Alex and Evelyn discuss the very successful launch of Meta's Twitter competitor Threads, and the content moderation challenges ahead. Elon's taking it very well. Europe and the US reached a data sharing agreement -- Alex has thoughts. Scary rhetoric out of the EU about banning platforms makes Evelyn sad. A US Court upholds FOSTA.
Stanford’s Evelyn Douek and Alex Stamos weigh in on the latest online trust and safety news and developments:
Threads v. Twitter
Join the conversation and connect with Evelyn and Alex on Twitter at @evelyndouek and @alexstamos.
Moderated Content is produced in partnership by Stanford Law School and the Cyber Policy Center. Special thanks to John Perrino for research and editorial assistance.
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Alex Stamos:
Are you getting out this summer? Because looking at us now, people can't see us, but I'm now looking at the Riverside split screen, and I've gone from three shades darker than you to about nine.
Evelyn Douek:
And I'm slowly getting paler and paler as the submissions deadline for law review articles approaches in about a month.
Alex Stamos:
Yes, right. I feel like I have to adjust my HDR white point for whatever when I talk to you on BC.
Evelyn Douek:
Ouch. Welcome to Moderated Content's weekly, slightly random, and not at all comprehensive news update from the world of trust and safety with myself, Evelyn Douek and Alex Stamos.
Alex, obviously the big story this week everyone's talking about it is the launch of Threads, Meta's competitor to Twitter and after its launch.
Alex Stamos:
Threads.
Evelyn Douek:
Yes, Threads. Oh, we need a Thread sound.
Alex Stamos:
We need a Thread sound. That's Rob. I don't know what that's going to be. We probably should get an old Zuck quote or something. I feel like that would fill it, right?
Evelyn Douek:
Yeah, I don't know if anyone has a fabric-ripping sound or something along those lines. Send it.
Alex Stamos:
Oh, that's good. Yeah, please send us ideas for our Threads update sound.
Evelyn Douek:
Excellent. So it was launched last Thursday, and it has become the most rapidly downloaded app ever, and has hit as of this morning or over the weekend, 100 million signups in just five days. I was initially reluctantly one of them. The FOMO is real, and it worked, and I followed and signed up. And I think your prediction last week when we were talking about it, Alex pre-launch, that Threads is going to crush it, I think is looking pretty good right now. There is a lot of activity and a lot of big accounts have joined the platform. You yourself are one of them. You've been threading up a storm over there.
Alex Stamos:
I've been trying to play with it for a bit. So I did sign up. They moved the launch forward. So one of the criticisms that I had on the podcast was it looked like this was supposed to come out in August, and it just seemed like considering that Facebook has all the backend services already sitting there on millions and millions of servers, that it was taking way too long. And apparently Zuck agreed because they pulled the launch up first to last week, and then they pulled up by even a day just to take advantage of Twitter's meltdown, and it's gone incredibly well. They've hit the 100 million.
It's a weird... I think one of the things they did that I would not have predicted worked out so well is they had 100% algorithmic feed to start, and they're clearly tweaking that server side now because you're seeing less and less of it. But it just showed people total randos, especially big Instagram influencers, which is not what I want to see. The number of, let's just say bottoms in bikinis that keep on popping up when I'm scrolling through, and I'm sitting next to my wife, I'm like, "I swear honey, it's the algorithm."
Evelyn Douek:
I swear it's the algorithmic feed. I swear I'm not following these people. Definitely. It's right plausible deniability all the way down. It's great.
Alex Stamos:
Alex, why do you keep on scrolling past all of these yoga pants in Lululemon? That has definitely decreased, but what it did, even though it was not what I was looking for, it made it feel alive because they were able to bootstrap that first-day experience on an existing Instagram influencer subculture, which is not my subculture, but it's better than nothing. And I think that was a fascinating experiment that really worked.
People are complaining like crazy. I mean, I've been blocking, blocking, blocking the stupid, the video influencers who just post stupid gifs and all those kinds. I mean, people want that stuff for Instagram. That's fine, but for me, Threads is going to be a work platform. It's going to be where you talk about professional stuff. So I do think it is good that as you follow people, the amount of that stuff you see decreases.
But it was actually an incredibly successful launch and the infrastructure has held up fine, which is what I expected. I mean, Facebook is... For all the problems the company has, the infra team is spectacularly good, and the engineering work that's gone into Facebook over the last decades is incredible. Zuck built a really, really good engineering culture and hired... When he came out to Palo Alto, he realized, "I know nothing about building that scale," and so he went and he hired all of these old married guys who were at that time, the age that Zuck is now probably, late 30s, early 40s, maybe some of them in the early 50s, many from Yahoo. People who had cut their teeth on the first site that had to handle a million concurrent users. And there's the early days of Yahoo and then Google is the days of figuring out how do you do really large well-engineered, scalable infrastructures. And he hired all those people and said, "Hey, build this for me."
And the benefit of that is being seen now in that he can build an app that is the most downloaded ever without a single technical hiccup because they're using all of the services that already power Instagram and Facebook. They're probably paying a bunch for cloud services. One of the things Facebook has the ability to do is to burst their infrastructure into the cloud. Although, if you look at the amount of CapEx that they use every single year, and you think about that they've had some declining usage, especially on Facebook, it is possible they're now just re-utilizing on-prem infrastructure and data center infrastructure that they haven't before. But in any case, that has been an engineering tour de force. This is not a distributed systems podcast, but for those of us who work on large engineering infrastructures, it's a fantastic example of the benefits Facebook's gotten from years and years of good engineering practices in that space.
Evelyn Douek:
Surprisingly smooth launch. It's a fairly bare bones app to start and there are a lot of features missing and the roadmap... We've seen Metarian Zuckerberg threading lots of promises for things to come. The purely algorithmic feed is actually a massive turnoff for me at this point. I agree, it has gotten better over the course of the week, but for me, I think the superpower in this age of content surplus is making sure that you dedicate your attention towards useful and interesting things and the way that the Threads platform just diverts your attention into there are way more topless guys in my feed than I want to spend time seeing or thinking about in particular.
Alex Stamos:
For the gigabytes and gigabytes of data that Facebook has on you, on your history and everything you've done-
Evelyn Douek:
That's right. That's what they're coming up with.
Alex Stamos:
I feel like that's a bit of a miss.
Evelyn Douek:
Right, exactly. But it does make it feel like things are happening as opposed to Mastodon and Bluesky where they've gone in completely the opposite direction. And a lot of the time re-log in and there's nothing new there since the last time you opened it. That's a problem for those platforms making you want to go back where Threads doesn't have that problem. But it does... It is a completely different vision for what a social media platform is I think. And we've seen that. They've been pretty explicit about that. This all of the marketing is around being a friendly place, a happy place. It's much more, very much like TikTok in a lot of its marketing about where we want to bring joy or whatever it is that their tagline is. And Mosseri was threading about that this week when talking about wanting to avoid politics.
Alex Stamos:
Hold on. Are we using threading? I mean-
Evelyn Douek:
I don't know, help me.
Alex Stamos:
It sounds so wrong, but yeah.
Evelyn Douek:
It does. It's not good. It was posting, let's just go with posting.
Alex Stamos:
Okay, great.
Evelyn Douek:
Posting this week about how news and politics is going to be something that they're explicitly not going to encourage, and they acknowledge that they're important and here it is a quote: "But my take is from a platform's perspective, any incremental engagement or revenue they might drive is not at all worth the scrutiny, negativity, let's be honest, or integrity risks that come along with them." So a pretty different vision for a platform from many other platforms and from Twitter where news and hard politics is the lifeblood of the platform. I was curious what you thought of that.
Alex Stamos:
I mean, it's amazingly honest, which is effectively, he's just saying what every Facebook executive started thinking after the 2016 election, which is being the world's fight club for politics is a horrible place to be. It sounds like it's a fun place. It's a fun way you can make a lot of money and you could be really important, but in the end, nobody's ever happy if you are mostly about political issues, especially with polarization, especially with everything becoming a culture war issue that we have very few issues in our politics that are actually fought on the merits anymore, and it's all about red team versus blue team culture, war associations. It's just not worth it anymore. And for him just to say that, I thought was amazingly honest and refreshing.
It's not going to hold because in the end he says that, but I mean, Zuck's playing up this friendly, "Yeah, man. I just want to create a billion user scale place where people can hang out and have fun." He is the most aggressive competitor I've ever met in my life. He's an incredibly competitive person. He wants to crush Elon. Whatever he says, is he wants to win here. And I think nothing Elon's done this week has actually probably changed Zuck's motivation. I think we'd talk about that in a little second about how well Elon's handling this. But if they're going to compete against Twitter, then whatever they do from a feed perspective and a ranking perspective, it will become... There will be a significant political subculture on there, which I think... Well, in second we'll talk about some of the downsides here for Threads and the risks that they're facing. But I do think the shift, it will become harder and harder for them to keep this a friendly place as a bunch of political actors move on over.
Evelyn Douek:
Exactly. I mean, the politics, they may not incentivize it or intentionally drive it, but it's going to come to them. We are all looking for a place with which to where to discuss all of these things. And so many people, so many media outlets and things like that are already moving there, and they're going to be on the platform. And so all of those challenges are going to come along with it.
So let's talk about content moderation and the challenges that the platform's going to face. I mean, obviously servers and things aren't the only infrastructure that Meta had in setting up this platform. And one of the big advantages was its content moderation infrastructure, which it has. It is adopting the Instagram community guidelines are the guidelines for Threads. I mean, if you look at the Instagram community guidelines, they're actually much shorter, much more general than the Facebook community standards for example, and a lot of them are around the videos and photos that you can post. So it's not exactly made for purpose. So that's obviously something that there's going to be some work that needs to go into and thinking around that.
And something I'll be watching obviously is will the Meta oversight board, which is not the Facebook oversight board, but the Meta oversight board, be given jurisdiction over this platform? I think probably not, but that's a big tell I think about how they're thinking about the role of this thing in its governance. But they're going to have all of the same content moderation problems that any other platform's has had, and we've already seen that in its short five-day life. So what have you been seeing on the content moderation front?
Alex Stamos:
So like you said, they're using the Instagram guidelines, which are not purpose-built for this. There's a lot in Instagram. Instagram has spent a lot of time thinking about how much nudity is too much nudity. It's an image-based site and with the kind of influencers that I was just mentioning famously, one of the biggest arguments is what is a male versus female nipple and how much is too much? And the fact that it's been a big controversy with them, the fact that they treat male and female nudity in very different ways.
Obviously, all of that work they've done is much less applicable to Threads. Threads is going to have the same problems Twitter have, which is much closer to the Facebook product, which is going to have political discussions. You're going to have people talking about real issues like affirmative action or trans issues, and then some of that's going to start to get to be less about political discussion on the merits and more about hate speech. And figuring out that line of what is an appropriate level of aggressiveness in these areas of legitimate conversation that then makes it not legitimate anymore is incredibly hard.
Now the thing is it's the same overall community team handles Instagram and Facebook. Yes, they have some different policy heads, and they have some different operational people, but it will be pretty quick. I think what we're going to see is you'll see Threads perhaps not explicitly, but they're going to start to borrow the community standards that are public are important. What's really important is for each of those community standards, there's a 200 slide deck saying how do you interpret this thing? And those have leaked occasionally and people are always, the media always turns into scandal of, look at the slide where they said this thing about... There's one about white women versus black boys and this and that, this and that, but that the reality is when you get to content moderation scale, you have to come up with all these crazy, horrible hypotheticals, and in some cases you're going to say, "Yes, this is allowed, and no, this is not allowed," and it's never going to be perfect.
And those are the intellectual property that's going to be really important here for the Thread side is that as they hit these things, they'll probably pull over a bunch of the interpretations that never needed to be made on Instagram just because it was so image-based. The interaction model here with Instagram, you can't really re-share things with text and stuff. You can comment on people, but lots of Instagram posts, they control the amount of commenting.
One of the things that Threads has done that's smart is they have adopted the various levels of restricting, muting, and blocking that Instagram has built over the past, and they allow you to curate your own Thread. So if somebody says something you don't like in your thread, you could just make it disappear for everybody, which is the kind of thing that Twitter used to do and I think got rid of because the vision of free speech also means that anybody can come into your conversation and yell at you or call you a name where Instagram is clearly much more about you can curate the conversation that you start, which is I think is going to be something that people are going to appreciate and will lower the temperature significantly because you get a lot less benefit from trying to attack people that way.
Evelyn Douek:
I mean, not everyone though. I mean, the Twitter approach does have a real competitive advantage with certain people.
Alex Stamos:
Yes.
Evelyn Douek:
We saw a leader at the Taliban tweeting this morning that he is decidedly in the Twitter corner. Twitter has two important advantages over the other social media platforms. The first privilege is the freedom of speech. The second is the public nature and credibility of Twitter. So I think that that says everything that you need to know about the different approaches between these two platforms at this stage of the-
Alex Stamos:
Huge win for Linda Yaccarino as she fights to-
Evelyn Douek:
Yeah, keep exactly.
Alex Stamos:
... keep brands on Twitter, she has kept the Taliban. So congratulations, Linda. The Taliban's locked up. You beat Zuck at his own game there.
Evelyn Douek:
I completely forgot about Linda actually until you just mentioned her. My goodness, where has she been this week? Anyway-
Alex Stamos:
Obviously, Instagram has always been brand friendly and one of the criticisms you're getting is the first day it was tons of Wendy's posting and all the brands, which there's no advertising yet. There will be pretty soon. That's another advantage that they have is they're on the Facebook advertising stack. One of the things Facebook's done is for every single product, every single surface, you have one advertising interface and that is incredibly valuable to advertisers that they could put it all in one place. So the fact that if you already are spending several billion on Facebook or several million for an individual company, like a large consumer product company might spend $10, $20 million on Facebook. The fact that you could just click, now throw it on Threads and then get a bunch of statistics back is going to be a huge revenue boost to Threads when they eventually turn it on.
But right, now the brands are running rampant and people have been blocking a bunch of them like me. But from a brand safety perspective, obviously, they're going to win out pretty hard here, and this is going to make Linda's job a lot harder. The other thing I think that is going to make Linda's job harder is how Elon has been reacting to all this. I'm going to make you read his tweets. I feel like I'll get in more trouble.
Evelyn Douek:
Did we put the explicit content warning at the top of this podcast? I don't know that we did anyway. Look, Elon is taking it very well and drawing up a sophisticated business strategy to deal with this new entrant that's a competitor to his product. Yesterday, tweeting such sophisticated plans and comments like "Zuck is a cuck." And then seven hours later in response to his own tweet, he realized that that wasn't sophisticated or becoming enough and so instead he then tweets, "I propose a literal dick measuring contest." I wish I could say that was a joke of some description, but it's not. It appears that that is not the parody account. Even I had to check if that actually was a parody account because I still apparently have the capacity to be shocked. And so that is where we're at. It took him seven hours to come up with a joke that I believe I heard within seven seconds on the primary school playground back when I was a kid. But I mean, it's not going well I think.
Alex Stamos:
Yeah, Musk is not handling it well. He also... So Alex Spiro, his personal lawyer who works for Quinn Emmanuel, which is amazing how far that law firm is willing to debase themselves for Musk. Actually, I'm in shock the other partners have not forced Spiro to choose whether to stay... I mean, obviously he at least pays those bills. He's not paying his other lawyers. He's trying to sue to not pay Wachtell for representing Twitter correctly. But Spiro sent a letter to Twitter or to Facebook basically claiming that Facebook copied Twitter by hiring Twitter's employees. Which one, Musk is the one who's fired a bunch of people and then made fun of them. But also then the Mosseri came back and said, "There's nobody on this team who came from Twitter," which is if you're already Instagram building, the Twitter clone is no big deal.
The other problem here is Facebook has the deepest patent portfolio of all social media, especially because they went and they bought a bunch of fundamental AOL patents, which are for things like text on a website. It's crazy ridiculous patents I think should never be enforced. But certainly, if Musk goes down that path, it's going to be bad. But his public spiraling out of control here is not helping. I mean, it is really pushing people away.
Also from a political perspective, I saw somebody talk about this. It's like it's weird that Musk is coded conservative and Zuck is coded liberal in that, Musk has, I believe 10 children with three women, is divorced three times, continues to have kids out of wedlock and stuff. Zuck has been with the same woman since his sophomore year of college, married this pediatrician, and now they have three daughters. And I've had my differences with Mark Zuckerberg, but he is a husband guy. He absolutely talks about his kids all the time, talks about Priscilla all the time. He's a dedicated father.
And so it's just this whole, what does conservative or liberal mean is Zuckerberg is the one living like a neo-Victorian. Musk has this crazy personal life and then how that then reflects on their decisions around the platforms I find bizarre and fascinating. And one of the things people will talk about for years is how much the personal decisions these guys are making.
For Musk to just throw this stuff out, these personal attacks and "Zuck is a cuck," is just not only is it incredibly inappropriate for a billionaire owner of a platform, but also just stupid. It just makes him look so sad and weak. Anyway, it's getting to point of where it's just getting... His shame spiral and self-harm here is getting really bad. He really needs intervention where he needs to go spend some of his money to go sit on the beach for a week and somebody should take his phone away. If you're a family member of Elon Musk, why is somebody who's so rich and so powerful, so incredibly miserable and has no ability to do anything but to spiral down into an 8chan poster?
Evelyn Douek:
No, it's pretty grim and I agree, pretty sad actually. And I think also a comment that I think men really in general, not okay, not all men, but there is something very strange going on in the culture now where this is being lionized the way that it is.
Alex Stamos:
By certain people. But when I look at those two guys, clearly the one who I'd want to be more is Zuckerberg, and who I think I am more like. But you're right. It is an interesting thing that there's just kind of a conservative subculture is now... I mean, again, this isn't a feminism and critical gender studies podcast, but if there's something I'm hoping to read something smart about what's going on in the lionization of guys who are not living up to any of the traditional masculine standards of supporting your family, and being a good father, and a good husband, and such. That it's all about the positioning of yourself, and it's just bizarre. It's also bizarre to see that billions and billions of dollars in public company value is dependent upon this interaction of the social and personal decisions of these two guys.
Evelyn Douek:
Yeah, for sure. I think there's lots of other podcasts you can go to for that kind of discussion, but I do think it truly does underline the precarity of our public sphere that our communication systems are beholden to the whims of these guys. Not just some billionaires who are accountable to boards, and business incentives, and commercial pressure, and all of those kinds of things, but these guys that are tweeting these things, it's an indictment on our governance structures I think that this is the way it's playing out and he's just setting all of his money on fire.
Let's go back to the content moderation challenges for Instagram because we talked about a bunch of them when we talked about those that are coming down the line. A lot of them are going to look very similar to the ones that Meta has faced previously. And we've seen already the edge lords on the platform this week trying to kick up a fuss, but there are also going to be new challenges that this platform's going to face that it hasn't really faced previously as a part of this promise to be a decentralized platform and to be not a centralized platform like Meta's other products.
So can you talk a little bit about that? I saw you tweeting and posting and threading and all of the other things about that this week. So what's your take on this one?
Alex Stamos:
So since we're all about predictions, I am going to predict that Meta will never turn on an ActivityPub API integration. I'm going to predict that.
Evelyn Douek:
Wow, that's a big call.
Alex Stamos:
I'm going to predict it because when we think about the motivations for doing ActivityPub, one is that they've been trying to tell influencers that if you build a following on our platform, we'll make it portable. And I think realistically what's going to happen is that Threads is now at least nominally 10 times the size of the entire Fediverse from an active account perspective and probably closer when you really measure it because it's hard to get good statistics out of Mastodon. Closer to 20 to 30 times, and that's after only three days.
And so we're going to end up in this situation where if you are a large influencer moving to your own Mastodon Instance or something's probably not going to work out. The other issue that's going to happen is the Mastedon world doesn't really understand the trust and safety problem that will happen when there's all of a sudden a huge economic reason to violate TNS rules, especially spam and other economically-motivated rules, on their servers because now they can reach those 100 million people on Threads. And for all the challenges that individual Mastodon server operators had for content moderation, it is nothing compared to what Meta will create.
And this is what's inverted about the discussion in the Mastodon world is all of them are talking about, "Oh, I don't want to let the hordes in from Threads onto my perfect pure server." It's like, "Dude, it's going to be completely the opposite direction." And from Meta's perspective, all of a sudden, they'll be receiving content over ActivityPub that has absolutely no meta data connected to it.
And so one of the things I was threading about as well as posting on Twitter and Mastedon, we can talk about how that ended up for me, but I posted this on all three platforms. Is as we've talked about, there's actor behavior and content based models for content moderation, actor and behavior based is very heavily relied upon the meta data of what IP is this person coming from? What network are they coming from? What region are they coming from? What is the language setting for their keyboard? What does their TLS stack look like when they do a TLS negotiation with us? Are they using one of our clients and therefore we can see either through JavaScript or through mobile code that there's a human finger moving on the screen or there's a mouse that's moving back and forth?
None of that's available via ActivityPub. And so from Meta's perspective, they'll get all this content that is way less content than they have themselves, but coming from the outside with absolutely no meta data attached. And so enforcing, "We don't want spammers. We don't want troll farms," any of that kind of work is going to be effectively impossible. All they could do is look at the content and then probably keep a reputation score on a per server basis, which is going to be spectacularly controversial because they will effectively either, they'll say it publicly of this is the reputation score for each of these servers, or they'll do it privately and people will talk about it being shadow banning. But in any case, they're not going to be able to treat every single Mastedon server the same.
The other issue is just on some basic trust and safety issues, there's a significant CSAM problem in the Fediverse, and our people are going to be publishing on this soon, so I don't want to front run it, but from Meta's perspective to all of a sudden be gaining all this content that you have to report to NCMEC that you then have no data in that NCMEC report that allows them to actually go after these people is going to be a problem. And it'll be a problem for the server operators because all the FBI's going to see is that this came from this little server. It's not going to show them that this is the actual offender.
So I just think there's a lot of really serious practical ActivityPub trust and safety issues that will make the downside better than the upside for Meta because they apparently don't need it from a growth perspective. The other reason they wanted to do ActivityPub I think was for Digital Markets Act compliance. And so I think a big determiner here is whether or not the FOMO in Europe means that the Europeans will say under the DMA that they're allowed to launch, which I think you had some opinions on about what Europe's doing here.
Evelyn Douek:
Yeah, well, no, I mean, all of these content moderation problems that we've been talking about... And we've I guess been largely US-centric, but it's important to note that they're going to be global problems. And a lot of the downloads of the app over the last five days have been from other parts of the world, about 22% apparently were from India and Brazil in the first couple of days. And we have talked about both of those jurisdictions on this podcast a number of times and the kinds of pressures that platforms are coming under from a content-moderation perspective in those jurisdictions.
Alex Stamos:
Which is going to be way harder because traditionally Meta's problem in those countries is WhatsApp, which with end encryption, their content moderation tools are much more limited, and so they could wash their hands of it in a way that they can't for Threads.
Evelyn Douek:
But they're not entirely global problems for Threads, the content moderation problems, because of course, it hasn't launched in Europe, and there are currently no European users on the platform. And there's been some discussion around that this week. And again, Mosseri came out and was quite explicit about this with an interview with the Verge in saying that this is about the Digital Markets Act, as you said, Alex, that's coming up where Meta has been declared a gatekeeper under that act, and it prevents companies.
Alex Stamos:
So we have two different lists of... There's two different standards the EU has created to almost perfectly... Like the platonic perfect EU law only affects American companies, and now they have two different competing models, VLOPs and the digital gatekeepers. So it'll be interesting to see because I think digital gatekeepers, one of those accidentally caught one European company.
Evelyn Douek:
It was VLOPs, caught I think a clothing-
Alex Stamos:
Yeah, VLOPs-
Evelyn Douek:
... platform or something in Europe.
Alex Stamos:
And everybody lost their minds like, "This isn't supposed to affect Europeans. This is only about Americans." So it'll be fascinating to see which of the marketplace of European ideas, what is the better way to exclude European companies from regulation and only apply them to American companies. It'll be fascinating to see who wins. Anyway, I'm sorry, can you talk a little bit about the-
Evelyn Douek:
No, no. I mean, so I'm curious for your thoughts on this. So Meta's not launching in... Threads isn't launching in Europe yet, and there was discussion around whether this was privacy rules under the GDPR and Europe's famous privacy regulations, and it's not. It's about these incoming regulations around how gatekeepers can share data across their different platforms and/or preference their own services on their own platforms. And so apparently, that's been the holdup and just the compliance obligations under required to reassure regulators that they're doing the right thing under that act are just too burdensome and not going to be up in time in order to comply with that regulation. So I mean, that's striking. That is a striking thing that this new platform isn't able to launch in such a big market.
Alex Stamos:
Yeah, it is. I mean, it's a bit of a flex for Meta. I think it's the flex here is not that they're not launching. It's more that they just did not prioritize this. They're basically saying, "We don't need Europe," which is accurate. If you look at Meta's results, Europe is the third most important region, and I expect they project from a revenue perspective, it will eventually be the fourth after... North America, they make the most money close behind Asia, and then Europe is a distant third, and then eventually, Africa will pass up Europe.
And so if you're them and all of the compliance costs is in one place, but the economic benefits are much less, then why do it and especially and I think... The launch with 100 million people signing up and the fact that now Europeans have to VPN out of Europe and change the local region and such to download Threads, for the first time ever, Europeans are feeling like they're in a second tier country. I think this is not something that we'll see fixed for a while. I think that they're going to enjoy creating a little bit of back pressure with European consumers that they now live behind a little bit of a Great Wall of Europe.
But it's also a legitimate concern is under Digital Markets Act, if you're a gatekeeper, the rules on data sharing and all this stuff haven't really been written yet. And so I think the huge question will be whether they get a preemptive. A bunch of this stuff's not supposed to be decided for months and months. If they get a preemptive decision that launching Threads is okay based upon the political pressure inside of Europe, or if Meta has to wait for all the court cases and all the stuff that you usually have to wait for that we had to wait for GDPR. Who knows? But if you're Zuck, you're in no rush to launch in Europe at this point. You're probably enjoying every time a European has to post on Threads of "Yep, got my VPN installed so I can get around the great firewall." That's a huge win.
Evelyn Douek:
Well, that's an excellent segue talking about the long-extended court cases and things that often can be part and parcel of working out what companies obligations are under European laws. There was big news this morning, which is the US and the EU have finalized a deal on sharing data between the two jurisdictions. We talked about this in relation to a big fine that Meta received only in the last few months sometime for breaching European data sharing laws. So what did you make of this deal and the sparse details that we have about it as of time of recording?
Alex Stamos:
So I'm looking at, we can link to a pretty good detailed press release from the European Commission, where they made the adequacy decision. So they basically said, "We've come up with a deal with the Biden administration that we believe provides adequate recourse for European citizens whose data stored in the US." So this is in return for the famous Schrems cases. Max Schrems, who was I believe a law student when this all started, is now an Austrian privacy activist, sued to say that Meta was not allowed to operate in Europe. Now this had no... At the time Facebook. This had nothing to do with Facebook. That was just a smart choice from a comms perspective because his argument was that effectively you can't transfer any personal data on any European citizen into the United States because of the United States' surveillance laws.
And he won these cases, which a number of people thought were kind of ridiculous because one of the things that the European courts did was ignore the fact that European countries have way worse surveillance laws in lots of circumstances, and then also ignore everybody else in the world. So this is only about the United States. It's the argument that the United States is a uniquely horrible place for European data to be stored, and it ignores these tiny little countries like the People's Republic of China. And so all this stuff, none of it affects any Chinese companies. It's only about the United States. And to their credit, the European Commission has been very aggressive in pushing back on this because again, it's not really about Facebook. If Facebook got kicked out, European commission I think wouldn't care that much until there was maybe a little bit of an uprising by...
The problem is that this affects every single European. Unlike the platonic ideal of European law, it actually affects European companies because if you're BMW or you're the French nuclear agencies, if you're Siemens, if you're any of these big European companies, you need to do data processing in the United States. It's just part of you having your global footprint. And effectively, if this stuff holds, then the use of almost any American platform, including enterprise platforms becomes incredibly complicated and/or illegal. And so the European Commission actually gets lobbied a lot, I think by European companies.
The one European company on the other side is Deutsche Telecom, and apparently they might be paying for some of the lawyers here for some of the activists. There's some controversy here of where's all this money coming for these great lawyers to try to kick out American companies. And so Deutsche Telecom loves the idea that every European company has to buy a European data center, but every other European company is like, "Dude, we need to be able to use to sell stuff in the United States. We need to be able to use American computing systems, and you have restrictions here that would make that impossible."
And so they came up with this new framework. The thing that's different from the last framework is there's now a court, a data protection review court. So it looks like a special FISA court model, but now you'll have a mechanism by which European individuals can go and say, "I feel something bad happened with my data," and they actually can get that adjudicated, and the European Commission is saying, "That's as good as you can get inside of Europe itself, and therefore that's adequate." So we'll see.
I mean, how that review court's going to work is going to be fascinating. There's no details about that, of where is it actually physically? Who's on it? The FISA court has judges and lawyers with clearances so they can actually get into all this stuff. Will this court have people who have the ability to dive into how the US intelligence services work? I have no idea. So I think it's totally fascinating. Of course, we'll go through this legal fight again, but at least this stops the apocalypse of having to cut the cables between Portugal and the East Coast and cut off Europe from American cloud services.
Evelyn Douek:
So Max Schrems has said this morning that in The Times that he's indeed going to challenge this deal, and that just announcing something as new, robust and effective, does not cut it. There needs to be changes to the US surveillance law to make this work, and we simply don't have it. So it's not over. We have more years ahead of us of these kinds of wranglings.
Alex Stamos:
It's a very democratic system that Europeans have there. So you have the European Commission, the European Parliament passing laws elected by people, and then you have Max Schrems just deciding what is Europe's data privacy model going to look like by himself, and then ignoring China. It's real smart. It's a great model the Europeans have there. I'm really, really jealous.
Evelyn Douek:
Okay. Well that is another good segue then to other democratic disappointments in the EU this week.
Speaker 3:
[foreign language 00:34:44].
Evelyn Douek:
Yes. So in talking about European content regulation this week, there was some pretty frightening rhetoric coming out of some politicians over there, which I think is worth highlighting and calling out. Normally, I don't know that I would've necessarily bothered, but this stuff was pretty shocking. So French President Emmanuel Macron gave some statements on Tuesday where he suggested that when riots are out of control, because of course there've been ongoing riots in France over the past week or so, that access to social media platforms such as Snapchat and TikTok could be cut off because they change the way young people relate to reality. And just so that we are clear, changing the way that people relate to reality is exactly why we protect free speech because that is one of the benefits of free speech. You may not like the way that reality has changed or you may, but that is what the marketplace of ideas is all about.
So he came out with these statements pretty shocking, honestly. Government spokespeople then tried to downplay them where the people were saying, "Oh no, no, the president was saying this was technically possible, but not that it was being considered. Nothing should be ruled out in principle, but this is not exactly what we're talking about. We don't mean entirely platforms. We mean maybe some temporary features on the platforms could be disabled and blah, blah, blah."
So at that point, I probably wouldn't have talked about it on the podcast, but then enter our friend, the enforcer of Europe's Incoming Digital Services Act, the internal commissioner, Thierry Breton, who decided to double down on the comments that Macron had been making saying, "Oh, no, no, no. We definitely do mean that we can and might ban platforms in these kinds of situations." So he said, "When there is hateful content, they will be required to delete that content immediately, and if they fail to do so, they will be immediately sanctioned. And then if they don't act immediately at that point, we'll be able to not only impose a fine, but also ban the operation of the platforms on our territory."
I just think that's a stunning statement for this politician to be making. There is power under the Digital Services Act in Article 51 for digital services coordinators to ask a judge to order temporary restrictions of access if an intermediary is not complying with certain aspects of the Digital Services Act, and there is quote unquote "serious harm" taking place, but this is not a unilateral power of the executive. It requires a court order. And honestly, I find it hard to believe that a court would stand up for this kind of thing. Indeed, this is what courts are for, is pushing back against executive overreach in times of emergency and clamping down on freedom of expression.
But I just think all of this tough talk is pretty notable and sad really, because it gets a lot of headlines. Thierry Breton is obviously really enjoying being the enforcer as he likes to call himself of the Digital Services Act, and getting a lot of headlines about how tough he is on these platforms. But I think it's a sad sign that our discourse around this has gotten so reductive and there isn't more cognizance and appreciation of the free speech interests at stake here.
I'm happy to get pushback from European listeners on this if there is some. You can't do it on Threads, sadly, but you can tweet at me, tweet at me, whatever it is, because I'd love to hear why I'm wrong on this, why I shouldn't find this so upsetting. But I really do.
Alex Stamos:
Yeah, I totally agree on many levels. One, we keep on seeing this thing in Europe where immediately, even more than American politicians, they pivot to, it's a platform problem. The rights in France, France has real issues with youth unemployment, with an underclass of people who are not French citizens of both legal and illegal immigration. It's a real complicated issue there. I understand that Macron's under a lot of pressure dealing with these issues that had been building for decades that he did not build. But then to immediately say, "Oh, it's just because of social media," is just this way to pivot away from having to deal with people's actual problems to keep them from writing. Also, even before these immigration issues, the French are famous for writing. I'm pretty sure most of French history-
Evelyn Douek:
Done a few times in history.
Alex Stamos:
... it's happened a couple, a couple musicals about it... And so, you have this long history of French protest that is now just... But from young people who are a different shade than people who've been in France, whose families have been in France for hundreds of years mostly, and therefore it is now an alien thing and it has to be driven from the outside. So what that impulse, I think is just a bad impulse. And you see this over and over again. You see in the UK where any violence local to the UK, with the horrible Paris attacks, all the blame went to social media immediately or into end encryption. They're immediately blaming it in the encryption and turned out the Paris attackers were just using unencrypted SMS. So everything was out there for the French security services if they wanted it.
So it's a normal reaction, but it's an unfortunate one because Macron... I got to meet him once and go to this dinner, and I thought he had some very thoughtful ideas about regulating social media while also protecting civil rights. He talked a lot about the rights side. I thought, "Man, this guy gets it much more than other European politicians," but under pressure, he's pivoted this way.
And then with the Briton, it does demonstrate that the Digital Services Act is about control. For all of the talk you hear out of the Europeans about human rights, it's really about there's a controlling... The people who controlled the EU, who control Brussels, who control these countries, have an idea of what kind of speech should be allowed. And in some cases, I agree with their belief of what kind of speech should be allowed and not. But in this case, it's pretty clear that their definitions are pretty broad. And like you said, it's free speech is about people being able to talk about what's going on, change their environment. There's not a lot of evidence that there's direct calls to violence that are driving this. More of people's discussion of the conditions that they're living under, which are not great.
So it's really unfortunate. And I think between this and the Schrem stuff, it does make me discount whatever I hear from European privacy activists. You get all this crap for having worked for an American company or just being an American. They've been very, very quiet about this, and so it doesn't make me really interested in hearing from them on future things because if you can't stand up for the right of French people to have access to social media during times of crisis, then I really don't care what you think about targeted advertising. The difference in importance here is so spectacular, but all the discussion is about things like ads and American companies and such, when right here you've got the call coming from inside the house. And there's been way too little discussion, it seems to me, among the European tech elite and policy elite about how this twisting of the DSA could be really, really negative for the future of freedom in Europe.
Evelyn Douek:
I mean, like I said, it's not even clear that the DSA would permit this, and I'm sure that there are many people who would find this outrageous, but the fact that it's even being spoken about in these ways, I mean, that is a harm in and of itself that should be pointed out and condemned because it enables other jurisdictions. We've seen this. This is how autocrats also pick up the language of democratic leaders and adopt it, and say, "Look, they think that you can ban social media in times of unrest, so why shouldn't we be able to?" So it just really disappointing.
Another disappointing piece of legal news this week, so a US court of appeals in the DC circuit this week upheld FOSTA against the First Amendment challenge. So FOSTA, or the Fight Online Sex Trafficking Act of 2017 or it passed in 2018 was the first and so far only major amendment to Section 230, which is the immunity provision that that platforms have for content that other people post on their services. FOSTA created a number of new ways for websites to face liability for content related to sex trafficking. But the legislation was extremely controversial. Its vague terms, and poor drafting led to a lot of confusion over how exactly it would apply, and this meant that exactly what a lot of people said would happen happened, which is that platforms and online services erred on the side of caution and took down a whole bunch of totally legal and important content in order to just avoid the potential specter of liability.
So lots of harmful impacts on legal sex workers, and advocates, and people who talk about related topics. And two days after FOSTA was passed, for example, Craigslist eliminated its entire personal ad section including in non-sexual categories because it said FOSTA made this too risky to have. And all the evidence since FOSTA was passed was that federal prosecutors have had little use for the additional criminal penalties that FOSTA created and may have even hindered efforts to investigate and prosecute trafficking.
So a number of plaintiffs brought this First Amendment challenge to the law highlighting the vague and broad language of the statute and these pernicious effects on freedom of expression. And instead, the DC circuit upheld the law. Now, that does sound really bad, I guess the way that I've framed it, but the DC circuit also did it in a way that dramatically narrowed the reach of what FOSTA covers and makes potentially liable. It's a kind of weird decision where it reads all of these provisions very narrowly to only cover aiding and abetting in the very technical sense, not merely as the provisions actually say like assisting, facilitating, or promoting sex trafficking. So it's only the technical kind of legal aiding and abetting, which is much, much narrower. The court goes through all of these words and says, "Oh no, no. That may sound broad, but what Congress really meant was something much narrower and therefore it isn't a threat to free expression."
This is the kind of confusing thing that really only makes sense to lawyers and honestly, maybe not so much even then, but we might think, it's a generally good thing that the court narrowed the reach of FOSTA. It's unclear that this technical narrow reading by the court will actually matter on the ground. Will platforms change their operations and be less risk averse because of this judgment? Is Craigslist going to reinstate its personal ad section? I really doubt it. And so a lot of the pernicious effects that we've seen as a result of FOSTA probably are going to continue, and it's amazing how little the court engaged with these chilling effects or cost of free speech at all in the judgment regardless of what the final outcome is. The court didn't even really seem to think about or talk about that at all.
So it's a disappointing court decision that I think reflects a lot of the dynamics in this space. But there you have it. I think it's unlikely the Supreme Court's going to grant cert on this one given its experience with a Section 230 case last time, which it didn't seem to particularly enjoy. So I suspect that this is probably going to stand.
Alex Stamos:
Don't we have other Supreme Court cases in the next docket that are relevant to this, or have they taken nothing?
Evelyn Douek:
On FOSTA and aiding and abetting?
Alex Stamos:
On 230?
Evelyn Douek:
On 230, no. They haven't taken a 230 case in the next term.
Alex Stamos:
Okay.
Evelyn Douek:
Not yet.
Alex Stamos:
Oh, interesting. So you don't think they would take this one just based upon how they avoided making a decision in this last round?
Evelyn Douek:
Yeah, I mean, I could be wrong. There was clearly appetite for a section 230 case prior to Gonzalez, which we talked about at length on this podcast to see are the courts interpreting this correctly? But they didn't seem to enjoy Gonzalez and ducked the section 230 question ultimately, and FOSTA is... It doesn't really tackle the core section 230 issues head on either. So I think it's probably unlikely that they're going to want to revisit this one.
Alex Stamos:
I don't have anything to add other than, like you said, it's very complicated here of when you create these, the nebulous enforcement model that companies are going to massively overreact. And I do hope that the experience here does make Congress a little more careful about creating these exceptions, especially for when the kind of speech, in this case, non-trafficking, adult sex workers trying to use Craigslist for example. There's not a lot of fight for that kind of speech, but the First Amendment's supposed to be able to protect that. So the speech that people don't want to see is the stuff that you need to have protections for.
Evelyn Douek:
Well, I'm sure lots of Congress people read this judgment of watch play out and feel horrified and definitely have learned their lesson, Alex. I'm sure that Congress will do much better next time. That's how this works, right?
Alex Stamos:
Yes, exactly. Okay. It's all great.
Evelyn Douek:
It's all good.
Alex Stamos:
It's working great.
Evelyn Douek:
Okay, anything else before we wrap for the week? Any massive sports news? Hawaii news? Anything we should know before we close out?
Alex Stamos:
So the roster of the Golden State Warriors has changed around. So it is looking good for a better Warriors run into the postseason this year.
Evelyn Douek:
Very exciting.
Alex Stamos:
But I'm still holding out hope for the Sacramento Kings. In other news, we still have college football realignment continues to be this totally crazy thing. I don't know if you've followed this at all, but the rights have been given to student athletes, which is great for them individually, has also completely changed the game that you've got students leaving after their freshman year, sophomore year, junior year being traded, just like in the pros, effectively. And so for Cal Sports, I'm not feeling super excited because unfortunately, this year is going to be determinative.
I think if Stanford, what happens is Stanford and Cal as the pack 12, which is now 10, could become the pack eight or six very quickly that they both look pretty bad for football. Cal's coming off basically the worst men's basketball record in their history. And in almost all of the history of NCAA men's basketball, at least for Div One, I mean, nobody's going to beat Caltech's incredible losing streak. They weren't that bad, but it's not looking good. But thanks to all of these changes, they've actually rebuilt the entire team under a Stanford alum. So we'll see. This is going to be a big year for Bay Area College sports. They're going to have to do well if they're going to want to end up in a top conference. Otherwise, you can end up with Cal and Stanford having to start an Ivy League west or something alongside Caltech and some other schools, and then massively downgrade the quality of their athletics. So we'll see what happens. But it is a fascinating summer for college sports watchers to see all this stuff playing out.
Evelyn Douek:
All right, just give me a minute to finish getting that down in my notes so I can study for next year's American sports trivia contest on July 4th so that I can-
Alex Stamos:
Have you been to a American college football game?
Evelyn Douek:
I have not, no. You keep trying to get me in trouble with the immigration officers, Alex. I going to get kicked out any second now.
Alex Stamos:
Well, we're going to fix that. So this... I'm putting down a marker this year. I'm taking you to some football games.
Evelyn Douek:
Excellent.
Alex Stamos:
Maybe we'll go to the big game, Cal versus Stanford. That's what we call it.
Evelyn Douek:
That sounds good. I'm sure I'll learn many things, just be taking notes the whole time.
Alex Stamos:
You can wear a shirt from your favorite rugby club or something and really confuse people.
Evelyn Douek:
Go the Sydney Roosters. All right. And so with that, this has been your Moderated Content weekly update. This show is available in all the usual places, including Apple Podcasts and Spotify. And show notes are available at law.stanford.edu/moderatedcontent. This episode wouldn't be possible without the research and editorial assistance of John Perrino, policy Analyst at the Stanford Internet Observatory. It's produced by the wonderful Brian Pelletier. Special thanks also to Justin Fu and Rob Huffman. See you next week.