SCOTUS Tech Docket • Chris Mohr (SIIA)

President of the Software Information Industry Association, Chris Mohr, joins Niki in the studio to break down two major tech cases at the Supreme Court involving Meta and NVIDIA, discuss what's next for Section 230 regulation, and share insights from his career transition from private practice to tech policy advocacy. Chris talks about how the courts are increasingly being used to shape tech policy as Congress remains gridlocked on major issues and Niki offers some free advice on deprecation policies. 

“...power doesn't like vacuums, right? So, where does that power go? If Congress isn't passing laws, then the courts have to interpret the old ones to new cases.” -Chris Mohr

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• Learn more about SIIA
• Who is Learned Hand? 
• The Ameekus v Amikus debate

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Transcript

Niki: I'm Niki Christoff and welcome to Tech'ed Up. Today's guest is Chris Mohr. He's the President of the Software Information Industry Association. To our great relief, we are not going to be talking today about the president-elect's cabinet, but instead, we'll focus on the courts.

Chris is joining me in the studio, where we'll nerd out over SCOTUS, cases on its docket, and his career in law and tech. Chris, welcome to the studio. 

Chris: Good to be with you. 

Niki: We're going to talk a little bit about your work at a trade association. You started out as an attorney. You ended up as the president of this trade association. I think that all plays into how tech companies can advocate effectively in this town. 

So, let's start with just quickly what you do day-to-day. 

Chris: So, what I do today, I am in charge of an organization with about 350 members who range from financial data firms to platforms and social media companies to educational technology companies, and other kinds of information publishers. 

Niki: So, these are software as service, but they're also platforms? Consumer-facing?

Chris: Right. I mean, our members essentially are in the business of information, so that's, that's what they do. If you like, they're sort of the serious side of the copyright industries. 

Niki: Oh, as opposed to the like clown side of the [chuckling]

Chris: Well, as opposed to the entertaining side. [Niki: Oh, yeah] What our members do is, y’know, generally, not exclusively, but generally not, y’know, what most people would consider entertainment. 

Niki: Oh, got it, got it.

Okay. Well, and so, partly we're talking-

Chris: Well, it's scientific, technical, and medical publishing, for example. Y’know, financial data. 

Niki: Okay. 

Chris: With Lexis, Westlaw. Stuff like that. 

Niki: Westlaw. Oh my gosh! Well, this will lead us to your career in law. So, I was an attorney. I'm trained as an attorney. I lasted barely under two years doing case review. I was a litigator, and I just couldn't do the billables, but you worked longer in a firm. 

Chris: Meyer, Klipper, & Mohr, there were, well, it was, it's, to make a long story very short, I was there for 17 years. Y’know, the first words I heard as a practicing lawyer were, “What are you doing here?” [Niki: chuckles] because Chris Meyer, who hired me did so without telling his partner. I was elevated very early in the partnership, to handle, y’know, sort of tech-related issues around software licensing and stayed there for a long time. 

And we added Paul Bender, who this, you, these names will probably mean something to you. He clerked for both Felix Frankfurter and Learned Hand. He's been around, he's been around for a while, and still teaches me.

Niki:  I was going to make a joke about Learned Hand, but we're trying to keep this not explicit. [laughing]

Chris: Right, PBS. 

Niki: Also, that was a super insider, like, lawyer joke. [Chris: Yeah] Anyway. 

[both laugh]

Chris: PBS, right? 

Niki: Yes, exactly.

[both chuckling] 

Chris: So, and then, y’know, we developed sort of an appellate practice around a bunch of different kinds of issues, copyright term, First Amendment protection for data. Y’know, a bunch of different random stuff, as well as being a small law firm. 

Niki: I wonder if being promoted and elevated so quickly to partner is why you liked working as an attorney? Because you seem; one thing I will say about you is, if you do any research on you, you seem like you really love being a lawyer. 

Chris: I do enjoy it. I genuinely do miss particularly the sort of putting together the strategy and kind of waiting through the, y’know, wading through the haystack, sometimes looking for a needle.

That's fun. 

Niki: Yeah, especially when you were doing appellate work, which is so intellectually stimulating. 

Is there a case that sticks out in your mind as sort of helping keep you motivated and interested in the work you specialize in? Which is copyright. 

Chris: One day, I got a phone call from someone who said, “There's a bad picture of me on the internet. And I said, y’know, there's, internal eye roll. It's like, “Okay, get in line.”

And this, and then they said, “No, no, really.” I was like, “Okay, tell me what happened.” So, it turned out that this person had done some adult modeling earlier in their career, and they were now in a public-facing role, the kind where people immediately want to see your photograph and who they're going to meet with.

And the one that they got was, was flattering [Niki: laughs], but not quite, not quite in the way that they probably intended. So, what ended up happening was essentially, y’know, we, we bought the rights to that from the original publisher and then started sending takedown notices under Section 512 of the Copyright Act, which I won't bore you with.

It's not litigation. It's just, “We own this. You shouldn't have it up, take it down,” which is what we did to get that particular client off of the initial page of search results so they could, y’know, have more interesting network, or less interesting, rather, networking conversations and job interviews. [chuckling]

Niki: So, I think this is interesting in two ways. One is, so, I do a lot of executive branding [Chris: mm-hmm], and many times people will call me because they have a problem with their executive branding or they need to just improve it, but sometimes there's a problem. And so, I do the opposite, which is I sort of flood the first page with new content. [Chris: mm-hmm] 

But I love the idea of just buying the rights because a takedown request is the easiest way to get something off the internet. You don't actually have to have GDPR in Europe, necessarily, if you can figure out a little workaround like that. 

Chris: Exactly. And to be clear, this is way before GDPR. 

Niki: Right, right, right.

Chris: I mean, this is years, I mean, this is well over a decade ago. 

Niki: Yeah, but it's a great solution to it! And I've actually heard speculation recently, I don't know if you have even thoughts on this, that one way to prevent one's image from being used with AI and manipulated or distorted is to buy rights to your own image.

Chris: That is, I mean, that's certainly a lawful way to do it, right? The idea is if you take the picture, generally you own the copyright in the image. At that point, you are entitled to send a takedown notice and if someone else took the picture, you can buy the rights from them and send a takedown notice. And that is a completely legal way to solve a problem. 

Niki: Yeah, I like it. As someone who literally looks online and is like, “This isn't a good picture of me, [Chris: laughs], I gotta find a way to take this down.” And you just, Chris just had to sit through 27 photos being taken of us in this studio. I'm sorry. 

Chris: That's okay. I've got 26 notices already drafted

Niki: [laughing] To remove them. 

[both laugh] 

Niki: Okay, so you're, you're practicing in this boutique firm and then how did you transition over to trade association world? 

Chris: SIIA was a client. This is not an uncommon path. And they worked on a lot of the stuff that I found really interesting around not only copyright but the first amendment issues.

And so it was when the opportunity came up it seemed like a really good fit and I'm glad I did it. It's been a lot of fun. 

Niki: So, your members are platform companies. They are consumer-facing. They are business to business. They are not likely entertainment companies. And again, we're just sort of alluding this because many trade associations don't talk about exactly who their members are. But can you talk about what's on their minds right now?

What are they thinking as we go into next year? There's been a shift. Shift! That's, like, such an understatement. There's been a radical tectonic change in D.C. [chuckling] What are people thinking about? What are the issues that are top of mind for them? And then I want to talk about the courts and how you guys play in that arena. 

Chris: Sure. We're nonpartisan, so our issues from year to year, they don't really, our interest in issues, they don't really change.

So, y’know, like many technology-related associations, AI, it's a big deal. Responsible AI, figuring out how to enact or promulgate, y’know, solid risk-based rules. That's a big deal for us. Privacy, also a huge deal for us. We would like to see a uniform federal law on that. 

Intermediary liability, particularly around Section 230 is a big deal for us and there are, are, y’know, at least three different ways now that proposals are coming, so to speak. One is through the courts, one is through Congress, and the other now is through the FCC. [Niki: Oh, yes!] If the press reports are accurate.

So, it's, there's going to be a lot of activity around, y’know, that sort of intermediary liability conversation. 

Niki: And former podcast guest, Brendan Carr, is going to be the Chair. 

Chris: Yep. And he has views!  

Niki: He does have views! He does have views. He's, he and I are in violent agreement on most national, many national security issues, but yes, this will be certainly for your members if you're addressing Section 230 or liability. If you're a platform, that's obviously, that's the whole game in many ways. 

Chris: Right. That's correct. 

Niki: So, you think that's coming back? 

Chris: So, I think, y’know, it's hard to say what comes back. [Niki: Yeah] I think it is. I, I think what I, its safe to say is there's going to be a fair amount of conversation about it.

Well, conversation and results are two different things. 

Niki: Right. 

Chris: Right? You can't have one without the other, for sure. 

Niki: Well, in Congress, I mean, you were just saying you're nonpartisan. I, I mean, I have a lot of thoughts on the election, but I'm an independent. No matter what, this Congress is going to have a lot of wood to chop on things that have [laughing] nothing to do with technology. [Chris: That's right] So, they're going to be very busy. Their staff will be busy. 

Let's talk a little bit about how you as an association use, [interrupts self] so, of course, there's going to be people testifying on the Hill. You're going to work on this federal privacy standard, which we absolutely need. 

Y’know, the 50 state approach isn't working. California being the lowest common denominator, not great. Doesn't work for people. I'm assuming we're in agreement on all of this?

Chris: Yeah. I'm, on a lot of it, sure. What happens is, one, there are the compliance costs. California costs a couple of billion dollars to, y’know, to businesses.

The second is, what will happen is that businesses will migrate just to the most restrictive standard. 

Niki: Right. Because they have to. 

Chris: Because they have to. That's right. 

Niki: Right. So you're in, we're in favor - we!-  the industry is very much in favor of having some sort of federal regulation. Section 230, everybody's going to die on this hill.

It would be really interesting if it goes back up to the Supreme Court, or, and, or if the FCC or Congress does something on it. 

How do you think about the legal apparatus or the courts as an advocacy arm?

Chris: So, two main theories. The first is that particularly with appellate and Supreme Court litigation, a lot of this is policy by other means. And it allows us as a group to, kind of, to look out over the horizon and, sort of, make, y’know, best efforts to, sort of, make these gradual course corrections towards things that our members want.

And the second piece is, is that as Congress has had more and more difficulty passing stuff. Power doesn't like vacuums, right? So, where does that power go? If Congress isn't passing laws, then the courts have to interpret the old ones to new cases. And we see a lot of that, so it, that has become an increasingly important part, at least in our, in my mind anyway, of the advocacy toolkit.

Niki: And so, this actually leads us to, there were two cases involving tech companies having oral arguments just this month. NVIDIA has a case in front of the Supreme Court. Facebook, Meta, has a case in front of the Supreme Court. We can get a little bit into, just those cases, they aren't exactly what either of us really work on, but they do involve companies we care about.

And I'm curious, maybe we could just quickly talk about what those are and then less than the details of the cases themselves, which are about securities law or investor rights, more about how you think about why the court might be taking them up or how they could be useful to the industry. Like, when we think about what the court is willing to review.

Chris: Sure. Happy to jump into that. Do you want to start with the Facebook case? 

Niki: Yeah, let's start with Facebook. All right. 

Chris: So, we're going to harken back to law school just to give you a 

Niki: [interrupts quickly] Oh no, I know! I'm, like, so far out of law school. In fact, we were talking right before this started. Just for listeners, so, part of why I started this podcast is there are a lot of things I don't understand. And I asked you, “I'm like, is it amikus or ameekus?” Because I spent 21 years avoiding saying the word out loud. I just try to write it. 

Chris: I have no idea. 

Niki: No one does!  

[both laughing]

Chris: I've said it both ways. I've heard it both ways.

Niki:  I think this should make people in D.C. feel better. We don't know!  

[both laughing] 

No one knows. [chuckling] 

Okay. Sorry. Continue. Yes. Facebook. 

Chris: So, Facebook. I mean, so, let's, we can go through the facts fairly quickly. [Niki: All right] So, Facebook had the Cambridge Analytica scandal and the timeline I think here kind of matters. So, 2015, very quickly, it's disclosed that there's a, there's a problem with data misuse. Facebook issues a part of its securities report that basically says in, in plain English, “Hey, there are certain kinds of risk to our business. Data misuse is such a risk” and nothing happens to the stock price. 

And then, later in 2018, a whole bunch of additional information comes out and it's publicly reported about it the full scope of the breach with respect to the current president's campaign, and the stock takes a nosedive. And so, what happens then? Then what happens is there is a shareholder class action, and that's what this case is about. But the-

Niki: [interrupting] The case is about whether you read the footnotes and the notices I used to write [chuckling] for companies. 

[both laugh]

Chris: It kind of It kind of is. [chuckling] 

Niki:  It kind of is!  You're like, “Oh, well, I said this was a risk!” 

Chris: Right. And that's exactly what it's about. Part of the 10-K, which is basically the sales document for the security, right? That's the annual report. It's: “Why are we a good buy?” They have affirmative obligations to discuss their business operations, but they also have to describe risks. So, in this case, the issue is essentially, what do you do if the risk has already happened? So, if you say that “Hey, if there's data misuse, or if there's a data breach,” things could go south with our stock price.

Niki: Right. 

Chris: Right. And you have such a data breach. How do you handle that? Is that fraud?

 Niki: It is an interesting question.

Again, this is, like, very far away from what you're working on day to day and far away from what I'm working on day to day, but I did, I did work on this previously where you're like, “Okay, we might have a risk that we have to pay a zillion dollars to an executive [giggling] who's probably going to have to leave.”

[both laugh]

 Put this in the footnotes, but also, people need to read that. Right? And read it closely! 

Chris: Right. 

Niki: Okay, so the question is, if you already know that this thing happened, that's sort of what's at issue. 

Chris: That's exactly what's at issue, right? The first question that I always ask when this sort of thing comes up, because it really does frame how you're going to approach it, is “Why did the court take this case?”

Niki: Yes! 

Chris: Right? And so, here, it's, this is sort of the classic cookbook where you have one set of court of appeals with one rule, one Court of Appeals with another rule; the Ninth Circuit, which is not atypical, with a rule all its own. And so, and then they grant certiorari to resolve that split and come up with a uniform rule.

That's what they're doing here. When you listen to the argument, what you hear is them trying to balance a bunch of different policy interests. So, for example, Okay. What's the policy of the securities law? Policy of the securities law is disclosure so people can make informed decisions.

Niki: Right. Bring it up with the SEC, though. 

Chris: Bring it up with the SEC. Well, that's one. 

Niki: That's one argument. Sorry! Not to be, I'm not siding with someone, but that's- 

Chris:  No, no, no. It's a thought. That's, that's, and Kavanaugh went down that rabbit hole quite a bit in the oral argument. 

Niki: I know. Was it Kavanaugh, I think, who said, “Why should we have to walk the plank?”

Chris: Yeah. The second thing is there is a real skepticism both there and in Congress of not only class actions but, in particular, securities class actions because the [chuckles] buzzwords are fraud by hindsight. [Niki: Mmmh] 

They don't want cases where A, the stock price went down, you committed fraud.

Niki: Right. 

Chris: “You must have committed fraud.” That is not, y’know, productive and it's especially risky for technology companies because of the risk involved and, y’know, heightened competitive pressure. That's a drain on their ability to innovate. 

Niki: Well, and set aside securities law for the moment, even though that's what we're talking about with this case.

Class actions enormously impact your members. 

Chris: Oh, yeah. They do! Right?

Niki: And class actions, this is me editorializing, rarely result in a lot of, like a windfall for the plaintiffs. I've gotten a check for, like, $2.10 because my Alphabet stock was, like, misclassified as whatever, B versus C. And I'm like, [sarcastically] “Thanks, this is super useful.”

The lawyers make money, but- 

Chris: [chuckling] This and five more dollars might get me a latte somewhere. 

Niki: Right, exactly! Maybe, maybe. And so, I do think that this is interesting as a concept of, like, when you're talking about what and why they take it, the idea that class actions in general, there's a frowning upon them.

Chris: There's, there is skepticism of them, yeah, and of the harms that they cause. And the other interest that you're balancing is:  suppose, instead, alright, you say, “Hey, we have a risk of, of data breach.” And, oh my goodness, somebody, y’know, somebody took five names without permission.

Well, do you now have to disclose that? And if you do, then what is the value of these disclosures if to defend themselves these companies are basically filling it with stuff that is not relevant because they're scared of being sued. 

Niki: Right, and then you have maybe too much that people have to wade through.

Chris: That's, that's-  Exactly!  So-  

Niki: Right, like, “Oh, you asked for disclosures, here we go! Here are your disclosures! We're gonna have Niki draft a zillion!!* [laughing] Exactly! “Niki will write as many-” 

Chris: “How do you like these disclosures?” [chuckling] Right, right. I mean

Niki: “Here are truckloads of disclosures, so best wishes.” 

Chris: Right! “Best, best wishes! Enjoy what was left of your free time.”

Niki: Right. Y’know, but it is a balance. It's interesting to me that they took it up at all. And do you think that, I mean this is a leading question, that you could sense some frustration among the justices on having this in front of them in the first place?

Chris: Not, well, not so, not so much in this case. In the other case, yeah!  

Niki: Okay. Should we talk about the other case? 

Chris: Yeah, we can move to the other case. Sure. 

Niki: Okay, let's talk about it. So, NVIDIA was also in the Supreme Court. 

Chris: Right. NVIDIA is different. It's a little more technical, but short story is NVIDIA makes chips. They made a lot of money on crypto, and the question is, “How much money were they making?” Because if they had, they had, basically, two core businesses: gaming and crypto. And in statements, there were statements that the CEO were alleged to make it sound like the crypto risk was a lot smaller than it was.

That's the allegation. And had investors known, in fact, that it was a lot bigger, they may have made different decisions about whether to buy their security. So, when the crypto market collapsed, NVIDIA stock took a hit, at least from the plaintiff side of it, because they were misled by the CEO's statements about the exposure. 

Niki: This is sort of like what's on the balance sheet. I do think it's an interesting case. Y’know, inves [interrupts self] who feels sorry for investors? But, like, so, investors not really understanding the risk of what they've bought.

It's funny to me that this was heard this month when Bitcoin is at, y’know, it's the highest, sky high. I work in crypto. I did not make a lot of money off of crypto because I'm always accidentally buying high and selling low. [Chris: laughs] But I think it's interesting to think about the idea of companies that have crypto on their balance sheet. I think there are more than people realize. 

So, anyway, yes. So, this is what NVIDIA has in front of the court.

Chris: Right. Look, the way the federal rules work, right, is it's supposed to be a short and plain statement of your, of the case. That's the default rule. Then you've got something called Rule 9, which is when pleading fraud, you've got to use particularity. And then, you've got something called the, the PLSA, I think it is, Private Litigation Securities Act. Again, I didn't really do, didn't do securities law, but I slept in a Holiday Inn. 

Niki: Well, just because we don't know anything about securities law doesn't mean we can't talk about it. 

Chris: That's true. 

[both laugh] 

Niki: This is a podcast! 

Chris: It's a podcast. So, and what that does is it puts additional. pleading requirements on this.

And what that means is you have to tell a very specific story. You can't just say, “Hey, so and so broke my vase and they need to pay me because they were negligent.”  To give you some context in the Meta case, for example, the complaint was 260 pages. [Niki: mmh] So, it really requires detailed pleading around all the elements.

There are two issues there: again, the policy issues that they talk about, there were really two. The first was, you've got to allege that the company and the executives knew what they were saying was bad, was false, right? And so, the issue there was essentially, if you talk about internal documents, at that point, do you have to allege the contents of the documents themselves? That was the first question. 

The second question, is, y’know, when you're proving harm in the securities context, you need expert witnesses. And so, if you don't have particularized facts can you fill the gap with expert reports? How do you do that? And the concerns are similar. I think the business communities are worried about are, kind of, allegations that are daisy-chained together between, “Hey, y’know, they said this, there's got to be documents.” Therefore, the case goes forward, “We've, we've met our pleading burden.” Right. And how do we know? “Well, we know because we had experts.”

Niki: Right. “We're going to go spelunking through discovery.” I mean, it is though, the other side of that is they don't know yet what the documents say. They're just assuming that they exist. 

Chris: That's right. How can a plaintiff know what's in internal company documents? 

Niki: Right! 

Chris: That's, that's, 

Niki: That's what's interesting about this case to me, right? How could they know? 

Chris: How could they know? How do we, y’know, at the same time, it's fraud by hindsight. 

Niki: Right. 

Chris: Right? I mean, people make mistakes. They may think things are going to turn out a certain way and they don't. And that's particularly true when predicting the future. 

Niki: Well, it's a hundred percent true when predicting the value of crypto, or the volatility of it. Again, as someone who does a lot of work on crypto, it, even if you're extremely close to it, it's just by definition volatile.

Chris: So, right. And so, they, they were wrestling with that. And the third thing that was really interesting, at least to me anyway, and we're going to go - warning rabbit hole! [Niki: Do it!] 

So, the way these cases get up there, right, is the courts have a conference and decide whether or not they're going to take this case. They are confidential unless there's a leak, and there are not supposed to be leaks. The Supreme Court anyway, is not supposed to do error correction.

That means, “Hey, the rule, the rule's right, but you got it wrong.” That's rare. It's, what it's really supposed to do is, y’know, take cases that are either have a split in the circuits or present questions of extraordinary importance, right? 

And that second category is, like, con law, First Amendment cases. Acts of Congress unconstitutional. So, here there was a lot of discussion with, um, particularly with Neal Katyal, where they were a bunch of different questions like, “Why, why are we here?” That's rare. And “How do we get away from a nationwide, y’know, how do we avoid this without a bright-line rule?”

 Because a lot of, in a lot of these cases, it depends on what the limit to your position is. 

Niki: Right. 

Chris: Right? And so, they kind of wanted a, a bright-line rule that said“You actually have to plead the contents of the documents.”

Y’know, you've got to know y’know, you, and the court was resistant to that and the government was resistant to that. 

That one was harder for me to, to form an opinion on as to how it was going to turn out. 

Niki: Yeah. It'll be interesting to see. I mean, I think this goes back to maybe at a much higher level, go up to 100,000 feet. [Chris: mm-hmm]

Some of this is because you do have agencies who can make bright-line rules. 

Chris: Correct. 

Niki: Right? Not talking about the pleadings, but talking about the disclosures. The SEC can make a bright-line rule. Congress can make a bright-line rule. And now, we're suddenly seeing, because there is quite a bit of dysfunction, or people are focused on different things, people are using the courts to do this.

And so, when it gets up to the Supreme Court, I mean, that's a lot of, that's a big escalation of something that, you, to your point, it sounds like, is this the place we need to be deciding facts to come up with a bright-line rule when really we're supposed to be focused on constitutional law? 

Chris: Right.

Well, or not, not so much constitutional law, but what approach are you going to pick that doesn't screw up a whole bunch of cases? In other words, you have to explain why doesn't this rule work, which is different from “The lower court got this wrong because the rule they applied doesn't work.” Right?

That's, and that's a very different conversation from, “The lower court got this wrong. Why? The light was green instead of being red.” Right? 

Niki: Right It's a factual determination. 

Chris: They don't want to hear about that kind of thing. Right. 

Even on the, “This should be reasonable as a matter of law. This should be unreasonable as a matter of law.” And they don't really care about that either, unless you've got two courts that say, “This is reasonable as a matter of law, and this is unreasonable.” And here, at least in the NVIDIA case, they were trying to figure out, well, “What's the difference in approach? Why couldn't we just sort of apply this particular approach?” [Niki: Right] Have it come out a particular way without, y’know, the risk of, that a bright-line rule would create to, y’know, a whole bunch of different policy interests. 

Niki: Right. This is some pre-advice to our listeners from me that doesn't have to do with securities law, but does have to do with litigation.

So, I was briefly a lawyer, and I did litigation, and then I have really focused on crisis management at big tech companies, and now I'm a consultant doing that. And the day that we're taping this, the New York Times wrote this big piece about concealment by Google by telling people to delete chats and turning off like automatically saving things. 

And you were just saying in the pleading, “Do they need to know that there are documents?” Right? They can't possibly know because they haven't done discovery yet. 

And I will. This is a free piece of advice to everyone: Pick up the phone! Stop G-chatting! Don't have Slack channels where you say stuff. I have clients right now who auto-transcribe using AI all of their meetings, and I'm like, “What are you guys doing? You're going to create so much litigation costs for yourself!” 

So, this is like a “Niki Christoff crisis comms” like, “It's not a coverup. It's a good practice. Have a deletion and deprecation policy!” [Chris: chuckles] 

You don't have to weigh in on it, but it's crazy to me that we think that that's a bad thing. People are so reckless in how they talk at work. So, pick up the phone!! 

Chris: I, I would say, just putting the lawyer hat back on, that's pretty good advice. 

Niki: It's so funny to me that no one even uses the phone. I'm like, this is, like, such a great tool for us.

[both laugh] 

If you, if you want to bitch about the CEO, just pick up the phone and call your coworker. You don't need to slack them about it. It's a bad idea. 

Okay. So, getting back to courts, which is the point of this podcast. [Chris: mm-hmm]I think we should end on Section 230. So, you said, “Listen, it's like the undead. It's coming back.”

And we're discussing what is coming up for SCOTUS we have an entire industry kind of hanging on this very, very small amount of text. And it's not just the industry, it's all websites, right? Everybody is really impacted by this. 

Maybe we end with, if you look into your crystal ball, knowing that we live in Washington, D.C. in November of 2024, so we have no idea what's gonna happen, what do you see for Section 230 for your members or the industry in general over the next, let's say, 12 months? 

Chris: I see a lot of conversations about this coming from, coming from different places. 

One is through the courts. There is, in particular, um, a TikTok case, that is, came out of the Third Circuit that is moving through the process. There were a couple of 230 cases last year, the violations there were kind of, premised on a statute, that the court read to basically dispose of the plaintiff's claims without ever really having to reach the 230 issue.

And so, in the TikTok case, the 230 issue is squarely presented. And what the court in that case held was that a platform can be responsible for the content of a particular feed, even though the content that, that allegedly caused the harm anyway was posted by another person, which is exactly what 230 is there to prevent.

But the issue there is, is presented. 

Niki: So, this is going to be a bullseye on that issue.

Chris:  It's got a bullseye on it.

Yeah, so we'll see. That's the kind of thing we're watching. 

The second thing we're watching is Congress because there's going to be conversations about this. There were last year. They're going to continue.

And the third thing we're going to look at is, y’know, any assertion of FCC jurisdiction over that provision. 

Niki: Right. Right. Which, y’know, we're going to be in a new era of agency, totally different kind of activism than we've seen over the last four years [chuckling], which was also agency activism.

We were all looking at the FTC and competition, and now FCC and 230 and platform liability is the new era. That's potentially on, on the menu. 

Chris: Right. 

Niki: Yeah. Okay. Well, this is incredibly helpful and very interesting. I think you've had such an interesting career and I just want to make a plug for the work that you guys do. 

I found it so useful when I was in-house to have associations filing “amikus” slash “ameekus” briefs, [both laugh] on issues. One, because it kind of lined the industry up, right? We could all sign off on it. So, it's very useful. The other thing is you don't pick the counsel for the case, right?

So, I don't want to like, disparage any lawyers that were maybe at the Supreme Court, but sometimes it's helpful when the amicus brief is really solid and doing some of the work for the counsel that maybe the plaintiff has hired or the defendant has hired. 

Chris: Completely. You can adopt different approaches depending on what the case is.

A lot of the time it is just, you are sort of maybe drawing a box about where you don’t want the court to go. In a lot of these cases, there are specific issues that, y’know, the Chamber of Commerce is going to file briefs on particular issues. And their briefs are very well done, you kind of know what their viewpoint is going to be.

Niki: Yeah. Their litigation center, I have to say, I've used them a lot, and they're a client of mine. And I think their litigation center does really, you do know their point of view and they're excellent. 

Chris: They do excellent work. And that is a very good example, and y’know, the court, the court cites those briefs. They read them. 

Niki: Yeah. 

Chris: That kind of thing can really help organizations like ours, advance our policy agendas. I mean, one of our briefs got cited last year in the Moody case, which was nice for us. 

Niki: Yeah. That's great! It's a win. 

Okay! Well, I'm so glad we had a chance to talk what's happening in the courts, how you're thinking about it, some things happening with tech, and we dove into some cases that are pretty niche, but have bigger issues around how policy is made. 

Chris, thank you for taking the time.

Chris: Thank you so much for having me.