Evelyn Douek

Lecturer on Law

2020-2021

Biography

Evelyn douek is an SJD candidate at Harvard Law School, and Affiliate at the Berkman Klein Center for Internet & Society. She studies global regulation of online speech, private content moderation institutional design and comparative free speech law and theory. Her supervisors are Professors Martha Minow, Jack L. Goldsmith and Cass R. Sunstein.

Prior to coming to HLS for her LLM in 2016, evelyn was an Associate (clerk) to the Honourable Chief Justice Susan Kiefel of the High Court of Australia. She also worked in commercial litigation at Herbert Smith Freehills and Corrs Chambers Westgarth in Sydney. She graduated with First Class Honours from the University of New South Wales with a Bachelor of Commerce/Laws in 2013, where she was the Executive Editor of the UNSW Law Journal and the Undergraduate Student Representative on UNSW Council, the University's governing body.

Evelyn blogs regularly at Lawfare. Like everyone else, she naturally has a couple of podcasts, most recently as co-host of Lawfare’s Arbiters of Truth series on disinformation and online speech in the run-up to the 2020 US election.

Evelyn’s research has appeared or is forthcoming in the Columbia Law Review, North Carolina Journal of Law and Technology, the Knight First Amendment Institute at Columbia University Essay Series on Tech Giants and Public Discourse, Oxford University Press, the Federal Law Review, the Australian Law Journal, the University of Chicago Law Review Online, The Atlantic, WIRED, Slate, and a number of other publications.

She has been quoted on her research in the New York Times, Columbia Journalism Review, Vox, Reuters, American Bar Association Journal, BuzzFeed News, Mother Jones, Vice, Burnaby Now (her favorite accolade), and a number of other outlets.

Areas of Interest

Evelyn Douek, Governing Online Speech: From 'Posts-As-Trumps' to Proportionality and Probability, 121 Colum. L. Rev. (Forthcoming 2021).
Categories:
Constitutional Law
,
Government & Politics
,
Technology & Law
Sub-Categories:
First Amendment
,
Administrative Law & Agencies
,
Communications Law
,
Networked Society
,
Cyberlaw
Type: Article
Abstract
Online speech governance stands at an inflexion point. Platforms are emerging from the state of emergency invoked during the pandemic and lawmakers are poised to transform the regulatory landscape. The importance of what emerges from this moment can hardly be overstated: how platforms write and enforce the rules for what speech they allow on their services shapes the most important channels for communication in the modern era, and has profound consequences for individuals, societies, and democratic governance. Understanding how online speech governance arrived at this moment illuminates the tasks that the institutions created during this transformation must be designed to do. This history shows that where online speech governance was once dominated by the First Amendment tradition’s categorical and individualistic approach to adjudicating speech issues, that approach became strained and online speech governance now revolves around the principles of proportionality and probability. Proportionality requires governance to no longer focus on the speech interest in an individual post alone, but to also take into account other societal interests and place proportionate limitations on content where necessary. But the unfathomable scale of online speech governance makes the enforcement of rules only ever a matter of probability: content moderation will always involve error, and so the pertinent question is what error rates are reasonable and which kinds of errors should be preferred. Platforms’ actions during the pandemic have thrown into stark relief the centrality of these principles to online speech governance, but also how undertheorized they remain. This article reviews the nature and causes of this shift of online speech governance from a “posts-as-trumps” approach to one of systemic balancing, and what this new era of content moderation requires of platforms and their regulators.
Evelyn Douek, The Rise of Content Cartels (Knight First Amendment Institute at Columbia University, Symposium on “Monopoly Power and Public Discourse”, Feb. 11, 2020).
Categories:
Constitutional Law
,
Government & Politics
,
Technology & Law
,
Criminal Law & Procedure
Sub-Categories:
First Amendment
,
Terrorism
,
Elections & Voting
,
Cyberlaw
,
Networked Society
Type: Other
Abstract
The fear that a single actor can decide what can or cannot be said in large parts of the online public sphere has led to growing calls for measures to promote competition between digital platforms. At the same time, others are demanding greater cooperation between the custodians of the public sphere. These pressures are not necessarily at odds, but some work needs to be done to reconcile them. To what extent should platforms have consistent content moderation policies? If standards and guardrails are imposed on the public sphere, should platforms work together to ensure that the online ecosystem as a whole realizes these standards, or would society benefit more if it is every platform for itself? The concerns behind these questions has led to the rise of "content cartels:" arrangements between platforms to work together to remove content or actors from their services without adequate oversight. These come in various guises; they can be demanded, encouraged, participated in, or unheeded by regulators. But they share the characteristic that they compound the existing lack of accountability in platform content moderation. This paper begins in Part I by tracing the origin and spread of content cartels, showing that content cartels are the proposed response to an increasing number of pathologies in online discourse. Part II examines the impulses behind demands for greater cooperation and the ways in which such cooperation can be beneficial. Part III explores the failures of the current arrangements and the threats they pose to free speech. Part IV sets an agenda for developing the tools to create productive and legitimate cooperation between platforms in those areas where it can be beneficial or has become inevitable. This paper has two goals. The first is to raise the alarm about a possible future coming into view, of unaccountable content cartels making decisions about the parameters of online discourse in a way that is just as problematic as an unaccountable monopoly. The second is to explore what can be beneficial about collaborative efforts and what might redeem them. This is a pivotal moment in the management of public discourse, and the structures built now should serve enduring values. We need not settle for institutions that stick band-aids on some problems but do not serve the deeper goal of building trust in online speech governance.
Evelyn Douek, Australia's 'Abhorrent Violent Material' Law: Shouting 'Nerd Harder' and Drowning Out Speech, 94 Aus. L.J. 41 (2020).
Categories:
Technology & Law
,
International, Foreign & Comparative Law
,
Criminal Law & Procedure
Sub-Categories:
Terrorism
,
Foreign Law
,
Cyberlaw
,
Networked Society
Type: Article
Abstract
In the wake of the Christchurch Massacre, the Australian government passed the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (“the AVM Act”) with essentially no debate or consultation. Creating new criminal offences for social media and hosting companies that fail to move certain violent content “expeditiously”, the legislation treats the matter of the viral spread of violent content online as a simple problem that could be solved by technology companies if they were only sufficiently motivated. But the problem is not simple, and the AVM Act instead creates incentives for tech companies to over-censor in order to avoid the threat of liability while failing to address the many deficits that currently exist in online content moderation and associated regulation.
Evelyn Douek, The Free Speech Blind Spot: Foreign Election Interference on Social Media, in Combating Election Interference: When Foreign Powers Target Democracies (Duncan B. Hollis & Jens David Ohlin eds., Oxford University Press, forthcoming 2020).
Categories:
Constitutional Law
,
Technology & Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
First Amendment
,
Elections & Voting
,
Human Rights Law
,
Cyberlaw
,
Networked Society
Type: Book
Abstract
The current system for monitoring and removal of foreign election interference on social media is a free speech blind spot. Social media platforms’ standards for what constitutes impermissible interference are vague, enforcement is seemingly ad hoc and inconsistent, and the role governments play in deciding what speech should be taken down is unclear. This extraordinary opacity — at odds with the ordinary requirements of respect for free speech — has been justified by a militarized discourse that paints such interference as highly effective, and “foreign” speech as uniquely pernicious. But, in fact, evidence of such campaigns’ effectiveness is limited and the singling out and denigration of “foreign” speech is at odds with the traditional justifications for free expression. Hiding in the blind spot created by this foreign-threat, securitized framing are more pervasive and fundamental questions about online public discourse, such as how to define appropriate norms of online behavior more generally, who should decide them and how they should be enforced. Without examining and answering these underlying questions, the goal that removing foreign election interference on social media is meant to achieve — reestablishing trust in the online public sphere — will remain unrealized.
Evelyn Douek, All Out of Proportion: The Ongoing Disagreement about Structured Proportionality in Australia, 47 Fed. L. Rev. 551 (2019).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Foreign Law
Type: Article
Abstract
Australia incorporated structured proportionality testing into Australian constitutional law for the first time. The decision was generally regarded as heralding a new chapter of judicial review of legislation said to infringe the implied freedom of political communication. This belief was short-lived – decisions that followed cast doubt on the place of structured proportionality in Australian constitutional law. The recent case Clubb v Edwards; Preston v Avery is an ambivalent result for the test’s advocates: while structured proportionality testing now seems to have the support of a solid majority of current members of the High Court, the dissentients seem as strongly opposed as ever and continue to be vocal about the test’s unsuitability for Australian law. There are three main criticisms levelled against structured proportionality in Australia: that it is too indeterminate; that it involves judges transgressing the separation of powers; and that it is inappropriate in the unique context of the freedom. There are reasons why these critiques of structured proportionality carry particular weight and resonance in Australia’s constitutional culture, marked as it is by legalism and deference to the legislature. But these reasons are also why adoption of structured proportionality is consistent with Australia’s constitutional commitments and jurisprudence. The question of whether structured proportionality is beneficial needs to start with the question of “compared to what?” Many of the criticisms levied against structured proportionality apply all the more forcefully against the prior test of whether the legislative measure is “appropriate and adapted” to serve a legitimate end. And the inherent commitments of proportionality make it better suited to Australian law than the increasingly-proposed alternative of a categorical approach. The particular method of judicial reasoning in freedom cases might seem like a highly abstract and theoretical question, especially when the justices applying differing methods largely agree on the merits in the relevant cases. But this continuing uncertainty and divergence on the Court has tangible costs. The project of making reasoning more transparent and constrained is significantly undermined by uncertainty as to whether and how the test will be applied at all. There are also second order effects in the form of institutional costs. In the context of the freedom, where judicial review has long been controversial, the division of the Court into pro- and anti- structured proportionality factions has particularly high costs to institutional integrity and legitimacy. At some point there will be a question of whether the damage of warring judgments over method outweighs the damage done by choosing even the “worst” of the available options. This paper argues that structured proportionality is not even that “worst” option.
Evelyn Douek, Facebook's 'Oversight Board:' Move Fast with Stable Infrastructure and Humility, 21 N.C. J.L. & Tech. 1 (2019).
Categories:
Technology & Law
,
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
First Amendment
,
Comparative Law
,
Networked Society
,
Cyberlaw
Type: Article
Abstract
Facebook’s proposed Oversight Board is one of the most ambitious constitution-making projects of the modern era. With pre-existing governance of tech platforms delegitimized by the ongoing “techlash,” this represents a pivotal moment when new constitutional forms can emerge that will shape the future of online discourse. For all the potential of the Facebook Oversight Board, there are many things it cannot be. It will not hear a sufficient amount of cases to be a meaningful response to calls for greater due process in individual content moderation decisions. Nor will it be able to become a font for global speech norms for the worldwide platform. The true value that the Board can bring to Facebook’s content moderation ecosystem lies between these two extremes of individual error correction and the settlement of globally applicable speech rules. The institutional offering of the Board should focus on two primary, but more modest, functions. First, it can help highlight weaknesses in the policy formation process at Facebook, removing blockages (such as blind spots and inertia) in the “legislative process” leading to the formulation of its Community Standards. Second, by providing an independent forum for the discussion of disputed content moderation decisions, the Board can be an exemplar of the public reasoning necessary for persons in a pluralistic community to come to accept the rules that govern them, even if they disagree with the substance of those rules. Understanding the institutional role of the Board in these terms provides useful insights into the institutional design that will best help it achieve these goals.
Evelyn Douek, Verified Accountability: Self-Regulation of Content Moderation as an Answer to the Special Problems of Speech Regulation (Hoover Aegis Paper Series No. 1903, Sept. 17, 2019).
Categories:
Constitutional Law
,
Government & Politics
,
International, Foreign & Comparative Law
,
Technology & Law
Sub-Categories:
First Amendment
,
Government Accountability
,
Government Transparency
,
Supreme Court of the United States
,
Comparative Law
,
Cyberlaw
,
Networked Society
,
Communications Law
Type: Other
Abstract
The way platforms currently conduct content moderation has been delegitimized, and new forms of governance will need to emerge to meet the demands of the moment. Semi-independent and transparent self-regulatory oversight mechanisms offer significant advantages. As the actors closest to the front line, platforms will always need to play a significant role in drawing lines for online speech, given the high-volume, fast-moving and context-dependent nature of the decisions involved. While these systems may never be able to provide the due process or transparency traditionally demanded in speech cases, they can significantly improve content moderation in several ways, including by providing a “judicial”-style check on platform decisions can improve platform policies and public reasoning that can create greater acceptance of rules in a pluralistic community where disagreement about the substance of those rules is inevitable.

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