Category: Digital Culture

The Information Age Broke the Republic

information age
I recognize the psychological need to believe the American Republic will survive the coming four years, and I freely admit to being the biggest cynic in almost any room. But if the analogy is a shipwreck, we are already treading water with no ship or shore on the horizon. “Democracy lives in the people,” say the more hopeful pundits. Perhaps. But while it may be true that the spirit of personal liberty lives in the people, that is not the same thing as recognizing that the foundations of American democracy were rejected by the people.
 
Tomorrow, a man who showed violent contempt for the Constitution will repeat the oath to protect and defend the Constitution, and the flags decorating the very Capitol he attacked will lead many to think this is still the United States. It is not. Now begins the story of an ersatz America (an Idiots’ Interregnum) where the nation floats unmoored from the rationales for its own existence. The question, therefore, is not survival but revival. Can the Republic be restored after the electorate decides it no longer matters?
 
The first time Trump was elected, I argued that this represented a vote of no confidence in the Republic, and not only would I double down on that assessment today, I believe that same faithlessness has long been evident on the far left and the far right. MAGA claims to defend the Constitution and lies about its meaning while many young Progressives shrug at the Constitution as an anachronism not worth defending. Driving both sentiments is a dangerous level of constitutional illiteracy amplified by the so-called information age and weaponized by masters of the technology. When Madison et al. studied the fates of republics and democracies to learn what makes them fail, they could not have imagined a technology that would one day confound reality itself at the speed of light.
 
It is difficult in any society to distinguish policy from political theater, but the phenomenon is acutely frustrating in a nation this important, where the population knows more mythology than history. Trump personifies that illiteracy—a consequence of both classic illiteracy (i.e., a failure to teach) and cultural illiteracy (i.e., a loss of faith in core principles). In combination, these traits make a mockery of our sacred words, and when Trump takes the oath he already violated, the promise he apes back to the Chief Justice will be purely performative. If the President’s Oath of Office is just for show, whose oath matters? The implications, rippling out to the clerk of the smallest town in the smallest county, are toxic to a nation that was literally invented with words and kept by generations of Americans vesting those words with meaning.
 
The United States has always been a work of paradoxical genius. More than any nation, its identity is an idea expressed in highly intellectual terms securing the right of every citizen to remain blissfully ignorant about the underlying principles of that idea. The First Amendment, the Progress Clause, and the writings of the key founders all express a foresight that upholding the Constitution would require a broad literacy not easily attained by a whole nation. Today, that original paradox is manifest in the fact that immigrants seeking citizenship get better civics educations than most natural born citizens.
 
For the native citizen, we instill constitutional illiteracy at an early age with flashcard concepts that rarely mature as our students do. For instance, the short answer to the 2nd Amendment flashcard has always been “the right to bear arms,” a textual redaction eliding an important national security debate at the founding period that, if taught, would inform a richer understanding of history and the Bill of Rights. This needlessly controversial example begs the question as to whether Americans could ever have achieved core constitutional literacy without condemning that education as either “liberal indoctrination” or “white colonialist values.”
 
Not every American—indeed almost no American—is inclined to spend hours with The Federalist or comb through Elliott’s Debates or deep-dive into the classical education that informed the framers. But basic civics literacy does not require so much academic rigor. A fourth grader can understand, for example, the difference between the state censoring speech and a private party rejecting speech. But in recent years, law school graduates serving in Congress or working at “digital rights” organizations have willfully alleged speech censorship in contexts that are aberrations of the constitutional right.
 
Of course, we Americans often overstate ourselves with words like “patriot” or “traitor” when what we really mean is political agreement or disagreement. Occasionally, an adult steps up, as Senator McCain famously did during the debate with Senator Obama to correct a woman who called Obama a traitor. But that kind of dignity is now either forgotten or scorned. We have thrown open the Overton Window, defenestrated patriots like McCain, Gore, Pence, Liz Cheney, et al. in favor of seditionists, felons, lunatics, and the patently unqualified. And I will die on the hill arguing that the catalyst of this clusterfuck is the information age—not merely driven by profit, but by a mad, narcissistic ideology sold to the public as “freedom.”
 
The words that define and shape the United States are now about as meaningful as the hashtags and memes that have diluted both denotation and connotation in that “sea of irrelevance” called social media. For more than a decade, often “liberal” tech-utopians insisted that a wall of separation protected real life from the “Wild West” of cyberspace, assuring us that the worst aspects of the latter would not have any tangible effect on the former. To say otherwise was to earn the name “Luddite,” and there will be no apology from Big Tech’s evangelicals at EFF et al. A few Silicon Valley refugees offered their mea culpas the first time they noticed the experiment escaping the lab circa 2017, but those voices, like real Republicans, have been marginalized. 
 
Now, the destruction wrought by the information age is holistic. With Senate confirmations of dangerously unqualified political hacks like Hegseth, Bondi et al., the disease of constitutional illiteracy is now its own mandate. Yes, the former GOP (whatever one calls it) is craven and cultish, but it could only have been led there because the idea of American democracy is indeed not alive in quite enough of the people. And because all death is brain death, the idea of America dies when too many people applaud empty slogans like “warrior culture,” rather than engage in adult conversation about what the military, or any department, actually does. This is where the digital revolution has led a great nation.
 
Real life now mirrors cyberspace, where fools become kings. And so, we are a silly, childish nation playing with dangerous toys. America is running with scissors, and the information age that brought us to this moment offers little more than a video clip of the toddler about to impale himself. If there had truly been an information revolution, then Trump would have been the civics lesson America needed instead of the civics test America failed. It was an easy test — i.e., don’t elect people who tried to overthrow the Constitution. But that’s what happened. And the fact that tens of millions of Americans don’t believe, or perhaps don’t care, that it happened is because the information age broke the Republic.

TikTok Boom? A Test Case for Platform Accountability

TikTok

This week, the Supreme Court must decide whether to delay the ban of TikTok in the United States, which is scheduled to take effect on January 19. Signed into law last March, the Protecting Americans from Foreign Adversary Controlled Applications Act was designed to compel owner ByteDance to sell TikTok to a U.S. or other entity with no ties to the Chinese government. But rather than seek a buyer over the last ten months, TikTok has fought the mandate, arguing principally that the “sell or be banned” law violates the First Amendment.

On January 10, the Supreme Court heard oral arguments, and based on comments by various legal observers, it’s a toss-up as to whether the Court will hold that the TikTok law violates the speech right. The Court could also postpone the January 19 deadline on the basis that it declines to issue an important constitutional decision on such a tight timeline. Personally, I am not persuaded that the law implicates the First Amendment because the forced sale targets TikTok as a product and foreign-based operation without regard to the content on the platform. In fact, blurring this distinction is why I believe we have thus far failed to hold social platforms accountable for the content they host, promote, monetize, and manipulate.

Briefs filed on behalf of TikTok include most of the parties with whom I typically disagree on speech and the internet, including the Electronic Frontier Foundation, American Civil Liberties Union, Public Knowledge, Fight for the Future, Cato Institute, and Copia Institute. One argument presented is that even forcing a change in ownership targets the content of the speech on the platform. A similar view was expressed by Dr. Mary Anne Franks during an interview on WPUR. I generally agree on most matters with Dr. Franks, but here, I disagree with the premise that compelling the sale of TikTok is tantamount to targeting the content of the platform or acting as a prior restraint on speech. Further, I worry that if either theory holds, this would only exacerbate the free-speech shell game played by every major social media site determined to avoid either government or self-regulation.

For context, foreign parties are historically prohibited from owning TV or radio networks on the basis that it is a threat to national security to place the tools of mass communication within the reach of foreign powers who might wish to meddle in U.S. policy. If that rationale applies to a mode of communication that merely broadcasts a limited volume of content in a limited manner, the same logic must apply with greater force to social media, which acquires information about its users and can micro-target those users with propaganda from any source in the world. As the brief filed by Professor Zephyr Teachout states:

While 30 years ago it was functionally impossible for foreign governments to engage in local races for Congress, or to track the vulnerabilities of local officials millions of miles away without considerable cost, social media now makes it nearly frictionless for a foreign adversary to engage in hyperlocal politics directly.

The prohibition on foreign parties owning, for instance, American radio stations was never held to be a prior restraint on the speech that would have been communicated by owners who do not have First Amendment rights under U.S. law. This same analysis cannot reasonably be amended on the basis that social platforms (unlike traditional radio or TV stations) reach audiences anywhere in the world, or the fact that TikTok is already used by 170 million Americans exercising their speech rights. So long as the Court finds that the target of the ban/sale law is the design, operation, and foreign influence over the site, it should not be persuaded that the question is a First Amendment issue at all.

As a very simple example, if a publisher distributed children’s books made from toxic materials, any government action to sanction the publisher could not reasonably be held to target the content of the books. And no rational consumer would think otherwise. Likewise, those aspects of TikTok that are toxic to American consumers and/or American interests are considerations separable from the speech rights of either the TikTok entity or its American users.

Finding for TikTok Would Exacerbate Our Social Media Problems

The speech rights of platform users have been cited ad nauseum by Silicon Valley as a rationale to reject government oversight of social media, and this despite the hypocrisy that a user’s speech can be willfully trampled by the platform itself. While Section 230 holds that social platforms are not publishers, they nevertheless act as super-publishers, who manipulate, stifle, amplify, charge fees for, and even ban the speech of users—often without any discernable rationale, and always without transparency or mechanism for appeal that would not astound Kafka himself. (Just last week, a colleague was sent to the Facebook penalty box, and near as we can tell, this was triggered by his posting comments critical of Facebook after the announcement that they would end fact-checking.)

Congress recognizes and yet fails to address the myriad intentional and unintentional hazards caused by social media’s unprecedented capacity to alter world events through data-driven targeting of false and hazardous material. They have yet to hold platforms, including TikTok, accountable for obvious harms like mass copyright infringement, drug-related scams or child suicides caused by algorithms. In this light, the argument that some new owner of TikTok might manipulate speech in a different manner than the current owner (as Musk did after buying Twitter) cannot be a basis for finding that the forced sale is a prior restraint on the speech that might have been expressed by maintaining the status quo. It is an untenable proposition.

The Trump Brief

As if to highlight how preposterous the world is thanks to social media, the TikTok matter is extra sticky at a moment when the American President-reelect demonstrates a hostility to American interests as if he were a foreign adversary. This existential challenge to the Republic is not germane to the First Amendment question before the Court, but the morass is difficult to confront when Trump himself has weaponized the same modes of propaganda that animate the rationale for the ban/sale law in the first place.

Trump is among the amici who filed a brief on behalf of neither party, but which nevertheless supports TikTok by arguing that the Court should postpone the January 19 deadline. The stated reason is classic Trump—namely that he, and he alone, can solve the problem through the art of the deal. Pregnant with self-aggrandized rhetoric, the brief states, “…President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns….”

So, on the basis that Trump is the master negotiator, he argues that the Supreme Court should decline to wade into the “‘unprecedented’ and ‘very significant constitutional questions’” presented by TikTok, at least until he has a chance to work his dealmaking mojo. Surely, the Court cannot fathom what Trump might really intend, let alone resolve the hypocrisy that a con man who owes everything to social media can “save” TikTok while protecting national security. But the Court can, and in my view should, find that the law forcing the TikTok sale does not violate the First Amendment.

The End of Fact-Checking at Facebook is Ideologically Consistent

fact-checking

The announcement that Meta will stop fact-checking material on its platforms is neither surprising nor, at this point, relevant. Mark Zuckerberg’s absurd announcement that the company is “getting back to core principles,” or whatever bullshit way he said it, is no more appalling today than that same rhetoric has been for decades. None of this conduct is news or purely about sucking up to Trump (though that is certainly a factor). Cyberlibertarian ideology, which is much older than Zuckerberg, has long relied on a rhetorical tactic by which Big Tech sells the public the idea that its business purposes enhance or support democratic principles while pursuing an agenda that is exclusively anti-democratic. And the public has a long history of falling for this shell game.

It is accurate but incomplete to say that when X or Facebook mothballs internal accountability this is motivated by profit. To be sure, Big Tech’s PR and lobbying assault on the very idea of regulation, whether by government or its own policies, is partly driven by the financial value of frictionless platforms. Thus, the tedious reiteration that we must “Save the internet!” from Policy X or Regulation Y, usually paired with alleged defenses of the speech right, have long masked the truth that allowing conspiracy theories, lies, hate speech, harassment, foreign propaganda, and material harmful to children is profitable. And like the NRA’s playbook, these harms are repackaged as the price we pay for a “free and open internet.”

So, yes, that message is motivated by money, but it is about more than money. Zuckerberg, in describing the decision to stop fact-checking as a move back to “core principles,” is merely fulfilling his destiny as a young cyberlibertarian, heir to a bizarre philosophy that is authoritarian at its core. Hence, the complaint that Meta does not care whether it harms democracy misses the trick that harm to democracy is the goal and not a byproduct. That harm will level up (though not to its zenith) on January 20th, when a felon will retake the Oath of Office he already violated while millions of citizens participate in an ersatz America brought to you by Silicon Valley’s new and improved democracy of the screen.

In nearly every article on this subject since 2012, I have tried to present variations on the theme that whatever policy matter may be the issue of the moment, Big Tech’s underlying opposition is not limited to the proposal itself but to the idea that government should even function as the instrument of democracy. No surprise that David Golumbia articulates this sleight of hand so clearly when he writes, “We seem to be talking about copyright, freedom of speech, or the ‘democratization’ of information or some technology. But if we listen closely, we hear a different conversation that questions our right and ability to govern ourselves.” That’s it in a bombshell. And although other industries (e.g., tobacco and fossil fuel) have adopted this same rhetoric, no industry has ever had so much power to control the message—let alone to argue that the messenger itself is the messiah of liberty.

While the traditional libertarian views democratic institutions as obstacles to liberty, the cyberlibertarian advocates digital technology as the workaround which obviates the need for those institutions. This, as stated many times, is the premise under which Big Tech’s anti-copyright agenda was sold to the public as a “right of access and speech” stifled by government’s authority to write copyright law. The access/speech narrative, which appeals in different forms to both right and left sensibilities, disguised the fact that Silicon Valley both objects to copyright enforcement as a business interest, but also to the principle that Congress should protect creators’ rights as an ideological matter.

Cyberliberatarianism, which guides (I would say infects) the minds of far too many tech leaders and tech industry evangelists, scorns the mechanisms of government as an inefficient and clunky way to run a society. And the profoundly unqualified Elon Musk, as the putative new head of “national efficiency,” is a manifestation of this same magical thinking. But who bought the bullshit? Who believed that digital technology can and should operate as the alternative to a functional representative government? Everyone. Left, right and center.

Yes, there are some prominent voices we can blame for carrying the cyberlibertarian flag, and these include the Electronic Frontier Foundation, Fight for the Future, Public Knowledge, Senator Wyden, Niskanen Center, Techdirt, Mike Masnick, Daphne Keller, Eric Goldman, Computer and Communications Industry Association, Cory Doctorow, Ed Snowden, Jonathan Band, Julian Assange, American Library Association, Brewster Kahle, John Perry Barlow, Eric Schmidt, the Cato Institute, and, at least in this context, the American Civil Liberties Union, to name a few representatives familiar to both liberals and conservatives.

Those parties, and far too many academics anointed with Silicon Valley oil, have all preached the cyberlibertarian gospel by advocating conveniently vague notions like “innovation” (appealing to conservatives) and “digital rights” (appealing to liberals). The former is a catch-all for the talking point that “regulation stifles innovation,” a thesis which never bothers to define either term. One need only watch the squabbles over AI to see this history repeating itself, with Big Tech arguing the deterministic importance of AI against any kind of statutory checks that might, for instance, bar the use of AI to exacerbate false information about real persons.

As for “digital rights,” if one wonders what distinguishes these rights from traditional civil rights, it’s a good question elided by the rhetoric of those who invented the term. That said, “digital rights” consistently include a presumed right to free and unfettered access to everything; a presumed right to remain anonymous under all circumstances; and the maximalist view that all material posted online, no matter how harmful, should be treated as protected speech. That these “rights” contradict the administration of civil rights everywhere other than cyberspace is an inconvenient truth that remains un-addressed.

In combination, these cyberlibertarian “core principles” add up to zero accountability for digital tech corporations promoting the illusion that their products foster greater accountability from the real enemy of liberty—democratic government. This is how I believe the ordinary imperfections of government became so much fuel for galloping conspiracy theories and preposterous narratives that rage across the web like a California wildfire. But if we vote as if the government is the enemy, then eventually it will be. And in this light, Meta’s announcement that it will shit-can accountability is not a pivot to the right, but a continuation of a long goose-step toward the far right that has been baked into that industry’s ideology for generations.

Assuming we will not all simultaneously cancel Facebook in protest, perhaps we can at least stop doing Big Tech’s bidding every time a policy proposal is made that the industry opposes. Whether the issue is Section 230 reform, artificial intelligence, countering mass piracy, image-based sexual abuse, child safety, etc., it might at least help if we reject any messaging promoted under that tiresome and disingenuous headline that we risk “losing the internet as we know it.” Facebook’s latest announcement is just another example that we can afford to take exactly that risk.