Author: TSA Press

Halloween
is
always
a
terrific
time
for
members
of
the
legal
community
—
especially
law
students
—
who
are
able
to
celebrate
the
holiday’s
festivities
with
costumes
of
note.
As
usual,
we
want
to
see
your
creativity
in
action.

For
the
sixteenth
year
in
a
row,
we
here
at
Above
the
Law
are
soliciting
legally
themed
costumes
for
our
annual
Halloween
contest.
We’re
continually
impressed
with
how
creative
lawyers
and
law
students
can
be
when
they
take
their
noses
out
of
their
books.

Here
are
some
of
the
winning
looks
from
the
past
few
years
of
the
contest:
the Donald
J.
Trump
College
of
Law (2016), Brett
Kavanaugh’s
calendar
and
his
beer (2018), Ruth
Baby
Ginsburg (2020),
and Warhol’s
Soup
Law (2023).

Please email
us or
text
us
(646-820-8477)
your
pictures
and
then
we’ll
vote
on
the
winner
of
our
annual
competition.
Please
send
us
your
submissions
as
soon
as
you
can.
We’re
all
looking
forward
to
judging
you!

---

Staci
Zaretsky is
the
managing
editor
of
Above
the
Law,
where
she’s
worked
since
2011.
She’d
love
to
hear
from
you,
so
please
feel
free
to

email
her
with
any
tips,
questions,
comments,
or
critiques.
You
can
follow
her
on Bluesky, X/Twitter,
and Threads, or
connect
with
her
on LinkedIn.

Last
month, Biglaw
firm
Baker
McKenzie filed
a
defamation
lawsuit against
a
former
tax
associate,
Brooke
Radford,
alleging
Radford
made
repeated
allegations
on
social
media
and
Reddit
—
some
100+
of
them
—
falsely
accusing
a
partner
of
sexually
assaulting
her
and
accusing
the
firm
of
covering
it
up.
According
to
that
complaint,
Radford
said
she
was
assaulted
by
Maurice
Bellan
(also
a
plaintiff
in
the
lawsuit)
and
was
terminated
by
the
firm
when
she
turned
down
the
partner’s
advances.

The
original
complaint
lists the
firm,
Bellan,
and
five
unnamed
firm
employees
(the
complaint
alleged
Radford
made
harassing
and
threatening
comments
to
them
as
well)
as
plaintiffs.
However,
that
complaint
was
rejected
by
the
court,
as
the
unnamed
employees
had
not
gotten
permission
to
use
pseudonyms.

But
earlier
this
month,
the
complaint
was
refiled
—
listing
only
the
firm
and
Bellan
as
plaintiffs.
And
wow,
it’s
messy
AF.

According
to
the

new
complaint,
Radford
had
a
relationship
with Bellan’s
son,
Maurice
“Reece”
Alexander
Bellan.
Reece
ended
the
two-year
relationship
shortly
before
Radford
was
fired
from
the
firm
—
Baker
McKenzie
alleges
Radford
was
fired
for
misusing
the
firm
credit
card,
among
other
issues
—
and,
according
to
the
complaint,
that
confluence
of
events
led
Radford
to
target
Bellan
Sr.
with
her
false
accusations.

As
the
complaint
states,
“Disappointed
with
both
outcomes,
Ms.
Radford
sought
retribution
from
the
common
denominator
—
Mr.
Bellan
—
by
intentionally
spreading
lies
about
him
to
destroy
his
reputation
and
the
reputation
of
his
firm.”

And
this
version
of
the
complaint
also
maintains
the
allegations
Radford
made
of
sexual
assault
are
“unequivocally
false.”

“Mr.
Bellan’s
relationship
with
Radford
was
strictly
professional,”
according
to
the
complaint.
“Mr.
Bellan
never
touched
Ms.
Radford
or
showed
any
romantic
or
inappropriate
attention
toward
her.”

The
new
complaint

also
tracks
the
change
in
allegations
Radford
made
about
Bellan
Sr.
as
the
“false
statements
about
Mr.
Bellan
changed
dramatically
between
late
July
and
mid-September
2025.”

In
July,
Radford
was
allegedly
making
an
“outrageous
lie
that
he
offered
her
$50,000”
to
have
his
grandchild,
and
she
claimed
she
was
fired
because
she
“chose
not
to.”

By
September,
Radford
“dramatically
changed
her
false
narrative,
from
Mr.
Bellan
bribing
her
to
have
his
grandchild
to
him
assaulting
her
and
other
women
and
that
Baker
attempted
to
cover
up
his
misconduct.”

Radford
has
not
commented
on
the
complaint.

A
Baker
McKenzie
spokesperson
said,
“We
are
confident
that
our
lawsuit
will
establish
there
is
no
merit
to
Ms.
Radford’s
allegations.
We’ve
attempted
to
pursue
a
dialogue
to
try
to
address
her
purported
concerns,
but
she
has
not
engaged
with
these
efforts.
The
firm
takes
all
allegations
of
harassment
very
seriously
and
is
committed
to
providing
a
safe
and
inclusive
working
environment
for
all
of
our
people.”

---

Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of

The
Jabot
podcast,
and
co-host
of

Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email

her
with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter

@Kathryn1 or
Mastodon

@[email protected].

New
York
Attorney
General
Letitia
James
was
arraigned
this
morning
in
Norfolk
on
charges
of
mortgage
fraud.
This
should
have
been
a
triumphant
day
for
Lindsey
Halligan,
the
insurance
lawyer
turned
US
Attorney
for
the
Eastern
District
of
Virginia.
This
is,
after
all,
what
she
was
hired
to
do.
But
we’re
guessing
it
wasn’t
as
fun
as
she’d
hoped.

Darn
you,
Anna
Bower!

Halligan’s

Signal
messages
hectoring
Lawfare
editor
Anna
Bower
for
posting
a
New
York
Times

story
that
appears
to
undercut
Halligan’s
case
against
James
made
national
news
earlier
this
week,
along
with
her
belated
realization
that
she
needed
to
say
“off
the
record”

first.

Last
night,
those
texts
reappeared
in
a

Motion
to
Enforce
Rules
Prohibiting
the
Government’s
Extrajudicial
Disclosures
filed
by
James’s
lawyer,
the
ubiquitous
Abbe
Lowell
along
with
local
counsel
Andrew
Bosse.
Calling
the
messages
a
“stunning
disclosure
of
internal
government
information,”
the
motion
notes
that
the
exchange
appears
to
violate
FRCrP
6(e),
28
C.F.R.
§
50.2,
EDVA
Local
Criminal
Rule
57.1,
ABA
Model
Rule
3.8
laying
out
the
Special
Responsibilities
of
a
Prosecutor,
and
the
Justice
Manual.

“Attorney
General
James
is
not
at
this
time
formally
moving
for
relief
pursuant
to
FRCrP
6(e),”
the
lawyers
coughed
delicately
in
one
footnote.
In
another
they
observe
that
auto-deleting
messages
violates
federal
records
laws,
and
promise
that
“Attorney
General
James
will
pursue
this
apparent
violation
of
the
law
with
the
appropriate
offices.”

It’s
a
helluva
way
to
start
the
initial
appearance!

James
requested
that
the
court
order
the
prosecution
to
knock
off
the
extrajudicial
disclosures,
preserve
all
communications,
and
“maintain
a
log
of
all
contact
between
any
government
attorney
or
agent
on
this
case
and
any
member
of
the
news
media
or
press
concerning
this
case.”
They
also

noticed
their
intent
to
move
to
disqualify
“purported
interim
U.S.
Attorney
Lindsey
Halligan”
based
on
her
unlawful
appointment.

Halligan
was
already
facing
one
such
motion
from
former
FBI
director
Jim
Comey,
which
was
referred
to
Senior
Judge
Cameron
Currie
of
the
District
of
South
Carolina.
Lowell
suggests
that,
“for
judicial
economy,
the
two
motions
should
likely
be
consolidated.”
So
Halligan
will
only
have
to
explain

once
that,
when
the
Constitution
says
the
president
has
to
get
advice
and
consent
of
the
Senate
to
appoint
US
Attorneys,
it
actually
means
he’s
entitled
to
make
an
unlimited
number
of
interim
appointments
and
not
even
bother
to
nominate
someone
for
the
job.

On
the
plus
side,
she
finally
got
an
actual
prosecutor
to
ride
along
with
her
on
this
madcap
expedition,
although
she
had
to
go
all
the
way
to
Missouri
to
find
one.
As
in
the
Comey
prosecution,
not
a
single
lawyer
in
EDVA
will
get
near
this
shitpile
of
a
case.
And
so,
on
Wednesday
—

after
the
Bower
story
dropped!
—
Roger
A.
Keller,
an
AUSA
from
the
Eastern
District
of
Missouri,
entered
his
appearance.

And
meanwhile,
ABC

confirmed
the
Times’s
reporting
this
morning.
While
Halligan
groused
that
reports
about
James’s
great-niece
living
in
the
house
without
paying
rent
were
incorrect,
ABC
says
that
“prosecutors
found
no
record
of
James
collecting
rent
from
her
niece
beyond
$1,350
that
James
reported
on
her
2020
tax
return,
which
was
said
to
cover
the
cost
of
utilities.”
That
would
comport
with
James’s
2020

financial
disclosure
in
which
she
claimed
$1,000-5,000
in
“investment”
income,
likely
the
utility
bills
paid
by
her
niece.

After
James
pleaded
not
guilty,
Judge
Jamar
Walker
set
a
trial
date
of
January
26.
Welcome
to
the
rocket
docket,
Roger
Walker!
Looks
like
there
may
be
some
turbulence
ahead.

---

Liz
Dye lives
in
Baltimore
where
she
produces
the
Law
and
Chaos substack and podcast.

According
to
a
recent
study
by
BCG
Attorney
Search,
the
four-day
mandate
for
office
attendance
is
becoming
the
norm
in
Biglaw
—
although
not
all
firms
are
fully
transparent
about
their
expectations.

The
report,
“Remote
Work
in
Law
Firms
2025–2026,”
finds
that
68%
of
major
law
firms
require
attorneys
to
be
in
the
office
four
days
a
week.
Another
12%
mandate
full-time
attendance,
while
just
8%
allow
lawyers
to
work
fully
remotely.

However,
it’s
not
always
easy
to
know
just
what
a
firm’s
*real*
expectations
are.
According
to
the
report,
73%
of
law
firms
provide
“vague
or
misleading”
descriptions
of
their
policies,
and
89%
of
the
associates
surveyed
say
there
are
unwritten,
cultural
expectations
that
exceed
the
stated
policies. 

The
report
includes
a
ranking
of
firms
based
on
their
friendliness
to
remote
work
and
offers
tips
to
lawyers
seeking
to
verify
a
firm’s
true
attitude
toward
office
attendance.

Remote
Work
in
Law
Firms
2025-2026:
Transparency
Report,
Policy
Rankings
&
Negotiation
Playbook
[BCG
Attorney
Search]

[Hat
tip:

JDJournal]

Earlier:

Biglaw
Firms
Continue
To
Depend
On
Attendance
Mandates,
And
Lawyers
Who
Don’t
Abide
Are
Getting
Punished

Brian
Reed’s
“Question
Everything”
podcast
built
its
reputation
on
careful
journalism
that
explores
moral
complexity
within
the
journalism
field.
It’s
one
of
my
favorite
podcasts.
Which
makes
his
latest
pivot
so
infuriating:
Reed
has
announced
he’s
now
advocating
to
repeal
Section
230—while
demonstrating
he
fundamentally
misunderstands
what
the
law
does,
how
it
works,
and
what
repealing
it
would
accomplish.

If
you’ve
read
Techdirt
for
basically
any
length
of
time,
you’ll
know
that I
feel
the
exact
opposite
on
this
topic.
Repealing,
or
really
almost all
proposals
to
reform Section
230,
would
be
a
complete
disaster
for
free
speech
on
the
internet,
including
for
journalists.

The
problem
isn’t
advocacy
journalism—I’ve
been
doing
that
myself
for
years.
The
problem
is
Reed’s
approach:
decide
on
a
solution, then cherry-pick
emotional
anecdotes
and
misleading
sources
to
support
it,
while
ignoring
the
legal
experts
who
could
explain
why
he’s
wrong.
It’s
the
exact
opposite
of
how
to
do
good
journalism,
which
is
unfortunate
for
someone
who
holds
out
his
(otherwise
excellent!)
podcast
as
a
place
to
explore
how
to
do
journalism
well.

Last
week,
he published
the
first
episode of
his
“get
rid
of
230”
series,
and
it
has
so
many
problems,
mistakes,
and
nonsense,
that
I
feel
like
I
had
to
write
about
it
now,
in
the
hopes
that
Brian
might
be
more
careful
in
future
pieces.
(Reed
has
said
he
plans
to
interview
critics
of
his
position,
including
me,
but
only
after
the
series
gets
going—which
seems
backwards
for
someone
advocating
major
legal
changes.)

The
framing
of
this
piece
is
around
the
conspiracy
theory
regarding
the
Sandy
Hook
school
shootings,
and
someone
who
used
to
believe
them.
First
off,
this
feels
like
a
cheap
journalistic
hook,
basing
a
larger
argument
on
an
emotional
hook
that
clouds
the
issues
and
the
trade-offs.
The
Sandy
Hook
shooting
was
horrible!
The
fact
that
some
jackasses
pushed
conspiracy
theories
about
it
is
also
horrific!
That
primes
you
in
the
form
of
“something
must
be
done,
this
is
something,
we
must
do
this”
to
accept
Reed’s
preferred
solution:
repeal
230.

But
he
doesn’t
talk
to
any
actual
experts
on
230,
misrepresents
Section
230,
misleads
people
into
understanding
how
repealing
230
would
impact
that
specific
(highly
emotional)
story,
and
then
closes
on
an
emotionally
manipulative
hook
(convincing
the
person
he
spoke
to
who
used
to
believe
in
Sandy
Hook
conspiracy
theories,
that
getting
rid
of
230
would
work,
despite
her
lack
of
understanding
or
knowledge
of
what
would
actually
happen).

In
listening
to
the
piece,
it
struck
me
that
Reed
here
is
doing
part
of
what
he
(somewhat
misleadingly)
claims
social
media
companies
are
doing:
hooking
you
with
manipulative
lies
and
misrepresentations
to
keep
you
hooked
and
to
convince
you
something
false
is
true
by
lying
to
his
listeners.
It’s
a
shame,
but
it’s
certainly
not
journalism.

Let’s
dig
into
some
of
the
many
problems
with
the
piece.

The
Framing
is
Manipulative

I
already
mentioned
that
the
decision
to
frame
the
entire
piece
around
one
extraordinary,
but
horrific
story
is
manipulative,
but
it
goes
beyond
that.
Reed
compares
the
fact
that
some
of
the
victims
from
Sandy
Hook
successfully
sued
Alex
Jones
for
defamation
over
the
lies
and
conspiracy
theories
he
spread
regarding
that
event,
to
the
fact
that
they
can’t
sue
YouTube.

But
in
2022,
family
members
of
10
of
the
Sandy
Hook
victims
did
win
a
defamation
case
against
Alex
Jones’s
company,
and
the
verdict
was
huge.
Jones
was
ordered
to
pay
the
family
members
over
a
billion
dollars
in
damages.

Just
this
week,
the
Supreme
Court
declined
to
hear
an
appeal
from
Jones
over
it.
A
semblance
of
justice
for
the
victims,
though
infuriatingly,
Alex
Jones
filed
for
bankruptcy
and
has
avoided
paying
them
so
far.
But
also,
and
this
is
what
I
want
to
focus
on,
the
lawsuits
are
a
real
deterrent
to
Alex
Jones
and
others
who
will
likely
think
twice
before
lying
like
this
again.

So
now
I
want
you
to
think
about
this.
Alex
Jones
did
not
spread
this
lie
on
his
own.
He
relied
on
social
media
companies,
especially
YouTube,
which
hosts
his
show,
to
send
his
conspiracy
theory,
out
to
the
masses.
One
YouTube
video
spouting
this
lie
shortly
after
the
shooting
got
nearly
11
million
views
in
less
than
2
weeks.
And
by
2018
when
the
family
sued
him.
Alex
Jones
had
1.6
billion
views
on
his
YouTube
channel.
The
Sandy
Hook
lie
was
laced
throughout
that
content,
burrowing
its
way
into
the
psyche
of
millions
of
people,
including
Kate
and
her
dad.

Alex
Jones
made
money
off
of
each
of
those
views.
But
so
did
YouTube.
Yet,
the
Sandy
Hook
families,
they
cannot
sue
YouTube
for
defaming
them
because
of
section
230.

There
are
a
ton
of
important
details
left
out
of
this,
that,
if
actually
presented,
might
change
the
understanding
here.
First,
while
the
families
did
win
that
huge
verdict,
much
of
that
was
because Jones
defaulted.
He
didn’t
really
fight
the
defamation
case,
basically ignoring
court
orders to
turn
over
discovery.
It
was
only
after
the
default
that
he
really
tried
to
fight
things
at
the
remedy
stage.
Indeed,
part
of
the
Supreme
Court
cert
petition
that
was
just
rejected
was
because
he
claimed
he
didn’t
get
a
fair
trial
due
to
the
default.

You
simply
can’t
assume
that
because
the
families
won
that
very
bizarre
case
in
which
Jones
treated
the
entire
affair
with
contempt,
that
means
that
the
families
would
have
a
case
against
YouTube
as
well.
That’s
not
how
this
works.

This
is
Not
How
Defamation
Law
Works

Reed correctly notes
that
the
bar
for
defamation
is
high,
including
that
there
has
to
be
knowledge
to
qualify,
but
then
immediately
seems
to
forget
that.
Without
a
prior
judicial
determination
that
specific
content
is
defamatory,
no
platform—with
or
without
Section
230—is
likely
to
meet
the
knowledge
standard
required
for
liability.
That’s
kind
of
important!

And
I
won’t
even
get
into
him
using
the
dangerously
misleading
“fire
in
a
crowded
theater”
line:

Now
this
is
really
important
to
keep
in
mind.
Freedom
of
speech
means
we
have
the
freedom
to
lie.
We
have
the
freedom
to
spew
absolute
utter
bullshit.
We
have
the
freedom
to
concoct
conspiracy
theories
and
even
use
them
to
make
money
by
selling
ads
or
subscriptions
or
what
have
you.

Most
lies
are
protected
by
the
First
Amendment
and
they
should
be.

But
there’s
a
small
subset
of
lies
that
are
not
protected
speech
even
under
the
First
Amendment.
The
old
shouting
fire
in
a
crowded
theater,
not
necessarily
protected.
And
similarly,
lies
that
are
defamatory
aren’t
protected.

In
order
for
a
statement
to
be
defamatory,
okay,
for
the
most
part, whoever’s
publishing
it
has
to
know
it’s
untrue and
it
has
to
cause
damage
to
the
person
or
the
institution
the
statement’s
about.
Reputational
damage,
emotional
damage,
or
a
lie
could
hurt
someone’s
business.
The
bar
for
proving
defamation
is
high
in
the
US.
It
can
be
hard
to
win
those
cases.

I
bolded
the
key
part
here:
while
there’s
some
nuance
here,
mostly,
the
publisher
has
to
know
the
statement
is
untrue.
And
the
bar
here
is
very
high.
To
survive
under
the
First
Amendment,
the
knowledge
standard
is
important.

It’s
why
booksellers can’t
be
held
liable for
“obscene”
books
on
their
shelves.
It’s
why
publishers
aren’t
held
liable
for
books
they
publish,
even
if
those
books lead
people
to
eat
poisonous
mushrooms.
The
knowledge
standard
matters.

And
even
though
Reed
mentions
the
knowledge
point,
he
seems
to
immediately
forget
it.
Nor
does
he
even
attempt
to
deal
with
the
question
of
how
an
algorithm
can
have
the
requisite
knowledge
(hint:
it
can’t).
He
just
brushes
past
that
kind
of
important
part.

But
it’s
the
key
to
why
his
entire
argument
premise
is
flawed:
just
making
it
so
anyone
can
sue
web
platforms
doesn’t
mean
anyone
will
win.
Indeed,
they’ll
lose
in
most
cases.
Because
if
you
get
rid
of
230,
the
First
Amendment
still
exists.
But,
because
of
a
bunch
of
structural
reasons
explained
below,
it
will
make
the
world
of
internet
speech
much
worse
for
you
and
I
(and
the
journalists
Reed
wants
to
help),
while
actually
clearing
the
market
of
competitors
to
the
Googles
and
Metas
of
the
world
Reed
is
hoping
to
punish.

That’s
Not
How
Section
230
Works

Reed’s
summary
is
simply
inaccurate.
And
not
in
the
“well,
we
can
differ
on
how
we
describe
it.”
He
makes
blatant
factual
errors.
First,
he
claims
that
“only
internet
companies”
get
230
protections:

These
companies
have
a
special
protection
that only
internet
companies
get.
We
need
to
strip
that
protection
away.

But
that’s
wrong.
Section
230
applies
to
any
provider
of
an
interactive
computer
service
(which
is
more
than
just
“internet
companies”) and
their
users.
It’s
right
there
in
the
law.
Because
of
that
latter
part,
it
has
protected
people
forwarding
emails
and
retweeting
content.
It
has
been
used
repeatedly
to
protect
journalists
on
that
basis.
It
protects
you
and
me.
It
is
not
exclusive
to
“internet
companies.”
That’s
just
factually
wrong.

The
law
is
not,
and has
never
been,
some
sort
of
special
privilege
for
certain
kinds
of
companies,
but
a
framework
for
protecting
speech
online,
by
making
it
possible
for
speech
distributing
intermediaries
to
exist
in
the
first
place.
Which
helps
journalists.
And
helps
you
and
me.
Without
it,
there
would
be
fewer
ways
in
which
we
could
speak.

Reed
also
appears
to
misrepresent
or
conflate
a
bunch
of
things
here:

Section
230,
which
Congress
passed
in
1996,
it
makes
it
so
that
internet
companies
can’t
be
sued
for
what
happened
happens
on
their
sites.
Facebook,
YouTube,
Tik
Tok,
they
bear
essentially
no
responsibility
for
the
content
they
amplify
and
recommend
to
millions,
even
billions
of
people.
No
matter
how
much
it
harms
people,
no
matter
how
much
it
warps
our
democracy
under
section
230,
you
cannot
successfully
sue
tech
companies
for
defamation,
even
if
they
spread
lies
about
you.
You
can’t
sue
them
for
pushing
a
terror
recruitment
video
on
someone
who
then
goes
and
kills
your
family
member.
You
can’t
sue
them
for
bombarding
your
kids.
with
videos
that
promote
eating
disorders
or
that
share
suicide
methods
or
sexual
content.

First
off,
much
of
what
he
describes
is
First
Amendment
protected
speech.
Second,
he
ignores
that
Section
230
doesn’t
apply
to
federal
criminal
law,
which
is
what
things
like
terrorist
content
would
likely
cover
(I’m
guessing
he’s
confused
based
on
the
Supreme
Court
cases
from
a
few
years
ago,
where
230
wasn’t
the
issue—the
lack
of
any
traceability
of
the
terrorist
attacks
to
the
websites
was).

But,
generally
speaking,
if
you’re
advocating
for
legal
changes,
you
should
be
specific
in
what
you
want
changed
and
why.
Putting
out
a
big
list
of
stuff,
some
of
which
would
be
protected,
some
of
which
would
not
be,
as
well
as
some
that
the
law
covers
and
some
it
doesn’t…
isn’t
compelling.
It
suggests
you
don’t
understand
the
basics.
Furthermore,
lumping
things
like
eating
disorders
in
with
defamation
and
terrorist
content,
suggests
an
unwillingness
to
deal
with
the
specifics
and
the
complexities.
Instead,
it
suggests
a
desire
for
a
general
“why
can’t
we
pass
a
law
that
says
‘bad
stuff
isn’t
allowed
online?’”
But
that’s
a
First
Amendment
issue,
not
a
230
issue
(as
we’ll
explain
in
more
detail
below).

Reed
also,
unfortunately,
seems
to
have
been
influenced
by
the
blatantly
false
argument
that
there’s
a
platform/publisher
distinction
buried
within
Section
230.
There
isn’t.
But
it
doesn’t
stop
him
from
saying
this:

I’m
going
to
keep
reminding
you
what
Section
230
is,
as
we
covered
on
this
show,
because
I
want
it
to
stick.
Section
230,
small
provision
in
a
law
Congress
passed
in
1996,
just
26
words,
but
words
that
were
so
influential,
they’re
known
as
the
26
words
that
created
the
internet.

Quick
fact
check: Section
230
is
way
longer
than
26
words.
Yes,
Section
(c)(1)
is
26
words.
But,
the
rest
matters
too.
If
you’re
advocating
to
repeal
a
law,
maybe
read
the
whole
thing?

Those
words
make
it
so
that
internet
platforms
cannot
be
treated
as
publishers
of
the
content
on
their
platform.
It’s
why
Sandy
Hook
parents
could
sue
Alex
Jones
for
the
lies
he
told,
but
they
couldn’t
sue
the
platforms
like
YouTube
that
Jones
used
to
spread
those
lies.

And
there
is
a
logic
to
this
that
I
think
made
sense
when
Section
230
was
passed
in
the
’90s.
Back
then,
internet
companies
offered
chat
rooms,
message
boards,
places
where
other
people
posted,
and
the
companies
were
pretty
passively
transmitting
those
posts.

Reed
has
this
completely
backwards.
Section
230
was
a
direct
response
to Stratton
Oakmont
v.
Prodigy,
where
a
judge
ruled
that
Prodigy’s active
moderation to
create
a
“family
friendly”
service
made
it
liable
for
all
content
on
the
platform.

The
two
authors
of
Section
230,
Ron
Wyden
and
Chris
Cox,
have
talked
about
this
at
length
for
decades.
They wanted platforms
to
be active
participants
and
not
dumb
conduits passively
transmitting
posts.
Their
fear
was
without
Section
230,
those
services
would
be
forced
to
just
be
passive
transmitters,
because
doing
anything
to
the
content
(as
Prodigy
did)
would
make
them
liable.
But
given
the
amount
of
content,
that
would
be
impossible.

So
Cox
and
Wyden’s
solution to
encourage
platforms
to
be
more
than
passive
conduits was
to
say
“if
you
do
regular
publishing
activities—such
as
promoting,
rearranging,
and
removing
certain
content then we
won’t treat
you like
a
publisher.”

The
entire
point
was
to
encourage
publisher-like
behavior,
not
discourage
it.

Reed
has
the
law’s
purpose
exactly
backwards!

That’s
kind
of
shocking
for
someone
advocating
to
overturn
the
law!
It
would
help
to
understand
it
first!
Because
if
the
law
actually
did
what
Reed
pretends
it
does,
I
might
be
in
favor
of
repeal
as
well!
The
problem
is,
it
doesn’t.
And
it
never
did.

One
analogy
that
gets
thrown
around
for
this
is
that
the
platforms,
they’re
like
your
mailman.
They’re
just
delivering
somebody
else’s
letter
about
the
Sandy
Hook
conspiracy.
They’re
not
writing
it
themselves.
And
sure,
that
might
have
been
true
for
a
while,
but
imagine
now
that
the
mailman
reads
the
letter
he’s
delivering,
sees
it’s
pretty
tantalizing.
There’s
a
government
conspiracy
to
take
away
people’s
guns
by
orchestrating
a
fake
school
shooting,
hiring
child
actors,
and
staging
a
massacre
and
a
whole
911
response.

The
mailman
thinks,
“That’s
pretty
good
stuff.
People
are
going
to
like
this.”
He
makes
millions
of
copies
of
the
letter
and
delivers
them
to
millions
of
people.
And
then
as
all
those
people
start
writing
letters
to
their
friends
and
family
talking
about
this
crazy
conspiracy,
the
mailman
keeps
making
copies
of
those
letters
and
sending
them
around
to
more
people.

And
he
makes
a
ton
of
money
off
of
this
by
selling
ads
that
he
sticks
into
those
envelopes.
Would
you
say
in
that
case
the
mailman
is
just
a
conduit
for
someone
else’s
message?
Or
has
he
transformed
into
a
different
role?
A
role
more
like
a
publisher
who
should
be
responsible
for
the
statements
he
or
she
actively
chooses
to
amplify
to
the
world.
That
is
essentially
what
YouTube
and
other
social
media
platforms
are
doing
by
using
algorithms
to
boost
certain
content.
In
fact,
I
think
the
mailman
analogy
is
tame
for
what
these
companies
are
up
to.

Again,
the
entire
framing
here
is
backwards.
It’s
based
on
Reed’s false
assumption—an
assumption
that
any
expert
in
230
would
hopefully
disabuse
him
of—that
the
reason
for
230
was
to
encourage
platforms
to
be
“passive
conduits”
but
it’s
the
exact
opposite.

Cox
and
Wyden
were
clear
(and
have
remained
clear)
that
the
purpose
of
the
law
was
exactly
the
opposite.
It
was
to
give
platforms
the
ability
to
create
different
kinds
of
communities
and
to
promote/demote/moderate/delete
at
will.

The
key
point
was
that,
because
of
the
amount
of
content,
no
website
would
be
willing
and
able
to
do
any
of
this
if
they
were
potentially
held
liable
for
everything.

As
for
the
final
point,
that
social
media
companies
are
now
way
different
from
“the
mailman,”
both
Cox
and
Wyden
have
talked
about
how
wrong
that
is.
In an
FCC
filing
a
few
years
back,
debunking
some
myths
about
230,
they
pointed
out
that
this
claim
of
“oh
sites
are
different”
is
nonsense
and
misunderstands
the
fundamentals
of
the
law:

Critics
of
Section
230
point
out
the
significant
differences
between
the
internet
of
1996
and
today. Those
differences,
however,
are
not
unanticipated.
When
we
wrote
the
law,
we
believed
the
internet
of
the
future
was
going
to
be
a
very
vibrant
and
extraordinary
opportunity
for
people
to
become
educated
about
innumerable
subjects,
from
health
care
to
technological
innovation
to
their
own
fields
of
employment.
So
we
began
with
these
two
propositions:
let’s
make
sure
that
every
internet
user
has
the
opportunity
to
exercise
their
First
Amendment
rights;
and
let’s
deal
with
the
slime
and
horrible
material
on
the
internet
by
giving
both
websites
and
their
users
the
tools
and
the
legal
protection
necessary
to
take
it
down.

The
march
of
technology
and
the
profusion
of
e-commerce
business
models
over
the
last
two
decades represent
precisely
the
kind
of
progress
that
Congress
in
1996
hoped
would
follow
from
Section
230’s
protections for
speech
on
the
internet
and
for
the
websites
that
host
it.
The
increase
in
user-created
content
in
the
years
since
then
is
both
a
desired
result
of
the
certainty
the
law
provides,
and
further
reason
that
the
law
is
needed
more
than
ever
in
today’s
environment.

The
Understanding
of
How
Incentives
Work
Under
the
Law
is
Wrong

Here’s
where
Reed’s
misunderstanding
gets
truly
dangerous.
He
claims
Section
230
removes
incentives
for
platforms
to
moderate
content.
In
reality,
it’s
the
opposite: without
Section
230,
websites
would
have
less
incentive
to
moderate,
not
more.

Why?
Because
under
the
First
Amendment,
you
need
to
show
that
the
intermediary
had actual
knowledge
of
the
violative
nature
of
the
content.
If
you
removed
Section
230,
the
best
way
to
prove
that
you
have
no
knowledge
is not
to
look,
and
not
to
moderate.

You
potentially
go
back
to
a
Stratton
Oakmont-style
world,
where
the
incentives
are
to do
less
moderation because
any
moderation
you
do introduces
more
liability.
The
more
liability
you
create,
the
less
likely
someone
is
to
take
on
the
task.
Any
investigation
into
Section
230
has
to
start
from
understanding
those
basic
facts,
so
it’s
odd
that
Reed
so
blatantly
misrepresents
them
and
suggests
that
230
means
there’s
no
incentive
to
moderate:

We
want
to
make
stories
that
are
popular
so
we
can
keep
audiences
paying
attention
and
sell
ads—or
movie
tickets
or
streaming
subscriptions—to
support
our
businesses.
But
in
the
world
that
every
other
media
company
occupies,
aside
from
social
media,
if
we
go
too
far
and
put
a
lie
out
that
hurts
somebody,
we
risk
getting
sued.

It
doesn’t
mean
other
media
outlets
don’t
lie
or
exaggerate
or
spin
stories,
but
there’s
still
a
meaningful
guard
rail
there.
There’s
a
real
deterrent
to
make
sure
we’re
not
publishing
or
promoting
lies
that
are
so
egregious,
so
harmful
that
we
risk
getting
sued,
such
as
lying
about
the
deaths
of
kids
who
were
killed
and
their
devastated
parents.

Social
media
companies
have
no
such
deterrent
and
they’re
making
tons
of
money.
We
don’t
know
how
much
money
in
large
part
because
the
way
that
kind
of
info
usually
gets
forced
out
of
companies
is
through
lawsuits
which
we
can’t
file
against
these
tech
behemoths
because
of
section
230.
So,
we
don’t
know,
for
instance,
how
much
money
YouTube
made
from
content
with
the
Sandy
Hook
conspiracy
in
it.
All
we
know
is
that
they
can
and
do
boost
defamatory
lies
as
much
as
they
want,
raking
cash
without
any
risk
of
being
sued
for
it.

But
this
gets
at
a
fundamental
flaw
that
shows
up
in
these
debates:
that
the only possible
pressure
on
websites
is
the
threat
of
being
sued.
That’s
not
just
wrong,
it,
again,
totally
gets
the
purpose
and
function
of
Section
230
backwards.

There
are
tons
of
reasons
for
websites
to
do
a
better
job
moderating:
if
your
platform
fills
up
with
garbage,
users
start
to
go
away. As
do
advertisers,
investors,
other
partners
as
well.

This
is,
fundamentally,
the
most
frustrating
part
about
every
single
new
person
who
stumbles
haphazardly
into
the
Section
230
debate
without
bothering
to
understand
how
it
works
within
the
law.
They
get
the
incentives
exactly
backwards.

230
says
“experiment
with
different
approaches
to
making
your
website
safe.”
Taking
away
230
says
“any
experiment
you
try
to
keep
your
website
safe
opens
you
up
to
ruinous
litigation.”
Which
one
do
you
think
leads
to
a
healthier
internet?

It
Misrepresents
how
Companies
Actually
Work

Reed
paints
tech
companies
as
cartoon
villains,
relying
on
simplistic
and
misleading
interpretations
of
leaked
documents
and
outdated
sources.
This
isn’t
just
sloppy—it’s
the
kind
of
manipulative
framing
he’d
probably
critique
in
other
contexts.

For
example,
he
grossly
misrepresents
(in
a
truly
manipulative
way!)
what
the
documents
Frances
Haugen
released
said, just
as much
of the
media
did.
For
example,
here’s
how
Reed
characterizes
some
of
what
Haugen
leaked:

Haugen’s
document
dump
showed
that
Facebook
leadership
knew
about
the
harms
their
product
is
causing,
including
disinformation
and
hate
speech,
but
also
product
designs
that
were
hurting
children,
such
as
the
algorithm’s
tendency
to
lead
teen
girls
to
posts
about
anorexia.
Francis
Haugen
told
lawmakers
that
top
people
at
Facebook
knew
exactly
what
the
company
was
doing
and
why
it
was
doing.

Except…
that’s
very
much
out
of
context.
Here’s
how
misleading
Reed’s
characterization
is.
The
actual
internal
research
Haugen
leaked—the
stuff
Reed
claims
shows
Facebook
“knew
about
the
harms”—looked
like
this:

The
headline
of
that
slide
sure
looks
bad,
right?
But
then
you
look
at
the
context,
which
shows
that
in
nearly
every
single
category
they
studied
across
boys
and
girls,
they
found
that
more
users
found
Instagram
made
them feel
better,
not
worse.
The
only
category
where
that
wasn’t
true
was
teen
girls
and
body
image,
where
the
split
was
pretty
equal.
That’s
one
category
out
of
24
studied!
And
this
was
internal
research calling
out
that
fact because
the
point
was
to
convince
the
company
to
figure
out
ways
to
better
deal
with
that
one
case,
not
to
ignore
it.

And,
what
we’ve
heard
over
and
over
again
since
all
this
is
that
companies
have moved
away from
doing
this
kind
of
internal
exploration,
because
they
know
that if
they
learn
about
negative
impacts of
their
own
service,
it
will
be
used
against
them
by
the
media.

Reed’s
misrepresentation
creates
exactly
the
perverse
incentive
he
claims
to
oppose:
companies
now
avoid
studying
potential
harms
because
any
honest
internal
research
will
be
weaponized
against
them
by
journalists
who
don’t
bother
to
read
past
the
headline.
Reed’s
approach
of
getting
rid
of
230’s
protections
would
make
this
even
worse,
not
better.

Because
as
part
of
any
related
lawsuit
there
would
be
discovery,
and
you
can
absolutely
guarantee
that
a
study
like
the
one
above
that
Haugen
leaked
would
be
used
in
court,
in
a
misleading
way,
showing
just
that
headline,
without
the
necessary
context
of
“we
called
this
out
to
see
how
we
could
improve.”

So
without
Section
230
and
with
lawsuits,
companies
would
have much
less
incentive to
look
for
ways
to
improve
safety
online,
because
any
such
investigation
would
be
presented
as
“knowledge”
of
the
problem.
Better
not
to
look
at
all.

There’s
a
similar
problem
with
the
way
Reed
reports
on
the
YouTube
algorithm.
Reed
quotes
Guillaume
Chaslot
but
doesn’t
mention
that
Chaslot
left
YouTube
in
2013—12
years
ago.
That’s
ancient
history
in
tech
terms.
I’ve
met
Chaslot
and
been
on
panels
with
him.
He’s
great!
And
I
think
his
insights
on
the
dangers
of
the
algorithm
in
the
early
days
were
important
work
and
highlighted
to
the
world
the
problems
of
bad
algorithms.
But
it’s
way
out
of
date.
And
not
all
of
the
algorithms
are
bad.

Conspiracy
theories
are
are
really
easy
to
make.
You
can
just
make
your
own
conspiracy
theories
in
like
one
hour
shoot
it
and
then
it
get
it
can
get
millions
of
views.
They’re
addictive
because
people
who
live
in
this
filter
bubble
of
conspiracy
theories
and
they
don’t
watch
the
classical
media.
So
they
spend
more
time
on
YouTube.

Imagine
you’re
someone
who
doesn’t
trust
the
media,
you’re
going
to
spend
more
time
on
YouTube.
So
since
you
spend
more
time
on
YouTube,
the
algorithm
thinks
you’re
better
than
anybody
else.
The
definition
of
better
for
the
algorithm,
it’s
who
spends
more
time.
So
it
will
recommend
you
more.
So
there’s
like
this
vicious
call.

It’s
a
vicious
circle,
Chaslot
says,
where
the
more
conspiratorial
the
videos,
the
longer
users
stay
on
the
platform
watching
them,
the
more
valuable
that
content
becomes,
the
more
YouTube’s
algorithm
recommends
the
conspiratorial
videos.

Since
Chaslot
left
YouTube,
there
have
been
a
series
of
studies
that
have
shown
that,
while
some
of
that
may
have
been
true
back
when
Chaslot
was
at
the
company,
it
hasn’t
been
true
in
many,
many
years.

A
study
in
2019
(looking
at
data
from
2016
onwards)
found
that
YouTube’s
algorithm
actually pushed
people away from
radicalizing
content.
A
further
study
a
couple
of
years
ago
similarly found
no
evidence of
YouTube’s
algorithm
sending
people
down
these
rabbit
holes.

It
turns
out
that
things
like
Chaslot’s
public
berating
of
the
company,
as
well
as
public
and
media
pressure,
not
to
mention
political
blowback,
had
helped
the
company
re-calibrate
the
algorithm
away
from
all
that.

And
you
know
what
allowed
them
to
do
that?
The
freedom
Section
230
provided,
saying
that
they
wouldn’t
face
any
litigation
liability
for
adjusting
the
algorithm.

A
Total
Misunderstanding
of
What
Would
Happen
Absent
230

Reed’s
fundamental
error
runs
deeper
than
just
misunderstanding
the
law—he
completely
misunderstands
what
would
happen
if
his
“solution”
were
implemented.
He
claims
that
the
risk
of
lawsuits
would
make
the
companies
act
better:

We
need
to
be
able
to
sue
these
companies.

Imagine
the
Sandy
Hook
families
had
been
able
to
sue
YouTube
for
defaming
them
in
addition
to
Alex
Jones.
Again,
we
don’t
know
how
much
money
YouTube
made
off
the
Sandy
Hook
lies.
Did
YouTube
pull
in
as
much
cash
as
Alex
Jones,
five
times
as
much?
A
hundred
times?
Whatever
it
was,
what
if
the
victims
were
able
to
sue
YouTube?
It
wouldn’t
get
rid
of
their
loss
or
trauma,
but
it
could
offer
some
compensation.
YouTube’s
owned
by
Google,
remember,
one
of
the
most
valuable
companies
in
the
world.
More
likely
to
actually
pay
out
instead
of
going
bankrupt
like
Alex
Jones.

This
fantasy
scenario
has
three
fatal
flaws:

First,
YouTube
would
still
win
these
cases. As
we
discussed
above,
there’s
almost
certainly
no
valid
defamation
suit
here.
Most
complained
about
content
will
still
be
First
Amendment-protected
speech,
and
YouTube,
as
the
intermediary,
would
still
have
the
First
Amendment
and
the
“actual
knowledge”
standard
to
fall
back
on.

The
only
way
to
have
actual
knowledge
of
content
being
defamatory
is for
there
to
be
a
judgment
in
court
about
the
content.
So,
YouTube
couldn’t
be
on
the
hook
in
this
scenario
until after the
plaintiffs
had
already
taken
the
speaker
to
court
and
received
a
judgment
that
the
content
was
defamatory.
At
that
point,
you
could
argue
that
the
platform
would then be
on
notice
and
could
no
longer
promote
the
content.
But
that
wouldn’t
stop
any
of
the
initial
harms
that
Reed
thinks
they
would.

Second,
Reed’s
solution
would
entrench
Big
Tech’s
dominance. Getting
a
case
dismissed
on
Section
230
grounds
costs
maybe
$50k
to
$100k.
Getting
the
same
case
dismissed
on
First
Amendment
grounds?
Try
$2
to
$5
million.

For
a
company
like
Google
or
Meta,
with
their
buildings
full
of
lawyers,
this
is
still
pocket
change.
They’ll
win
those
cases.
But
it
means
that
you’ve
wiped
out
the
market
for
non-Meta,
non-Google
sized
companies.
The
smaller
players
get
wiped
out
because
a
single
lawsuit
(or
even
a
threat
of
a
lawsuit)
can
be
existential.

The
end
result:
Reed’s
solution gives
more
power
to
the
giant
companies
he
paints
as
evil
villains.

Third,
there’s
vanishingly
little
content
that
isn’t
protected
by
the
First
Amendment. Using
the
Alex
Jones
example
is
distorting
and
manipulative,
because
it’s
one
of
the
extremely
rare
cases
where
defamation
has
been
shown
(and
that
was
partly
just
because
Jones
didn’t
really
fight
the
case).

Reed
doubles
down
on
these
errors:

But
on
a
wider
scale,
The
risk
of
massive
lawsuits
like
this,
a
real
threat
to
these
companies’
profits,
could
finally
force
the
platforms
to
change
how
they’re
operating.
Maybe
they
change
the
algorithms
to
prioritize
content
from
outlets
that
fact
check
because
that’s
less
risky.
Maybe
they’d
get
rid
of
fancy
algorithms
altogether,
go
back
to
people
getting
shown
posts
chronologically
or
based
on
their
own
choice
of
search
terms.
It’d
be
up
to
the
companies,
but
however
they
chose
to
address
it,
they
would
at
least
have
to
adapt
their
business
model
so
that
it
incorporated
the
risk
of
getting
sued
when
they
boost
damaging
lies.

This
shows
Reed
still
doesn’t
understand
the
incentive
structure.
Companies
would
still
win
these
lawsuits
on
First
Amendment
grounds.
And
they’d
increase
their
odds
by
programming
algorithms
and
then
never
reviewing
content—the
exact
opposite
of
what
Reed
suggests
he
wants.

And
here’s
where
Reed’s
pattern
of
using
questionable
sources
becomes
most
problematic.
He
quotes
Frances
Haugen
advocating
for
his
position,
without
noting
that
Haugen
has
no
legal
expertise
on
these
issues:

For
what
it’s
worth,
this
is
what
Facebook
whistleblower
Frances
Haugen
argued
for
in
Congress
in
2021.

I
strongly
encourage
reforming
Section
230
to
exempt
decisions
about
algorithms.
They
have
100%
control
over
their
algorithms
and
Facebook
should
not
get
a
free
pass
on
choices
it
makes
to
prioritize
growth
and
virality
and
reactiveness
over
public
safety.
They
shouldn’t
get
a
free
pass
on
that
because
they’re
paying
for
their
profits
right
now
with
our
safety.
So,
I
strongly
encourage
reform
of
230
in
that
way.

But,
as
we
noted
when
Haugen
said
that,
this
is
(again) getting
it
all
backwards.
At
the
very
same
time
that
Haugen
was
testifying
with
those
words,
Facebook
was
literally
running
ads
all
over
Washington
DC,
encouraging
Congress
to
reform
Section
230
in
this
way.
Facebook wants to
destroy
230.

Why?
Because
Zuckerberg
knows
full
well
what
I
wrote
above.
Getting
rid
of
230
means
a
few
expensive
lawsuits
that
his
legal
team
can
easily
win,
while
wiping
out
smaller
competitors
who
can’t
afford
the
legal
bills.

Meta’s
usage
has
been
declining
as
users
migrate
to
smaller
platforms.
What
better
way
to
eliminate
that
competition
than
making
platform
operation
legally
prohibitive
for
anyone
without
Meta’s
legal
budget?

Notably,
not
a
single
person
Reed
speaks
to
is
a
lawyer.
He
doesn’t
talk
to
anyone
who
lays
out
the
details
of
how
all
this
works.
He
only
speaks
to
people
who
dislike
tech
companies.
Which
is
fine,
because
it’s
perfectly
understandable
to
hate
on
big
tech
companies.
But
if
you’re
advocating
for
a
massive
legal
change,
shouldn’t
you
first
understand
how
the
law
actually
works
in
practice?

For
a
podcast
about
improving
journalism,
this
represents
a
spectacular
failure
of
basic
journalistic
practices.
Indeed,
Reed
admits
at
the
end
that
he’s
still
trying
to
figure
out
how
to
do
all
this:

I’m
still
trying
to
figure
out
how
to
do
this
whole
advocacy
thing.
Honestly,
pushing
for
a
policy
change
rather
than
just
reporting
on
it.
It’s
new
to
me
and
I
don’t
know
exactly
what
I’m
supposed
to
be
doing.
Should
I
be
launching
a
petition,
raising
money
for
like
a
PAC?
I’ve
been
talking
to
marketing
people
about
slogans
for
a
campaign.
We’ll
document
this
as
I
stumble
my
way
through.
It’s
all
a
bit
awkward
for
me.
So,
if
you
have
ideas
for
how
you
can
build
this
movement
to
be
able
to
sue
big
tech.
Please
tell
me.

There
it
is:
“I’m
still
trying
to
figure
out
how
to
do
this
whole
advocacy
thing.”
Reed
has
publicly
committed
to
advocating
for
a
specific
legal
change—one
that
would
fundamentally
reshape
how
the
internet
works—while
admitting
he
doesn’t
understand
advocacy,
hasn’t
talked
to
experts,
and
is
figuring
it
out
as
he
goes.
Generally
it’s
a
bad
idea
to
come
up
with
a
slogan
when
you
still
don’t
even
understand
the
thing
you’re
advocating
for.

This
is
advocacy
journalism
in
reverse:
decide
your
conclusion,
then
do
the
research.
It’s
exactly
the
kind
of
shoddy
approach
that
Reed
would
rightly
criticize
in
other
contexts.

I
have
no
problem
with
advocacy
journalism.
I’ve
been
doing
it
for
years.
But
effective
advocacy
starts
with
understanding
the
subject
deeply,
consulting
with
experts,
and then forming
a
position
based
on
that
knowledge.
Reed
has
it
backwards.

The
tragedy
is
that
there
are
so
many
real
problems
with
how
big
tech
companies
operate,
and
there
are
thoughtful
reforms
that
could
help.
But
Reed’s
approach—emotional
manipulation,
factual
errors,
and
backwards
legal
analysis—makes
productive
conversation
harder,
not
easier.

Maybe
next
time,
try
learning
about
the
law
first,
then
deciding
whether
to
advocate
for
its
repeal.

Before
Advocating
To
Repeal
Section
230,
It
Helps
To
First
Understand
How
It
Works

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“Buckeye
Tears”
Trademark:
‘See
Those
Tears?
Like
That!’

During
the
annual
HLTH
conference
in
Las
Vegas
this
week,

Optum,
the
data
analytics
subsidiary
of
UnitedHealth
Group,
announced
the
launch
of

Optum
Real,
a
real-time
claims
management
system
that
is
designed
to
remove
the
friction
between
providers
and
payers
when
it
comes
to
submitting
claims
and
getting
reimbursed
in
a
timely
manner.

The
announcement
is
not
a
moment
too
soon,
given
that
provider
resentment
against
what
they
believe
is
a
policy
of
“delay
and
deny”
by
insurers
has
reached
a
boiling
point.
Executives
from
the
company
took
the
stage
at
HLTH
to
explain
how
the
vast
majority
of
claims
get
processed
quickly
and
it
is
just
a
few
that
gives
people
headaches.
The
reason
for
this:
lack
of
transparency.

“If
I
have
to
summarize
it
in
one
word,
I
would
say
the
biggest
challenge
in
claims
and
reimbursement
is
guesswork,”
said
Puneet
Maheshwari,
senior
vice
president
and
general
manager
of
Optum
Real,
to
the
audience
on
Tuesday.
“The
guesswork
that
happens
on
the
provider
side,
the
guesswork
that
happens
on
the
payer
side,
leads
to
significant
amounts
of
work
and
overhead
for
both
parties
involved
…”

Enter
Optum
Real.

According
to
the
Minnesota
company’s
press
release,
Optum
Real
is
a
“multi-payer
platform
[that]
allows
real-time
data
exchange
between
payers
and
providers,
enabling
the
identification
and
interception
of
known
issues
at
the
point
of
claim
submission.”
Given
that
Optum
developed
the
system
that
promises
“instant
clarity,”
it’s
no
surprise
that
UnitedHealthcare,
a
sister
company
under
the
UHG
umbrella,
is
the
first
health
plan
in
the
country
to
adopt
this
technology.

In
an
interview
following
the
panel
discussion
on
stage,
Maheshwari
declared
that
Optum
Real
was
designed
to
remove
the
data
fragmentation
that
hobbles
the
claims
adjustment
process
and
can
save
the
millions
of
dollars
that
providers
pay
clinical
documentation
improvement
teams
to
increase
their
chances
of
getting
reimburses
and
the
millions
of
dollars
that
payers
pay
claims
integration
companies
to
make
sure
providers
are
doing
everything
by
the
book.
Here’s
a
lightly
edited
Q&A
of
the
discussion.

MedCity
News:
You
are
calling
it
real
time,
but
nothing
in
healthcare
is
actually
real
time,
right?
It’s
not
like
seeing
your
Uber
Eats
meal
arriving
in
the
car
in
real
time.
Healthcare
uses
that
term
loosely,
correct
me
if
I’m
wrong,
But
what
do
you
mean
by
real-time,
actually?

Maheshwari:
Yeah.
So
I
would
say
the
observation
is
very
astute.
The
aspiration
is
to
make
it
real-time,
in
earnest
real-time.

Let’s
look
at
the
process
today
for
a
simple
ambulatory
example.
By
the
end
of
the
day
or
two
days
after
the
encounter
with
the
provider,
the
provider
completes
the
documentation,
but
by
then
information
is
already
lost.
Then,
in
batch
mode,
it
gets
sent
to
the
clinical
documentation
improvement
team
(CDI).
If
it
is
not
complete,
then
it
goes
back
to
the
provider
to
get
it
completed.
Then,
in
batch
mode,
it
goes
to
the
coding
team,
and
if
they
find
errors,
they
go
upstream
and
change
those
errors.
Then
in
batch
mode
it
goes
to
the
claims
team
that
scrubs
the
claims
based
on
payer-specific
rules.
Then
they
send
it
in
batch
mode
to
a
clearing
house,
which
run
a
set
of
checks,
sends
it
to
the
payer
who
signs
a
set
of
checks.
Happy
case.
Everything
works
out
fine
and
it
takes
two
to
three
weeks.

On
a
bad
case,
it
can
take
months.
That’s
a
case
when
something
gets
returned
because
there
was
an
administrative
error
or
the
payer
did
not
have
enough
information
to
approve
it
right
away.
Then
the
back
and
forth
begins
and
that
can
take
anywhere
from
the
same
cycle
all
over
again
to
even
more
cycles.
So
that’s
the
current
state
and
the
reason
for
that
current
state
is
because
there’s
lack
of
transparency
between
payers
and
providers.
They
try
to
do
it
with
guesswork.

What
real-time
transparency
enables
is
that
it
removes
the
guesswork.
Real
transformation
comes
when
you
can
ask
these
real-time
queries
in
the
moment
of
care
that
really
matters
when
you
can
make
the
right
decisions.

For
example,
a
patient
is
walking
in
for
an
MRI.
Are
they
covered
for
this?
This
requires
the
provider
to
ask
the
question
to
the
payer.
Then
it
requires
the
payer
to
understand
what
are
the
benefits,
what
are
the
contract
with
the
particular
provider,
what
is
the
guideline
against
which
MRI
is
approved
or
not,
and
then
give
a
referral
and
along
with
that
give
clarity
around
how
much
the
provider
is
going
to
be
paid
and
how
much
is
the
patient
liability.
That
capability
before
the
service
even
exists
is
what
we
are
bringing
to
life
with
Optum
Real.

A
brain
MRI
with
or
without
contrast
doesn’t
have
a
lot
of
variability.
But
somebody
walks
in
because
they
have
a
cut
in
their
hand
–
you
don’t
know
what
all
will
be
done
in
the
exam.
They
may
get
sutures.
They
may
then
get
a
tetanus
shot.
They
may
be
given
additional
support
because
they’re
diabetic
and
they
don’t
heal
easily.
So
the
complexity
of
the
case
could
be
very
different
depending
on
who
is
getting
that
cut
and
not
just
that.
Whether
the
cut
is
a
three-centimeter
cut
or
a
five-centimeter
cut
will
change
how
it’s
coded
in
the
encounter.
So
that
variability
can
be
addressed
with
capabilities
today,
where
an
ambient
scribing
capability
can
scribe
the
encounter
in
real
time.

Now
if
that
happens,
we
can
bring
in
and
we
are
bringing
in
capabilities
to
assess
whether
the
documentation
is
complete
and
accurate.
The
example
of
three
versus
five
centimeters.
Right
there
you
can
say
…
‘hey,
you
forgot
the
length
of
the
type
of
suture
and
can
you
provide
me
the
length
of
the
cut?’
And
as
soon
as
the
documentation
is
complete,
I
can
autonomously
code
it.
I
can
autonomously
fill
it
and
get
the
response
from
the
payer
in
real
time
on
whether
this
claim
or
inquiry
of
the
claim
will
get
approved.
We
can
answer,
‘how
much
is
the
patient
liable?’,
‘how
much
would
the
provider
get
paid?’.
Before
the
patient
gets
out
of
the
exam
room,
all
of
this
is
done
and
teed
up,
making
that
three-week
four-week
process
that
we
discussed
collapsed
down
to
the
point
of
checkup.

MedCity
News:
So
this
seems
super
rosy
to
me
because
everything
in
healthcare
is
so
slow.
I
understand
that
providers
are
using
ambient
technologies
and
some
ambient
technologies
have
the
ability
to
document
and
code.
So
providers
can
create
that
perfect
note.
I
get
all
of
that,
but
I
am
still
not
sure
that
providers
have
the
ability
to
completely
understand
what
you
need
unless
you
share
your
protocols
with
them
clearly,
that
‘okay,
this
is
going
to
get
paid
and
this
is
not
going
to
be.’

Maheshwari:
That’s
exactly
why
this
solution
is
different
than
anything
else.
Everybody
who’s
looking
at
reimbursement
solutions
and
AI
today
is
saying,
‘Can
I
build
a
better
AI
for
the
provider?’
And
then
the
other
side
is
saying,
‘Can
I
build
a
better
AI
for
the
payer’
so
that
they
can
compete
with
the
AI
of
the
provider,
right?
So
what
used
to
be
a
competition
between
rule-based
systems
is
turning
into
competition
of
AI.
We’ll
end
up
at
the
same
place
all
over
again.

The
way
to
solve
it
is
to
create
that
real-time
transparency.
You’re
right
that
the
payers
have
historically
been
cagey
—
for
lack
of
a
good
word
—
in
terms
of
creating
that
full
transparency,
but
what
we
have
going
for
us
is
that
…
UnitedHealthcare
has
opened
up
these
APIs
that
will
provide
real-time
transparency
into
these
queries
on
the
payer
at
a
very
high
level
of
precision
of
not
just
saying,
‘Puneet
is
eligible
for
this
thing,”
but
to
a
level
of
specificity
that
says,
‘Puneet
is
eligible
for
this
thing
against
the
specific
diagnosis
code
Puneet
has
for
the
benefit
structure
that
he
has
for
the
contract
that
I
have
with
his
particular
provider.’
That
decision
has
been
missing
in
the
past.

MedCity
News:
The
insurance
business
model
is
simple,
right?
You
are
a
for-profit
entity,
and
the
way
you
make
money
is
that
you
pay
out
fewer
claims
than
you
bring
in
as
premiums.
Now,
if
you
create
a
transparent
system
where
you
are
providing
your
protocols,
then
you
are,
in
a
way,
threatening
your
own
business
model.
Are
you
not?

Maheshwari:
So
if
you
look
at
the
statistics,
the
numbers
tell
a
different
story.
When
a
provider
submits
claims,
80%
of
them
get
approved
and
get
paid.
Roughly
10%
to
20%
get
reworked.
The
majority
of
that
rework
happens
because
the
payer
doesn’t
have
enough
information
to
pay
the
claim
…
and
the
provider
has
some
level
of
problems
in
the
claim
or
there
are
errors.


[Note
here
that
Maheshwari
seems
to
imply
that
all
errors/problems
or
lack
of
information
in
the
claim
lie
necessarily
on
the
provider
side.
I
personally
have
been
in
situations
where
I
fought
my
insurance
company
after
they
provided
incorrect
provider
network
information
to
me.
I
was
only
partial
reimbursed
from
the
payer
even
though
the
fault
for
providing
wrong
information
lay
completely
with
the
payer.

The
payer
in
that
case
was
not
UnitedHealthcare,
however.]

The
final
denial
rate
that
happens
because
of
medical
necessity
is
in
the
low
single
digits.
So
all
this
overhead
that
happens
between
payers
and
providers
for
those
first
time
returns
is
getting
completely
eliminated
with
Optum
Real.
Now,
I
as
the
payer,
and
you,
as
the
provider,
can
still
debate
whether
this
was
medically
necessary
or
not.
But
that
number
of
denial
is
2%
to
3%.
The
remaining
is
administrative
overhead.

But
you
can
take
it
even
a
step
further.
Even
for
the
80%
that
gets
reimbursed
in
2
weeks,
there’s
a
$250
billion
RCM
industry
sitting
on
the
provider
side
and
there
is
roughly
a
$100
billion
on
the
payer
side
in
payment
integrity.
So
the
industry
is
spending
anywhere
from
$300
billion
–
$350
billion
so
that
the
provider
gets
paid
for
the
service
that
they
have
delivered
for
claims
that
fall
in
the
approved
80%
category.
Now,
if
we
create
this
real-time
transparent
system,
you
get
dramatic
efficiency.

MedCity
News:
So
is
Optum
Real
trying
to
put
these
RCM
and
payment
integrity
industries
out
of
business?

Maheshwari:
Putting
out
of
business
is
probably
a
much
more,
I
would
say
aspirational,
aggressive
statement.
I
would
definitely
say
that
we
owe
it
to
ourselves
as
patients,
payers
and
providers
to
take
down
the
administrative
waste
and
administrative
hurdles
that
we
have.

———————————

Does
this
mean
the
era
of
“delay
and
deny”
—
as
the
tactics
of
insurance
companies
have
been
routinely
described
—
is
officially
over?
Allina
Health,
a
health
system
based
in
Minnesota
where
UHG
is
also
headquartered
has
apparently
seen
great
savings
through
Optum
Real,
according
to
the
Optum’s
news
release.

As
for
providers
in
the
rest
of
the
country,
only
time
will
tell.
We
invite
providers
to
reach
out
to
us
if
your
experience
with
UnitedHealthcare
claims
and
reimbursement
systems
materially
improves
as
a
result
of
Optum
Real.
And
in
the
meantime,
we
at
MedCity
News
will
be
keeping
it
real.