Flipping the Narrative on the Effects of Social Media

Many years ago while still in college, I was on the train to New York City—a beautiful ride along the eastern banks of the Hudson River.  Several rows from me sat a family of American tourists who caught my attention when I heard the dad say, “Look kids, there’s Alcatraz.”  

Reasonably confident that Alcatraz sits on an island in San Francisco Bay, I glanced over to see the man pointing across the river and his two children gazing at the fortress of the Military Academy at West Point.  The layers of incorrectness in this guy’s armchair tour-guiding is more or less the kind of “information age” social media has amplified at an unprecedented scale.  And I remain unconvinced that there is a policy, either public or private, that can do much about it. 

In her June 13 article on FastCompany, former Google VP of Communications Jessica Powell recommends a behavioral and cultural shift whereby those who work for Silicon Valley join, rather than scorn, the conversation about regulatory and practice changes in her industry …  

… we tend to close ranks when our industry is criticized. We view an attack on Facebook’s handling of content moderation, for example, as something that might threaten all the legal protections given to platforms—and if we’re Twitter, YouTube, Reddit, or any other social platform, we tend to go silent. Rather than providing a more nuanced critique about what Facebook may be doing wrong (or right), we attack the outsiders as Luddites who want social media apps to remove all speech we don’t like or demand that platforms like Facebook should hire a million humans to moderate controversial content. 

Kudos to Powell for identifying the habits of her colleagues and for proposing the very reasonable notion that “Some of the best ideas about how to sensibly regulate tech can probably be found in the Valley….”  Fair enough.  And by all means, cooperation would be a refreshing change coming from that industry. But what if it is necessary to flip the narrative on the nature of what we’re really talking about?  

Powell does not acknowledge in her article the Olympian hubris with which Silicon Valley has proclaimed its innovations to be so universally beneficial for society that the critics should shut up and thank them for their largesse. Remember that all proposals, even those seeking to mitigate new forms of tech-enabled crime, have generally been rebuffed with some variation on the caveat that we must avoid stifling the greatest tool for democracy ever created.  

That premise continues to distort the nature of the conversation, and it is probably false.  Rather than assuming a platform like Facebook is a positive social force with a few negative effects that need mitigating, it may actually be the case that it is a negative social force with a few nice qualities.  We can wish one another Happy Birthday, keep up with our friends, and even have some very substantive discussions; but what if social media as an information source is fundamentally toxic to democratic institutions and we have to address it in those terms?   That would be a very different conversation from the one being had right now, and I cannot imagine “the Valley” Powell describes would be eager to table the premise that much of what they do is, on the whole, destructive.  

In a blog post for Luminate, an organization that funds and supports efforts to improve democratic institutions around the world, David Madden writes about tackling Digital Threats to Democracy …

“Over the last nine months, three of the world’s biggest countries have held elections: Brazil, Nigeria, and Indonesia….Social media posed a clear threat to the elections of all three countries.

 “…a video on Facebook three days before the polls suggested that the [Brazilian]Workers’ Party Candidate Fernando Haddad was planning to distribute ‘gay kits’ to child care centers. 

… a rumor that [Nigerian]President Buhari was dead and that a body double was serving in his place. This rumor was so widely shared that President Buhari had to publicly deny that he had been ‘cloned’.

Online “hoaxes” increased dramatically during the [Indonesian]campaign and the deadly violence that followed the announcement of the election result was the natural conclusion of the incendiary battle fought on social media and WhatsApp.”

These, and many stories like them, are the reason the conversation is finally being had about platform moderation and/or regulation.  Congress just last week held hearings on the subject of “deepfakes” because it is clearly the next technological innovation about to be weaponized and aimed at democratic institutions.  But this kind of purposeful disinformation, as devastating as it has proven to be, may be more easily mitigated than the ordinary, subtle effect the new “commons” has in steadily eroding the delicate fabric that holds liberal democracies together.  

For instance, because it’s in my wheelhouse, I’ll note a recent blog post published by my friends at Creative Future on the topic that Google has funded academics who just happen to espouse anti-copyright views.  When I scrolled by their post on Facebook yesterday morning, there were 260 comments, so I took a peek.  I know. Never read the comments.  But the problem with that rule of thumb is that the comments are us.  Bots and trolls notwithstanding, they are an anthology of what we think and why we think it, except that we are perhaps just egomaniacal enough that we like to believe the peanut galleryis everybody else.  

Just in response to this one blog post, commenters unpacked their views on liberals, conservatives, capitalism, socialism, climate change, and academia overall, plus at least one reference to Nazis and, of course, one guy reciting Scripture.  It’s like a Richard Scary book illustrating Crazytown, where the village hosts a public forum on one topic, and a literal food fight would be a step forward in thoughtful discourse.  Whether in agreement or not with a given post—even just straight reportage—the subject is too-often subsumed by other matters about which the commenters seem equally uninformed. Look kids, there’s Alcatraz! 

We are all ignorant about a great many things.  Even the most gifted astrophysicist who knows way more than you and I about the cosmos is still searching for what she does not know.  But with regard to the kind of informed public that is understood to be essential for the survival of a democratic society, the capacity of social media to amplify misinformation is not only unprecedented, but it is not limited to the most obvious forms of chicanery.  The effects are subtle and mundane.  The simple act of typing and publishing a misinformed comment more deeply etches a false narrative into one’s world view.  Multiply this phenomenon across every story on every topic, and it is little surprise that democratic institutions are in dire straits. 

As others have noted, one of the greatest hazards posed by “deepfakes” technology is the prospect of  universal plausible deniability—the opportunity for anyone to claim that video evidence of them saying or doing something is fake when it is not.  Anticipating that environment feels as though we are standing on the edge of an event horizon different from the technological singularity predicted to occur when the machines become self-aware.  In this scenario, the singularity is caused by the paradox of infinite doubt—a gravitational force from which reliable information cannot escape because there is no longer sufficient consensus as to what a reliable source looks like.  

That may be needlessly pessimistic, but to the extent that we already see evidence of this phenomenon having tangible and devastating effects, social media must be recognized as an underlying cause of the problem, which means that it is unlikely to be its own antidote. Certainly not without a very different conversation that begins with Jessica Powell’s friends and colleagues dropping their making the world better rhetoric.  Because it seems abundantly clear that they are doing no such thing.  

The Pelosi “drunk” video is not only disturbing, it’s probably illegal.

There should be little doubt that the video clip doctored to make Speaker Pelosi look drunk should be seen as a sign of new hazards to come in the digitally-enhanced war on reality.  The video is not even very sophisticated compared to what is actually possible right now with technology like “deepfakes,” and we can expect to see far more clever uses of fabricated video that are subtle enough to seem plausible—perhaps even fool experts before long. 

Moreover, it should be recognized that most of us have bigger public profiles than we would have had twenty years ago.  Replace the Speaker with a university scholar or artist or corporate executive that some disgruntled party wants to harm, and the relative ease of reputation destruction should be a chilling thought for anyone with a social media account and photos or videos of themselves online. (Show of hands?)

Regardless of where one nets out on Facebook’s handling of the Pelosi “drunk” clip—leaving it online with caveats that it is a fake—it should probably be viewed as an outlier in terms of guidance for content removal specifically because it involves a high-profile elected official and is, therefore, news itself that perhaps should be viewed in that context.  But the video also implicates three violations of law that Facebook could choose to find instructive to its evolving moderation policy.

For consideration, recognize that the Pelosi “drunk” video is intrinsically copyright infringement, libel, and an infringement of the subject’s first amendment rights.  Any one of these should recommend removal as the default choice for the platform, but checking all three boxes should be a no-brainer.  It should also be noted that doctored video used to malign individuals is a byproduct of a culture skewed by the misconception that every video, photo, etc. online is available for common use; and in this regard, the copyright analysis helps identify what the Pelosi video truly is in a legal sense.

Why the Pelosi “Drunk” Video is Not Fair Use

Were the maker of this video to be sued by the copyright owner of the source material, his counsel would no doubt try to defend the fake as “transformative” commentary or parody (and the folks at EFF might even hold their noses and write a supporting brief), but any court that would allow this defense to be considered would have to blind itself to the fact that the sole purpose of the use was to fabricate newsworthy evidence of an event that never happened.

While free speech protects the right to mislead through the production of one’s own video or other media, I would argue that fair use does not support the right to mislead by using a copyrighted work to create a fake “factual” work.  The fair use doctrine, as codified in the Copyright Act of 1976, seeks to exempt unlicensed uses of protected works for purposes such as, but not limited to, commentary, education, news reporting, and parody.  

The fair use principle is court-made doctrine dating back to 1841 in the U.S., and we can bet the farm that no jurist anywhere has ever opined that a socially beneficial aim of this provision is the production of “false testimony.” (Judges are not fans of false testimony.)  And that is the only thing communicated by the doctored Pelosi video:  a false testimony that the Speaker was inebriated in the scene as depicted.  There is no discernible commentary or parody in the use.

In his seminal work on the much-debated “tranformativeness” doctrine, Judge Leval writes, “Can it be seriously disputed that history, biography, and journalism benefit from accurate quotation of source documents, in preference to a rewriting of the facts, always subject to the risk that the historian alters the ‘facts’ in rewriting them?”  This is in defense of making fair uses of a subject’s letters or diary entries, but it emphasizes the point that a foundational aim of fair use in a non-fiction context is to improve accuracy in reportage and editorial, not to obliterate it.

To make the distinction clear, a user may take a clip of a public figure speaking and slow down key sections for the purpose of emphasizing the statements he believes to be ridiculous, and that would be a form of commentary and, arguably, fair use.  But even this simple example is distinguishable from the Pelosi video, which contains no evidence of commentary but was presented as non-fiction work.

Given the inevitability of more fake video to come, some of which will rely on appropriations of existing material, the courts may need to recognize a standard of “false testimony” as an aim that is distinct from commentary, parody, etc.—a use that does not warrant the protection of fair use and should, therefore, be rejected without analysis under the four-factor test.

The Pelosi “Drunk” Video is Libel

When we view the Pelosi video as an example of  “false testimony,” it seems only reasonable to conclude that it is libelous.  And if it featured regular folk rather than an elected official, this would become readily apparent to the regular folk being smeared.  Politicians operate in a pejorative environment and are, therefore, immunized to an extent against many slings and arrows.  

But even though this video features the Speaker, this does not rescue the fact that it objectively makes a false statement posing as fact about an individual that could be damaging to reputation and career.  After all, if Elon Musk calling someone “pedo guy” on Twitter can potentially be libel, then a video falsely depicting someone engaging in disreputable or illegal conduct very likely meets that standard.

Section 230 of the CDA alleviates web platforms of any civil liability for knowingly continuing to host libelous material, but given the extent to which Facebook is lately twisting itself in knots seeking standards for content removal, perhaps adhering to the spirit of Section 230 would be helpful in that effort.  While the statute itself may be flawed, the clear intent of Congress was to encourage good-faith content moderation by site operators, and in that spirit, removing doctored material made with a clear intent to damage a reputation and mislead the public would seem to fit that particular bill.

The Pelosi “Drunk” Video Infringes First Amendment Rights

Calling the video a potentially “unfair use,” my friend and colleague Neil Turkewitz further notes that if a doctored video stands as “false testimony,” then maintaining its presence on a web platform like Facebook implicates the platform in the act of “compelled speech.”  Compelled speech is an infringement of an individual’s rights, and while Facebook is under no obligation to uphold the First Amendment, it can certainly elect not to participate in conduct that violates the principles of free expression in this manner.

Compelled speech and forced silence through intimidation are two overlooked downsides of internet culture when it comes to the general ebullience that these platforms have done wonders for the power of speech.  If you’ve seen the latest “deepfake” video samples showing static images of Einstein, Marylin Monroe, and the Mona Lisa transformed into talking motion pictures, it’s not hard to imagine how anyone may soon be the target of some personal vendetta.  And it’s a safe bet that any victims of such attacks will consider Facebook, or the hosting platform, responsible—maybe in Congress or maybe just in the market.

Guidance for Facebook et al?

We can assume that nobody will raise a copyright issue regarding the source material for the Pelosi clip and that Speaker Pelosi will not be suing anybody for libel or infringement of her speech rights, but I raise these topics because they could be relevant if the material used and the individual(s) maligned were only slightly different.  Meanwhile, as Facebook and other platforms try to develop new “community standards” that actually serve the community, it seems to me that existing law provides some rather handy guidelines. Perhaps as an exercise to hone its moderation practices, Facebook’s team might imagine that it is potentially liable for any of these transgressions and then decide how it would handle a similar video they knew to be fake.  As I say, ticking off three boxes—copyright infringement, libel, and infringing the individual’s speech right—is probably a good indication that the material should be taken down.

Did the Internet Get Worse, or Were You Not Paying Attention?

In Response to Angela Watercutter’s Grumpy Cat Article at Wired

Dear Angela:

First, forgive me for taking a bit too seriously your lighthearted article of May 17, in which you identify the passing of Grumpy Cat* as a symbol of a bygone internet that was playful and innocent in 2012, but which has since devolved to a world of harassment, divisiveness, and hate speech.  Because you refer to yourself as a curmudgeon, allow a presumably older and more ornery curmudgeon to mention that while it may seem as though the internet went south circa early 2016, there were many signs of the reckoning to come.  But of course anyone who tried to mention this was called a “luddite.”  

Since it was a meme that inspired your article, I will note, for instance, that while you and your friends were having a smile at pictures of Grumpy Cat et al, some not so friendly folks were sharing a meme of the altered Shepard Fairey Obama picture depicting the President as having been lynched and the word HOPE replaced by ROPE at the bottom of the frame.  So if we fast-forward from that moment to Charlottesville and the general reaction that, “We thought we were done with this kind of racism and hate in this country,” I am moved to ask why?  It was all right there in the newsfeeds and tweet-decks if you chose to look.

Of course, the tech-utopians kept insisting that so long as the internet remains an “open” forum for speech, the good will surely overwhelm the bad.  This fallacy spawned a fetish for the virtues of anonymity and raw data dumps of hacked information with the assumption that these new forms of “empowerment” would strengthen democratic societies.  Except of course that one cannot strengthen institutions and abandon faith in them at the same time, as we are now witnessing on a daily basis. 

Trump’s attacks on the press—a literal threat to the First Amendment—were not his invention, but rather his capitalizing on a trend fostered by millions across the political spectrum who bought into the techno-libertarian idea that expertise like journalism is all just a conspiracy to hide the real truth. Truth was available at a Sub-Reddit of your choosing, and any attempt by its owners to remove or moderate even some very ugly “truths” was portrayed as a threat to the First Amendment.

Speaking of Reddit and ugly truths, 2012 was the year that Gawker exposed the award-winning Redditor Violentacrez as a super-troll who, “issued an unending fountain of racism, porn, gore, misogyny, incest, and exotic abominations yet unnamed.” Remember him?  Michael Brutsch hosted the popular Sub-Reddits Rapebait, Chokeabitch, and the melodious Niggerjailbait.  And I’m not kidding, Reddit really did give him an award.  So, maybe some signs were visible in 2012. 

It was in June of 2012 that internet hero to many, Julian Assange, ducked into the Ecuadoran Embassy in London for a few years, his own soon-to-be-grumpy cat in tow, and ensconced himself as the worst house guest ever, in order to avoid extradition to Sweden to face two charges of sexual assault. 

Later that year, the group Anonymous, believing that Wikileaks just wasn’t hacker enough, announced “Mayhem 2012”—a day of mass systems and information hacking as a worldwide protest against what they considered censorship and corporate and government control.  And because they seem to know more about movies and comic books than history, Anonymous pledged to launch its hack-a-thon in honor of Guy Fawkes Day, but as with the misplaced efforts of the real Fawkes, nothing went boom.  

Still the message was clear, and many believed it:  the internet was the antidote to all the lies, secrets, and conspiracies that allegedly served as the nexus of every public and private enterprise operating at every level everywhere.  We the Sheeple were all just one red pill of a mouse click away from “waking up” to what was really going on.  The Obama administration was “draconian,” while an internet Robin Hood like Kim Dotcom, arrested in in New Zealand in 2012, vowed in a Twitter-rant to become “Hillary’s worst nightmare,” by establishing a foothold for his Pirate Party in the United States.  (How did we get here? We were already here.)

2012 was the year that European Pirate Party co-founder Rick Falkvinge recommended legalizing child pornography because, among other things, its prohibition might stifle the introduction of Google Glass.  Thankfully, Google Glass failed to launch due to the sheer mass of its lameness as a product, and we did not have to legalize the abuse and exploitation of children.  And I really think the B-Side of Falkvinge’s hit single was Cody Wilson’s 2012 launch of Defense Distributed, the company that wanted to empower every citizen to 3D print his own firearms because that will really keep the government in check.  

And of course the biggest internet story of 2012 was the January defeat of SOPA/PIPA—a watershed moment in “direct democracy” that simultaneously demonstrated the power of disinformation and let Silicon Valley know that they were free to do whatever the hell they wanted.  Everything you ever needed to know about how we got to this moment, Angela, is written in that campaign.  It had all the elements necessary to tank a perfectly good Republic via social media—outright lies, hyperbolic memes, massive corporate influence, a pavlovian electorate that doesn’t understand the issues, virtual ballot-stuffing, and a lasting effect that continues to misinform long after the event itself has passed. 

Concurrent with the industry-backed campaign against that legislation, 2012 was the year that Google began to climb the lobby ladder from one of the lowest rungs to the top five.  And it was the year the Internet Association was formed to advocate important civil liberties policies like keeping billion-dollar corporations’ liability shields intact for all eternity.  This is the same Internet Association that just announced it will be awarding the Internet Freedom Award to Ivanka (I kid you not) Trump.  Bet you didn’t see that coming in 2012.

The internet may have looked all sparkly to you and your friends seven years ago, but maybe that has something to do with spending a little too much time looking at funny memes and not quite enough time paying attention to several warning signs that ought to have made a lot of people way more grumpy.  


* This post is in no way meant to comment on the “Grumpy Cat” Tardar Sauce, who was a beloved family pet and recently passed.  My condolences. 

Photo by Ulianna19970