David Newhoff, Author at The Illusion of More

Social (Media) Distancing

Between the headline and the Share button.

Access to credible, useful information could not be more essential than it is in the present moment. But as we are all presumably more attentive than ever to our social media feeds, we are correspondingly bombarded with more garbage content. This crisis is a perfect opportunity for trolls to ply their trade. Whether it’s idiots having a laugh, professional mischief-makers working for foreign agencies, or any number of vested interests, there is no shortage of intentionally misleading material online. But that may not be the greatest concern.

Unfortunately, the expansion of the news market—from the earliest days of cable TV to the breadth of Facebook’s role as a virtual newsstand—has forced even venerable sources to take a more slapdash approach to their reporting. In order to remain relevant (i.e. extant), organizations with distinguished pedigrees are chronically guilty of publishing stories designed to grab, terrify, and outrage more than they are to inform or promote thoughtful dialogue. Almost worse than that, even if the reportage is soundly crafted, the headlines are too often screaming at us because they are designed to promote (mostly negative) social media interaction. And far too many of us are guilty of reacting to and/or sharing only the headlines, where the distinctions between accurate and inflammatory can be rather subtle.

For instance, while acknowledging that we are justified in distrusting Attorney General William Barr on the grounds that he shows little respect for constitutional principles, let’s compare two headlines in which the Rolling Stone follows up on a story first reported by Politico:

Politico: DOJ seeks new emergency powers amid coronavirus pandemic.

Rolling Stone: DOJ Wants to Suspend Constitutional Rights During Coronavirus Emergency

To be clear, the actual story is cause for concern, or at least awareness. Assuming the central reports are accurate, the DOJ apparently wants Congress to draft new legislation that would empower courts to detain arrested individuals indefinitely while the courts are shut down or delayed during this crisis. The problem is that this infringes rights protected by the Sixth Amendment, and, as mentioned, one can be forgiven for assuming that AG Barr might not give a damn. Both Rolling Stone and Politico do acknowledge that legislation of this nature is unlikely to find any purchase in the current House of Representatives, but it is not the story itself that prompted me to write this post.

I wanted to call attention to the psychological effect of the Rolling Stone headline. With a constant awareness that we have a president who is ignorant about the Constitution and an AG who has shown contempt for the Constitution, that headline almost immediately provokes dystopian mental montages. Before one even chooses which emoji to click, one cannot help but conjure images of smashed presses and jackbooted thugs suppressing speech as Barr takes an Orwellian Sharpie to pesky items like the establishment clause. The whole proto-fascist narrative plays out in the time it takes to share the headline with a comment like, “This is what these guys have wanted all along.” But who reads the story?

Ascribing authoritarian motives to this administration is at least half true, which is one reason why sensational headlines can be so dangerous—because we need to know who is trying to cross which lines and why. We are at a very precarious moment in history—not only because we are deeply concerned for our safety, but because American institutions have been under assault since long before we collided with the vector of Covid-19—and long before Trump and his acolytes brought their own sledgehammers to the party.

As with the harm to journalism, the abandonment of institutions and the devaluation of expertise is a dire consequence of “democratizing” information through digital platforms. We exacerbate the problem by sharing fragments and impressions that feed anxieties that—perhaps because they are plausible—are the concerns most in need of informed skepticism.

Now that most of us have segregated in an effort to mitigate the spread of a literal virus, those of us fortunate enough to have the time and ability to keep up with the feeds, might also do what we can to mitigate the spread of viral misinformation. To that end, it would probably help to put some distance (i.e. time) between encountering a headline and clicking Share. There is no urgency to respond to a story or to share it immediately. That urgency is an illusion fostered by the medium itself, and our responses to the stimuli principally serves the platform company’s interest in data-harvesting.

If Facebook users, for instance, committed to not sharing anything until they’ve read it, this might help slow the rate of misinformation. Better yet, before sharing, why not take a moment to provide friends with a summary of what the story actually says, or fails to say? Doing this would emphasize how often stories are out of synch with their headlines. In a time when we have plenty of reasons to be worried and plenty of reasons to be angry, it is especially important that we worry about, and are angry about, things that are actually true.

This seems like a very good time to step outside the whirlwind of what scholar Alice Marwick calls our deep stories and apply some critical thinking, even if this means taking a moment to look for counterfactuals in a story about some party or entity who deserves some measure (or a whole truckload) of our scorn. There has never been a time when accurate information matters more than it does right now. Social media, in many ways not always visible, is designed to frustrate that need. If we have the time, and take the time, to provide badly needed context for one another, a social platform can be a wonderful source of useful information; but absent that context, the deluge of images and headlines alone can be a steady flow of gasoline on an already smoldering fire.

Also see: Reducing the Spread of Misinformation Online from the Markkula Center for Applied Ethics at Santa Clara University.

Virus art by: Kateryna_Kon

DMCA Review II – Looking to foreign jurisdictions, when some answers are already here.

As we batten down the hatches to weather the present storm, streaming entertainment enters the foreground of our new and temporary reality in which we voluntarily circumscribe daily life to the confines of home. This is no time, of course, to fuss about media piracy per se. We have bigger fish to fry, but one must keep busy, and so on the subject of streaming entertainment, the Senate Judiciary Committee on March 10^th held its second hearing in what will be a year-long review of the 1998 Digital Millennium Copyright Act.

This time, the IP Subcommittee turned its attention to foreign jurisdictions and piracy. The thesis question was this: How do other countries address piracy and what, if anything, can we learn from them? Naturally, the EU Directive of 2019, especially Article 17, which was designed to incentivize the largest user-supported platforms to enter into license agreements, was discussed in both of the two-panel sessions. But from testimonies as oppositional as Stan McCoy of the Motion Picture Association and former Pirate Party member Julia Reda of the EU Parliament, I think it’s fair to say that all interests are sufficiently dissatisfied with the outcome of that legislation that it may not prove terribly instructive to U.S. lawmakers.

What I did find compelling in the hearing was summed up during the second panel by Jonathan Yunger, CEO of Millennium Media, who said in Q&A with Senator Coons that, two things he’d ask to see in the U.S. would be site blocking and felony streaming. And if I were placing bets on the recommendations that will ultimately follow this review, I predict that the committee will find these two proposals highly persuasive. Interestingly enough, site blocking does not require a radical revision of the DMCA (if it requires any), and felony streaming does not implicate DMCA revision at all.

Site Blocking is Effective and Already Intended by DMCA

As highlighted by law Professor Justin Hughes in Panel I, it is clear from the language in Section 512(j) of the DMCA that Congress intended to empower a court to order a service provider, even though it is not a party to a litigation, to cease providing access to infringing material as a form of relief to a plaintiff. Under this section, if a rights holder can prove that a given site is dedicated to infringement, the court is supposed to be able to instruct a Google or a Time Warner to block access to that site or sites. Yet, as Hughes points out, this already extant section of the statute has hardly been used.

Economics professor Michael Smith testified that we now have a sufficient volume of data which demonstrates that blocking multiple pirate sites has the positive effect of driving consumers to legal platforms. Additionally, Professor Hughes enumerated several of countries where we can see that site blocking neither disrupts a functioning internet nor chills protected speech. “Given the widespread use of this enforcement tool in other democratic societies,” Hughes stated, “it may be worthwhile for the subcommittee to explore why §512(j) has not been utilized.”

I imagine the IP Subcommittee will heed this recommendation to review the historic inefficacy of section 512(j). After all, more effective site blocking would actually address myriad piracy problems at the same time with no effect upon the public interest, or in any way meaningfully amending the safe harbor provisions for service providers. For instance, more sophisticated and insidious access to pirated material through set-top boxes called “Kodi boxes” would be mitigated by site blocking because these infringing apps, loaded on these boxes, search for titles of filmed entertainment stored on foreign pirate site servers. Consequently, site blocking should substantially reduce the incentive to get into the illegal streaming game through the “box” model and, therefore, alleviate some of the burden on federal law enforcement to investigate these enterprises.

Why Has 512(j) (i.e. site blocking) Not Been Used?

I do not claim to know all the answers to that question, but at least part of the answer comes down to the fact that internet industry and “digital rights” activists have fought, in both the blogosphere and the courts, to avoid compliance with even court-ordered injunctions to remove or block access to content. Most prominently, perhaps, was Google’s defiance of the Canadian Supreme Court, which ordered sites blocked as injunctive relief for plaintiff Equustek whose IP had been stolen by a party marketing counterfeits on the sites at issue.

Or to highlight just how entrenched the industry’s misguided sense of responsibility is in this regard, the subcommittee could review the defense and supporting amici in Hassell v. Bird, in which Yelp! argued that by complying with an injunction to remove material, which had been judged unlawful by a court, this would “harm due process.” This was a profoundly absurd claim to come from a “no-fault” third party responding to a court order to cease facilitating harm to a plaintiff. Due process does not a apply to an unnamed, no-fault party—except apparently within the twisted strands of logic peculiar to website operators, who have historically assumed that it is their right to host, link to, and even monetize anything that ends up on their platforms.

Site operators and their supporters, like the EFF, PublicKnowledge, and, at times, the ACLU, have endeavored to tie both courts and public perception into knots over one of the most basic forms of justice—injunctive relief by unnamed third parties—and it seems that correcting this error (i.e. making Section 512(j) mean what it says) would be short work for legislators.

Felony Streaming is Controversial for No Good Reason

As I say, I was also struck by Mr. Yunger asking for felony streaming as a solution to piracy, which does not in fact require revision to the DMCA, but rather a change to the criminal code. As discussed in this post about the indictments against the operators of Jetflicks, streaming a “public performance” of a copyrighted work is still a misdemeanor, despite the fact that it is exactly how large-scale piracy is achieved today. In fact, nothing in the old bootlegging model, which is a felony, could come close to illegally streaming a movie or TV show to tens of millions of consumers, occasionally even preempting the official release of the project.

“Under this system, criminal streaming piracy, no matter the dollar amount it involves or the number of works affected, is de facto treated as a lesser crime than the illegal downloading or reproduction of the exact same content.” –Register of Copyrights, July 2019–

Some fairly outlandish fear-mongering has been employed in opposition to felony streaming proposals over the years. By “over-criminalizing” unlicensed streaming, the critics say, good-faith site operators could wind up in jail due to error or the unlawful conduct of their users. But this scare tactic is contradicted by a few important realities, not the least of which is that we do not generally see good-faith site operators charged with misdemeanors either.

To be charged with criminal copyright infringement, a defendant must truly be engaged in copyright infringement as a business enterprise. Nothing about elevating enterprise-scale, unlicensed streaming to a felony would change the burden of proof for filing criminal charges; it merely puts teeth in the law as a deterrent against launching in this kind of operation. Further, elevating illicit streaming to a felony does not alter the liability protections for good-faith service providers.

The same principles would still apply to the “safe harbor” provision established for good-faith providers whose users upload infringing material. Having said that, however, the incentive narrative needs to change to apropos Mr. Yunger’s testimony that his company’s films, in one accounting, had been viewed over 110 million times on YouTube. So clearly good faith alone is not getting the job done.

Meanwhile, as CreativeFuture reported in a recent blog post, a new operation called Plex appears to combine the “Kodi box” piracy streaming model with a Napster-like twist such that users can “share” libraries they store on Plex servers—particularly if those libraries comprise bootleg files. If Plex is intentionally facilitating large-scale infringement through streaming from its servers,* its defense against an infringement charge would presumably seek to hide behind the technicality that its users are “directing” the uploading of files to the server space under user control. Hence, by more robustly criminalizing the act of streaming public performances, this would seemingly close a DMCA loophole without actually revising the DMCA.

With regard to considering both felony streaming and a review of 512(j), the IP Subcommittee should assess the amount of disinformation and flawed legal arguments that have been deployed on these topics by various parties in the internet industry. For the better part of the last two decades these companies have consistently behaved as though the original intent of DMCA was always that they should do exactly they want—even in defiance of court orders. The members of the committee know very well that nothing could be further from the truth.

EFF Hits New Low in Response to Child Sexual Abuse Online

According to a September 2019 story in the New York Times, the volume of online content described as “child sexual abuse material” grew from 3,000 reports in 1998 to 45 million in 2019. What used to be called “child pornography,” which was bad enough, needed a broader term to encompass material that increasingly contains photographic and video content depicting torture and rape of children under the age of ten. And those numbers are the reported incidents.

“An investigation by The New York Times found an insatiable criminal underworld that had exploited the flawed and insufficient efforts to contain it. As with hate speech and terrorist propaganda, many tech companies failed to adequately police sexual abuse imagery on their platforms, or failed to cooperate sufficiently with the authorities when they found it.”

Yet the scope and nature of this story does nothing to temper the propagandist tone adopted by the good folks at the Electronic Frontier Foundation. Once again, they seek to warn the public that congressional response to these staggering revelations is yet another “dangerous threat to free speech, innovation, and security.” Their latest call to action in response to a new bill introduced last week is truly something to behold—even for the EFF.

The post is illustrated with a black eagle set against a gray, film-scratched background meant to conjure the mood of a Nazi propaganda film. Cracking a microphone (speech) with one talon and a key (private security) with the other, the bird’s menacing wings bracket a masonic, all-seeing eye. And below this subtle iconography, the EFF begins its dark prophecy, “Senators Lindsey Graham and Richard Blumenthal are quietly circulating a serious threat to your free speech and security online.” Notice how it always begins with a conspiracy with these guys? In truth the proposal to which the EFF refers is no more being “quietly circulated” than any other bit of legislation on the Hill. In fact you can read the text of the new bill right here.

When the EFF pulls this crap in response to a copyright enforcement proposal, it’s merely obnoxious bullshit. But now we’re talking about confronting a growing online market for videos and photos of raped and tortured children. So maybe, just maybe, we could have the conversation without the EFF trying to silence it at the first syllable? Nope. “We must stop this dangerous proposal before it sees the light of day,” says their call to action.

Before it sees the light of day? Not consider its pros and cons? Not a sober assessment of the provisions and any potential pitfalls? Nope. Kill the bill and its purpose. To hell with the child victims. End of discussion. So say the self-appointed guardians of the Electronic Frontier. But stay tuned for future blog posts in which the EFF says something cringy like, Child sexual abuse is really, really bad. We don’t like it one little bit. But this bill is the wrong solution. Or some such disingenuous blather. Because that’s what they say about every proposal to address criminal conduct online.

What is the EARN IT Act 2020?

In response to the stunning growth in online child sexual abuse material (a 1.5 million percent increase since 1998), the Senate Judiciary Committee decided that perhaps Big Tech was not doing quite enough to help address the problem. And just maybe, thought the bipartisan group of senators, this is because Big Tech lacks the incentive to help, due to the fact that they have enjoyed blanket immunity for liability under the provisions of Section 230 of the Communications Decency Act of 1996. (Note the word help, not solve. Nobody expects Big Tech to outright solve the crime of child sexual abuse.)

So a bill sponsored by Senators Graham and Blumenthal called the EARN IT Act was introduced on March 5^th of this year. The acronym, derived from Eliminating Abusive and Rampant Neglect of Interactive Technologies, intentionally declares that if internet service providers want to continue to avail themselves of the liability shield under 230, they will have to earn that privilege by complying with the conditions set forth in this new legislation. If it becomes law.

The bill calls for the establishment of a commission to develop best practices for identifying and eliminating child sexual abuse material online. Service providers, especially the major platforms that host vast amounts of user-uploaded material, will have to meet the new guidelines established by the commission in order to remain shielded by Section 230. If that sounds like a fairly sober approach to address a very serious type of criminal activity, expect the major platforms to strenuously oppose this bill. And the EFF to be right by their side.

Exploiting Current Politics to Sustain a Harmful Status Quo

Seeking to obfuscate the real narrative that the EARN IT Act is solidly bi-partisan, including Democratic co-signers Sheldon Whitehouse and Diane Feinstein, the EFF prominently invokes Attorney General William Barr for the express purpose of scaring readers. They write, “The Graham-Blumenthal bill would finally give Barr the power to demand that tech companies obey him [by weakening encryption] or face overwhelming liability from lawsuits based on their users’ activities. Such a demand would put encryption providers like WhatsApp and Signal in an awful conundrum….”

As mentioned in a related post, I personally think AG Barr is bananas. I don’t trust him as far as I can throw him, which would not be very far. But one way or another, he will not be at DOJ forever, and will quite possibly be gone before this bill becomes law, the commission it mandates is established, or the best practices are defined. (And that’s if the Internet Association does not succeed in ripping the guts out of the bill behind the scenes.)

More to the point, this legislation is designed to address a form of criminal conspiracy that predates AG Barr’s fifteen minutes in the spotlight as well as the incoherent administration he serves. The tragic reality of exploited children will persist long after the Trump circus has packed up its tents and gone. Meanwhile, for the EFF to imply that the EARN IT Act is merely an extension of Barr’s authoritarian impulses is so grotesquely irresponsible and cold-hearted that one can reasonably ask what makes them think they stand on any higher moral ground.

The victims of child sexual predators must remain in the foreground of any discussion about this bill. They should not be treated as an abstraction to be sublimated by the EFF’s latest claim that online speech is threatened—again. The fact that they are willing to use these tactics to try to kill the debate itself on this particular issue is truly a new low for them. After all, if we can’t even have a conversation about how the internet helps people destroy children for profit, we’re hardly a society with any principles worth defending. I don’t actually think that’s who we are. But apparently it’s who the EFF thinks we ought to be.

Author: David Newhoff