Ellen Goodman, Rutgers University

Abstract

Calls to regulate digital platforms to reduce harms have produced new legislation in Europe and the UK. In the US, efforts to regulate have so far foundered in part because First Amendment protection of speech forestalls many forms of regulation. Indeed, regulatory strategies in any liberal democracy that focus on de-emphasizing certain kinds of speech will run into freedom of expression problems. Other regulatory strategies that focus on product design, rather than speech, are more robust to free speech challenges. Regulating product design also has the benefit of addressing root causes of platform harms -- business and technical models -- rather than evanescent outputs of those models. Among the “by design” methods of regulation is an insistence on “friction by design.” The idea is that encouraging or mandating speed bumps in online communications will disrupt virality, reduce the size of groups, prompt people to engage in Type 2 thinking, and provide more opportunities for platform enforcement of their terms of service, among other goals. I will argue that for friction by design to have any real purchase, it is important to theorize the regulatory purpose of added friction and consider the possibilities that users will simply route around added frictions. If mandated friction ends up being an unwelcome “nudge” or, even worse, a deceptive pattern, it will only exacerbate online harms. However, if designed well, friction by design can function as a content-neutral safety precaution. This is an area that would benefit greatly from collaboration among the disciplines of law, psychology, and engineering.

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Bio:

Ellen P. Goodman @ellgood, is a professor of law and associate dean for strategic initiatives at Rutgers Law School. She co-directs and co-founded the Rutgers Institute for Information Policy & Law (RIIPL) and is a Senior Fellow at the German Marshall Fund.  She has published widely on media and telecommunications law, smart cities and algorithmic governance, freedom of expression, and advertising law. Goodman is currently a Knight Foundation grantee for a project relating to digital platform transparency and has served on Pittsburgh and Philadelphia algorithmic accountability and smart city task forces. Her short-form writing has appeared in the Washington Post, Guardian, Slate, Los Angeles Times, Democracy Journal, etc.  She served in the Obama Administration as a Distinguished Visiting Scholar with the Federal Communications Commission, and has been a visiting scholar at the London School of Economics and the University of Pennsylvania. She has been the recipient of Ford Foundation, Democracy Fund, and Geraldine R. Dodge grants for work on advancing new public media models and public interest journalism. Prior to joining the Rutgers faculty, Goodman was a partner at the law firm of Covington & Burling LLP, where she practiced in the information technology area. She is a graduate of Harvard College and Harvard Law School, clerked for Judge Norma Shapiro on the Eastern District of Pennsylvania, and has three children.