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.

Really, DON’T Believe Anything You See on the Internet

When that cliché first entered our consciousness, it wasn’t really fair. The internet between the mid-90s and the mid-aughts wasn’t what it is today. It actually was just a dumb pipe through which content could could be delivered from creator to consumer in a new way. It was silly to imply that one should not believe a news story published by the Washington Post just because it was on a screen instead of  paper — and that principle still holds true for most professional journalism.

But now, every legitimate news source swims in the same stream with all the garbage—from raw clickbait to lazy aggregators to hackers purposely trying to exploit underlying divisions in democracies—and the tools of manipulation are so sophisticated that many of the manipulators themselves don’t have to be. With a little practice using software that anybody can steal, a kid can create a video that makes it look like Hillary Clinton said that “all veterans are pussies,” and…well, here we are.

“One of the things I did not understand was that these systems can be used to manipulate public opinion in ways that are quite inconsistent with what we think of as democracy.”

That’s what Alphabet (Google parent company) Executive Chairman Eric Schmidt said, recently quoted in an article on FastCompany. And in keeping with the theme of this post, I don’t know what to believe. Were Schmidt and the rest of the leadership at Google honestly so drunk on their own utopian rhetoric about how wonderful their systems are that they failed to imagine—to say nothing of observe—how their products could be toxic for democracy? Or did they recognize it and not care until they were forced to care amid the fallout from the investigations into Russian meddling?

Facebook’s founding president Sean Parker—he was also the co-founder of Napster—told Mike Allen of AXIOS in a recent interview that Facebook was designed to “exploit a vulnerability in human psychology” in order to keep people on the site as much as possible. Parker told Allen that the creators of Facebook understood what they were doing and did it anyway, though perhaps did not quite imagine what the results would be when a billion people voluntarily spend hours in Zuckerberg’s ant farm. “…it literally changes your relationship with society, with each other … It probably interferes with productivity in weird ways. God only knows what it’s doing to our children’s brains.”

How much has changed in such a very short time. It seems like only yesterday the cheerleaders of Silicon Valley, with all the confidence of Camel-smoking doctors, kept telling us just how good their products were for democracy and for society overall. All this goodness was packaged into a single generic word innovation, and anything that stood in the way of innovation—like maybe the rule of law—was bad. Now, all of a sudden, we hear a lot of “Wow, we had no idea our systems could be used to totally fuck up the world! We’ll get some people on that right away!”

Of course, these companies either will not or cannot fully address the underlying reasons why their systems can be so toxic; and Parker put his finger on it when he admitted that Facebook was designed to take advantage of human folly. Facebook may clean up its act in certain regards—I actually believe Zuckerberg wants to—and Congress may enforce some effective regulations upon these platforms; but none of this will address the flaw in human nature that makes us more susceptible to emotional triggers than we are to reason and information. That’s why the underlying promise of the information age—that information can only have a moderating effect on discourse and interaction—is proving to be untrue.

There’s something fundamentally harmful about taking complex topics and issues and transforming it all into advertising, but that’s essentially what a platform like Facebook or Twitter does. “The sad truth is that Facebook and Alphabet have behaved irresponsibly in the pursuit of massive profits,” writes Roger McNamee for The Guardian. “They have consciously combined persuasive techniques developed by propagandists and the gambling industry with technology in ways that threaten public health and democracy. The issue, however, is not social networking or search. It is advertising business models.”

McNamee, who is identified as an early investor in Google and Facebook, describes how the advertising revenue models of these platforms drive, for instance, Facebook to deliver content based on user preferences, creating feedback loops called “filter bubbles.” People have been writing about the filter-bubble problem for several years now, but I suspect the problem is far too subtle to expect that the platforms themselves, with or without legislative mandates, will solve it.

Amid the recent flurry of allegations of sexual assault, satirical posts have appeared on Facebook with photos of Tom Hanks and leads saying, “Dozens of women come forward to…” And then, you click on the story, and it completes, “…say that Tom Hanks is a really nice guy.” Variations on this gag appear all the time, like the reports that Keith Richards is still alive. But you can bet the beer money that any number of people just scrolling through a feed on their phone, perhaps waiting in the supermarket line right next the old-school tabloids, will come away with the impression that indeed Tom Hanks was implicated in some sexual abuse claim. Then, the rumor gets repeated to a friend, and that’s more or less the state of “information” in the digital age. It’s the National Enquirer at “Google scale.”

According David Roberts, writing for Vox, America is in the middle of an epistemic crisis, suggesting that at least many citizens are beyond the problem of separating fact from fiction and are instead living in a world in which facts simply don’t matter. It is a mindset he calls “tribal epistemology—the systemic conflation of what is true with what is good for the tribe.”

For the time being, analysis of the online media universe reveals this problem is more prevalent on the political right (see support of Roy Moore even if he did assault a teenager), but the political left is hardly immune to this kind of tribalism. In fact, this blog was inspired five years ago when I witnessed this exact behavior among left-leaning friends, who were willing to share false information because it supported the outcome they believed to be right. So, although it is somewhat encouraging that this year marks the turning point when internet platforms will no longer be given a free pass — either by lawmakers or the public — to simply do what they want “for the greater good,” that hardly addresses how we individually and collectively will learn to cope with “God knows what’s happening to our brains,” as Parker puts it.

Internet Association Reverses on SESTA. EFF Cranky.

I can’t say I was surprised when the Internet Association announced on Friday that the major internet companies would be halting their lobbying efforts against the Stop Enabling Sex Trafficking (SESTA) bill. While representatives for Google, Facebook, and Twitter were enjoying Day Three of occasionally intense inquiry by the Senate Judiciary Committee over foreign meddling in our politics via social media, one thing became abundantly clear: the generic defense that everything online is free speech isn’t going to fly. Not with lawmakers. And not with the American people, it seems.

The reversal on SESTA did rankle the EFF, though, which announced almost immediately that “the Internet Association does not speak for the web,” leaving us to conclude that, presumably, the EFF speaks for the web. Whatever that quite means. Perhaps what the “digital rights” group is most concerned about is that when SESTA passes, which it almost certainly will, people might notice the lack of chilling effect it will have on free speech and think, “Hey, maybe these guys who speak for the web are prone to exaggeration.”

After all, these organizations have spent a lot of energy telling Americans that the liability shield extended to online providers in Section 230 of the Communications Decency Act is the reason the web has thrived at all. And one way to understand the extent to which this is hyperbole is to note that the amended SESTA bill, which the Internet Association now backs, does not include any changes that would make it any less a “censorship bill” if it had ever been one in the first place.

In fact, the substantive amendments now agreed upon primarily provide for changes to Chapter 77 of the U.S. criminal code (Title 18), which addresses both criminal and civil litigation that may stem from acts of slavery and trafficking, including trafficking of minors for the commercial sex trade. One amendment tightens up the definition of “participation in a venture” that facilitates or profits from crimes committed under §1591 (sex-trafficking of children) by describing this as “knowingly assisting, supporting, or facilitating a violation of…”. The other major amendment to Chapter 77 adds a section to the civil remedies for all slavery and trafficking-related crimes—allowing State Attorneys General to file civil claims in federal court where such remedies may be appropriate.

The EFF insists that SESTA will place smaller entities, which don’t have the financial/legal resources of Google and Facebook, at greater risk of potential litigation by victims of sex trafficking. They further assert that, according to various experts on trafficking, SESTA will not help victims and may even place them in greater jeopardy.

SESTA Doesn’t “Go After” Anyone

It’s important to understand that the purpose of SESTA is not trafficking interdiction itself. All the change to the CDA really does is lower one narrowly-defined barrier for alleged victims of sex trafficking to potentially hold a web business liable, if their owners knowingly profit from their victimization as minors trafficked in the sex trade. That’s a lot of conditions and a fairly high burden to meet in a litigation. Yet, the EFF cites critics like Kristen DiAngelo of the Sex Workers Outreach Project (SWOP), which paints a picture of SESTA driving sex workers off the web and back onto the streets where they are more likely to be preyed upon by traffickers.

Organizations run by former victims should be afforded considerable respect with regard to their views on stemming trafficking; but I think DiAngelo misconstrues the nature of SESTA when she writes in her letter to Senator Thune, “To victims of sex trafficking, the idea of shifting liability to publishers for the actions of actual pimps and traffickers is terrifying.” But that isn’t what SESTA does. While I agree with Ms. DiAngelo that the broader spectrum of criminal justice vis-a-vis prostitution is often hypocritical and too frequently criminalizes victims rather than traffickers or customers, SESTA has nothing to do with criminal prosecution at all. It only slightly amends the landscape for civil action, and it should no more lead to a flood of lawsuits by trafficking victims anymore than we’ve seen mass litigation by victims of child pornography since the CDA became law in 1996.

To put it in practical terms, a group of sex workers could theoretically start their own website tomorrow and maintain that site without concern that SESTA has made them more vulnerable to litigation. As explained in an earlier post, the only issue of criminal or civil liability for Backpage* is whether its owners engaged in willful blindness, or worse, with regard to ads that either explicitly or implicitly promoted minors for sex. What SESTA does is actually limit the liability for the site owners who do take affirmative steps to weed out, mitigate, or report attempts to advertise minors on their platform. If SWOP were interested, for instance, in fostering safer online environments for sex workers, SESTA should actually be conducive to that effort.

Perhaps if the EFF would stop calling SESTA a censorship bill and explain in some clear example how this legislation could possibly cause any of the systemic problems they claim, theirs would be a counterpoint worth considering. Meanwhile, they may want to read the moods of both Congress and many citizens, who seem far less receptive to the universal “hands off my web” message that has prevailed up until now. The danger, of course, is that there may yet be an actual threat to free speech in digital space, and if that happens, who will speak for the internet? Surely not the organization that has cried wolf so many times.

The Internet is Not a VCR

That may seem obvious, but if you’re an internet service provider who fails to uphold your end of the DMCA bargain, you’d sure like the courts to think of your service as analogous to the VCR. Certainly, this is fundamental to the appeal filed in the case of BMG v. Cox Communications, for which oral arguments were heard at the 4th Circuit on October 25.

In December of 2015, a jury awarded BMG $25 million in damages after finding Cox guilty of contributory copyright infringement committed by its customers. As a result of evidence demonstrating that Cox had taken affirmative action to avoid implementing a repeat-infringer policy,* the ISP was deemed to have nullified its “safe harbor” under the DMCA, which broadly protects ISPs against liability for copyright infringements committed by their users. Counsel for Cox has argued on appeal that had the jury been instructed to apply what’s known as the Sony-Betamax standard, the outcome might have been different.

Cox asserts that it cannot be held liable for contributory infringement for the same reasons that Sony Corp could not be held liable in 1984 when it was sued by Universal Studios for the production and sale of the Betamax video tape recorder. Specifically, Cox relies on the Supreme Court holding that because the Betamax could be used for “substantial non-infringing purposes,” Sony could not be held liable for contributory infringement even though the company knew that some customers would inevitably use its product to infringe.

Needless to say, internet access is used substantially for non-infringing purposes by millions of consumers, but that’s more or less where the comparison between the Betamax and an ISP ends. Cox is not the first internet service to try to make the Sony argument, and for good reason: because if it worked, no online service provider could ever be held liable for contributory copyright infringement. What’s funny about this, however, is that it was the ISPs themselves (ATT, Verizon, et al) who in the 1990s fought for the liability shield provisions in the DMCA that are at issue in this case. In other words, by Cox’s logic, those ISPs negotiated a statutory “safe harbor” provision against a liability that allegedly did not exist based on a Supreme Court decision in 1984.

The Sony Standard Has Already Been Defined

Unfortunately for Cox, the Supreme Court has largely answered the interpretation of Sony that they hope to apply in their defense. In MGM Studios v. Grokster (2005), the Court, for instance, clarified that the Sony standard does not preclude consideration of any evidence that may indicate knowledge of, or intent to induce or facilitate, infringement—even if the defendant’s product or service may be used for substantially non-infringing purposes.

In other words, the whole “non-infringing use” thing is not a blanket defense. In Sony, the knowledge of infringement was generalized (i.e. somebody somewhere would use VTRs to infringe); whereas in Grokster and other internet-based circumstances, the knowledge can be both specific and actively ignored or facilitated by the service provider. Hence, an important distinction in the Betamax ruling, which does not apply to ISPs, was that Sony’s relationship with its users ended with the purchase of the video recorder. Sony had no way of knowing, controlling, or influencing the infringing or non-infringing uses made by those customers, and so could not reasonably be held liable for contributory infringement.

But an ISP is exactly the opposite. The relationship with customers is continuous and interactive such that the ISP can know precisely how its service is being used by each individual. Were this not the case, the compromise proposals in the DMCA, which include a provision that ISPs maintain a policy for addressing repeat infringers, would not exist. And I repeat, these provisions were largely proposed by the ISPs themselves.

During oral arguments at the 4th Circuit, Judges Wynn and Shedd did grill BMG counsel rather strenuously on the subject of what defines a “repeat infringer.” In truth, this is a flaw with the DMCA, which actually fails to define a number of its terms, and these ambiguities  have inadvertently resulted in both ISPs and edge providers straining the intent of the law. A major reason for the lack of clarity in the statutes is that, constituent to the passage of the DMCA, Congress ordered both the ISPs and the rights holders to collaborate in good faith to develop technical solutions to mass infringement. That was a year before Napster provided a road map for just how lucrative third-party infringement could be for a platform that learned to exploit the imperfections of the DMCA. Enter YouTube.

As a matter of plain common sense, it ought to be clear to anyone without the slightest knowledge of copyright law that the internet is not a VCR. The Betamax and its subsequent VHS followers were devices with very limited applications, whether infringing or not. By contrast, nearly everyone uses the internet all day long for everything from checking the weather, conducting business, grocery shopping, streaming the news, and talking with friends and family.

Some have argued that our universal dependence on the internet means that nobody should ever be denied service for any reason, including repeat copyright infiringement. This is technically a separate debate which has been attached to the Cox/BMG case and asserted in other contexts by the EFF and similar “digital rights” organizations. Personally, I would argue that, at least in terms of of the DMCA and BMG’s claim, that the omnipresence of the internet only serves to vitiate Cox’s appeal to the very narrow Sony-Betamax standard, which was predicated on the very narrow purpose of that particular technology.

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* §512(i) of the 1998 Digital Millennium Copyright Act (DMCA) requires that ISPs implement policies to address repeat infringement, including account termination in reasonable circumstances.