Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Section 230: Fix It or Lose It?

In 2015, Rep. Jackie Speier (D-CA) introduced a bill that would make it a federal crime to engage in what is generically called “revenge porn.”  I say generically because “revenge” alludes to a specific motive, usually that of a disgruntled ex-boyfriend who decides to get back at a former girlfriend by distributing intimate or sexually explicit images of her online.  There are revenge porn websites dedicated to hosting this type of material, and in some cases, site operators have engaged in extortion, demanding money from victims in exchange for removing their images. 

Naturally, the usual suspects responded to Rep. Speier’s proposal with the usual hand-wringing jitters, asserting that any implication of platform responsibility for almost anything will only lead to eroding the proper functioning of the internet.  (Is it functioning properly?)  As quoted in my 2015 post, Mike Masnick at Techdirt stated, regarding the Speier bill, “Trying to accurately describe what ‘revenge porn’ is for the sake of criminalizing its posting, will almost certainly have chilling effects on third parties and undermine the very intent of the CDA’s Section 230.”  [Emphasis added]

But legislation like this does not undermine the intent of Section 230 of the Communications Decency Act, and saying otherwise grossly misrepresents—in fact inverts—the goal of that liability shield when it was written into law in 1996.  Section 230 of the CDA was specifically enacted to encourage content moderation by platform owners to remove unlawful or harmful material.  Unfortunately, this “safe harbor” provision has since been reimagined by the internet industry, web activists, and some jurists as a legal foundation to avoid content moderation—even when ordered to do so by a court of law.  That is an aberration of what CDA230 was meant to achieve.

To date, forty-one states plus Washington D.C. have criminalized non-consensual use of sexually explicit or intimate visual material, and New York is poised to join this company with a new bill now proceeding through the State Assembly.  Notably, the language in this bill (similar to Speier’s federal proposal) suggests to me that identifying the criminality of this particular conduct is not so far outside the scope of legislative capacity as Masnick implied in 2015.  The New York bill states, “…with intent to cause material harm to the emotional, financial or physical welfare of another person …”  That doesn’t seem very complicated.  If the goal is to hurt someone, regardless of why, then criminal conduct may be present.  

Of course, the tech pundits don’t really mind criminalizing the behavior of the individuals who commit “revenge porn.”  I won’t accuse Masnick, the EFF, et al of supporting the people who engage in this type of conduct because they certainly do not.  What they do claim to be concerned about are the broader implications for internet platforms if they can be held liable under the criminal code, or even just directed by court order to remove material as a form of injunctive relief for victims.  Here, the critics rely on the well-worn generality that any gap in the great wall of Section 230 will only result in reactionary responses by well-meaning web platforms, which will then censor otherwise protected speech.  

Maybe I lack imagination, but it is actually impossible to fathom how providing a relatively narrow path to legal remedies for the victims of this singular crime can chill anything related to the normal functioning of most online activity. Someone wins a revenge porn case, and what?  We won’t be able to read the New York Times or buy sneakers on Amazon or watch Hulu?  Bullshit.  

As usual, the pundits tend to overlook the fact that due process is still required—that an alleged victim still has to prove her case and demonstrate how a named platform may be criminally or civilly liable for harm.  And in many cases, a platform may be responsible for nothing more than removing content without facing any further liability whatsoever.  Meanwhile, people have already been held criminally and civilly liable for various types of revenge porn, and material has been removed from various site, and the internet is still functioning.  In fact, one audacious law firm in Brooklyn, NY focuses on exactly these issues under the direction of attorney Carrie A. Goldberg, who says she became the lawyer she needed herself after an ex-boyfriend threatened to post naked pictures of her online.  

Since then, Goldberg’s firm has removed over 20,000 images on behalf of its clients—a number that simultaneously demonstrates there is efficacy in criminalizing non-consensual uses of material, but it also proves my point about due process and the narrowness of this focus.  In short, the socially-beneficial aspects of the internet really can endure the removal of many thousands of illegal or harmful files without the rest of us feeling a thing, and it is preposterous to believe otherwise.  Or as part of Goldberg’s Twitter bio explains:  F*uck your overbroad reading of CDA230.

I liked that slogan so much, I asked her for coffee mug with the words printed on it.  I guess it’s just the kind of nerd-moxie that makes my day, and Golberg’s firm certainly appears to have moxie to spare, as exemplified by this declaration on their website …

We are done living in a world of abuse and we are not afraid to sue the *&%$ out of schools, tech companies, and employers who tolerate it.  There are many ways to get justice for our clients – economic justice, restraining orders, advocacy in Campus Disciplinary proceedings, exposing a predator, getting the piece-of-shit thrown in jail.

To the extent this take-no-prisoners attitude accurately sums up a general shift in public sentiment (i.e. that some form of platform responsibility is mandated), I suspect the whinging chorus of internet activists may soon need to find a new cross to die on other than their adamantine devotion to the sanctity of Section 230.  In fact, it is conceivable that if the tech giants do not get on board and help tweak—or at least don’t stand in the way of tweaking—the application of this liability shield, they just might lose it altogether.

Apropos my last post about the implications of deepfakes, this universe of criminal conduct will likely become more complicated as parties willing to cause harm can more easily manufacture visual material that appears to reveal the intended target(s) engaged in embarrassing, or even illegal, activity.  For instance, most, if not all, of the revenge porn statutes criminalize visual material that depicts the “intimate parts” of the plaintiff bringing a claim, and this language would seem to fall short of criminalizing a deepfake in which the victim’s face has been seamlessly grafted onto someone else’s body.  Hence, the criminal codes may already be lagging behind the technology.

And, of course, the implications here are much broader than non-consensual pornography.  Just look at the consequences (in this case almost certainly deserved) for Virginia Governor Ralph Northam over a 1984 yearbook in which he appears at least adjacent to, if not depicted in, racist and demeaning photographs. Those photos are real, and Northam must deal with the consequences, but we are now well past the point when far more sophisticated imagery than yearbook photos can be fabricated out of thin air by someone with rudimentary skills.  Combine the level of destruction that can be so easily achieved with precedent application of Section 230 (e.g. Yelp refusing to remove a handful of libelous reviews), and it seems to me that change is coming, and the big platforms may want to get on board.  

As I posted last July, a new development in this narrative—and one I consider unfortunate—is the addition of partisan politics to the mix.  Some conservative Republicans in Congress have at least hinted at eradicating Section 230 in response to allegations that web platforms promote left-leaning content over right-leaning content.  Clearly, this specific complaint implies a tangled mess of a debate that nobody should want; but if the legislative Venn diagram encompasses those who want to kill 230 with those who want to carve out reasonable remedies for online harm, Google and Co. may need to change their revisionist narrative on the purpose of that liability shield, or risk losing more than symbolic battles.    

Deepfakes & The Choice to Be Deceived

Immediately after the 2016 election, many Americans discovered just how much fake news they were sharing via social media.  And for about ten minutes, the term fake news had a specific and literal meaning; it referred to fabricated stories made to look like news, and which serve either as clickbait to generate ad revenue or as mischief to fan the flames of political discord.  But then, the president co-opted the term as a way to dismiss any reportage that does not jibe with his myriad, fact-challenged narratives, and fake news no longer means anything at all. 

Now, the unreal is about to get a lot more real—and more dangerous.  The technology known as “deepfakes” enables fairly unsophisticated users to produce video evidence of events that never happened.  As highlighted in this CNN report on the subject, Senator Marco Rubio (R-FL) raises the very plausible fear that, in this next election cycle, we are going see video clips showing elected officials and candidates doing and saying things that are entirely fake, but which look absolutely real. “I believe this is the next wave of attacks against America and western democracies,” Rubio stated in a hearing with the Director of National Intelligence.

And that’s not necessarily the worst effect of deep fakes, at least with regard to news and politics.  As, Hany Farid, a digital forensics expert interviewed in that CNN report, observes, an equal—if not worse—hazard confronts us when people inevitably cry “deepfake” on visual evidence that is indeed factual.  Think about how often President Trump changes his story on just about everything and is then checked against his own prior statements captured on video.  All he, or his spokes-minions, have to do is recite the incantation “deepfake,” and the record is expunged in the minds of millions.  Not that this same folly will not occur among other segments of the electorate, but Trump provides the most obvious, stark, and timely reference in this regard.

Naturally, the anticipation that deep fake technology will be used as a weapon of information warfare leads to the assumption that the remedies will also be technological.  The Pentagon has already called the potential abuse of deepfakes a threat to national security, and Farid makes the logical prediction that social media platforms like Facebook and YouTube will need to deploy deepfake detection software to warn viewers.  But it also stands to reason that faking software will only improve, quite possibly to the extent that it cannot be detected by counter-fake technology.  And even then, can any kind of technical metering overwhelm the psychological instinct to believe what we want to believe?

The truth about our fallibility, as filmmaker Errol Morris’s tells us, is that believing is seeing, and not the other way around.  While images can inform, they just as often lie like crazy, not only because we are hardwired to see what we want to see in recorded images but also because, as Susan Sontag writes,  “…the camera’s rendering of reality must always hide more than it discloses.”

Consider the recent story that began with a viral video clip that appeared to show MAGA hat-wearing teenagers openly mocking a Native American at a rally in Washington D.C. Then, a second video capturing the same events revealed a much broader context that at least alters the original narrative about those kids’ behavior, and possibly undermines it altogether.  Either way, it is impossible to imagine how the addition of deepfakes into this already-volatile environment will not make matters worse.  So, what is the solution to this new form of sophisticated, weaponized information?  

No doubt, there is more than one answer to that question, but, as I’ve opined in the past, I think the only hope is a cultural shift in us as information consumers and not a technological fix on the part of the platform owners.  This might mean, as it did for me, abandoning social platforms as a primary source for “curated” information.  But no matter how we choose to filter information, we have to stop pouncing on every photograph and video clip as evidence to support our “deep stories.”  At the same time, professional journalists must stop trying to keep pace with the shrieking frenzy of social media.

For instance, I initially heard about that D.C. clash on CNN, when they cited the first viral video as evidence that a mob of teenagers had indeed assaulted a Native American elder.  The anchor reporting the story even editorialized with a scornful word or two about the kids’ conduct.  But then, CNN followed up, reporting that a second video shows a “different side of the encounter,” and they hosted an interview with Nathan Phillips (the Native American), which also skews the story considerably from the way it was originally reported.  But does CNN’s follow-up do enough to build any kind of consensus around the truth?

When I first started this blog, the trending videos at that time were coming from the cellphones of Occupy Wall Street attendees, usually depicting apparent acts of police brutality against allegedly peaceful protestors.  Clearly, such incidents did occur, but at the same time, the omnipresence of cameras—especially at a movement that quickly devolved to activist tourism—helped to foster an illusion that the people’s images are the “real” truth, even to the extent that citizen journalism has eroded trust in professional journalism.  

This is not to say that amateur video cannot tell us anything.  Surely it can.  But the inexorable deployment of deepfakes, which will probably be most effective when disguised as citizen journalism, will be all the more hazardous if we cannot trust real journalists to provide context, corroboration, or correction for what we think we’re seeing.  In this regard, CNN’s own deepfakes reporting might serve as a cautionary tale to its main news desk (and every other news organization) that the visual “evidence” they obtain via social media and other outside sources should be treated with a level of scrutiny as though it were mere rumor.  And, as consumers, we should begin to do the same.

Photo by kiosea39

On New Models, Journalism, and Digital Advertising

It was encouraging to see our most prominent millennial Member of Congress, Rep. Ocasio-Cortez (D-NY) recognize the link between a healthy democracy a professional class of journalists. On Friday, presumably in response to the startling number of layoffs at BuzzFeed, @AOC tweeted this:

True to form, Mike Masnick of Techdirt replied:

It is ironically quaint at this point to see anyone, even Masnick, still using the “buggy whip” metaphor.  I mean could the term beat a dead horse be any more appropriate?  The buggy whip was always a stupid reference because horse-drawn vehicles are, in fact, obsolete, while the content that big tech companies exploit and devalue (like journalism) is clearly still very useful and in demand.  

Several years ago, the “adapt to new models” narrative was just dumb magical thinking.  But today, we have ample evidence to call this talking point a demonstrably failed proposition.  I guess it’s good that Masnick did not suggest journalists should tour, sell merch, or find new ways to connect with their fans; but still, Mike should go lie down by his dish and think about what he’s done.  

There may be new models in the sense that we enjoy new ways to access and experience content—be it news or entertainment—but there are no truly novel economic models to support the production of content in a free market.  The revenue needed to pay reporters, writers, etc. comes from consumers or it comes from advertisers.  Everything else is alchemy.  And while there are certainly many other factors external to Facebook and Google that have changed the nature of journalism and our relationship to it, the market reality for news and other content creators is that the major internet companies systematically poisoned both revenue streams.

First, the industry laid siege to the principles of copyright and promoted a faux-populist (frankly childish) message that all content must be free.  Then, they helped fulfill the promise of free by erecting giant tollbooths that siphoned off the lion’s share of the available ad revenue, which would otherwise go directly to content creators like journalists.  It’s funny that the free-content, anti-copyright crowd tend to mock as anachronistic any news organization that would presume to put up a paywall, but that’s exactly what Facebook is—a paywall.  No, we don’t pay to use it, but the content creators pay with the lost revenue they rightly earned.

It is especially funny (or sad) that Masnick would bring out a variation on the adapt message in context to BuzzFeed, which IS a new model.  It was built as an online-only platform that would be free to consumers, and it was designed with social media in mind.  Yet, as the New York Times reports, founder Jonah Peretti believes the solution to the Facebook/Google problem may be a merger of several digital news networks into a group that can negotiate better terms for ad-revenue sharing.

But, again, notice how there’s no “new model” there.  It’s just an old model called advertising now dominated by two massive companies.  And the fact is that news media companies have adapted, although in the ever-changing landscape of platforms like Facebook, it is probably more accurate to say that they have reacted in ways that are of little value—economic or social—to the purpose of journalism.

In October of 2018, Alexis C. Madrigal and Robinson Meyer, writing for The Atlantic, reported that several news companies laid off dozens of reporters, mostly writers, to make room for video production resources in an effort to capitalize on Facebook’s new video initiative.  Citing a lawsuit pursuant to Facebook’s allegedly misrepresenting the data on video impressions for advertisers, the authors write…

During the period of purported wrongdoing, from July 2015 to June 2016, journalists and newsroom leaders across the country worked to cover an unprecedented presidential campaign in an information landscape that Facebook was constantly, and erratically, transforming. Even if, as Facebook argues, it did not knowingly inflate metrics, it set up new and fast-changing incentives for video that altered the online ad market as a whole. 

So, even if adapting to video had proven remunerative for news companies, this is still not a good environment for journalists, or for the public that relies on their work.  News organizations should focus on doing the best job of reporting the news, not figuring out how to navigate the opaque and erratic landscape of Facebook.  As I say, that’s not adapting, it’s reacting; and that same Atlantic article cites one example that makes this point.

There is something seriously flawed in the narrative that BuzzFeed potentially broke an important story this month about Michael Cohen’s testimony and then had to decimate its national news team last week–but that, in 2016, they spent resources making a viral video featuring two employees exploding a watermelon.  That is adapting to new models? Hard-news supported by an old Gallagher joke?  And it didn’t even work.  “BuzzFeed never repeated its success,” write Madrigal and Meyer. “But that didn’t stop reporters from being taken off the line of duty, while a promotional video of water being poured on permeable concrete racked up 100 million views.”

Meanwhile, as intermediaries collect the ad revenue that content creators like journalists generate, the advertisers themselves may be getting a raw deal themselves.  Facebook’s allegedly fraudulent reporting of video-view metrics is consistent with other evidence suggesting that trouble in the digital advertising market may be far from over.  As cited in a recent post, Max Read of New York Magazine tells us that a staggering amount of the internet, at any given moment, may be fake.  Read writes …

Studies generally suggest that, year after year, less than 60 percent of web traffic is human; some years, according to some researchers, a healthy majority of it is bot. For a period of time in 2013, the Times reported this year, a full half of YouTube traffic was “bots masquerading as people,” a portion so high that employees feared an inflection point after which YouTube’s systems for detecting fraudulent traffic would begin to regard bot traffic as real and human traffic as fake.

What all that means for advertisers, of course, is that they’re not getting the impressions they’re paying for, let alone the quality impressions digital ad sellers continue to promote. If this is the case, it implies that another reckoning may be at hand between the major advertisers and Facebook and Google.  Wouldn’t it be interesting if the solution for both advertisers and news organizations is that the brands return to buying more media from the news sites themselves rather than the intermediaries?  Yeah, I know.  It’s an old model.  But it worked pretty damn well.

Robot image by frescomovie