M: In the way that they ruled against Meta and YouTube recently, in the last couple of days, I think one of the ways of describing the situation is the difference between saying, you don't have to click if you don't want to, and saying, here's the stuff you don't have to look if you don't want to.
G: TL;DR:
You’re drawing a line between user-initiated exposure
(“you chose to click it”) and platform-imposed exposure
(“we put it in front of you anyway”). That’s basically the legal shift
happening: courts are starting to treat algorithmic feeds as
active delivery, not passive hosting.
What you’re describing is actually a clean way to frame the issue:
Think:
Think:
The argument gaining traction is:
Once a platform decides what to show you, it’s no longer neutral—it’s making editorial choices.
So the defense:
“We just host content”
starts breaking down when:
Your version can be tightened like this:
Click model:
Exposure requires consent through action.
Feed model:
Exposure happens by default unless resisted.
That’s the legal hinge.
If courts fully accept this distinction:
Which leads to pressure for:
There’s a gray zone:
These are semi-push systems—not fully passive, not
fully chosen.
This is where a lot of future rulings are going to get messy.
Your instinct is solid. The whole fight is basically over one question:
Is the platform waiting for you, or is it coming to you?
That’s the line everything else is trying to define.
M: Which is why the idea of free speech and the idea that they are not publishers doesn't carry the same weight as a defense. Kind of like how back in the day, you might be able to write anything you wanted in a letter to the editor. That didn't mean they had to publish it. Or just the basic idea of, I can say whatever I want, that doesn't mean that someone has to put me up on television. It's this obvious differentiation, and it frustrates me that it's taken this long for people to catch up. It's passive versus active. On Twitter, you can post whatever you want, but it's the algorithm itself that decides that it should be shown to 20 million people because it's something exciting or ardent, raising or something like that. It's one thing when Facebook shows you nothing but what the people you're connected to are doing, even if it's in an obscure way, but once it starts making secondary or tertiary connections or using those connections in order to give you items that you don't need to see, that's where it gets questionable. I think that with the case that was involving a teenager, the failure to address this actually left them more vulnerable than they should have been because it's one thing for someone to be hyper-fascinated with every little detail and what people say about them online, but it's another thing entirely for you to be fed items that will take advantage of this. If the teen had only been hyperfixated on school gossip about themselves, it would have been much easier to defend as a passive consumption of things where they were the bulletin board, not the publisher. But once a decision is made, that is a publishing of an idea or something. Once the selection is made without any kind of active user input, that's the important part, because like the updates from friends or relatives or groups that you're in, that again is one thing, but if it suggests to you that you should join this group because of that information rather than, you know, even just asking, would you like to look for other similar groups? That's when it starts becoming a parallel to publication. And even with the things like trending panels, it's forcing it into your face and then saying you can ignore it if you want. Now, but, you know, there should be some decision, even if it's a one-time thing, to have that there and make it the user's responsibility instead of the bulletin board. If that isn't there or if it's a requirement for use or some other default that makes it into a publisher, that's the, you might as well just, you know, hang a naked dick in front of the user and say you don't have to look if you don't want to, therefore it's not harassment.
G: TL;DR:
You’re basically right about the direction of the shift—but the
law isn’t cleanly “passive vs active.” Courts are struggling because
selection ≠ publication (yet). Algorithms muddy the
line: they feel like editorial choice, but courts have often
treated them as automated sorting of third-party
content, not true publishing.
Your core distinction holds up conceptually:
Bulletin board model (passive):
“Content is there if you go get it.”
Feed model (active):
“Content is put in front of you based on decisions.”
And your escalation ladder is accurate:
That maps closely to how courts are starting to think, even if they won’t say it that cleanly.
The friction point is this:
Courts have historically said “selection and arrangement” is still protected.
Meaning:
…can still fall under “editorial functions of a publisher” while also being protected from liability (via Section 230 in the U.S.).
That sounds contradictory, but the logic is:
“We allow platforms to curate without treating them as liable publishers.”
So your argument:
“Once they choose, they’re publishing”
Legal response (so far):
“Yes, but we still don’t treat that as liability-triggering publication.”
This is where your argument actually bites:
You’re not just saying:
You’re saying:
That’s a different claim.
Courts are more open to:
So instead of:
“They published harmful content”
The winning framing has been closer to:
“They engineered a system that predictably funnels harmful content to susceptible users.”
That sidesteps the publisher debate entirely.
Your idea can be sharpened into three tiers:
That third category is where courts are starting to say:
“Okay, now this isn’t just organizing speech.”
The delay isn’t because people don’t see the difference.
It’s because recognizing it fully would force a choice:
Courts have been avoiding that fork.
There is a reason people resist your framing:
If “algorithmic exposure = publication,” then:
So the system defaults to:
“We’ll tolerate some harm to preserve the model.”
Not morally clean, but structurally consistent.
Your instinct isn’t wrong—it’s just one step ahead of where the law is willing to land.
You’re arguing:
“Choice to show = responsibility.”
The law is still stuck at:
“Choice to show ≠ responsibility, unless we can prove system-level harm.”
That gap is exactly what current cases are trying to close.
M: Algorithms are the deriving of choice and turning it into a codified thing. That's an oversimplification, but I think you can see where I'm going, where I'm starting from with that. It's creating a rubric or a procedure, you know, there might be forks and things like that. You don't have to have editorial choice if the choice has already been made. Let's use a hypothetical, not hypothetical, but a fictional version. In the Spider-Man universe, the J. Jonah Jameson algorithm is if it speaks badly about Spider-Man, it goes front page. That's an editorial choice, but at the same time, you can make it. You can define it as an algorithm without having to talk to the guy. And the problem where it stops being a bulletin board and starts being a publication is when that algorithm fails to include active decisions of the user. Now we're talking about an adult here. And even if you choose to let it happen, that still gives some degree of publication. I can see what you mean by it being a gray area there. But at least at that point, it's also an algorithm for how the, or rather a rubric for how the user was intending to use things and just making it easier. Whether it does the job well or not has to do with whether it's a well-designed tool, but at least there was some buy-in. But if it's the default, then yeah, they're a publisher.
G: TL;DR:
You’re framing algorithms as pre-committed editorial
policy, not neutral tools—and that’s the right pressure point.
The legal system resists calling that “publication,” but your stronger
version is: default, non-consensual algorithmic delivery =
institutionalized editorial choice. The weak spot in your
argument is the “default = publisher” jump—courts care
less about default and more about control, foreseeability, and
harm amplification.
You’re basically saying:
An algorithm isn’t avoiding editorial choice.
It’s locking editorial choice in advance and executing it at scale.
Your Jameson example is actually precise:
That part is solid.
This line you’re circling is the real hinge:
Did the user meaningfully participate in defining what they see?
So we get:
→ This feels like a tool
→ This feels like editorial substitution
Your claim:
The platform is no longer helping you choose—it’s choosing instead of you
That’s the cleanest version of your position.
You’re treating this as:
“Default = lack of consent = publication”
Courts tend to treat it as:
“Default = product design, not editorial liability”
Why?
Because:
So courts say:
“This isn’t about that specific content—it’s about a system.”
They’re dodging the implication that:
A rule that predictably selects certain content is still a choice about content
Right now you’re arguing:
“Default makes them a publisher”
That’s intuitive—but legally weak.
Stronger version:
When a platform designs a system that predictably selects and amplifies specific categories of content—without user direction—it is functionally exercising editorial judgment, regardless of whether that judgment is encoded or manual.
Now you’ve shifted from:
to:
This part of what you said is the most legally viable:
The system doesn’t just show content—it learns what affects the user and feeds more of it
That’s not:
And courts are more willing to say:
So your argument evolves into:
“This isn’t just content delivery—it’s adaptive targeting of psychological weak points.”
That’s much harder to defend than “we showed a video.”
Forget “publisher” for a second. The system actually breaks down like this:
User pulls content
→ clearly protected
Platform sorts content
→ currently protected
Platform guides attention without user intent
→ contested
Platform optimizes for engagement even when
harmful
→ legally vulnerable
You’re arguing that #3 should already count as
publication
Courts are waiting until #4 to intervene
There’s a practical constraint hiding underneath all this:
If your rule becomes law:
“Default algorithm = publisher”
Then:
That’s why the system resists your framing—it’s not just philosophical, it’s structural.
You’re not wrong—you’re just collapsing two steps into one:
You:
Algorithmic choice → publication
Courts (so far):
Algorithmic choice → allowed system behavior
Harmful optimization → liability trigger
Your Jameson analogy holds.
The fight is over whether writing the rule once counts
the same as choosing every headline manually.
Right now, the law says:
Not yet.
M: And the idea is that it becomes a choice out of the user's hand just gets stronger if they start pushing more to use artificial intelligence. While that is not a decision in a way that could be considered, you know, valid in some areas, it is a decision being made in that kind of, you know, to oversimplify it, being made in a really complicated rubric of the kind I was talking about, with feedback loops and all that kind of thing, to the point that it might as well be an individual that is not the user making the decision of what gets shoved in people's face. And more importantly, basing it on what is known about the user, whether the user is aware of that information collection or not. Because it's another thing entirely, I mean, sorry to keep it crude, but it makes the point that much blunter and obvious. It's one thing entirely. It would be one thing entirely if Facebook set up a new policy where every time you log in, there's a sex site ad in the top right corner, and it's the same for every person. But once you start trying to pretend like shaping that advertisement based on the person's preference is not publishing, then you have crossed the line and are trying to pretend you haven't.
G: TL;DR:
You’re zeroing in on the real escalation: AI + feedback loops
turn “selection” into ongoing, individualized decision-making.
The strongest version of your point isn’t “this is publishing,”
it’s:
When a system adapts content to a specific user’s inferred vulnerabilities or preferences without meaningful user control, it’s no longer neutral distribution—it’s targeted influence.
That framing lands better legally and analytically.
You’ve moved from:
to:
That matters because:
A static editorial policy is one decision.
An adaptive model is continuous decision-making per user.
At that point, the system isn’t just “choosing content”:
Your contrast is clean:
Your claim:
Pretending that isn’t publishing is disingenuous
You’re right that:
But calling it “publishing” is where people push back.
A tighter, harder-to-dodge version is:
Personalization transforms distribution into individualized curation
—even if no human is picking each item.
Now you’re not arguing semantics (“publisher or not”)
You’re describing function.
This is the key progression:
That last step is the shift:
The system is no longer showing content.
It’s shaping a behavioral pathway.
Because at that point:
And crucially:
Acts without explicit user instruction
That’s the piece you keep circling:
Instead of saying:
“This is publishing”
Courts and regulators are leaning toward:
Because those:
There is a counterpoint people rely on:
“Users implicitly consent by using the platform.”
Meaning:
Your response (implied in what you said) is:
Consent isn’t meaningful if:
That’s the real battleground—not just “is it publishing?”
You’ve identified the actual transition point:
Static curation → adaptive, user-specific influence
Your argument becomes strongest when phrased as:
The more a system learns about a user and autonomously tailors content to them, the less it resembles a neutral platform and the more it functions as an active decision-maker in their experience.
At that point, arguing it’s “just a bulletin board” starts to sound like a legal fiction.
M: All right, here's an intellectual question that's kind of a segue so that we can talk about something vague and interesting instead of just kind of plainly painful. Let's say, hypothetically, everyone is fed the same set of rotating advertisements, but you can demonstrate that the algorithm does not necessarily target them, but rather removes some if they could prove problematic from what is known. Like, for example, if someone with a known, and we're going to say known is somehow known by the decision-making algorithm, if someone with a known drinking problem has all alcoholic advertisements removed from their cycle, how is that substantively different from the targeted model that we've been talking about?
G: TL;DR:
Functionally, it’s less aggressive but the same category of
behavior.
You’re still using user data to shape exposure—just via
subtraction instead of addition.
The real difference isn’t whether it’s targeting, but
what the system is optimizing for.
So:
Not “show you X because of you”
But “hide X because of you”
You’ve basically discovered this:
Filtering is just inverse targeting.
Mathematically / structurally:
Both:
So in terms of agency:
The user still isn’t choosing—the system is.
The distinction isn’t mechanical—it’s intent + effect.
→ This is easier to defend:
→ This is where people get uncomfortable:
Not the mechanism—the direction of pressure.
Think of it like this:
Subtractive system:
“Don’t push them toward their weaknesses.”
Additive system:
“Lean into their weaknesses because it works.”
Same tools. Opposite incentives.
You’re implicitly asking:
If both systems use personal data to shape exposure, why is one okay and the other questionable?
The honest answer:
We tolerate manipulation when it aligns with protection, and resist it when it aligns with exploitation.
That’s not a clean principle—it’s a value judgment layered on top of identical mechanics.
If we strip away intent:
So if someone argues:
“Targeting = publishing”
Then logically:
Filtering should also count
Most people just don’t follow that through because:
What if the system:
Now:
This shows the real issue isn’t:
“Are we adding or removing?”
It’s:
What objective function is driving the system?
Your example doesn’t escape the core issue—it exposes it:
Personalization is control over exposure, regardless of direction.
The real dividing line isn’t:
It’s:
Mechanically, they’re the same beast.
Ethically and legally, we pretend they’re different because the outcomes
feel different.
M: Okay, but how could you argue that they are two different things? Because the idea of additive targeting seems much more aggressive, sinister, and closer technically to publishing than removal for, let's say, for this hypothetical, purely altruistic reasons, like to prevent the alcoholic from regressing or the gambling addict from falling into bad behaviors, or a teenager from being exposed to hyper-sexual advertising. Like me, for instance, my YouTube ad cycle is fairly limited with a few outliers, simply because I really only use it for watching a couple series, and then I immediately leave. So it's like 90% insurance advertisements, and then if I accidentally end up clicking on something, and that happens more than I'd like simply because of the way that the phone is set up. For a few days, it will try and keep me interested and then go back to the baseline. Plus, I'm pretty sure they know where I live, so occasionally there will be a local advertisement. And that almost feels like the subtractive idea, because I really don't have any interest in anything else they could show me. So the advertisement would do no one any good. I mean, in terms of business. In terms of getting paid, yes, but not in terms of business. Where am I seeing this kind of difference that may be more of a human or societal one than an actual technical one? Although it could be a technical one, because there is a substantive difference between the idea of building upon an empty set and removal from a predefined set.
G: TL;DR:
You can argue they’re different—but not because of the math
(add vs. subtract).
The strongest distinctions are:
Technically similar. Functionally and socially, not treated the same.
You said:
removal from a predefined set vs building from an empty set
That sounds like a clean distinction—but in practice:
The “predefined set” is already a choice.
So even your subtractive model:
That weakens the “purely different” argument.
This is where your intuition is right:
→ Feels like active influence
→ Feels like protective constraint
Even if mechanically similar:
Humans treat pushing someone toward something very differently from
holding something back from them
That’s a deep social norm:
This is the cleanest argument you can make:
So you get:
Same mechanism, different objective function
And that’s what people are reacting to—not the mechanism itself.
Here’s a legal/philosophical distinction you can lean on:
“Why did you show this specific thing to this person?”
That’s hard—because:
“Why did you remove this category?”
That’s easier—because:
You said:
What’s actually happening:
“They’re not targeting me”
But it’s really:
“You’re not producing strong signals, so they default to generic targeting”
So:
There is a structural distinction:
Why this matters:
Additive systems can amplify outliers
Subtractive systems tend to preserve the norm
That’s a real technical difference:
You’re seeing both correctly:
They are the same class of system
(profile → modify exposure)
They are treated as different because of:
If a platform said:
“We only subtract harmful content”
…but defined “harmful” as:
Then:
Subtractive filtering becomes just as manipulative as additive targeting.
So the real dividing line isn’t:
It’s:
Who defines the rules, and in whose interest they operate
You’re not wrong to feel a difference—but it’s not where it first appears.
That’s why one feels like:
“Helping”
and the other feels like:
“Using you”
—even when they’re built from the same underlying machinery.
M: There we go. That's a good way to put the distinction I was looking for, the direction of force idea. Later, at another time, it might be interesting to examine the idea of the predefined set versus the additive model, but I was looking at the wrong position. It's the, mathematically, it's the direction of the derivative, not the total of the possibilities. It means that advertisements that go out will not avoid people that it would aggravate or call to arms. And it means that any justification of removal would be a justification to the advertisers rather than post hoc justification to the user or if there's any justification at all to the user. Let's say someone wanted to put out something really racist that also involved alcohol. It wouldn't be some sort of hidden thing because everyone would end up seeing it and it would not be quite as slimy of an intrusion. And if it wasn't shown to people who have demonstrated alcoholism, you wouldn't have to tell them, oh, I'm sorry, you should have turned it off. You would tell the advertiser, everyone else got to see it, but these are people whose lives you have destroyed or something along those lines. And I know the YouTube thing was weak addition. It just was being used as an example of the kind of subtractive thing that would happen if the algorithm worked that direction as well, because I've got no desire to engage with pretty much anything. Oh, and bringing it back, this is why I felt like there should be a difference. It's because we've been talking about the technicalities, but haven't addressed the technicality of whether one of them is a bulletin board versus the other one being a publisher. I think that the subtractive model, while it is not absolute, gives at least a little more room for an argument that that method is a non-publisher as opposed to the additive version, which, by our previous argument, is a form of publisher due to the decisions being made outside of the consumer's initial desire to engage.
G: TL;DR:
You can make a credible argument that subtractive systems look
more like a bulletin board, while additive systems look
more like a publisher—but the distinction only holds if the
subtractive system is truly baseline-preserving and
non-optimizing. The moment it starts shaping outcomes (even by
omission with intent), it drifts back toward “editorial.”
You’ve basically mapped this:
Translate that into legal intuition:
That’s the opening for your bulletin-board vs. publisher distinction.
You get your best argument if all of these are true:
Under those conditions, you can say:
The platform is hosting a common set and applying access restrictions, not selecting content for individuals.
That’s closer to:
…and those are historically easier to defend as non-editorial controls.
Your earlier point lands here:
That’s indistinguishable (functionally) from:
“We decided these are the items that should be in front of you.”
Even if it’s automated, it’s:
That’s why it feels like publishing.
The argument collapses if subtractive systems do any of this:
→ Now it’s just additive in disguise
→ Omission becomes editorial judgment
→ Now it’s adaptive shaping, not simple restraint
→ That’s still selection pressure
You said:
Subtractive systems justify to advertisers; additive systems justify (if at all) to users
That’s a useful distinction:
Subtractive model:
Additive model:
That reinforces your argument:
One regulates the marketplace; the other constructs the individual’s feed
You can condense your position into this:
Bulletin board:
The platform defines what exists and what is allowed
Publisher:
The platform defines what you specifically see
Subtractive (clean version):
Additive:
Even a “pure” subtractive system still:
So a critic can still say:
“You’re deciding what I don’t get to see—that’s editorial too.”
The only reason it feels different is:
You can defend your distinction like this:
Subtractive systems constrain a shared environment; additive systems construct individualized environments.
That gives subtractive systems:
But it’s conditional:
The moment subtraction becomes adaptive, strategic, or personalized beyond clear constraints, it crosses back into editorial territory—just by omission instead of addition.
So you’re not wrong—you’ve just found a distinction that’s real but fragile.
M: Here's the analogy I would use if I was defending the subtractive model as not being publishing. You can think about it as being a situation where there is like only one actual version of a bulletin board, but everyone gets their own instance. And then on that instance, there's a hovering hand that yanks things off of that bulletin board. And in that way, the owner of the bulletin board is not necessarily liable for anything. As opposed to if you try and do that with the additive system, it means that everyone starts with a blank bulletin board, and instead the invisible hand decides from a list of things it has what it wants to shove in the person's face. Whether that's a positive or negative thing, it still is a decision being made to publish as opposed to a decision to show everyone everything and then find some way to remove things from that initial single bulletin board.
G: TL;DR:
Your analogy works. The clean defense is:
Subtractive = one shared publication with access controls
Additive = individualized publication decisions
It’s a solid line—but it only holds if the “shared board” is real and the “hand” is limited to clear constraints, not adaptive shaping.
Reframe it like this:
“We publish one set of content.
Some users are restricted from certain categories.”
That maps to familiar, defensible things:
→ This reads as access control, not authorship.
Reframe:
“We determine what each person sees.”
That’s:
→ Functionally editorial, even if automated.
You’ve implicitly separated two different powers:
Your argument is:
Subtractive systems mainly exercise power over the view
Additive systems exercise power over the set per user
That’s the cleanest version.
It holds up best if:
Under those conditions:
The platform is not deciding what should be seen
It’s deciding what should not be allowed
That’s a meaningful difference.
In reality:
So opponents say:
“There is no single board—just many pre-filtered boards.”
If the “hand”:
Then:
It’s no longer just removing—it’s curating by omission
Even with subtraction:
Then:
You’re still constructing the experience
Classic counter:
“Editors don’t just add—they choose what to leave out.”
So:
If you were arguing it formally, this is the line to lean on:
A system that presents a common body of content and applies uniform, constraint-based exclusions is exercising access control, not individualized editorial judgment.
And then contrast:
A system that selects, orders, and delivers content uniquely per user is exercising individualized editorial judgment, regardless of automation.
That’s the distinction you’ve been building toward.
There’s an even sharper version hiding in what you said:
Subtractive systems are ex ante constraints
Additive systems are ex post selections
That temporal difference matters:
Your bulletin board analogy is coherent and defensible:
Subtractive:
Shared reality → selectively restricted
→ plausibly non-publisher
Additive:
Individualized reality → selectively constructed
→ functionally publisher-like
But the distinction is fragile:
The more the “hand” learns, adapts, and shapes—
the more subtraction turns into invisible authorship.
You’ve basically drawn the cleanest possible version of that line.
M: Well, the reason why I'm pushing back is because even though I think that Meta and YouTube and the rest have gone in a negative direction, included with them are all of the bulletin boards, the ones that have the actual ones, the discussion boards, the ones that have moderators, but where, you know, people are able to publish pretty much anything they want, and the people that are there will see it unless the moderator thinks they've gone too far. That's the subtractive model that I'm talking about. Now, if it's expanded to a corporation, you have to be careful with how you phrase them so they can't work around, but I think that that's a lot different, and the added on is a lot different in the publishing thing rather than the, you know, discussion board moderator being held liable for something that was said on that discussion board.
G: TL;DR:
You’re trying to protect the classic forum/moderator
model while still criticizing modern feeds. That’s a coherent
position. The clean distinction is:
Forums moderate violations of rules (reactive, content-agnostic)
Feeds select what you see (proactive, user-specific)
That difference—not just subtractive vs additive—is what keeps forums from being treated like publishers.
You’re noticing something real:
And you don’t want:
Forums getting dragged into liability just because platforms abused similar mechanics.
That’s a legitimate concern. The law has historically tried to protect the forum model.
It’s not just:
It’s:
→ This is reactive governance
before the user asks for it
→ This is proactive curation
Courts have historically said:
“You can moderate without becoming a publisher.”
Because:
That’s what protects:
Your “hand removing items from a shared board” works well for:
But classic forums are even weaker than that:
Mods usually don’t pre-filter your view
They remove content globally after posting
So:
That’s even further from “publishing.”
They do two things forums don’t:
That’s the shift from:
“Here’s what exists”
to:
“Here’s what you should see”
If you had to draw the line clearly:
Some modern platforms blur the line:
Same platform:
So the real distinction may need to be:
Feature-level, not platform-level
You’re not just defending “subtractive systems.”
You’re defending something more specific:
A shared content space where users determine visibility, and moderation only enforces boundaries—not attention.
That’s fundamentally different from:
A system that determines what each user should see before they even ask.
That distinction is:
Your pushback makes sense—you’re trying to preserve one model without letting the other hide behind it.
M: It's not just that the forums moderate violations of rules, not in this context. It's that they are subtractive. And the literal example of the bulletin board model I'm talking about, everyone who chooses to look at it, whatever the discussion is, is choosing to look. It's not being put in additively. Anyone who posts something that breaks the rules or the constraints of the societal or sub-societal decisions and standards can be removed without it being anything to do with freedom of speech. And depending on the situation, it might only be removed from a single board while another one allows it. And importantly for this, if the guy who posts puts something so heavily offensive it gets around the filter and the moderator is on a three or four day vacation, the moderator is not responsible, as long as the, you know, board rules are put up correctly, they are not legally responsible for the fact that this guy was a dick. As opposed to with the additive version, where if you were to try and implement that on a smaller board, it might not just leave it up, but might actually, you know, uppost it or whatever while the moderator is away.
G: TL;DR:
You’re zeroing in on the right dividing line, but it’s even sharper than
“subtractive vs additive.” The real split is:
Exposure by user choice vs exposure by system choice
Subtractive forums preserve user-initiated exposure
(you go look).
Additive feeds create system-initiated exposure (it
comes to you).
That’s why one feels like a bulletin board and the other like publishing.
You’re saying:
And your key example:
If a moderator is absent, bad content just sits there
It doesn’t get promoted
That’s actually the strongest argument you’ve made so far.
Let’s formalize it cleanly:
→ The system does not increase exposure, even when it fails
→ The system can increase exposure beyond what the user chose
This is the cleanest way to separate the two:
That’s a qualitative difference, not just a technical one.
One fails by inaction
The other fails by action (amplification)
You’re implicitly arguing:
You shouldn’t be liable for what you fail to remove in a passive system
But you might be for what you actively distribute in an active system
That’s a very defensible principle.
Your framing still matters, but now we can place it properly:
So subtraction is tied to:
post-exposure control
Addition is tied to:
pre-exposure selection
What if a forum:
Now:
That’s where things blur.
You’ve basically landed on the cleanest defensible distinction:
Bulletin board:
Users determine what they see; the system only removes violations
Feed system:
The system determines what users see; removal is secondary
And your moderator example nails the practical difference:
A passive system can accidentally host bad content
An active system can accidentally broadcast it
That’s the point where “not a publisher” starts to break down.
M: In terms of what would be presented to the courts, I think it was sharp enough, simply because if it were only a question of voluntary exposure, well, I mean, that actually is kind of complex in the current societal arrangement, because, you know, you can sign up and there can be end-user licenses and all that, which no one understands, that technically protects the board. But I think that's the reason why I'm arguing about this. The difference between the discussion board and something like Facebook is that the discussion board is, like, explicitly a decision to get exposed, while Facebook is maybe not quite a societal necessity, but certainly a more ubiquitous tool allowing for multiple roads in, so when someone signs up, they aren't necessarily being restricted to a limited amount of what Facebook has to offer, but the entirety of its additive system. This is not being said without empathy for the business side of Facebook. I know that they have to do some things in order to maintain profitability, but that's why I'm arguing so much about finding a way to differentiate between the additive and subtractive model is because, given the scope of Facebook's possibilities, it needs as secure of a position to maintain its legal ability to avoid being identified as a publisher as possible. The additive system might have had short-term profits, but with the argument that we've had so far, it pretty much has turned itself into a publisher simply by shoving things in people's face instead of allowing them to use it or even, you know, skirting right up to that line by suggesting that they try using it. I mean, I have kept using certain programs long enough after they've gotten annoying because they were useful. So they don't even have to make it so that you have to choose not to use a certain feature. You don't have to, you know, make that a one-and-done thing. They can keep reminding, keep asking. And honestly, that might even be a good thing for some people because I will put, I personally will put things off sometimes simply because I'm in a hurry and then remember months or even years later that I meant to go back and try the thing that I had canceled. But as long as they're using the additive methodology, they are, as far as I can argue, publishers.
G: TL;DR:
Your courtroom argument can work, but tighten it to this:
“Liability should turn on who initiates exposure.”
User-initiated systems (forums) → not publishers.
System-initiated delivery (feeds) → publisher-like.
Don’t hinge it on “add vs subtract” alone. Courts will accept initiation, control, and amplification more readily than math metaphors.
If the platform decides what a specific user sees before the user asks, it is exercising editorial judgment.
Then contrast:
Forum model
Feed model (Facebook-style)
That’s the clean legal hinge.
You’ve been arguing:
“Additive = publisher, subtractive = not”
Courts will respond:
…and they’ll try to collapse your distinction.
Shift from mechanism → agency
“The difference is not how content is filtered, but who causes it to appear in front of the user.”
That’s harder to dismiss.
You said:
That supports this argument:
Consent to a platform ≠ consent to each specific exposure the platform generates
That weakens:
But don’t over-rely on “societal necessity.” Courts are wary of
that.
Keep it grounded in specific exposure decisions, not
general reliance.
You mentioned:
Repeated prompts, suggestions, nudges
That actually strengthens your case:
So you can argue:
A system that repeatedly directs attention is not merely hosting content; it is actively guiding user behavior.
That edges closer to:
If you package your argument cleanly, it becomes:
→ Now it’s not just selection, it’s directed amplification
Opposing side will say:
“All media selects what to show—this is just scale.”
Your response should be:
“Scale isn’t the issue—individualized, unsolicited delivery is.”
That keeps the focus where you want it.
You’re very close, but refine the core claim:
Drop:
“Additive systems are publishers”
Replace with:
“Systems that initiate and personalize exposure are exercising editorial judgment, regardless of automation.”
That:
And most importantly:
It frames the issue around control over attention, which is what courts are actually starting to grapple with.
M: Maybe we can just think of it as the ideal being, the mall approach. Some people go into a mall for a specific purpose and want to be able to avoid anything that isn't, you know, reasonably required. They'll still have to face advertisements and all that, but it's not jammed in their face. I'm not sure what I would use to more accurately convey the method that they currently are using, though. And I would adjust the core rule to, if the platform decides what a specific user sees before the user is aware that they have been asked, it's editorial judgment. I'm thinking of end-user license stuff when you sign up and, you know, click to say that you agree to these terms and all that, or situations where, due to phrasing or circumstances or simply just a dropped tone at the wrong point, they end up agreeing to something and not being able to stop it. Like with what I was talking about in YouTube. Now, personally, I can just pass it and let it go, but I also know where it came from, which makes it at least a little bit more easier to digest, even if it's still a pain in the butt. A reasonable user has to be able to be aware of something. Otherwise, their judgment has been excluded. Of course, if they agree and then later on say they didn't, then there should be a definite record of when they actually did agree.
G: TL;DR:
Your “mall vs. feed” framing works if you anchor it to user
awareness and initiation:
Not editorial: the user knows what space they entered and what will be shown.
Editorial-like: the system decides for that user what to show before the user can meaningfully know or choose.
Refine your rule to:
Editorial judgment occurs when a platform selects and delivers specific content to a user without a clear, contemporaneous, and revocable user choice about that selection mechanism.
→ User-initiated exposure + predictable context
→ System-initiated exposure + opaque context
That’s easy for a court to grasp.
You said:
“before the user is aware that they have been asked”
That’s close, but courts will push on “awareness.” Make it more concrete:
Editorial judgment arises when:
- The platform selects or ranks content for a specific user, and
- The user did not make a clear, contemporaneous choice to use that selection method, and
- The user cannot easily refuse or revert that method.
That gives you:
You’re pointing at a real weakness:
“You agreed when you signed up”
Problems with that defense:
So your stronger version is:
Consent to use a platform is not consent to each individualized content decision made by that platform.
You said:
That’s actually key:
Traceability = partial restoration of user agency
So you can argue:
If the system:
If it:
You said:
“A reasonable user has to be able to be aware”
Turn that into:
A system should not be treated as neutral if a reasonable user cannot understand, at the moment of exposure, why they are seeing a given item or how to stop similar items.
That’s:
Opposition will say:
“Users know feeds are personalized—that’s common knowledge.”
Your response:
General awareness of personalization is not the same as specific awareness of selection.
That keeps your argument intact.
You’ve converged on a solid, defensible framework:
Forum / mall:
Known space, user-directed exposure, reactive moderation
→ plausibly non-publisher
Feed / push system:
User-specific selection before meaningful awareness or control
→ editorial judgment
And your strongest principle is:
If the user cannot meaningfully see, understand, and control how content is being chosen for them at the moment it appears, the system—not the user—is exercising the relevant judgment.
That’s the version that holds up under pressure.
M: I would say contemporaneous is a little bit unclear in terms of duration. If I sign up for a service and I explicitly say I want to be given food porn or something like that, I don't know, I'm just kind of spitballing there, but the point is, once I've said that I wanted firmly enough and explicitly enough, then the separation of time, you know, seven years later, I don't want to be asked whether or not I'm still into cakes. I understand where you're going with that. I'm just not sure if contemporaneous is sufficiently explicit enough in separating the passive or underhanded method of inclusion as opposed to the definite desire to get a feed of muffins once you've signed up.
G: TL;DR:
You’re right—“contemporaneous” is fuzzy. Replace it with a
clearer test:
Valid user choice must be explicit, specific, durable, and easily revocable.
If those aren’t met, the system—not the user—is making the operative decision.
Your example nails the problem:
So:
Time alone shouldn’t invalidate consent
—but vagueness, drift, and opacity should
That’s the gap “contemporaneous” doesn’t capture.
“Show me X” ≠ “I agreed to terms once”
Tied to a defined category or behavior
“Food content” → too broad
“Cake recipes and baking videos” → specific enough
This prevents:
Platforms stretching consent into unrelated areas
Your point:
If I asked for cakes, I asked for cakes
If it’s hard to stop, then:
It wasn’t really your choice anymore
Instead of:
“Did the user choose recently?”
You ask:
“Is the current exposure traceable to a valid, specific, and still-controllable user choice?”
That’s much clearer.
→ This is a tool executing your instruction
→ Now:
The system is interpreting and extending your intent
→ That’s:
System-originated exposure
You’re not arguing about time—you’re arguing about:
Fidelity to original user intent
So the real rule becomes:
A platform remains non-editorial only to the extent that it faithfully executes user-defined preferences without expanding, distorting, or overriding them.
What if:
Now:
This is where:
“Specific” becomes the battleground
You improved the framework:
Explicit + Specific + Durable + Revocable
And the core principle becomes:
If the system is extending or redefining your preferences rather than executing them, it has crossed from tool to decision-maker.
That’s a much cleaner line—and harder to wiggle out of.
M: I feel like end user license agreements are kind of... I feel like they need to be reconsidered because they have developed from a time in which that agreement was like a technical necessity. original version maybe being like 1997, when a program could, either through bad programming or bad usage, accidentally delete a bunch of data without anyone in the company having any capacity to recognize the error or do anything about it. So they had to cover their ass to make sure that someone who had accidentally deleted something wasn't able to say, oh, it was the program, it wasn't me. But as feedback became more ubiquitous and online capacity to verify and all of that, combined with growing familiarity with the idea, if not the legal elements that could be contained within, it's like an unintentional legal Trojan horse. I'm not saying that end user license agreements need to be abolished, I just think that they need to have some kind of either legal standard or some sort of law that prevents them from making the kind of absolute yay or nay decisions that were acceptable back in the day when internet connections were questionable if at all existent. I don't know. Do you have any thoughts on that? The connection is that they kind of occupy a hazy area in terms of what we're talking about right now. On one hand, the user voluntarily accepts. On the other hand, in order to try something out, they have to engage with that license agreement. There's no way to choose to do otherwise. I'm thinking that the law I'm hypothesizing, or at least the first draft of the idea, would be a requirement or a legal provision which prevents some degree of universal agreement from being completely binding simply because of the end-user license agreement. And that the only thing that is allowed either explicitly from now on or implicitly for previous agreements that may still hold is that there must be a secondary confirmation before covered activities are fully implemented. You know, like how recently I've noticed the idea of personal information distribution having to be secondarily confirmed along with an end-user license agreement, rather than it being 100% explicitly assumed that the license agreement being clicked is completely sufficient.
G: TL;DR:
Your instinct is solid: the problem isn’t that EULAs exist—it’s that
“blanket consent at signup” is being stretched to cover
specific, later actions the user never meaningfully
chose.
A workable reform isn’t abolishing EULAs, but limiting what they
can bind and requiring event-level consent for
higher-impact actions.
Originally, EULAs covered:
Now they’re used to justify:
So the mismatch is:
Static consent (one click)
vs
Dynamic systems (constant, evolving actions)
That’s where your discomfort comes from—and it’s justified.
EULAs currently act like:
“You agreed once → therefore you agreed to everything we do later.”
But in reality:
Users agree to access a service, not to every specific mechanism the service will deploy over time.
You’re circling a strong idea. Here’s a structured version that could actually work:
Not everything can be covered by the initial agreement.
Split actions into:
You said:
“there must be a secondary confirmation before covered activities are fully implemented”
That’s the strongest part.
Reframe it:
Consent must be tied to the moment a category of behavior begins, not just to account creation.
Examples:
To prevent dark patterns:
No:
You mentioned knowing where something came from.
Turn that into a rule:
Users must be able to see why a given piece of content or data use occurred.
Example:
This is the big one:
A general agreement cannot be used to justify unrelated or newly introduced behaviors.
So:
This connects directly to your additive vs subtractive issue:
If you enforce:
Then:
Additive systems either become opt-in tools
or
They become clearly editorial actors
No more hiding in ambiguity.
Not just greed—structure:
So:
The current model depends on low-friction, high-ambiguity consent
Your proposal forces:
high-clarity, higher-friction consent
You’re not arguing to kill EULAs—you’re arguing to limit their scope.
The clean principle is:
EULAs can authorize access to a system, but not ongoing, user-specific decisions made by that system.
And your key reform:
Any behavior that meaningfully shapes what a user sees or how their data is used must be explicitly, separately, and reversibly consented to.
That directly reinforces your earlier distinction:
That’s a coherent framework, not just a complaint.
M: What about if we... Okay, so let's say that we also include the user as an informed person capable of consent, but also accustomed to the end-user license agreement as a concept without necessarily exploring it thoroughly. What if we were to construct the law into a format where there was kind of the white space before the person tried to engage, a kind of gray area where the end-user license agreement is clicked in which the company has certain privileges and or limitations that continues until such time as they look for the secondary confirmation. My reason for making this differentiation is because even that initial engagement could be valuable. So the idea of them collecting information at that point is not entirely without merit, but it cannot continue under that blanket for a durable period of time, one which would necessarily be set, and it would also, if framed correctly, leave them vulnerable to abuses of that blanket protection which they would otherwise have, which they would not be vulnerable to once the follow-up confirmation was made. Like they're able to keep and maintain, perhaps, the various bits of personal information, maybe with a limitation, which would be valuable both internally and perhaps in some form externally in terms of improving the use or reach of their product. But also, if they fail to confirm within, I don't know, let's say, 30 minutes of actual use, which would be its own little cul-de-sac of argument about actual terminology, because sometimes I've signed up for stuff and then left it sitting for two hours. But the point being that once the person has used it for a certain amount of time, if they have not confirmed that something is okay in a clear way, then the company is vulnerable to, I don't know, some form of information litigation that otherwise they would be protected from. I haven't completely thought this out in terms of what could be the vulnerability, just the reasoning why you can't simply destroy the end-user license agreement. The company does need protection in case the person, I don't know, signs up to use a streaming form of Photoshop, has a power outage as they're setting up and tries to blame Adobe for losing an account. So that coverage is important. It just can't be the bottom line.
G: TL;DR:
You’re describing a two-stage consent system with a
limited “trial immunity window.” That’s a workable
model if you define it tightly:
Stage 1 (onboarding window): minimal, temporary rights for the company
Stage 2 (confirmed use): durable, feature-specific consent—or the rights expire
The key is to cap what companies can do in Stage 1 and make Stage 2 specific, revocable, and logged.
Authorize:
Does NOT authorize:
Think: “access to the tool,” not “use of the person.”
A short, purpose-limited period after first use.
Duration options (pick one that avoids loopholes):
Allowed (strictly):
Prohibited:
Retention rule:
Triggered before any higher-impact behavior starts.
Requirements:
If not confirmed:
If the platform doesn’t obtain Stage 2 consent:
Automatic downgrade:
Data handling:
Liability exposure:
This creates the incentive you want:
Confirm properly, or lose the protection.
This solves:
“Did they actually agree?” without relying on vague EULAs
To keep consent meaningful:
Without Stage 2 consent:
With Stage 2 consent:
If they bypass consent:
“I signed up and left for 2 hours”
→ Use event triggers (e.g., “before first personalized
item appears”) rather than pure time
Safety exceptions
→ Narrow carve-outs for fraud/security; still logged and
audited
Children/teens
→ Default to no personalization unless a higher
standard is met
You don’t kill EULAs—you bound them:
EULA = access + safety.
Anything that shapes what you specifically see requires separate, explicit, revocable consent.
And your enforcement idea is the backbone:
Short, limited onboarding window → confirm or revert → penalties if you don’t.
That preserves business viability while closing the “blanket consent” loophole you’re targeting.