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.

Big Data in politics. Maybe we should break the internet.

Photo by LisaD

If it feels just a little bit like the world is careening toward the edge of a cliff with a madman at the wheel, maybe it’s because that’s what’s happening. Except the madman isn’t just some garden-variety berserker.  It’s not President Trump with his incoherent tweets and unabashed lies. In fact, according to this in-depth story by Carole Cadwalldr, writing for The Guardian, those antics are calculated theater being fed to the press as just one component of a much larger, more insidious process by which money and computing power are undermining democracy itself.

Unfortunately, it turns out that the madman at the wheel is us.  All of us. Voluntarily feeding the database via social media, teaching the system exactly how to tell us what to think. “There are two things, potentially, going on simultaneously: the manipulation of information on a mass level, and the manipulation of information at a very individual level. Both based on the latest understandings in science about how people work, and enabled by technological platforms built to bring us together,” Cadwalldr writes.

Focusing primarily on billionaire/computer-scientist Robert Mercer, his relationship to Stephen Bannon and the development of the Breitbart network, Cadwalldr details the process by which wealthy, mostly right-wing, individuals are using computing power not to understand the electorate (that would be old-school) but to manipulate the electorate into reshaping the world as these individuals believe it ought to be shaped. Cadwalldr’s is one of several articles to appear in recent weeks about the role of Big Data in global politics, and just one to mention the company Cambridge Analytica. She writes…

“On its website, Cambridge Analytica makes the astonishing boast that it has psychological profiles based on 5,000 separate pieces of data on 220 million American voters – its USP is to use this data to understand people’s deepest emotions and then target them accordingly. The system, according to Albright, amounted to a ‘propaganda machine’.”

Cadwalldr cites several scientists who voice deep concern about the capacity of the AI to learn about us through interactions as apparently innocuous as Facebook Likes.  With the input of 300 Likes, Cambridge Analytica claims that the computer can understand us “better than we understand ourselves.”  And because the computer never stops learning, never stops adapting, this provides the opportunity for political operatives to steer the electorate toward targeted conclusions about issues or candidates.

The irony, of course, is that this is all based on the illusion that digital technology provides us with more choices to get “better” information, which is why discrediting the “mainstream media” is a key component of the strategy. But lest we believe press-bashing is exclusively a Trumpian phenomenon of the moment, we should not forget that the “mainstream” has previously been dismissed by the left and libertarian-leaning, techno-utopians of Silicon Valley as well—all singing from the hymnal that the internet is the greatest tool for democracy ever invented.

Regular readers know that I am more than a little cynical about this generalization and that this is one reason I remain critical of “digital rights” groups fearful of any form of regulation in cyberspace—particularly regulation meant to protect or restore the rights of individuals. It’s not that I find fault with the premise that the goals of openness and free speech should be protected online so much as I balk at the assumption that an absolutist approach (i.e. law has no place on the internet) can only have salubrious results for democratic values.  I believe this sensibility is a holdover from Silicon Valley’s more hippie-like early days but is a vibe that no longer has any relationship to the advertising and data-mining systems the major companies have built.

But now that we’ve mostly “left the internet alone,” allowing these companies to collect and sell information about us without any kind of rules—allowing these same companies to monetize works of authorship and social interactions without restraint—all in the name of “freedom,” we are apparently teaching the machine to effectively democratize democracy out of existence. Cadwalldr quotes Jonathan Rust of the Cambridge University Psychometric Centre thus:

“The danger of not having regulation around the sort of data you can get from Facebook and elsewhere is clear. With this, a computer can actually do psychology, it can predict and potentially control human behaviour. It’s what the scientologists try to do but much more powerful. It’s how you brainwash someone. It’s incredibly dangerous.”

The manipulation skews right. For now.

Take a subject like immigration policy and the fact that many of us who live or work in diversely populated urban centers (traditionally liberal) can’t understand why Americans who live in more homogenous, rural communities (traditionally conservative) are so concerned that Muslim refugees pose a substantial threat to security despite a lack of evidence to support this fear.

It’s not because citizens are uninformed, it’s because they are purposely misinformed by a very sophisticated network of well-crafted, smartly-written articles that contain elements of truth glued together by rhetorical paranoia.  This is in fact the structure of the average Breitbart article on immigration; and these articles become the foundation of a million ways to automate the spread and repetition of an anti-immigrant message until it morphs in the minds of readers from emotional xenophobia to what is perceived as rational security policy. This is why labeling support for an EO immigration ban as “racist” sounds absurd to many and why their response will be, “It’s not racist. It’s just common sense. Look at the mountain of evidence! The mountain of evidence the MSM isn’t reporting!”  (Never mind that the mountain is a hologram.)

This phenomenon is hardly restricted to the political right, though Cadwalldr observes that the money and institutions behind this level of big-data manipulation is largely a right-leaning agenda at the moment. My own concern has always been that these manipulation tools, neatly disguised as “democratized” information, can be wielded by any entity with the resources.  If the pendulum were to swing from Breitbart to Google or to some left-leaning billionaire’s project, that still wouldn’t be democracy.

The ability to create the appearance of consensus through rapid replication, a network of “alternative news” sites, and bot-swarms, all emanating from a single source is exactly the concern that launched this blog in 2012. The illusion that hundreds of articles or millions of people all “agree” on a given topic can be conjured by a relatively small and nimble group of people with the money and computing power to do the job.  I alluded to this concern in this post in 2012, suggesting that Citizens United was child’s play compared to the capacity for manipulation of the political process on a one-to-one basis via social media.

In 2011/12, this sophisticated kind of disinformation was what I believed was happening with a bill like SOPA.  Now, it’s the same scenario on a much larger scale, influencing the governments of the world. The implication is the destruction of democracy by means of the very tools that were supposed to improve democracy. And the irony is that it’s all voluntary.  Every day, we get up and feed the beast. We teach the machine how to manipulate us.  So, is the only solution to abandon Facebook et al — to stop feeding ourselves as data to the machine?  Can we even afford to unplug given that these platforms are now almost indispensable for access to information and to substantive interaction with people?  A Columbia Journalism Review study on the effects of the Breitbart media ecosystem, offers these words of wisdom and hope:

“Rebuilding a basis on which Americans can form a shared belief about what is going on is a precondition of democracy, and the most important task confronting the press going forward. Our data strongly suggest that most Americans, including those who access news through social networks, continue to pay attention to traditional media, following professional journalistic practices, and cross-reference what they read on partisan sites with what they read on mass media sites.” 

So, maybe we don’t have to break the internet so much as break a lot of really bad habits the internet keeps trying to teach us.

Also read:  The Rise of Weaponized AI here.

How Bad is the FCC Pause on Privacy Rules?

Photo by kentoh

By now, you may have encountered a handful of headlines stating that the new, Trump-appointed FCC Chairman Ajit Pai has temporarily halted new privacy rules passed under Obama’s Chairman Tom Wheeler.  As a general takeaway, you’re also likely to see statements like “Republicans favor corporations over consumer privacy,” and as with all things under the Trump imprimatur, trust is not going to be the default position for many of us. But, then, viewing every issue through the lens of Trumpism is also another way of distorting reality, making ourselves bananas, and failing to compartmentalize issues, which is almost always necessary.

On the subject of consumer privacy and the FCC, any criticism that Wheeler’s policies favored companies like Google and Facebook over other companies should be at least considered.  As readers know, I and others criticized Wheeler’s so-called “set-top-box” proposal as an attempted hand-out to Google at the expense of television creators.  So, when this story about privacy broke, I wasn’t prepared to take every headline at face value just because Pai is a Republican in the Trump administration. He was in the FCC before the election and would likely still be there regardless of who became president.

Let me jump to the main point here:  we consumers want and deserve control over the gathering, selling, and use of our data.  We do not have this control yet. There is no comprehensive, uniform body of law that is adequately protecting privacy in cyberspace for American citizens.  And these facts are central to Pai’s criticisms of Wheeler’s rules of October 2016.

With the adoption of NetNeutrality—another topic for another day—the FCC was empowered to regulate ISPs like AT&T and Verizon in the same way it regulates telephone carriers.  As a result, it was then empowered to establish rules for these ISPs regarding the manner in which they may gather and use consumer data.  This is fine in principle, but critics, including Pai, argued that these FCC rules were not consistent with the rules set by the Federal Trade Commission, which apply to data gathering and use by companies like Google and Facebook, referred to here as “edge providers.”

Because the ISPs hope to compete in online advertising with the “edge providers,” they argued that the disparity in rules creates an unfair advantage for the likes of Google in the market. And that’s when I will at least give these critics some benefit of the doubt. Because as much as I may admire President Obama on a wide range of topics, his administration consistently tilted in Google’s favor across many areas of governance.

In his dissenting opinion regarding the FCC rules now on hold, Pai quoted the Electronic Privacy Information Center in rebuttal to Wheeler’s assertion that providers like Google and Facebook only see a “slice” of our data:

The FCC describes ISPs as the most significant component of online communications that poses the greatest threat to consumer privacy. This description is inconsistent with the reality of the online communications ecosystem. Internet users routinely shift from one ISP to another, as they move between home, office, mobile, and open WiFi services. However, all pathways lead to essentially one Internet search company and one social network company. Privacy rules for ISPs are important and necessary, but it is obvious that the more substantial threats for consumers are not the ISPs.

That certainly jibes with my own experience as a consumer. Regardless of how I get online—whether at home, through my mobile device, or via my local coffee house WiFi—all of my substantive activity occurs on web platforms.  So, yeah, I think privacy rules governing ISPs and “edge providers” should be both robust and consistent. But are they either robust or consistent?

That’s the nitty gritty we’re going have to try to follow in the coming months; and the task is not made easier when editorials fall into the trap of reporting this matter as Republican = corporate favoritism and Democrat = consumer protection.  When it comes to the interests of the Big Data companies, that narrative just does not hold up.  Chairman Pai’s core complaint about Wheeler’s FCC privacy rules is that the providers with the most detailed view of our data (.e.g. Google) would have far more lenient governance than the providers who have less insight into our private lives (e.g. Verizon). So, to the extent that Pai is correct in this assessment, I have to agree that consumer protection is best served by consistent rules governing the entire internet ecosystem.

Stay tuned. Much more to follow I’m sure.

Fair Use Isn’t “Dare Use”

LTG YT

Don’t fall for fair-use daredevil tactics. You might get hurt.

I know Fair Use Week is technically over, but when I saw this video produced by Public Knowledge, I couldn’t, y’know…let it go.

Remember how I’ve argued a few times that organizations have a habit of promoting fair use messages that can confuse people and potentially get well-meaning creators into legal trouble? Well, kids, with regard to the snarky video Public Knowledge released last week, all I can say is, don’t try this at home. Because their fair use argument is technically pretty weak, and I wouldn’t follow their lead unless you feel like poking a phalanx of lawyers with a stick.

So, what Public Knowledge did was have a guy named Charles Duan write anti-copyright lyrics on the theme “Let ‘em Go” set to the tune “Let It Go” from Disney’s movie Frozen. Vocalist Courtney Duffy, with all the earnestness she could muster, sings lyrics like “But companies with cash and greed, Choke the public domain these artists need.” Ouch.

Anyway, the video itself is a montage of clips from Disney animated films, home-movie footage of people dressed as Disney characters, and a variety of creative expressions both directly and indirectly trying to make a point about copyright. The message, as usual, is muddled. PK is provoking Disney because of the trope that the company is directly responsible for the last extension of copyright terms—not actually true—but the video is also trying to be a lesson in fair use, presuming to prove its point by brazenly making use of works belonging to one of the most famously protective companies in the world. (Oh, and a shot of Holden, the “dancing baby” in Lenz is thrown in for good measure.)

Never mind that any number of the depicted “uses” would not implicate copyright (or consequently fair use), but on the subject of copyright terms, the message is weakened by the fact that PK depicts a number of works, like clips from Frozen, whose copyrights would not have expired even if terms were dramatically shorter. Of course, the folks at PK never let pesky details get in the way of a well-entrenched conceit.

Personally, I don’t get everyone’s obsession with the Mouse, and it would be nearly impossible to count all of the creative works that have been produced concurrent with Mickey’s long tenure as an IP-protected icon, but whatever. No doubt there’s an artist somewhere, languishing in a lonely garrett, rendered mute because he cannot fulfill his Mickey Mouse vision.

The Song Is Not Fair Use

The big thing that jumped out at me about this video, though, is that PK’s use of the song in this case would likely not do very well under a fair use test if Disney were to sue the organization. The song may be covered by a blanket license for use on YouTube,* which would be an amusing irony, given the posture of “civil disobedience” PK presumes to be striking here. But if that were not the case, and if Disney wanted to take action, I think Public Knowledge would fail in a fair use defense for its use of “Let It Go” in this video.

As mentioned in an older post, a fair use of a song in the way PK used it here protects parody, meaning that the new use must in some way comment on the original work. Fair use as parody does not protect the use of a song with new lyrics written to express something that is entirely separate from the meaning or spirit of the original work. As noted in this post about the Westboro Baptists writing and recording anti-semitic lyrics to McCartney’s “Hey Jude,” such uses can have very negative effects and even infringe the speech rights of the authors. As we saw in regard to the settlement in GoldieBlox’s use of a Beastie Boys song, the fair use defense does not generally support a use like the one PK made for this video.

The song “Let It Go” is about a young woman breaking out of her frozen shell to become her true self, so I think PK would receive a pretty frosty, judicial response if they tried to argue that their anti-copyright lyrics meet the definition of parody. If Disney were to sue Public Knowledge, I believe the use of the song in this case would fail on the first, second, and third factors of the fair use test. Specifically, PK’s desire to comment upon The Disney Company via its use of “Let It Go” would likely invoke a citation of the 2009 case Salinger v Colting in which the defendant’s authorship of an unauthorized sequel to The Catcher in the Rye was not held to be a fair use on the basis that it was expressing a comment upon J.D. Salinger himself. From the opinion:

“While the addition of Salinger as a character in 60 Years is indeed novel, the Court is unconvinced by Defendants’ attempts to shoehorn Defendants’ commentary and criticism of Salinger into the parodic framework of Campbell,** which requires critique or commentary of the work.”

For all their smugness, Public Knowledge is more likely protected either by license between Disney and YouTube or by PR (i.e. Disney may decide it isn’t worth the press fight); but the fair use defense here kinda blows. And that’s why I say these organizations are not doing the public any favors when they produce this kind of propaganda. They can get well-intentioned creators into trouble by evangelizing a general understanding of a legal doctrine that demands a more nuanced consideration. Maybe, Public Knowledge should heed an apropos line by comedian Ron White: “The next time you have a thought, let it go.”

*ADDENDUM:  Thanks to the comment from artandcreativesite, which reminds us that even with such a license to use a song, complete revision of the original lyrics still infringes the rights holder’s exclusive right to create derivative works.

**Campbell v Acuff-Rose, a landmark case in which 2 Live Crew’s use of Roy Orbison’s “Oh, Pretty Woman” was held to be  fair use as a parody.