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.

The Accountability of Web Platforms

Online service providers (OSPs) are generally shielded by two major statutes from liabilities that may stem from the content uploaded by users of their platforms.  Section 512 of the DMCA (1998) provides the conditions under which an OSP may avoid liability for copyright infringement, and Section 230 of the Communications Decency Act (1996) covers just about every other kind of content.

In simple terms, any platform that allows users—rather than site owner/operators—to upload content.  Sites like YouTube, WordPress, Facebook, Twitter, etc. are not considered “publishers” under CDA Section 230 and, therefore, remain free from liability for nearly any harm that may be caused by the user-generated content hosted on their sites. So, if a Twitter mob incites assault or violence, Twitter is generally in the clear. If an IS recruiting video inspires a lone-wolf attack, YouTube is not held responsible. If fake news fills a Facebook feed, then Facebook is not responsible for publishing lies or slander because, under the statute, Facebook is not the “publisher” of the material.

“Digital rights” groups defend CDA 230 as an essential protection for free speech online and as a mechanism for the development of the web overall.  In general, this argument has a lot of merit, but these activist organizations are not above straining their support of Section 230 beyond reason at times. As discussed in this post, the Electronic Frontier Foundation came strangely close to defending the alleged criminal activities of the owners of Backpage while seeking to defend the principles of Section 230. In that particular case, the indictment of last October states that the owners of the site took direct action to further capitalize on the illegal sex trade, which they had to know contributed to more than 90% of site revenues.

Hence, the assumed ignorance of the OSP management, upon which the Section 230 shield is based, seems reasonably lost in that case; and EFF’s defending Backpage on principle alone appears to defy common sense.  The Supreme Court is scheduled to consider whether or not to take up Doe v. Backpage during its conference tomorrow.  If the Court agrees to consider the case, expect to hear a lot about Section 230 in the coming weeks.

A Mundane Example

As a very simple example of what we’re talking about, I accidentally called a scam Apple support service one day because I was rushing and because a number for the fake service appeared at the top of Google’s search results.  Fortunately, I realized I’d called a predatory operator and hung up before it cost me anything, but for those who were cheated out of credit card or other information, doesn’t it seem reasonable that Google should be held accountable for having taken fees to place the bogus service in the advertised top spot?  It seems to me they should. But what about monetizing content that may contribute indirectly to assault, battery, or murder?

Pulse Nightclub Suit

In December, a Michigan-based law firm filed suit in Florida against Google, Facebook, and Twitter on behalf of three families who lost loved ones in the Pulse Nightclub shooting of June 12, 2016, where Omar Mateen shot and killed 49 people, making his the largest mass-shooting in US history.  The foundation of the case, led by attorney Keith Altman is that the monetized hosting of content produced by the Islamic State “provided material support to terrorists” in violation of federal law and contributed to the actions taken by Mateen.  The Orlando Sentinel, reporting on the story, quotes internet and communications attorney J.B. Harris stating, “It’s creative. It’s bold. But I don’t think he’s going to succeed under the federal anti-terrorism statute that he cites.”

That sounds about right to my layman’s ear.  In this case, I suspect Altman would have a very high burden, even to connect the IS material to Mateen’s decision to act, let alone to hold the OSPs responsible for the tragedy under that statute.  Moreover, I don’t think the public is going to warm to the idea of accusing web platforms of “providing material support to terrorists,” via third-party content, least of all in the climate we’re now entering.

Nevertheless, the Sentinel notes that attorney Harris speculates that Altman might have a better hearing in a Florida local court as a “strict negligence or liability” case, which does begin to have the ring of some balance to it with regard to alleged liability among the OSPs in this circumstance. I suspect the case would be a long shot either way, but Altman is correct in his observation that the major OSPs have historically enjoyed tremendous freedom in maintaining a laissez-faire approach when it comes to monitoring content on their platforms.

Possible Change in Attitudes?

As speculated in my last post, the bitter taste of fake news and Russian hacking may shift public opinion toward a greater willingness to hold major platforms responsible for content more than they have to date.  In particular, when an OSP earns revenue by hosting harmful content, whether it’s a scam like the one noted above or an IS recruiting video supported by brand advertising on YouTube, we may begin to see some cracks in public support for the “we don’t know” defense, regardless of the liability shields.

With regard to copyright infringement and Section 512, we know that the major OSPs have played an ongoing and repetitive semantic game on the theme that “they cannot know” what’s happening on their sites.  As I’ve said in the past, this argument is especially coy when it comes from Google, which vows to one day know us better than we know ourselves—but apparently will remain ignorant about the content on its own platforms. I don’t think anyone disputes that content moderation poses technical and legal challenges. But so far, the conversation has been skewed toward a bias that any moderation is undesirable because it’s tantamount to censorship; and this has benefitted the platforms by leaving them free to monetize nearly anything.

With cases like Backpage, and perhaps this Pulse Nightclub suit, playing out against a landscape of users coming to grips with some of the inherent flaws of social media platforms, we may see OSPs take more direct, voluntary action to mitigate the use of their services by bad actors.  Or as Charlie Warzel writes, in a related article on BuzzFeed, “…trotting out the ‘But we’re just a digital platform’ excuse as a quick and easy abdication of responsibility for the perhaps unforeseen — but maybe also inevitable — consequences of Big Tech’s various creations is fast becoming a nonstarter.”

Photo by scanrail

The Morning After or Social Media is a Humbug

Looking through window blinds, sun light coming inside.
Photo by photocreo.

Time for a hard look in the mirror?  We’ve been on a social media bender for years, and I’m thinking January 1, 2017 might be the day we begin to sober up and come to grips with its more negative effects.  When I began writing about all this stuff in 2011, it was partly in response to the fact that people seemed too eager to give the internet industry itself a free pass on the ill-effects of several major platforms because the internet writ large is perceived as so essential to democracy. And thanks to social media, the internet became an extension of our egos, in much the same way that liquor makes us all good looking and smart.

In January of 2012, a relatively small cadre of internet wonks rallied people to shout down SOPA—a bill almost nobody understood—and progressives in particular congratulated themselves for participating in “true democracy in action.” It scared the hell out of me because it was not democracy in action but industry-backed manipulation disguised as democracy.  Or as just one example of its insidious nature, the campaign was partly driven by the same anonymous denizens of a site called 4Chan, whence come many agitators of the alt-right that people now realize is a thing. My left-leaning friends who helped drive SOPA over the cliff failed to recognize the dark genie they’d let out of the bottle.  Forget that SOPA was not the toxic legislation everyone had been told it was; that’s just a minor, nagging detail. What matters is that the campaign against it was a blueprint for circumventing the democratic process itself.

The capacity to unleash thoughtless reaction in any number of directions is a power we have ceded to social media platforms.  If spurious Trump-tweets are disconcerting to you, I’d note that this was the same pavlovian mechanism at work in the anti-SOPA campaign and is more or less the manner in which we continue to dumb down the most complex issues into bites, memes, and zingers.  Kind of like those big ideas that seem really smart while under the influence, but are best left unfulfilled in the harsh reality of the ensuing hangover. So, here’s a question:  Is a platform like Twitter valuable because people get to respond to what a politician might say, or is it toxic because it gives a politician a round-the-clock platform for riling people up with some insipid one-liner in the first place?  Hint: Twitter is fine for sharing links but a stupid way to discuss real issues. The word twit is right there in the name.

With all the attention the election has focused on fake news and manipulation of information by a foreign power, it has been interesting to observe—at least anecdotally—a renewed sense of vigilance about the sources of information people choose to share or cite on Facebook.  It was not surprising, of course, that some folks wanted to blame the platform operators for failing to weed out fake news. And although it isn’t exactly Facebook’s fault that people are happy to believe nonsense in the first place, the medium is still the message; and it is a medium that instantly rewards what’s popular, not necessarily what is true, decent, thoughtful, or fair.  That was what frightened me about the anti-SOPA campaign—that suddenly being “right” en masse completely overwhelmed common sense, rational analysis, or the exchange of ideas.  The fact that nobody happened to be right was just bitter icing on the cake.

I’ve seen people respond to the fake news problem with the sentiment that they don’t want corporations like Facebook editing what we see online, but the fact is these entities already do edit what we see, but in a manner that serves their advertising and data-harvesting interests. So, while they’re at it, as long as people are going to use search engines and social media for acquiring news and information, the OSPs could be better corporate citizens and take a harder look at the negative effects that their anything-goes approach can have on business and consumers; on politics and journalism; on social behaviors and discourse; and even on the advertising that is their bread-and-butter.

One question I ask now is whether or not this sudden, wider realization that the internet may be chockfull of garbage—and is highly vulnerable to manipulation—will change the mood of the public with regard to giving OSPs quite so much latitude to sweep a million sins under the rug of the First Amendment. Invariably, whether we’re talking about copyright infringement, counterfeit operations, or predators, criminals, and terrorists using legal platforms for illegal purposes, the general response from Google & Friends has been that these problems cannot be addressed without harming otherwise protected speech.  It’s been an effective message but largely not a true one—especially when an OSP may earn revenue from the activities of bad actors and good actors at the same time.

In recent weeks, two stories trended about harassment of Muslims—one on the New York subway and one on a Delta flight—that proved to be false.  The second of these was perpetrated by a known prankster, who creates these spectacles for his YouTube channel. Historically, the progressive view would be to defend his free speech rights in defense of YouTube itself; but creating false claims of harassment is not only not protected speech, it is purposely throwing fuel on an already dangerous fire. Is YouTube required to support this guy’s channel because of the First Amendment?  Absolutely not. No more than they are required to support terrorist recruiting videos or videos demonstrating how to hack someone’s computer or videos that infringe the rights of musicians or other creators.

In reality, web platforms do not have the kind of constraints under the First Amendment that they often claim. The First Amendment protects American citizens and entities against censorship by state actors, while a privately-owned business like a social media site can adopt nearly any Terms of Service its operators choose.  Quite simply, YouTube could decide tomorrow to become a platform exclusively for videos featuring left-handed,  yodeling, Ukrainian, sword swallowers, and the creators of the millions of videos that would consequently be removed would not be able to make a First Amendment infringement claim against the company.  To the contrary, such a suit would be in conflict with the First Amendment rights of YouTube, which happen to be the same rights that allow a newspaper to employ editorial oversight of its content.

Getting Real About Free Speech

The big question is instantly tricky, of course, because the new president-elect is the first in living memory to voice such an openly hostile relationship with the free press and free speech; and we can, therefore, imagine real policy that could become legit First Amendment challenges. As such, it’s a good time to make more sober distinctions between actual First Amendment threats and perceived ones.  Because for the last several years, the internet industry has successfully labeled just about every effort to enforce reasonable, legal protections for consumers and businesses as a threat to free speech. But mitigating tangible harm in cyberspace is not in conflict with the First Amendment any more than it is in physical space.  In fact, it is often less of an issue because the harmful actors are neither located in the U.S. nor U.S. citizens, which means they do not technically enjoy—or even necessarily respect—First Amendment protections.

Of course, the conversation is probably going to get a lot dicier now. One major flaw of the Obama administration was that it gave way too much latitude to Google and other Silicon Valley firms to shape policy in a number of areas.  If the Trump administration and Congress take meaningful action to mitigate various types of harm online, the internet industry and the “digital rights” activists will likely amp up their free speech and “open internet” rhetoric, which will play even louder against the drumbeat of the Trump administration than it did during the Obama years.

Even trickier is the possibility that the new Executive really will advocate policies that run afoul of constitutional protections; and we don’t honestly know the extent to which Silicon Valley firms, to whom we’ve volunteered so much information, will cooperate.  One way or another, it’s going to be a bumpy damn ride, and a lot of crazy shit is going to fly around the web in the coming years—a lot of it disposable, trendy nonsense that will only further divide people who might otherwise find social and political common ground.

We’ve already seen attempts by the EFF, Techdirt, and the Press Freedom Foundation to conflate Trump’s press censorship rhetoric with the News Media Alliance’s interests in protecting its own copyrights online. And we can expect more of this kind of blurry messaging in the months and years to come. I believe these parties mean well, or want to mean well, but they’re still so drunk from the tech-utopian punchbowl that they don’t notice the bowl is full of all-sorts.*

With their over-broad invocations of the First Amendment, and their love of online anonymity, the tech-utopian observers fail to acknowledge the role major online platforms have played in making our political process uglier than it was 20 years ago. We’ve managed to recreate the outrageous theatrics of the turbulent 19th century rather than the more contemplative and moderated environment we had promised ourselves for the 21st.  Rational people are suddenly noticing that we’ve entered what they’re calling a post-truth era, which sounds to my ear like the queen mother of unintended consequences for what was billed as the “information age.”

In a recent video, Robert Reich recommended that people find opportunities to talk to one another in real life, especially if they are on opposite sides of the Trump divide.  Personally, I think he has the right idea.  After five years working on a non-partisan issue like copyright, I have become friends with some extraordinarily brilliant, generous, and empathetic individuals who are traditionally conservative and whom I certainly trust to uphold the core principles of the Republic, even as we discuss different views on a wide variety of issues.

Traditionally, in physical space, people are human beings whose personal narratives  and opinions remain invisible to one another.  On social media platforms, it’s the opposite; everyone’s narrative is on display while their basic humanity remains invisible. In this sense, social media’s promise to “connect” us is a bit of a humbug. Not that I would advocate outright abstention any more than I intend to give up scotch; but the start of 2017 is probably a good time for a reality check and a freshly moderated approach to the pros and cons of these platforms.

*All-sorts was a cask full of the combined dregs from drinks left on tables in a tavern, including God-knows how much backwash. A cup of all-sorts was the cheapest drink available, and for good reason.

Librarian Wants to Crowdsource Search for Register?

Photo by Arsgera.
Photo by Arsgera.

I know I just wrote about the Copyright Office. But right after publishing Friday’s post, I saw that Librarian Hayden did a rather inscrutable thing. She had the LOC publish a three-question survey, using Survey Monkey, seeking public comment on the ideal qualities for the next Register of Copyrights.  Writing as a member of the public, and one who knows way more about copyright than most laymen and way less than all copyright experts, I’ll be the first to admit that I am not qualified to offer an opinion about who the next Register should be.  And neither are most of you.

David Lowery at The Trichordist summed up this point beautifully when, upon learning Hayden’s intentions, he declared that “the internet” would be appointing Boaty McBoatface as the next Register (and you really need to respond to his poll). For those who missed the reference, Lowery is citing an ill-advised decision last Spring, by someone in the British government, to crowdsource the name of a $238 million polar research vessel. Now appropriately named in honor of the documentarian and historian Sir David Attenborough, “the internet” had managed to produce the top choice Boaty McBoatface, which officials unsurprisingly declined to use.  This may seem like a laughable side-show story—and it is—until crowdsourcing goes beyond the prospect of naming a research vessel the RRS Boaty McBoatface all the way to nominating Dopey O’Looney to lead the scientific expeditions.

As a political decision, I can’t imagine this was the smartest move on Hayden’s part.  When she dismissed Register Pallante in October—suddenly and without consulting the Judiciary Committee—this could not have gone over terribly well with those Members of Congress.  And as mentioned in my last post, the House Judiciary Committee has now proposed that the Copyright Office function independent of the Library and that, henceforward, Registers should be appointed by Congress for a term of 10 years with an option to renew. So, I have to assume that Dr. Hayden’s use of Survey Monkey to crowdsource comments as part of her search for a new Register is only going to further rustle the jimmies of the Committee.

Beltway Baseball aside, though, these types of surveys have a way of creating an illusion of democratic engagement while yielding either uninformed input or just plain automated mischief. Readers might remember Fight for the Future’s brag in April about their alleged “crashing” of the Copyright Office server with over 100,000 comments on Section 512 of the DMCA.  This kind of self-congratulatory powning of issues only serves to overshadow the importance of legitimate, informed debate. Not only would one be hard-pressed to find 100,000 Americans who could adequately explain the DMCA; but in that particular case, it looks as though FFTF was not diligent in confirming that respondents to its survey were even American citizens.

Substantively, it’s worth noting that we have about 100 years worth of history on Registers of Copyrights—history that a librarian of Dr. Hayden’s caliber ought to be able to access.  Add to this the current perspectives of recent Registers as well as a manageable number of legal experts, including people like Google’s Fred von Lohman or William Patry, who once worked for the USCO.  Then, of course, there’s the Judiciary Committee itself, which comprises some Members who have been working on copyright  for 20 years or more.

Among these well-informed professionals, it’s hard to imagine how a general poll of the average citizen is going to provide much valuable insight on the best qualities the next Register should possess.  More likely, this is just another feint at democratization—one that provides opportunity for organizations like FFTF, EFF, or PublicKnowledge to once again Spam the Monkey and declare victory based on the number of people they could get to click a button. As I say, I know more about copyright than most laymen and don’t deserve a seat at this table. I did answer the poll on The Trichordist, though, and selected as the most important quality in the next Register that he/she “Has a crane capable of launching deep-sea submersibles.”