Category: Digital Culture

Thanks Big Tech. But We’ll Still Need to Talk.

About ten minutes after the world went into self-quarantine, and we all instantaneously became more dependent on internet platforms, you could almost hear the keyboards clacking, as various pundits raced to announce that the techlash is officially over. And that it never should have happened.

For instance, Ryan Bourne of the libertarian CATO institute said as much. Writing on April 9 for The Telegraph, he declared, “In many ways, our current crisis is seeing the promise of Big Tech fulfilled. The value of greater online connectivity – tech ‘bringing us together’ – has never been clearer. HD quality video calls allow the elderly to continue to see grandchildren while in isolation.”

Cue montage for every anthemic Google TV spot we can expect to see in the near future. And to be fair, we cannot deny that internet platforms do provide resources and capabilities that, in an emergency like the present, go from being merely important to absolutely essential. We do not need to list the many ways in which digital technologies and internet platforms are sustaining many basic functions and some semblance of commerce at the moment. We’re all living those examples every day. 

In case you happen to be unfamiliar with the term techlash, it is shorthand for describing the general shift in attitude, beginning in early 2016, when the public, the media, and lawmakers all, rather suddenly, opened up to the idea of holding the major platforms responsible for some of the content they host and/or the data they abuse. This change in mood was of course sparked by revelations that Russian agents had meddled in the 2016 U.S. election, that troves of Facebook user data was used by political manipulator Cambridge Analytica, and that our social platforms were full to bustin’ with “alternative facts.” 

While many pundits, and the internet companies themselves, will continue to burnish Big Tech’s image against the contextual stone of COVID-19, there were some rather important policy discussions just beginning to take meaningful form when the microbes hit the fan.  And we should most certainly not, as Bourne proclaims, “… put the crude ‘reining in Big Tech’ agenda straight into the policy dustbin.” Granted, he is primarily responding to anti-trust action in the EU and murmurings of same in the U.S., arguing, “The benefits of winner-takes-most competition right now are clear.” And while the breaking-up Big Tech discussion deserves its own forum, there are other matters on the table.

As a general statement, Bourne’s conclusion is irrational, given the impetus for its writing. The more a private industry proves itself to be of vital public interest, the more it deserves fair but rigorous public scrutiny. It would be preposterous to decide, now that we’ve seen how much we rely on Big Tech, that these companies should be allowed to do whatever the hell they want. Though I get why a libertarian would say otherwise. 

Specifically, there was a very critical policy debate (long overdue) that was finally taking place, thanks in part to the so-called techlash. And if we were to take Bourne’s dustbin comment seriously, we would only succeed in sweeping whole dust bunnies of unresolved problems back under the rug. That conversation is whether all platforms should continue to enjoy absolute immunity from civil liability for harm caused by means of certain content they host and, quite often, monetize. 

Harassment victims, whose troubles are exacerbated by the liability shield, Section 230 of the Communications Decency Act, will still have a complaint or two when this crisis is over. Likewise, creators, whose music, photos, films, etc. are chronically pirated via platforms immunized by Section 512 of the Digital Millennium Copyright Act, are hardly finished having that conversation. After all, it only began in earnest on February 11, when the Senate Judiciary Committee held its first hearing in what was scheduled to be a yearlong review of the DMCA. 

When those hearings resume, I imagine we will see a lot of post-crisis inspired enthusiasm for Big Tech seep into testimony on the Hill and the talking points of Silicon Valley’s network of activist/PR agencies. It is easy to anticipate, for instance, declarations like, COVID-19 revealed just how essential internet access is for everyone, and, therefore, no provision should ever bar that access. 

In context to the DMCA, this would be a swipe at §512(i), which requires that a platform wishing to avail itself of the “safe harbor” provision, must implement an effective termination policy for repeat copyright infringers. COX Communications is now the poster child for what happens when an ISP implements a Potemkin termination policy, having lost a one-billion-dollar lawsuit in December 2019.  In its amicus brief on behalf of COX, the EFF cited access to education, employment, and government services as rationales; so it is a safe bet these same arguments, though unpersuasive to date, will be reinvigorated by the coronavirus experience.

Naturally, if the ISPs were persuasive that access is a human right, this could abrogate the “repeat infringer” provisions of Section 512. And while there is reason to be skeptical that the ISPs can successfully argue the “access as right” principle as a matter of law, the generalized “importance of the internet” trope has been used for years to militate against holistic enforcement of the statutes as they are written. (Also, I would not expect the access providers to take the human right principle so far as to offer free access to all during a crisis, though I would applaud them if they did.)   

As noted in my post about the second DMCA hearing, Professor Justin Hughes observed that §512(j), which provides for injunctive relief by means of site blocking, has hardly been implemented in the United States. And despite a preponderance of evidence that site-blocking has been effective in other jurisdictions in combating piracy without harm to speech rights, I imagine we can expect a litany of headlines and memes saying things like, Imagine your child can’t get her homework done during the next crisis. Tell Congress no site-blocking.

Of course the homework thing (and related examples) will have nothing to do with implementing §512(j), but trivial realities have never stopped the “digital-rights activists” from engaging in this kind of hyperbole before. Why would they restrain themselves in a climate of renewed ebullience for Big Tech that will probably follow the ebb of this pandemic? 

By all means, let us share a golf clap in recognition of the fact that, thanks to internet platforms and related technology companies, many of us can adapt to functioning at a distance in this strange and difficult moment in history. But let’s not trip over ourselves in fawning adulation. These encomiums to Big Tech are typically overbroad, presuming to conclude that the benefits of an industry obliterate the public interest in holding that same industry accountable for any potential harms. No corporate entity deserves that much free rein. Not ever. When this crisis subsides (and I hope it subsides), we will all need to heal in one way or another, and after thanking Big Tech for all it can do, and has done, we’ll still need to talk about a few things.

Photo by: Ansonlu

Social (Media) Distancing

Between the headline and the Share button.

Access to credible, useful information could not be more essential than it is in the present moment. But as we are all presumably more attentive than ever to our social media feeds, we are correspondingly bombarded with more garbage content. This crisis is a perfect opportunity for trolls to ply their trade. Whether it’s idiots having a laugh, professional mischief-makers working for foreign agencies, or any number of vested interests, there is no shortage of intentionally misleading material online. But that may not be the greatest concern.

Unfortunately, the expansion of the news market—from the earliest days of cable TV to the breadth of Facebook’s role as a virtual newsstand—has forced even venerable sources to take a more slapdash approach to their reporting. In order to remain relevant (i.e. extant), organizations with distinguished pedigrees are chronically guilty of publishing stories designed to grab, terrify, and outrage more than they are to inform or promote thoughtful dialogue. Almost worse than that, even if the reportage is soundly crafted, the headlines are too often screaming at us because they are designed to promote (mostly negative) social media interaction. And far too many of us are guilty of reacting to and/or sharing only the headlines, where the distinctions between accurate and inflammatory can be rather subtle.

For instance, while acknowledging that we are justified in distrusting Attorney General William Barr on the grounds that he shows little respect for constitutional principles, let’s compare two headlines in which the Rolling Stone follows up on a story first reported by Politico: 

Politico: DOJ seeks new emergency powers amid coronavirus pandemic. 

Rolling Stone: DOJ Wants to Suspend Constitutional Rights During Coronavirus Emergency

To be clear, the actual story is cause for concern, or at least awareness. Assuming the central reports are accurate, the DOJ apparently wants Congress to draft new legislation that would empower courts to detain arrested individuals indefinitely while the courts are shut down or delayed during this crisis. The problem is that this infringes rights protected by the Sixth Amendment, and, as mentioned, one can be forgiven for assuming that AG Barr might not give a damn. Both Rolling Stone and Politico do acknowledge that legislation of this nature is unlikely to find any purchase in the current House of Representatives, but it is not the story itself that prompted me to write this post.

I wanted to call attention to the psychological effect of the Rolling Stone headline. With a constant awareness that we have a president who is ignorant about the Constitution and an AG who has shown contempt for the Constitution, that headline almost immediately provokes dystopian mental montages. Before one even chooses which emoji to click, one cannot help but conjure images of smashed presses and jackbooted thugs suppressing speech as Barr takes an Orwellian Sharpie to pesky items like the establishment clause. The whole proto-fascist narrative plays out in the time it takes to share the headline with a comment like, “This is what these guys have wanted all along.” But who reads the story?

Ascribing authoritarian motives to this administration is at least half true, which is one reason why sensational headlines can be so dangerous—because we need to know who is trying to cross which lines and why. We are at a very precarious moment in history—not only because we are deeply concerned for our safety, but because American institutions have been under assault since long before we collided with the vector of Covid-19—and long before Trump and his acolytes brought their own sledgehammers to the party. 

As with the harm to journalism, the abandonment of institutions and the devaluation of expertise is a dire consequence of “democratizing” information through digital platforms. We exacerbate the problem by sharing fragments and impressions that feed anxieties that—perhaps because they are plausible—are the concerns most in need of informed skepticism. 

Now that most of us have segregated in an effort to mitigate the spread of a literal virus, those of us fortunate enough to have the time and ability to keep up with the feeds, might also do what we can to mitigate the spread of viral misinformation. To that end, it would probably help to put some distance (i.e. time) between encountering a headline and clicking Share. There is no urgency to respond to a story or to share it immediately. That urgency is an illusion fostered by the medium itself, and our responses to the stimuli principally serves the platform company’s interest in data-harvesting. 

If Facebook users, for instance, committed to not sharing anything until they’ve read it, this might help slow the rate of misinformation. Better yet, before sharing, why not take a moment to provide friends with a summary of what the story actually says, or fails to say? Doing this would emphasize how often stories are out of synch with their headlines. In a time when we have plenty of reasons to be worried and plenty of reasons to be angry, it is especially important that we worry about, and are angry about, things that are actually true. 

This seems like a very good time to step outside the whirlwind of what scholar Alice Marwick calls our deep stories and apply some critical thinking, even if this means taking a moment to look for counterfactuals in a story about some party or entity who deserves some measure (or a whole truckload) of our scorn. There has never been a time when accurate information matters more than it does right now. Social media, in many ways not always visible, is designed to frustrate that need. If we have the time, and take the time, to provide badly needed context for one another, a social platform can be a wonderful source of useful information; but absent that context, the deluge of images and headlines alone can be a steady flow of gasoline on an already smoldering fire. 

Also see:  Reducing the Spread of Misinformation Online from the Markkula Center for Applied Ethics at Santa Clara University. 

Virus art by: Kateryna_Kon

EFF Hits New Low in Response to Child Sexual Abuse Online

According to a September 2019 story in the New York Times, the volume of online content described as “child sexual abuse material” grew from 3,000 reports in 1998 to 45 million in 2019. What used to be called “child pornography,” which was bad enough, needed a broader term to encompass material that increasingly contains photographic and video content depicting torture and rape of children under the age of ten. And those numbers are the reported incidents. 

“An investigation by The New York Times found an insatiable criminal underworld that had exploited the flawed and insufficient efforts to contain it. As with hate speech and terrorist propaganda, many tech companies failed to adequately police sexual abuse imagery on their platforms, or failed to cooperate sufficiently with the authorities when they found it.”

Yet the scope and nature of this story does nothing to temper the propagandist tone adopted by the good folks at the Electronic Frontier Foundation. Once again, they seek to warn the public that congressional response to these staggering revelations is yet another “dangerous threat to free speech, innovation, and security.” Their latest call to action in response to a new bill introduced last week is truly something to behold—even for the EFF.

The post is illustrated with a black eagle set against a gray, film-scratched background meant to conjure the mood of a Nazi propaganda film. Cracking a microphone (speech) with one talon and a key (private security) with the other, the bird’s menacing wings bracket a masonic, all-seeing eye. And below this subtle iconography, the EFF begins its dark prophecy, “Senators Lindsey Graham and Richard Blumenthal are quietly circulating a serious threat to your free speech and security online.” Notice how it always begins with a conspiracy with these guys? In truth the proposal to which the EFF refers is no more being “quietly circulated” than any other bit of legislation on the Hill. In fact you can read the text of the new bill right here. 

When the EFF pulls this crap in response to a copyright enforcement proposal, it’s merely obnoxious bullshit.  But now we’re talking about confronting a growing online market for videos and photos of raped and tortured children.  So maybe, just maybe, we could have the conversation without the EFF trying to silence it at the first syllable? Nope. “We must stop this dangerous proposal before it sees the light of day,” says their call to action.  

Before it sees the light of day? Not consider its pros and cons? Not a sober assessment of the provisions and any potential pitfalls? Nope. Kill the bill and its purpose. To hell with the child victims. End of discussion. So say the self-appointed guardians of the Electronic Frontier. But stay tuned for future blog posts in which the EFF says something cringy like, Child sexual abuse is really, really bad. We don’t like it one little bit. But this bill is the wrong solution. Or some such disingenuous blather. Because that’s what they say about every proposal to address criminal conduct online. 

What is the EARN IT Act 2020?

In response to the stunning growth in online child sexual abuse material (a 1.5 million percent increase since 1998), the Senate Judiciary Committee decided that perhaps Big Tech was not doing quite enough to help address the problem. And just maybe, thought the bipartisan group of senators, this is because Big Tech lacks the incentive to help, due to the fact that they have enjoyed blanket immunity for liability under the provisions of Section 230 of the Communications Decency Act of 1996. (Note the word help, not solve. Nobody expects Big Tech to outright solve the crime of child sexual abuse.)  

So a bill sponsored by Senators Graham and Blumenthal called the EARN IT Act was introduced on March 5th of this year.  The acronym, derived from Eliminating Abusive and Rampant Neglect of Interactive Technologies, intentionally declares that if internet service providers want to continue to avail themselves of the liability shield under 230, they will have to earn that privilege by complying with the conditions set forth in this new legislation. If it becomes law.

The bill calls for the establishment of a commission to develop best practices for identifying and eliminating child sexual abuse material online. Service providers, especially the major platforms that host vast amounts of user-uploaded material, will have to meet the new guidelines established by the commission in order to remain shielded by Section 230. If that sounds like a fairly sober approach to address a very serious type of criminal activity, expect the major platforms to strenuously oppose this bill. And the EFF to be right by their side.

Exploiting Current Politics to Sustain a Harmful Status Quo

Seeking to obfuscate the real narrative that the EARN IT Act is solidly bi-partisan, including Democratic co-signers Sheldon Whitehouse and Diane Feinstein, the EFF prominently invokes  Attorney General William Barr for the express purpose of scaring readers. They write, “The Graham-Blumenthal bill would finally give Barr the power to demand that tech companies obey him [by weakening encryption] or face overwhelming liability from lawsuits based on their users’ activities. Such a demand would put encryption providers like WhatsApp and Signal in an awful conundrum….”

As mentioned in a related post, I personally think AG Barr is bananas. I don’t trust him as far as I can throw him, which would not be very far. But one way or another, he will not be at DOJ forever, and will quite possibly be gone before this bill becomes law, the commission it mandates is established, or the best practices are defined. (And that’s if the Internet Association does not succeed in ripping the guts out of the bill behind the scenes.)  

More to the point, this legislation is designed to address a form of criminal conspiracy that predates AG Barr’s fifteen minutes in the spotlight as well as the incoherent administration he serves. The tragic reality of exploited children will persist long after the Trump circus has packed up its tents and gone. Meanwhile, for the EFF to imply that the EARN IT Act is merely an extension of Barr’s authoritarian impulses is so grotesquely irresponsible and cold-hearted that one can reasonably ask what makes them think they stand on any higher moral ground.

The victims of child sexual predators must remain in the foreground of any discussion about this bill. They should not be treated as an abstraction to be sublimated by the EFF’s latest claim that online speech is threatened—again. The fact that they are willing to use these tactics to try to kill the debate itself on this particular issue is truly a new low for them.  After all, if we can’t even have a conversation about how the internet helps people destroy children for profit, we’re hardly a society with any principles worth defending. I don’t actually think that’s who we are. But apparently it’s who the EFF thinks we ought to be.