The List-Makers
Feeds and search results, at their core, are lists. Facebook and Google itemize the internet, and in so doing, function as gigantic list makers. From a policy perspective, this list-making raises an interesting question: If CDA 230 shields Facebook and Google from what’s in their lists, what about the lists themselves? Are list-makers legally responsible for the way they select and arrange items on their lists?
According to legal experts, the answer depends on the list. Generic lists, like numerically ordered zip codes, don’t give rise to authorship (or copyright). But other lists are original and creative (even if the items on the list aren’t): Scrabble words, US News college rankings, and Forbes 400 to name a few. In a famous 1991 case, the Supreme Court ruled it takes only minimal creativity to compile a list that’s original.
To understand what the courts mean by original and creative, and why it matters to Google and Facebook, consider the following list of names:
Noah, Liam, William, Mason
It’s a government list of the four most popular U.S. male names. It’s in the public domain and considered neither creative nor original.
Now consider this list:
William, Noah, Mason, Liam
It’s a list of names ranked by their likelihood of being a convicted criminal. You may ask how the second list was created. The answer: with cherry-picked data and a homegrown algorithm.
In this example, names were selected from federal and state databases, and plugged into the following algorithm:
Since it required a small amount of ingenuity to scrub the data and write a few lines of python code, this list meets the Supreme Court’s test of having a minimal degree of creativity. The list is complete nonsense, but it’s creative and something I authored. It wasn’t constructed out of thin air. Which means if I were a search engine or a social media site and someone was harmed by the list (for example, if someone named William was turned down for a job or a mortgage), I might be found liable for defamation or possibly negligent publication; CDA 230 wouldn’t protect me.
But creating flawed lists then hiding behind CDA 230 is exactly what Facebook and Google do! They’re issuing billions of original news feeds and search results lists then claiming no responsibility for authorship.
What can be done?
I would propose making guidelines that hold Google and Facebook accountable, not for the veracity of third-party content, but for how it is prioritized. Laws should be strengthened to help prevent Google and Facebook from delusively boosting slanderous content — especially from anonymous sources — to near the top of their search results and news feeds. I would also advocate for fines and penalties if Google and Facebook ignore victim requests to discount or de-prioritize demonstrably false and defamatory content.
The problem isn’t so much the pernicious content on the web. It’s that the dominant technology companies very often put it near the top of their lists.
One last thing…
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