ALLOCATING RESPONSIBILITY IN CONTENT MODERATION: A FUNCTIONAL FRAMEWORK

Deirdre K. Mulligan; Kenneth A. Bamberger

This Article develops a framework for both assessing and designing content moderation systems consistent with public values. It argues that moderation should not be understood as a single function, but as a set of subfunctions common to all content governance regimes. By identifying the particular values implicated by each of these subfunctions, it explores the appropriate ways the constituent tasks might best be allocated-specifically to which actors (public or private, human or technological) they might be assigned, and what constraints or processes might be required in their performance. This analysis can facilitate the evaluation and design of content moderation systems to ensure the capacity and competencies necessary for legitimate, distributed systems of content governance. Through a combination of methods, legal schemes delegate at least a portion of the responsibility for governing online expression to private actors. Sometimes, statutory schemes assign regulatory tasks explicitly. In others, this delegation often occurs implicitly, with little guidance as to how the treatment of content should be structured. In the law's shadow, online platforms are largely given free rein to configure the governance of expression. Legal scholarship has surfaced important concerns about the private sector's role in content governance. In response, private platforms engaged in content moderation have adopted structures that mimic public governance forms. Yet, we largely lack the means to measure whether these forms are substantive, effectively infusing public values into the content moderation process, or merely symbolic artifice designed to deflect much needed public scrutiny. This Article's proposed framework addresses that gap in two ways. First, the framework considers together all manner of legal regimes that induce platforms to engage in the function of content moderation. Second, it focuses on the shared set of specific tasks, or subfunctions, involved in the content moderation function across these regimes. Examining a broad range of content moderation regimes together highlights the existence of distinct common tasks and decision points that together constitute the content moderation function. Focusing on this shared set of subfunctions highlights the different values implicated by each and the way they can be "handed off' to human and technical actors to perform in different ways with varying normative and political implications. This Article identifies four key content moderation subfunctions: (1) definition of policies, (2) identification of potentially covered content, (3) application of policies to specific cases, and (4) resolution of those cases. Using these four subfunctions supports a rigorous analysis of how to leverage the capacities and competencies of government and private parties throughout the content moderation process. Such attention also highlights how the exercise of that power can be constrained-either by requiring the use of particular decision-making processes or through limits on the use of automation-in ways that further address normative concerns. Dissecting the allocation of subfunctions in various content moderation regimes reveals the distinct ethical and political questions that arise in alternate configurations. Specifically, it offers a way to think about four key questions: (1) what values are most at issue regarding each subfunction; (2) which activities might be more appropriate to delegate to particular public or private actors; (3) which constraints must be attached to the delegation of each subfunction; and (4) where can investments in shared content moderation infrastructures support relevant values? The functional framework thus provides a means for both evaluating the symbolic legal forms that firms have constructed in service of content moderation and for designing processes that better reflect public values.

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