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.

With Theranos, can we be done with disrupt culture now?

A chemistry is performed
so that a chemical
reaction
occurs and generates
a signal from the chemical
interaction
with the sample, which is
translated into
a result, which is then
reviewed by certified
laboratory personnel.

Okay, that’s not really free-verse poetry, but I thought maybe if I laid the words out as if they were, it would help convey something—anything. Nope. In fact those were the exact words used by the CEO of a $9-billion corporation to describe the technology behind its value proposition; and according to Maya Kosoff and Nick Bilton, both writing for Vanity Fair, those were the words that inspired Wall Street Journal reporter John Carreyrou to begin investigating the now-disgraced Theranos corporation to see if there was any substance behind all the hype. There wasn’t.

Two years ago, Theranos was a darling among tech start-ups—or at least with the tech press. With a Stanford-dropout founder, Elizabeth Holmes, becoming the world’s youngest “self-made” female billionaire, and its promise to upend the blood-testing industry, Theranos could not have been better scripted into the anthology of Silicon Valley’s “disrupt culture.” Unfortunately, Theranos’s story was too scripted; and last week, the SEC accused both Holmes and president Sunny Balwani of perpetrating a “massive fraud,” misleading investors “about the company’s technology, business, and financial performance.”

In fairness to the major Venture Capitalists of Silicon Valley (I never thought I’d write that clause), Bilton did note in his 2016 article that none of the big players actually invested in Theranos. Couple that with Holmes’s cryptically obtuse explanation (above), published in The New Yorker in December of 2014, and it’s hard to wonder how the company rose to such heights without anyone, other than apparently Carreyrou, kicking the tires a little harder. But in that same 2016 article, Bilton answers this question rather pointedly, blaming the fecklessness of the Silicon Valley tech press. “They embraced Holmes and her start-up with a surprising paucity of questions about the technology she had supposedly developed. They praised her as ‘the next Steve Jobs,’ over and over (the black turtleneck didn’t hurt), until it was no longer a question, but seemingly a fact,” Bilton wrote at the time.

Granted, a lot of tech news is fairly innocuous. Reporters get invited to flashy launches, attend conventions like CES, and publish articles, blogs, vlogs, etc. about the latest gadgets that may or may not be in production six months down the road. Right or wrong, the debut of the vibrating denim shorts isn’t likely to be a matter of life-and-death, which cannot be said for a company like Theranos jumping into the medical industry without anybody asking a tough question or two.

Of course, none of this is surprising if you’ve followed reportage about internet giants like Facebook and Google. Until the fallout from the 2016 election—which is still falling out, by the way—revealed Russian hacks, mass data breaches, and caches of bogus news, it was pretty tough to get the mainstream press to say boo about these companies. “It’s a game of access,” wrote Bilton in 2016, “and if you don’t play it carefully, you may pay sorely. Outlets that write negatively about gadgets often don’t get pre-release versions of the next gadget. Writers who ask probing questions may not get to interview the C.E.O. next time he or she is doing the rounds. If you comply with these rules, you’re rewarded with page views and praise in the tech blogosphere.”

That sounds like a fair description of the atmosphere before November 2016. Even when it came to stories about harassment or serious crimes like sex-trafficking, it was rare to see the technology press insinuate that platform operators might bear some responsibility. The underlying theme that internet equals freedom (not to mention stock valuation) so don’t touch it, continued to at least color—if not dominate—the narrative. But now, that narrative has shifted, and last week’s press release by the SEC addresses the industry directly, stating, “‘The Theranos story is an important lesson for Silicon Valley,’ said Jina Choi, Director of the SEC’s San Francisco Regional Office.  ‘Innovators who seek to revolutionize and disrupt an industry must tell investors the truth about what their technology can do today, not just what they hope it might do someday.’”

Indeed. With stories like Theranos, the shake-up at Uber, and the still-unfolding saga of revelations about voter data-manipulation via social media, the SEC’s sober warning resonates well beyond the investment community. Internet and other technology companies shouldn’t just tell the truth to shareholders but also to the public, who are all stakeholders. For too many years, we’ve accepted the premise that any form of restraint (i.e. rule of law) in cyberspace will “hurt the innovation.” Apropos the SEC’s warning, though, internet platforms et al should be required to more clearly define the “innovation” supposedly being stifled by certain restraints; and maybe—just maybe—it’s the tech press who should be asking some of those questions.

Black Panther & the American Creative Continuum

When Black Panther opened last month and proceeded to set records at the box office, it just so happened to be 200 years, almost to the day, after Frederick Douglass was born into slavery in Tuckahoe, Maryland. The significance of this particular symmetry might be observed through any number of lenses, including those distorted by presentist emotions, which tend to warp historic narrative. But one truth that unquestionably sits between these parenthetical milestones is a reminder that the progress of American democracy—namely the effort to define and shape its grand promises—has always been literary.

In his Narrative of the Life of Frederick Douglass, an American Slave, Douglass describes his introduction to literacy by Mistress Auld, and the consequent lesson inherent in Master Auld’s rebuke, as follows:

“From that moment, I understood the pathway from slavery to freedom. It was just what I wanted, and I got it at a time when I the least expected it. Whilst I was saddened by the thought of losing the aid of my kind mistress, I was gladdened by the invaluable instruction which, by the merest accident, I had gained from my master. Though conscious of the difficulty of learning without a teacher, I set out with high hope, and a fixed purpose, at whatever cost of trouble, to learn how to read.”

While still a fugitive, Douglass registered this book for copyright in 1845, and it was more than a year later that his friends purchased his freedom from Thomas Auld. This overlap in time, when Douglass owned intellectual property while he was still technically the property of another man, says a lot about the painfully bipolar identity of America, but it also reflects the fact that the evolution of the nation’s literary voice has always been intertwined with broadening the initially too-narrow meaning of American liberty.

As the last of the witnesses to the Revolution were dying off, the first generation of Americans born under the Constitution—most of the population was under 30 circa 1840—inherited the exciting, and often harrowing, task of defining what it actually meant to be American. For some, this entailed reconciling the declarative chutzpah of independence with the many social and political hypocrisies that manifestly betrayed all the beautifully-written hubris of the Framers. And one answer to this dichotomy was the advancement of a national literature.

By the time Douglass published Narrative, a literary revolution was already reshaping the fledgling nation. In an 1837 address at Harvard, Ralph Waldo Emerson called upon America’s next generation to produce literature that shed reliance on the conventions of England. “Our day of dependence, our long apprenticeship to the learning of other lands, draws to a close. The millions, that around us are rushing into life, cannot always be fed on the sere remains of foreign harvests. Events, actions arise, that must be sung, that will sing themselves,” he said in his opening remarks.

Any reader of Walt Whitman’s poetry will note Emerson’s use of the verb sing, and indeed “Leaves of Grass,” first published in 1855, was one of the most famously overt responses to this summoning of national identity through creative expression. Whitman was among the authors—others included Hawthorne, Melville, and Whittier—who coalesced around the newspaper The Democratic Review, founded in 1837 by John O’Sullivan. The mission of the Review was to advance a younger, more diverse, and more expansive vision of democracy through a literature of “original works treating commonplace themes with forcefulness, directness, and dignity,” writes historian Edward L. Widmer in his book Young America: The Flowering of Democracy in New York City.

This was America’s first generational culture clash, in which the Young Americans, as Widmer describes, stood in opposition to an older and more conservative population of Whiggish elites. It was this literary-political agenda that shifted the cultural center of gravity from Puritan Boston and Philadelphia to riotous, diverse, petulant, exuberant, and unabashedly commercial New York.

While a proper schematic of the social and political views among these forces is too complex to describe in a short post,* the emphasis on prodding the American creative voice into its own was intertwined with the general aim of expanding the promise of civil rights and dignity to a plurality of American citizens. “I speak the password primeval … I give the sign of democracy;/By God! I will accept nothing which all cannot have their counterpart of on the same terms,” wrote Whitman, who, interestingly enough, was an advocate of copyright as an engine of democratic principles more than one of economic necessity.

In the narrative of the ever-evolving American voice, we can draw a line from Douglass literally stealing literacy to transcend his captivity to the moment when Mark Twain in a single sentence in Huckleberry Finn simultaneously obliterates moral ambiguity about slavery and asserts the power of vernacular in American literature. “All right then, I’ll go to hell,” says Huck upon his decision not to turn in Jim as a runaway slave. From there, we can draw a long but clear arc to the video review by Danielle Radford for Screen Junkies in which she explains why Black Panther is “black as fu©#.” Because its cinematic language employs a vernacular that is uncommon among Hollywood blockbuster movies.

Yes, Black Panther is just a Marvel action film full of chases and fight scenes and magic, as expected. But that’s why it’s significant. As Radford describes, its subtle choices—the million tiny decisions where film artists are truly at work—broaden the cinematic language in a way that actually reverses her opening declaration. The relevance is perhaps not that the film is “black as fu©#” but that it’s American as fu©#. And it has always been the role of creative artists to write and revise exactly what that means.

*In particular, the subject of abolition among the various factions would require a whole post just to set the stage.

Time for a Fresh Conversation About Privacy and Publicity

“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual … the right ‘to be let alone.’ Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”

Those words could be describing the pervasive—and invasive—digital age, but they’re not. They are in fact excerpted from a paper published in the Harvard Law Review in 1890, written by Samuel Warren and Louis Brandeis, nearly 30 years before the Brandeis was appointed to the Supreme Court. Considered a seminal work articulating a right to privacy in the U.S., Warren and Brandeis examine the subject by first theorizing the right as implicated by the fact that unpublished works like personal letters enjoyed a perpetual common-law copyright.

In essence, if the private thoughts, images, or other embodied works are published against the will of the author, this amounts to coerced speech in violation of the First Amendment; and Warren and Brandeis begin with a premise that this principle is coextensive with a right of privacy. They state:

“The principle which protects personal writings and any other productions of the intellect of or the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relation, domestic or otherwise.”

And in a distinctly victorian observation that seems to anticipate the most exploitative, nip-slip paparazzi out there, they write:

“If you may not reproduce a woman’s face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination.”

Although the contemporary right of publicity, shaped in the 1950s, owes much to the Warren/Brandeis paper, the pair might be disappointed to see that their sense of “depraved imagination” is amply protected by the right of the free press today. The newsworthiness of public persons is interpreted broadly enough in the U.S. that if Lupita Nyong’o is photographed choosing a brand of toothpaste, the public that would be interested in such minutia has a “right to know.” Ditto anything that might be personally embarrassing, from tripping on the sidewalk, to an argument with a friend, to a wardrobe malfunction. It’s all news. And it has to be said that plenty of serendipitous, photographic works have earned distinction as art (see career of Harry Benson).

On the other hand, if Johnson & Johnson were to seize the opportunity to create an unlicensed print ad with the hypothetical toothpaste photo, this would violate Ms. Nyong’o’s right of publicity, which generally draws the line at commercial exploitation of a person’s name or likeness, and this can include promoting an agenda by a non-profit organization. Again, the First Amendment holds sway. Capture a public person doing almost anything and it’s likely to be protected by free press; but use that public person’s likeness to endorse a product or message, and it’s a First Amendment infringement as coerced speech.

Although Warren and Brandeis look to the copyright protection of unpublished works as a starting point, they further assert that privacy is unavoidably intertwined with the rationale for the protection of intimate “thoughts, emotions, and sensations.” In fact, about a hundred years later, in J.D. Salinger v. Random House (1987), when the Second Circuit held that a biography on Salinger had relied too heavily on the author’s unpublished letters, the court also cited deference to his right of privacy.  And I think we all know how Salinger felt about his privacy.

Your Face Here (whether you like it or not)

Now, we enter a new technological paradigm—privacy and publicity invasions in which a subject (or victim) need not even accidentally participate. As my colleague Sarah Howes, counsel at SAG/AFTRA, describes in her blog on Medium, “There are technologies out there that can insert female actors’ faces into nonconsensual fake porn, and manipulate video and radio content to literally put words in the mouths of anyone, including actors, news broadcasters, and politicians.”

For performers like those represented by SAG/AFTRA, the effectiveness of this technology has led to an effort by these professionals to extend the publicity right beyond their own lifetimes. It was widely reported as technologically cool in 2016 when the late Peter Cushing was resurrected and seamlessly cast in the film Rogue One: A Star Wars Story, but the capacity to accomplish this also suggests that perhaps a deceased performer’s heirs or trusted assigns should have the right to decide under what conditions the actor or actress returns to the screen.

As Howes points out, people can cause a lot of trouble with very dire consequences as these applications become easier to use. Casting movie stars in pornographic films without their consent is one example; but the implications for a society already draining truth like a Sweeny Todd bloodbath are quite staggering. The axiom was  inverted years ago: seeing is no longer believing. But now malicious parties—be they Russian agents with an agenda or internet trolls amusing themselves—will soon add video “evidence” to their arsenal of weaponized bullshit.

When I first looked at the board site 4Chan several years ago, there was one channel where it seemed fairly common for members to upload innocuous snapshots of girls with an open request to the group to make them naked (ah, crowd-sourcing). A few posts down the thread, the request would be fulfilled by someone with Photoshop skills. And while it’s easy to write that off as the pastime of basement-dwelling losers, it’s worth remembering that, as Chris Ruen pointed out in his section about the anti-SOPA campaign in his book Freeloading, the line between basement-dwelling losers and sober internet activists is not exactly a wall of separation.

In fact, more acutely and more recently, The Washington Post reported last week that the chat board 8Chan (essentially 4Chan 2.0) was a major source—if not the source—of false narratives about the Stoneman Douglas shooting, including rumors that the student activists were hired shills of the DNC et al. “The success of this effort would soon illustrate how lies that thrive on raucous online platforms increasingly shape public understanding of major events. As much of the nation mourned, the story concocted on anonymous chat rooms soon burst onto YouTube, Twitter and Facebook, where the theories surged in popularity,” write Craig Timberg and Drew Harwell for the Post.

So apropos Sarah Howes’s observations, we will soon see bogus video “evidence” in the narrative of otherwise serious policy debate, and these assets will be as easily produced by some basement-dwelling loser as the aforementioned fake nudes. If we are not already too far down this rabbit hole, we are certainly still digging in the wrong direction. And among the remedies to protect both the dignity of individuals and the public’s right to know the truth, it may be time to reconsider both privacy and publicity protections in context to technologies that are as new to us as “instantaneous photographs” were to Warren and Brandeis at the turn of the century.

In conclusion, the two attorneys rather remarkably predicted the negative effects of democratizing and mass-producing information without regard to value or editorial scrutiny. I mean they could hardly have imagined Boing Boing when they wrote the following:

“Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in the lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things.”