Daphne Keller

It just leads to weird, arbitrary answers because no one was planning for this stuff when drafting.

I think it makes sense for private FB posts to be DSA regulated, so they must be "publicly disseminated."

But it doesn't make sense for researchers to see them, so they are not "publicly accessible".

That's super outcome-oriented. But parsing the words carefully doesn't lead to better answers.

I think there is no one right dividing line. But for any given legal obligation, different dividing lines may make sense.

Oh, good point! You are so good at spotting general monitoring issues.

The same goes for "access", though I think that word only became quite so freighted with different disputed legal meanings in the digital era. But "public" has been a sort of linguistic placeholder for complicated values forever.

One of my big points in this scraping project is that "public" means different things in different laws (news reporting, insider trading, copyright, etc.). There is no point trying to force those to all mean the same things, because the values and purposes of the laws lead to different meanings.

Yeah. But it's probably unavoidable. The diversity of kinds of communication and information online was never going to break neatly into categories, even with as many words and categories as the DSA came up with.

Or, as I said somewhere else in this thread: I'm on team teleology. But the words are making that hard.

Hmm I think neither "pub disseminated" nor "pub accessible" data includes any internal metrics.

Internal data is what 40.4 is for. External data is what 40.12 and "pa" is for. Classifying services for regulatory obligations is what "pd" is for. I feel like that matters more than the words, alas.

So I'm not sure there is a right answer. But I very much think the DSA drafters expected FB users to have rights to appeal, got to ODS bodies, etc. and for FB to accept trusted flagger flags for *all* posts, including private ones, on the main FB service. Meta didn't even bother arguing otherwise.

I think @gateklons.bsky.social and I may see this a little differently. I think there is a gradient, as someone said, and lots of things are in practice arguably public or non-public.

The DSA does a terrible job defining any of this, and scrutinizing its language often just leads to snarls.

Or in a single page of text and images, some of it may be legal because of fair use and other parts because of a license and still other parts because of de minimis use. You have to take things one little piece at a time to apply the law.

I find divvying up different functionalities for different legal obligations very intuitive, which is probably because I think in terms of litigation. Like, in a copyright case, only the part of the service that makes a copy (or other relevant act) matters.

LOL

Groups, messages, and individual posts distributed to limited contacts are definitely three different categories. Each deserves its own analysis.

But I don't think the platform's choice to separate things into different apps should be dispositive.

Here is what the Commission said about FB messages in its VLOP designation.

I am super interested in this and every other current scraping issue (but cannot possibly keep up with it all!).

Whatever the legal defense for this scraping, it can't be Article 40.12 since Discord isn't a VLOP. Scraping has been in weird legal limbo for years and AI is making that limbo change.

VLOPs are not allowed to prohibit eligible 40.12 researchers from scraping. If they could, Art. 40.12 would be totally toothless. The Commission has said TOS prohibitions on scraping violate 40.12 in three investigations now.

I think it is publicly disseminated, which makes it count as an online platform. That's separate from being publicly accessible for Art 40. But Art 40 only allows data collection from VLOPs, so it won't matter for Discord (for now).

It would be nice as a matter of clean drafting for them to mean the same thing. But if forcing them to mean the same thing leads to dumb results, this seems like a silly place to elevate form over substance. Especially given that the 40.12 language didn't exist until the Council draft.

In my draft that keeps getting derailed, I say we shouldn't assume "publicly accessible" and "disseminated to the public" are the same. DSA drafters writing about the latter were mostly thinking about which platforms got regulated. No one was thinking about public data for research until later.

Just to make this more fun, what I *really* want to figure out is what data is "publicly accessible" for 40.12. But these two things should fit together somehow.

@premium-content.bsky.social @digthatdata.bsky.social @josephseering.bsky.social

LOL. What I am actually writing about here is what data is "publicly accessible" to be scraped by researchers under 40.12, and I literally had a paragraph going into all those examples. But then I had to delete it for word count :)

I agree about publicness being a spectrum. But I think in Art 40, the "proportionality" requirement for specific research projects is where that spectrum and balancing should be sorted out. The definition of "publicly accessible" should be broad, since anything not PA is off limits for all research.

This actually is what I'm writing about and the reason I asked. What I am *really* trying to define is what data is "publicly accessible" for scraping under Article 40.12. I think the relationship between that and being publicly "disseminated" for the "online platform" definition is unclear.

I'm on team teleology. But the words are making that hard.

This seems plausible...

Great. Just what the world needed.

“I often have a poor recollection of what I've read” coming from you is the funniest thing i’ve heard all day

I mean, yes, we all assume that. I'm sure it was drafters' intent and Meta acts like it is true. But how does one square that, definitionally, with the public dissemination requirement for being an online platform?