Category: Digital Culture

Net Neutrality Fight Brews

Composite sources by zmiter & maximmmmum

When the President of the United States disses fundamentals from climate science to the separation of powers, it is admittedly a very difficult time to debate any issue outside the gravitational pull of so much regressive momentum. Amid a flurry of truly dangerous policy reversals, the storm now brewing over the issue of Net Neutrality will doubtless be subsumed by the broader narrative of “Trump rollbacks,” but this generalization only clouds our ability to assess what’s actually happening in an already obscure area of cybernetic policy. Especially through the chaos of social media. (Add to this, the recent kerfuffle over the FCC possibly taking action against CBS for a joke made about Trump by Stephen Colbert, and we’ve got a whole circus, but we’ll stick with Net Neutrality for the moment.)

First, let us pause to acknowledge this dichotomy: the fact that we choose to interact in a walled garden like Facebook as complicit lab rats in that company’s grand data experiment while posting declarations that the web must remain “free” and “open” is a delusion that must be reconciled before considering an issue like Neutrality. Free and open are nice words and easy to support with a mouse click, but what’s really at stake here?

The order that FCC Chairman Ajit Pai proposes to reverse—for the moment anyway—is not actually Net Neutrality itself; and the real question before us is whether the chairman will merely deregulate or will instead live up to any of his prior testimony and help to shepherd a more effective and comprehensive policy aimed at achieving Neutrality principles. As noted in my last post on this subject, the FCC rules only affect ISPs, and if we truly want an internet that protects all parties great and small, then a coherent and consistent regulatory framework must be pursued for edge providers as well.

In practical terms, it seems to me that there is little value in saying that ISPs (AT&T, Comcast, etc.) may not discriminate via broadband while edge providers (Google, Facebook, etc.) are free to discriminate via algorithm. And in simple terms, this was the crux of Pai’s dissent in passing the 2015 order which placed ISPs under Title II of the Communications Act, giving the FCC power to regulate these providers as “utilities.”

It is important to remember that Net Neutrality is a goal and not a specific policy doctrine. Its principles go back to the days of dial-up, and as attorney and expert Mitchell Lazarus argues in his blog, regulating ISPs as “utilities” through the 1990s was a key reason why we had more competition among this class of providers than we do today—when most markets are served by a monopoly or duopoly at best. But, in an earlier post from October 2014, Lazarus also explains why placing ISPs under Title II of the Communications Act alone would not achieve Neutrality—partly because internet traffic simply does not ebb and flow like phone service for which Title II was designed. Lazarus writes …

“An ISP’s capacity is, after all, finite. At peak times it may not be able to accommodate 100% of all potential content – email, Facebook posts, Netflix video, VoIP calls, people working from home, casual browsing. At those times, some discrimination must necessarily occur in allotting access to providers. The question, then, is how to ensure that the discrimination is ‘fair’. An effective non-discrimination rule would give an ISP managing a traffic overload clear guidance on which bits to send on and which to hold back in every possible situation. More than that, a proper rule would let the ISP program in algorithms that make these decisions automatically, on the fly.”

So, Chairman Pai’s plan to reverse the rule placing ISPs under Title II does not in itself “roll back Neutrality” because one cannot roll back what has not been achieved. Having said that, it seems that Lazarus would not endorse reversing the Title II status so much as adding to it “…a rule that requires the ISP to open its channels (cable or phone line or fiber) to competing ISPs.” These competitors would pay to use the channels, and consumers would once again have options to switch ISPs if they become dissatisfied with the service, according to Lazarus’s assessment.

Whether or not the monopolistic state of the ISPs can be reversed or mitigated, the same problem exists on the edge provider side of the equation, with a company like Google owning most of search and advertising in the U.S. and Europe, along with one Amazon, one Facebook, etc. It seems to me, we consumers cannot expect an effective approach to the goals of Neutrality without meaningful and complementary regulation by both the FCC and the FTC of both ISPs and edge providers.

In a nutshell, the FCC’s job is to protect consumers vis-a-vis access to the web while the FTC’s job is to protect consumers as we interact with edge providers once we’re on the web. And it is unclear at the moment what happens when a company functions as both access and edge provider.

It’s mostly about corporate interests for now.

Be prepared for this fight to at least sound existential in the rhetoric to follow from places like the Electronic Frontier Foundation. Be prepared for the story to be positioned as an Obama-for-People v Trump-for-Corporations narrative—and for the Neutrality tornado to fling about all manner of unrelated topics (did someone say SOPA?). But for now, this battle seems to have more to do with very large corporations on both sides—and very little to do with consumers. Mostly it’s over the issue of who is going to pay for what.

Large users of broadband—Netflix is the world’s leader—are not the companies that invest in the physical hardware to expand access, speed, and reliability. And there is an extent to which the ISPs, which do make these investments, see Neutrality regulations as keeping the access prices paid by these huge edge-provider services artificially low. There is more to learn on this subject as the story unfolds; but this follow-the-money line of inquiry is likely more accurate than taking at face value the story that the Obama-era rules were providing meaningful consumer protections.

Net Neutrality & Copyright

In both real and fictitious ways, the Neutrality fight is likely to implicate copyright and the interests of rights holders. Because Neutrality principles are based on the premise that universal access to the web is a civil right, remedies for online infringement like throttling speeds or account termination become unavoidably intertwined in the public debate over Neutrality. This may foster exaggerated and misleading headlines claiming that major rights holders (i.e. Hollywood) are against Neutrality. But there is no underlying reason why copyright enforcement cannot coexist with Neutrality principles, and I worry that persistent confusion will rally creators to lobby against their own self-interests.

In this guest post, for Hypebot, No Internet, No Music: Why Musicians Should Care About Net Neutrality, Will Meyer has the right spirit but is making an important error in my view. The understandable instinct to assume that President Trump wants to gut protections for independent creators obscures the fallacy in which Meyer seems to conflate edge provider Facebook with the ISPs affected by FCC rules. He writes, “… the truth is Facebook isn’t free. We pay with our data and we must pay with our dollars if we want the algorithm to take our bands seriously.” Absolutely right. And, in a slightly different context, Ajit Pai said essentially the same thing in his dissent over former Chairman Wheeler’s proposal to place ISPs under Title II.

More relevant to Meyers’s concerns is the fact that Pai specifically noted that having two separate regulatory regimes for ISPs and edge providers only entrenched the market advantage of the latter, which goes directly to the heart of some of Meyers’s observations about using Facebook for promotion of his band. This does not mean Pai gets a free pass; it means creators need to look way beyond the rhetoric to follow how the policy will affect them.

Evolving Neutrality policies in both the U.S. and abroad should be closely watched by copyright interests because the statutory frameworks can make a difference with regard to enforcement. Neutrality is meant to protect access and dissemination of legal activity online, and there is an extent to which the public debate becomes mangled by those who view both broadband and access to unlicensed content (i.e. piracy) as interrelated “rights.”

As indicated in previous posts, I advocate a wait-and-see approach to Chairman Pai’s policies, not because I inherently trust his view; but because the 2015 framework for ISPs doesn’t really seem to achieve the consumer-facing goals that people think it does. Unfortunately, this probably won’t stop the hyperbole from flying in every direction, which is unlikely to help the development of a more coherent policy.

Yelp Claims Contradictory Rights

Chameleon photos by leisuretime70

Imagine Elizabeth Proctor runs a corner café in a small town and that Abby Williams has held a grudge against Elizabeth ever since the former beat her out for cheerleader captain back in high school.  So, feeling especially vindictive one afternoon, Abby writes a nasty review of Lizzy’s café on Yelp, complete with invented details about bugs and other health violations.  In response, Elizabeth sues Abigail for defamation and wins her case, and the court issues an injunction that includes an order for Yelp to remove the libelous reviews.  But the website refuses to remove the reviews even though they’ve been held to be defamation under the law …

Perhaps it’s folly to contradict the opinions of I don’t know how many attorneys who filed a dozen amicus briefs on behalf of Yelp in a case now heading to the California Supreme Court, but I’m gonna.  Because I believe the concerned parties—and this includes news media publishers whom I consistently support—may be overstating the hazardous implications of the California Appeals Court decision in the case of Hassell v Bird.

In 2013 Ava Bird posted negative reviews about San Francisco attorney Dawn Hassell on Yelp. Hassell believed the reviews to be defamatory rather than honest criticism. She sued Bird and won on a default judgment because Bird failed to appear in her own defense. Whether the reader would agree that Bird’s reviews were defamatory is immaterial at this point for two reasons: 1) the default judgment settles the matter as far as the law is concerned; and 2) in the context of what this case is now about, let us at least agree that online reviews can easily be abused by a bad actor, or a competitor, to defame a person or business.  (On a side note, Hassell’s firm has a lot of positive reviews on Yelp.)

In its judgment, the court issued an injunction, which included an order for Yelp to remove Bird’s reviews.  This is a standard form of relief provided by courts in such cases. When an entity is not a named party in a litigation (i.e. they bear no liability for any harm), but the non-party is indirectly supporting some harm being done, the non-party can be prevented from continuing to support the harmful conduct. (See earlier post about Equustek v. Google.)

A typical example would be a court order that Visa and MasterCard stop processing payments for a named defendant in a case, regardless of the fact that these companies bear no liability for any harm that may have been done to a named plaintiff. If you were harmed by defamatory statements on a web platform, and proved defamation in court, you would naturally want the material removed even if you would not—and could not—hold the platform responsible for the harm you received.

But when it comes to complying with this type of injunctive relief, the owners of web platforms get a little antsy; and this includes the news media platforms, who filed an amicus brief in this case emphasizing the importance of comment sections to the overall vibrancy of journalism in the digital age. Other amici, including the EFF, the ACLU, and several web platforms, all assert that if the injunction ordered by the California Court of Appeals is upheld, this will harm due process, free speech, and the liability shield in Section 230 of the Communications Decency Act (1996) that is accorded to online service providers.

Although it is a habit of many site owners to behave as though the removal of any content is a slippery slope toward censorship, let’s remember that in just this one case, the plaintiff had to prove defamation in court and pray for injunctive relief—and that was in 2013, which is about 730 trillion tweets ago, just for perspective. But the real complication in this story comes when websites assert their interests under both the First Amendment and Section 230, because the two are fundamentally at odds.

First Amendment or Section 230:  Pick One

In simple terms, Section 230 of the CDA protects websites and other service providers from liability stemming from the actions of its users. The underlying premise for this protection is that the platforms and providers are not “publishers” of the content (i.e. they are not the speakers). Section 230 is an important protection and one that indeed enables sites to function without undue risk of litigation. But the amici filing on behalf of Yelp also claim that Yelp and all web platforms have First Amendment rights at stake in Hassell, and the problem is this:  if you’re not the speaker, you can’t claim a First Amendment right of speech because you’re not speaking! (read that as Lewis Black).

Yelp wants it both ways. They want the liability shield afforded by Section 230 on the basis that it is not the speaker but also want to claim First Amendment rights as if it were the speaker. Sometimes, web platforms claim to be protecting the free speech rights of their users, and this can be a valid claim in many instances.  In fact, this concern appears central to the news media sites, who unquestionably have a right to support the free speech inherent in the dialogue between their journalists and the readers who write comments. These parties even point to several intriguing statistics suggesting that reader comments can, in many ways, improve the quality of their own reporting; and this should not be undervalued.

Nevertheless, I would argue that a site like Yelp, which trades substantially in consumer reviews of businesses on a local level, is already a very different forum from the comments section of a news site. More to the point, it is a forum that is uniquely vulnerable to someone acting with malicious intent to defame a specific proprietor. It seems that it would be far easier to demonstrate how a libelous review might meet the standard of “defamation” under the law than it would be to prove that a comment on a news story rises to this level of harm.

Still, if a comment on a news site were to spark events akin to a “Pizzagate,” the party who wrote the comment can be sued; and the site(s) hosting the defamatory content should be ordered to remove it—though I would think they’d want to do so voluntarily for the sake of their own reputations.  What if Bird had said that Hassell was running a child porn ring through her law firm? Would we still be seeing the same response from Yelp and the other petitioners? Because from a purely legal standpoint, she might as well have written something equally outrageous since free speech does not protect defamation, regardless of how extreme or mild the defamation may be. And although it is true that websites often rightly defend the speech of their users, that motive simply does not apply in this case because Bird’s reviews became unprotected speech the moment they were held to be defamatory.

Section 230 is Not a Blank Check

The due process piece of this puzzle gets a little deep into the weeds, and I will admit that there may be procedural complaints at play of which I am unaware; but as a general observation, the crux of Yelp’s due-process argument here appears to be based on the same paradoxical premise that the site can be both a speaker and a non-speaker at the same time. For instance, I offer the following from Yelp’s brief filed in 2016:

“The court reached its conclusion only by pretending that Yelp is nothing more than the ‘administrator’ of its website, ignoring Yelp’s role as a publisher of third-party authored speech and its First Amendment right to control its own website. [Emphasis added]

The court of appeal combined its unwarranted rejection of Yelp’s due process and First Amendment rights, with an unprecedented narrowing of the previously robust protection provided by the Communications Decency Act, 47 U.S.C. § 230 (“Section 230”), to deny Yelp the federal immunity it would have received if Hassell had sued it. The court exalted the form of the action––namely, the fact that Yelp was tactically not named as a party—over the plain language of Section 230 and Congress’ clear intent in enacting it to protect websites from actions that treat them as publishers or distributors of third-party content.” [Emphasis added]

In paragraph one, Yelp is a publisher; and in paragraph two, it is not a publisher. Yelp asserts its First Amendment right to control its own website, which is certainly the case; but the liability shield provided by Section 230 is still predicated on the assumption that said control does not place them in the role of publisher (or speaker). But Yelp seems to be implying that if Hassell had named them in the suit–something she had no reason to do–they would then be defendants accorded a hearing and consequently have been able to argue their Section 230 right to not remove Bird’s reviews.

But nowhere in the statute is there any implication that a website does not have to comply with a court order to remove specific content, whether the site is a party or non-party to a litigation. In fact, the CDA actually began as an enforcement provision—a legislative effort to keep online pornography away from kids. Make of that what you will, but the addition of Section 230 was designed solely to limit the liability of service providers from any harm that may stem from content posted by third-party users. Neither its language nor its intent appears to excuse web companies from complying with generally applicable law; and an injunction directed at a non-party is a generally-applicable, standard form of relief. Website owners have no more right to ignore these orders than the payment processors mentioned above.

While I sympathize with some of the principles being argued by Yelp and the other petitioners–particularly those of the news media sites who are both publishers and hosts of third-party content–I believe the arguments being made are seeking a decision that would be unbalanced. Any party that is held in a court of law to be harmed by some conduct should have access to the same remedies in the digital age as in the pre-digital age. Moreover, the cost of causing harm via the web is virtually zero while the cost of proving harm under the law still requires a substantial investment of time and financial resources.  This alone should allay the fears of site owners that the decision of the appeals court in this case potentially swings the pendulum toward greater censorship online.

Online Harassment & The Internet Experiment

In last weekend’s New York Times Magazine, staff writer Jenna Wortham asks Why Can’t Silicon Valley Fix Online Harassment? Citing some alarming statistics from a 2104 Pew Research study, she writes …

“… 40 percent of adult internet users have dealt with online harassment. And those numbers go up among young adults (especially women) and nonwhite users. Women are significantly more likely than men to report being stalked or sexually harassed on the internet, and 51 percent of African-Americans and 54 percent of Hispanics said they had experienced harassment, compared with 34 percent of whites.”

Online harassment is no joke. At scale, it can be emotionally devastating and legitimately terrifying for victims. It has been known to cause economic and social harm and to catalyze both physical assault and suicides. While we extoll the virtues of connectedness fostered by an “open” internet, harassment is the mutant howling in the basement nobody wants to talk about. And Wortham rightly observes that the monster is a byproduct of Silicon Valley’s unique blend of new-money libertarianism built on a foundation of faded, hippie idealism—incongruous doctrines that were, for many, synthesized in the manifesto A Declaration of the Independence of Cyberspace, delivered by John Perry Barlow at Davos in 1996.

But if online harassment is a disease and the first step to recovery is admitting there’s a problem, then perhaps that first step is to properly contextualize Barlow’s Declaration as the naive and petulant outburst it was. A moment of whimsy rather than the foundation for a sustainable, or even humane, proposal. Nevertheless, the belief that cyberspace remains some magical realm beyond the normal boundaries of society continues to delay rational discourse on any number of problems specifically caused or exacerbated by the technology.

Although harassment will occur on a public forum like Twitter, it often begins by brewing on a site like 4Chan, a “discussion” board populated by mostly males from pre-teen to mid-30s, who, in every sense of the cliché, have too much time on their hands. And although everyone on 4Chan is anonymous—it is in fact the site where the hacktivist group Anonymous began—they might collectively be seen as that mutant creature borne by Barlow’s Declaration. Like most adolescents, the thing they seem to hate most is being told what to do—hence the the harassment-filled shitstorm known as “Gamergate.”

Although I would never condone harassment, I think I understand how at least some of it starts. This blog has very occasionally elicited accusations of racism or sexism because there are people in the world who will filter literally any topic through such lenses, even when there is no rational basis for doing so. If I were an adolescent who spent inordinate time among other adolescents in a forum like 4Chan, the temptation to retaliate against these absurd accusations by weaponizing overt racism or sexism—at least for my own amusement—could be very great. And once it begins, it’s easy enough for a little spark to become a flash fire.

In all likelihood, the majority of trolls out there are young men who harass for the lulz—an expression derived from the acronym LOL. Think of this class of trolls as easily excitable chimpanzees who will gather around a target of ridicule and pile on, but who are also easily bored and distracted by the next shiny object. So, if the target of their ridicule or cruelty doesn’t respond, this group usually returns to its natural state of online gaming and metaphorically throwing feces at one another.

But if the target of their ridicule does respond, this only increases the opportunity for lulz, which means the chimps remain engaged and incentivized to keep raising the bar of harassment of their target. Hence, the truly hideous invocations of rape and murder—complete with photographic depictions of these acts—that are so commonly employed by harassers of this nature. From this phenomenon comes the common-sense directive Don’t Feed the Troll, which is fine up to a point but can also be a form of victim-blaming as the volume and virulence of the harassment increases.

Wortham notes the apparent futility of “counterspeech,” which she describes as “the practice of bystander intervention that overpowers aggressors in an attempt to deter them.” I’m not at all surprised the EFF endorses this self-governing tactic as a “solution,” seeing as the organization (co-founded by Barlow) remains mesmerized by the fallacy that the internet naturally enables good to triumph over evil as long as pesky rules don’t get in the way.

I’m also not surprised that the two organizations Wortham highlights as designed to deploy “counterspeech” seem to be finding the method ineffective. If the general rule of thumb is Don’t Feed the Troll, then an attempt to surround a victim in a barrier of Twitter-hugs is like dipping her in chocolate and Cheetos. It’s only going to whip the trolls into a feeding frenzy. As stated above, it is important to remember that a large segment of the people who engage in this kind of harassment HAVE NOTHING BETTER TO DO. This is a hobby for many a young male, who really needs to get a life; and it is therefore difficult for people who do have lives to outlast or overwhelm the harassers.

Presumably, there are casual harassers as well—people who don’t spend time seething on 4Chan, but who obey an impulse to add their 140 characters of vitriol when they see a trend piling onto a target they don’t like or who has pissed them off. And I suppose we have to assume at this point that people can be harassed by bot swarm as well. But the fact that a real human being can be remotely and anonymously hounded to the point of being harmed or harming herself is a very real problem we have yet to confront in any substantive way. What is the responsibility of one voice in a million that feeds the proximate cause of a suicide? I don’t know, but it sure as hell belies Barlow’s dreamy assumptions.

Of course the thesis question Wortham asks is this: Can Silicon Valley do anything about online harassment? In theory, why not? As stated in several other posts, the internet companies are telling a half truth at best when they claim to have free speech obligations. They may wish to support free speech, and that’s fine, but the individual platforms are no more bound by the First Amendment than a retail store or restaurant in the physical world. Wortham is right to view the deciding factors as both ideological and financial, and in that order—a story of what happens when hippies become billionaires.

The policy positions and Terms of Service that still flow from Barlow’s Declaration have made the internet into a computer model of a social experiment which—to an extent—places people in philosopher John Locke’s hypothetical state of nature. Like Locke, the model then asks whether or not Man really needs to make a bargain with the State in order to protect his sovereignty as an individual. In 1996, Barlow declared the internet to be a “home of Mind,” a place where the legal conventions of statehood (namely law) have no purpose—an ideal based on the assumption that people are basically good and law is exclusively coercive.

But in 1689, in his Second Treatise of Government, Locke argued that Man in a state of nature (i.e. without government) is more free but also more vulnerable to human predators, who may enslave him, kill him, or take his property. Hence, the bargain one makes with the State is to trade as little freedom as possible in exchange for relative security. Thus, if a woman in a Target store were harassed in Twitter style (i.e. told by a swarm of men that they hope she gets raped and killed), the security and police who will soon arrive on her behalf are a manifestation of that Lockean bargain.

In principle, the major platform owners can take steps to mitigate online harassment, and they will likely discover this ability the moment there is a financial incentive to do so. But in the meantime, we might learn something from the computer model, which reveals exactly what can happen in a stateless and lawless “community.”

Consider the rash of hate crimes and threats following the election—all presumably committed by people who believed Trump’s presidency granted them permission to act upon latent antipathy. But how many Swastikas have been spray-painted by committed Nazis and how many by teenagers doing it for the lulz? Hard to say, but it’s likely that both motivations are present and that this is one way in which real life comes to resemble cyberspace rather than the other way around. And that may prove to be the most dangerous phenomenon of all.