me, either one of us have websites that are controversial to some population and if you haven't just started filing lawsuits, then we wouldn't be able to do much, except spend all of our time responding, probably with the same exact wording almost every time.

Berin Szoka: Which is why most States, not all, now that the Federal Government have passed these laws that protect against what are called strategic lawsuits against public participation, where you write a review critical of your dentist, or you post something critical of a political candidate or whatever, and then someone sues you for defamation, the anti-SLAPP law allows you to dismiss that lawsuit quickly in court. Section 230, with respect to content moderation, serves exactly the same purpose against what I would call strategic lawsuits against moderation. You remove somebody because they post Holocaust denial content on your site, and they sue you. And if you didn't have Section 230, you may not feel comfortable moderating them, or you may just shut down the comment Section completely.

Berin Szoka: So those are the problems that Section 230 solves, in addition to making it possible for you to host that content in the first place, which is the other function. That's what most cases involving Section 230 are about, is the liability for third party content, not this liability for moderating third party content that Republicans are now obsessed with.

Christopher Mitchell: Well, I really appreciate your time today, Berin, and I also appreciate all the work you've gone through, and I deeply appreciate you've had the backbone and the courage to stand up against a lot of attacks over the last few years, as you've been tried in ways that I hope I never am, in terms of seeing who my true friends are in this space. So thank you for all of that.

Berin Szoka: Well, thank you. And as we often say, the party of the future is not limited to any political party and you can't assume, just because you've agreed with people on X, Y or Z issues in the past, you can't assume that they're actually with you on the more fundamental questions. I think you mentioned this earlier, I salute you for being willing to think about all these things from a dispassionate, pragmatic cost and benefit analysis, and not to turn everything into the culture war, whether it's the rights cultural war, or a simple anti-corporate agenda. And I think the people who are willing to do that, to have those serious conversations, those are the people that I think are really on my side. So I'm trying to spend more time talking to those people, and I'll be happy to talk to any of your listeners who want to continue this conversation.

38:50

Christopher Mitchell: You've one more minute, do you have a minute? On that, I feel like right now, people on the Left are stuck between this sense of, we have an advantage, let's figure out how to just quickly pass some things that are in line with what we want to see happen, like the Republicans are down right now, let's figure it. And I feel like others of us are just like, holy crap, we're really close to all of this unraveling, we need to figure out how to... Is that you're seeing? From your position on a more Conservative point of view, is that what you are seeing on the left?

Berin Szoka: Whatever. Whatever that word means.

Christopher Mitchell: Well, for years, I've been railing against people that use socialism or capitalism as though they have meaning. Conservative liberal at this point, I agree. But as someone who does not align himself with Bernie Sanders or AOC on many issues, let's say, and you're watching people who do, do you have a sense that right now there's this sense that people in the Democratic party are willing to gamble more in a sense that like, maybe this isn't an extreme moment of reckoning. Because I lose sleep over this a little bit. For people who haven't figured out yet, the next few minutes are going to be political if you're not interested in our opinions on that, go to your next podcast.

Berin Szoka: Yeah. So at this point, I think there are really two kinds of people in America, wherever you are in the political spectrum. There are those who look at the last four years as a blip and then want to get back to whatever their preconceived agenda was. And there are those who understand that this experience has really exposed fundamental weaknesses in our system of government. And I think if you're in the latter category, you have to prioritize real institutional change and safeguards against repeating these lessons. It should color everything you do. I'm not saying you should give up on your agenda, but just for example, if you're focused on local Broadband deployment, you should ask yourself, what is going to happen when the mega State Government or a city council to tries to manipulate or politicize the process?

Berin Szoka: Now, probably the First Amendment would prevent them from imposing content restrictions. Maybe that's a good enough answer. It's not going to prevent them from politicizing how deployment works. I'm not saying you shouldn't try, but you should be thinking about it and building it into your analysis. But I'll give you another example of something that I find very disappointing. So Senator Klobuchar, who I voted for in the primary, so I'm I'm a fan in general-

41:29

Christopher Mitchell: She's one of my Senators.

Berin Szoka: Anyways, she doesn't seem to have taken this lesson to heart because for example, one of the things she proposes changing in the Antitrust Laws is that she would flip the presumption so that if you're doing a merger over a certain dollar amount, you would have to convince the Government to allow your merger to proceed. Now, I get it. If you are skeptical of mergers, I understand why that sounds good, but we already know how that goes, that's how things work at the Federal Communications Commission, where you've got to basically... It's like applying for a new license. You have to convince the Government to let your deal go through.

Berin Szoka: And we already know what that allows the Government to do, which is to hold your deal hostage until you do whatever they want. The system ripe for abuse. And it just surprises me that people on the Left don't understand that they are offering opportunities to future mega administrations or worse to do things like that. And partly I think that's because we didn't have a Trumpist running the FCC, We didn't actually see how they would abuse their power. But next time we will.

Christopher Mitchell: Right. And by that, you mean for instance, President Rubio would have probably appointed Ajit Pai, like almost any Republican would have appointed him.

Berin Szoka: Ajit Pai was appointed by Barack Obama.

Christopher Mitchell: No, but I mean to chair,

Berin Szoka: Right, but two were pre-existing Trump and the third was a staffer for Pai. Only at the very end of the administration did we actually see what a Trump pick would look like, maybe Symington, who was clearly put on the Commission for political reasons, because he passed the loyalty tests that-

Christopher Mitchell: To keep you very busy.

Berin Szoka: ... that Michael Riley failed. My point is just that I think we have to take seriously the potential for all of our institutions to be weaponized and abused in the future. And we have to stress test them. I just don't see people doing that. I don't see them asking themselves, how is this power going to be abused potentially? And potentially anything could be. And again, that's not a reason not to do it. It's like, you do environmental impact assessments to take environmental protection seriously. In a way, I guess what I'm saying is you should be doing a democratic or a rule of law impact assessment in the future. And you should stress-test what you're proposing and ask yourself, who's making decisions and how might this be misused and how can we build in safeguards in advance to guard against that?

44:10

Christopher Mitchell: Yeah. I think my colleagues at Elassar would probably be frustrated if I didn't at least say that I think we might disagree on that particular one about Klobuchar. I read what you wrote about that particular instance. And I'm not going to sit here and say that there's no merit to it. I'm curious how you'd respond to this, that, I don't know that there's any safeguards. One of the lessons I take away from the last few years is that there's just no safeguards that will preserve the presidency if we have another four years of that dynamic.

Berin Szoka: Well, yeah. So on one level, I agree with you, which is that I think what this experience has revealed is that the fundamental problem with America is our system of government. We're the only liberal democracy, and by that I exclude a country like Hungary that has a combination of a strong presidential system and a first past-the post system for electing its Congress or its Legislature. It's a recipe for disaster. It reduces politics to these stupid binaries where everything necessarily becomes tribalized.

Berin Szoka: And If I weren't doing what I'm doing with my life now, I would be focused on trying to get people to take seriously fundamental, constitutional reform, not just tinkering with the Electoral College or whatever else. I think we need a much stronger Legislature that can actually pass things, getting rid of the filibuster would be a start. When you win elections, as in any parliamentary system, you should be able to enact your agenda subject to constitutional limits, and you should be held accountable for it. And you should be thrown out of office if you lose. And ideally you should have to build a coalition with other parties that represent other constituent interests. And that's how the rest of the democratic world works. We are the outlier.

Christopher Mitchell: Let me throw something crazy by you. People say that we're a-two party country, and I would argue that until basically you and my lifetime, we weren't, we were a three-arty country. The Democrats weren't a party, there were two parties. They just had the same name. And that's one of the reasons this system actually didn't fall apart, is because some of this wasn't possible under that system, I think.

46:30

Berin Szoka: I would put it even more strongly than that. I would say that what we used to call parties were in fact coalitions and we basically replicated the multi-party system that other Western democracies have. They just were under those two coalitions. Now, for the first time, we have two highly polarized parties where one of them is extremely polarized and is a personality cult and you can't deviate from the leader at all. And the Democratic party is still more coalitionee. But this is a new phase in American politics and it just doesn't look different because it still has the same labels, but it fundamentally has changed. You no longer have the diversity ideologically within each party that you used to have. And in my best case scenario, you have a much weaker presidency whose job is to execute the law, not run the country, and then a Congress that is composed of people who are elected from multi-member districts where seats are awarded based on proportional representation.

Berin Szoka: And in that world, I don't know what party you'd belong to, but I would be in something more like the free democratic party in Europe, or one of a number of classical liberal market, liberal parties that, like the free Democrats in Germany have been in coalition either with the Left or the Right, depending on circumstances and finds ways to work with people. And what's about that dynamic is, politics suddenly is no longer about destroying the other side. It becomes about competing for voters because the FDP and the Greens, they compete for some of the same voters. And then you have to work with these parties in coalition. It's just a very different approach to governance. And I think America's never going to work correctly as long as we have our stupid institutions that make this tribalized system inevitable.

Christopher Mitchell: Well, this has been fun. I appreciate the extended version, the bonus track.

Berin Szoka: We're happy to do it, of course none of that's going to happen. Things are just going to go downhill. That's my pessimistic-

Christopher Mitchell: Well, enjoy your civil war, everyone. .

Berin Szoka: Yeah, you joke, but...

Christopher Mitchell: No, I do joke and I joke about deeply uncomfortable things because people have the sense that anyone who reads anything about World War I, the years leading up to it, here's a sense of both that like, oh, well, this is going to go to crap, but also that we're so advanced now, we couldn't possibly have such a destructive, horrible war. And so I'm deeply concerned. But what are we going to do except for do the best we can we in our own ways. We'll try to make the changes that will build the best ability for our children and see what happens. But there's 300 million people who get a vote.

49:22

Berin Szoka: Yeah. And the only optimistic I would note that I would end on, is that people who've written about how to resolve longstanding conflicts in places like Northern Ireland or Rwanda in Applebaum write about this. They do say over and over that, you really can't change people's minds. All you can do is just get them to stop obsessing about those stupid tribal differences and focus on other constructive things, and Broadband deployment could be one of those. When I talked about the middle mile at the outset of the call today, those are Republican voters. These are people who are being left behind, and I think figuring out constructive ways to engage them and provide them service is an important part of larger effort to detoxify our politics.

Ry Marcattilio-McCracken: That was Christopher talking with Berin Szoka. We have transcripts for this and other podcasts available at muninetworks.org/broadbandbits. Email us at podcast at muninetworks.org, with your ideas for the show. Follow Chris on Twitter. His handle is @communitynets. Follow muninetworks.org stories on Twitter. The handle's @muninetworks. Subscribe to this and other podcasts from Island star, including building local power, local energy rules, and the composting for community podcast. You can access them anywhere you get your podcasts. You can catch the latest important research from all of our initiatives if you subscribe to our monthly newsletter @ilsr.org. While you're there, please take a moment to donate. Your support in any amount, keeps us going. Thank you to Arnie Huseby for the song, Warm Duck Shuffle licensed through Creative Comments. This was episode 450 of the Community Broadband Bits podcast. Thanks for listening.