Category: Digital Culture

Reconciling the New Surveillance State

I’ve said it several times, but it is still astonishing to watch Americans use social media to air their fears about agencies like the NSA while ignoring the fact that it’s the social media company itself watching us more intimately than any government agency ever will. In a recent editorial for Newsweek, Senator Whitehouse (D-RI) calls attention to the fact that not only do Americans seem paradoxically to distrust government agencies more than private companies with a profit motive for domestic surveillance, but that this contradiction also skews rational debate in Congress with regard to the still-relevant national security role of the intelligence community. Writes Senator Whitehouse:

“I contend that a corporate-backed, ideology-fueled effort to deride and diminish the government of the United States exists and has gotten out of hand. I contend that the consequences of that corporate-backed effort of derision and diminution play out in the way America views the service of NSA personnel, and in the way Congress debates NSA programs.”

On the other hand, as reported in The New York Times, a recent study by the Annenberg School of Communications at the University of Pennsylvania, indicates that Americans are uncomfortable with the amount of data they increasingly recognize as the hidden cost of “free” Internet services. But the study also indicates that we are not entirely sure what to do about it. Writes Josesph Turow, professor at the Annenberg School:

“Companies are saying that people give up their data because they understand they are getting something for those data, but what is really going on is a sense of resignation. Americans feel that they have no control over what companies do with their information or how they collect it.”

So, where might that control come from? We could post memes and declarations on social media about how we demand control over data gathering by Google and Facebook and other platforms, but whom would we be petitioning? Exactly. So, when a representative, like maybe Senator Whitehouse, proposes legislation to regulate data mining as a means of consumer protection, are we going to fall for the hysteria again when the Internet industry tells us such “draconian measures will break the Internet”?

More broadly, though, this quote from Senator Whitehouse points to a much larger political and ideological challenge:

“It is ironic that some of the loudest voices in the debate about surveillance reform are corporations that make billions of dollars mining the personal information of their customers. It is also ironic that those who guard our liberty are challenged in the name of liberty.”

Efforts by Silicon Valley-funded organizations to leverage public concern over government surveillance while purposely ignoring private industry surveillance are driven both by profit and by ideology. And at some point, we crossed a very important line. While much of American policy has always been an attempt to balance the natural tensions between private and public interests, no other industry has ever been able to so successfully position itself as an alternative state the way the Internet industry has.

Listen to the refrain in geo-political statements by industry leaders like Google chairman Eric Schmidt, and you hear the rhetoric of stateless, global utopianism. To quote a recent WSJ article reporting on Schmidt’s address to European leaders, “Regarding regular clashes with European regulators on issues ranging from data protection to anti-competitive charges, Mr. Schmidt said that Google was listening to European leaders, but that the situation would be helped if Europe spoke with one voice on digital matters.” That might sound reasonable on the surface, but it is consistent with the smug tone of inevitability adopted by presumptive technocrats. Or to quote Schmidt directly, “There’s an old way and a new way; the new way is global and digital, the old way is local and proud, and there’s nothing wrong with it, but the old will be displaced.” Indeed, these pesky individual nations with their quaintly distinct cultures and laws should wise up and make things easier for Google, bearer of the future.

Of course, it isn’t just Europe. The rhetoric of the Internet industry consistently plays havoc with the American political psyche by claiming to provide the ultimate technological defense against government overreach, which means any attempt to regulate that industry’s practices will be described as a government threat to the existence of said technological defense against government. Presumably, this feeds a sense of obsolescence about states in general, and if we are truly stuck in that logical vortex, it’s no wonder Americans are going to feel resigned to the condition of rampant data mining by these companies. (By the way, this is the parable of the computer that goes haywire and then kills its own makers because it is programmed to protect itself at all cost.)

I think only two kinds of people believe earnestly in a stateless, global society: fools who think we’re just one big group-hug away from world peace; and greedy-as-fuck leaders of multi-national companies, who seek every opportunity to avoid regulation by damnable governments. So, I’m all for oversight of the NSA and such, but it’s probably worth keeping in mind that intelligence agencies track terrorists, drug dealers, human traffickers, cyber-criminals and hackers, and crazy-ass domestic hate groups while companies like Google sell ads against the videos those groups put on social media. Hence, to Senator Whitehouse’s point, it might be necessary to restore some balance to the debate.

Wikileaks Ethics in Journalism

In a recent OpEd in the New York Times, media ethicist Kelly McBride generally stands by the principle that journalists should not pay sources for information; but she also wants pardoxically to propose that sometimes the ends justify the means.  Specifically, she is referring to an initiative (ploy, stunt?) by Wikileaks to crowd fund a “bounty” for a leaker to provide the full text of the Trans Pacific Partnership agreement. But more broadly, McBride seems unaware that there can be no exception to this rule of journalistic standards, if it is to remain a rule at all.  Because in the course of investigating hard news, when don’t the ends appear to justify the means?  Surely, there are reporters out there risking their lives to uncover stories that are more grave and more time-sensitive than a trade deal, even a very big trade deal.

But that central contradiction is not the only reason I think McBride’s OpEd misses the point in its analysis. What she says is that, in general, paying for information is still wrong but that extreme situations call for extreme measures until some balance is restored between transparency and secrecy.  She writes, “Right now, the bounty may be the best shot we have at transforming the TPP process from a back-room deal to an open debate. But we need a better system to discourage unjustified secrecy, to protect sources and to encourage public-interest whistle-blowing.”  Although earlier in the piece, McBride acknowledges, “It’s true that trade deals, which are usually about tariffs and the price of goods, are traditionally negotiated in secret. But the TPP exceeds agreements like Nafta in scope and scale and involves far-reaching foreign policy decisions.”

The funny thing to me about the TPP kerfuffle is that everyone is complaining both about how bad it is and about how secret it is without noticing that the latter complaint casts considerable doubt on the former.  And thanks to the headline-rich, substance-poor nature of social media, even the tidbits of information out there are being manipulated by players with their own agendas, including such mundanity as just making click-bait.  As a result, many of my friends now take as gospel rumors about possible proposals or outcomes of this deal that are entirely unfounded.  For instance, McBride sets up her larger premise, establishing the TPP’s obvious badness with this almost parenthetical statement:  “Chapters already leaked suggest that the deal restricts fair use of copyrighted material, expands medical patents and weakens public policies that govern net neutrality.”  From such statements, we are left to wonder what other nefarious proposals lurk within the TPP and to conclude, yes, the ends justify Wikileaks’s means of offering to buy a leak.

But what if many of those highly publicized assumptions based on earlier partial leaks are false or at least very misleading?  Certainly, the statement about restricting fair use is fallacious, either by design or by ignorance, and we don’t need the full text of TPP proposals to know why.  For one thing, trade deals generally do not change domestic law in the U.S.; and to imply that ratifying the TPP might alter our application of fair use is inconsistent with history and with the process presently being applied.  Second, trading partner nations cannot necessarily apply U.S.-style fair use because (hold onto your hats) they have different legal systems. (I hear they speak different languages, too.)

But here’s the insidious detail in the big picture:  McBride writes what seems like a reasonable editorial with a premise that takes for granted a false assumption like this one about fair use, unaware perhaps that this widely-spread rumor is actually a modification of an Internet-industry-backed effort to “export U.S. fair use doctrine” through FTAs to our trading partners. These companies would favor replicating our liberal application of this doctrine and even imply that U.S. copyright holders are against such a provision, but this is a mischaracterization. It is more accurate to say that our trading partners don’t have the constitutional foundation to apply doctrine as we do.  I know that’s a too complex and wonky to make a good Facebook meme or grabby headline, but that’s the point.

So, even with this one tiny matter about which much corn has been shucked, we’re witnessing a giant game of Telephone.   Silicon Valley-funded organizations say “export fair use doctrine” to start the game, and this translates to “TPP will harm fair use” by the time the message comes full circle in the form of an OpEd in the New York Times.  So, is it really logical to believe that more leaked text about even more complex issues and filtered through even more vested interests will help us make more informed decisions?  I have more than a few doubts.

Meanwhile, the TPP isn’t classified; it’s embargoed.  Journalists committed to their principles are familiar with the need to embargo a story, perhaps to ensure someone’s safety prior to publication, and it would be a shame if that kind of judgment call were inappropriately reclassified as censorship just because we now have these machines that confuse our right to know with our right to know right bloody now.  The scale and scope of the TPP are unprecedented, but the level of secrecy is not. Negotiating trade deals through real-time public referendum would be like trying to play poker while everybody’s kid brothers run around the table shouting out who’s holding which cards.  What is also unprecedented (and frankly fascinating) is that the TPP is the first trade deal to be negotiated in the age of social media, which provides what I will continue to insist a fairly opaque form of transparency at best.

In fact, I suspect one of two outcomes would be the result of Wikileaks’s brand of un-alloyed “transparency” in this case:  one would be a collapse of trade deals altogether, but the other would be truly unprecedented secrecy indeed.  As journalist Christopher Dickey points out in this 2010 piece about State Department leaks by Wikileaks, “To avoid this kind of massive leak in the future, documents will get higher classification and less distribution, and a lot of the most important stuff may not be committed to the keyboard at all.” Oversight through the filter of  representation and principled journalists is imperfect, but a much bigger question than the one McBride is asking is whether we want to be a nation that does imperfect things as a republic or a nation that doesn’t do anything because we choose to embrace the near anarchy of direct democracy?

To be sure, I feel, as many of my fellow progressives do, that we have ceded far too much power to corporations overall, allowing deregulatory trends to foster wealth consolidation, poor environmental policy, weaker labor rights, and downgrades in education, medicine, infrastructure, and other foundational enterprises.  If we hope to address any of these issues, we need to find the political will to do so through domestic policy, investment, and the representation we choose to elect. In the meantime, it doesn’t seem helpful to perpetuate confusion about what trade deals can and cannot do to our domestic laws, let alone to cite that confusion as a reason for serious journalists to abandon their hard-won principles.  Frankly, I think we have enough hacks.

TVEyes Warping Fair Use Principle

Once again the Electronic Frontier Foundation has taken up the cause of industry in the guise of public interest, principally with the ultimate goal of distorting fair use doctrine beyond its intended purpose.  I am speaking about the case of FoxNews v TVEyes, which as Terry Hart points out in this post on Copyhype, re-treads some familiar ground regarding the copyright interests of news producing entities and the fair use claims of news monitoring services.  I recommend Hart’s blog for more in-depth historical context; but suffice to say that in the early 1990s, bills proposed by Senator Orin Hatch that would have amended copyright law to add news monitoring to the list of fair use purposes never made much progress. But, as Hart writes, “…the lack of legislation did not jeopardize the broadcast news monitoring industry. Nevertheless, little has changed in the discussion of fair use and news monitoring from the early 90s to the current litigation involving Fox News and TVEyes.”

Last fall, a federal judged ruled in this case that copying “broadcast content for indexing and clipping services to its subscribers constitutes fair use.”  And this July, oral arguments will be heard as to whether or not other services (like subscribers downloading, storing, and emailing clips) might also be judged fair.  The EFF, along with the Technology Law & Policy Clinic at NYU School of Law, has filed an amicus brief on behalf of TVEyes, while several leading news organizations have filed a brief on behalf of Fox.

To be clear, plenty has changed technologically in the news monitoring world, but Terry Hart’s point above is that the fair use argument being made today in favor of TVEyes is fundamentally the same as the arguments that failed in Congress twenty years ago — namely that there is a public and First Amendment-serving purpose to news monitoring that should qualify the enterprise as a fair use of copyrighted material.  And be it far from me to second guess a federal judge, but it seems that technological changes have only weakened this argument, not strengthened it, particularly when we look at the specific business model of TVEyes itself.

News monitoring services have been around since before television, first in the form of clipping services for print, and later as video systems monitoring broadcasts of “hard news” that was captured and stored on tape. This enabled customers to order a specific broadcast clip for educational, documentary, reporting, and other communications and investigative purposes.  We used these services in the 1990s during my corporate communications days. You paid a service a small fee to do a search and then received a VHS tape with the clip(s) you needed.  Today looks very different.

Presently, TVEyes copies, stores, and indexes round-the-clock broadcasts from 1,400 channels, and this includes programming that exceeds traditional models for “hard news” monitoring, capturing entertainment programs like magazine-format shows and documentaries.  Moreover, TVEyes is a fairly elite, B2B service; and it seems to me that fair use exceptions in the name of the public’s right to information ought to be limited to those uses that actually serve the public. But you and I do not use TVEyes, and we never will because a subscription costs $500/month.  So, as a business, TVEyes is not even a consumer-focused service, but an industry-focused service used by professionals who need to be ahead of the proverbial curve when it comes to breaking and overlapping news stories.  Such professionals include news organizations like the Associated Press, major corporations, government agencies and NGOs, and of course high-level investors who are skilled in the dark arts of predicting how a traffic jam in Malaysia might affect their position in shoe laces or something.

Clearly, this $6,000/year service is not for the general citizenry that has a right to be informed. In fact, it’s interesting that one argument being made today on behalf of TVEyes — as it was twenty years ago for news monitoring in general — is that there is “so much information out there”, that these services are invaluable.  And they are invaluable for the types of clients that need and can afford them. Meanwhile, the public-serving aspect of the fair use argument here seems to overlook this free technology we all have called the search engine.  Yes, there is more information produced more rapidly by more sources than ever before; but the average citizen also has more free tools to search, index, and access that information than ever before.  Isn’t that what Google congratulates itself for doing at every opportunity?  And setting aside the chicken-and-egg quality of these phenomena, the bottom line is that you and I can search news items all day long on just about any subject we can imagine, which has nothing to do with the high-priced and  specialized service provided by TVEyes.  The logic being applied is akin to saying that because the public has a right to know what happens in the financial markets, Reuters should not have to honor licensing deals for any of the content it aggregates to its elite Reuters Insider service that it sells at a premium to investment professionals.

There is absolutely nothing wrong with TVEyes. It’s a sound business and clearly provides a service that many companies and institutions consider well worth the subscription fee.  But as a for-profit entity providing a high-level, B2B service for institutional clients, it should not be allowed to profit from the use of assets produced by Fox or any other entity without paying reasonable licensing fees.  More importantly, it is dismaying to see fair use doctrine distorted on the basis that the general public is in any way served in this case. It moves the needle of legal precedent closer to the Internet and tech industry goal of monetizing the totality of works without paying the individuals or entities who produce them.  This neither serves any beneficial social practice nor any larger ideological principle.  It’s just an old-fashioned land grab and a big middle finger to the evicted. Fair Use is not what we mean when we say “FU.”