Category: Free Speech

Fake News Tops Results After Las Vegas Shooting

On Monday, I was up early and first heard about the Las Vegas shooting on the radio in the car. It was still dark, and the winding road thick with fog, lending an eerie mood to the sound of Scott Simon’s voice on NPR reporting what little was known about this latest incident in what is now an epidemic of mass-killings. I had yet to look at any social media, to read anyone else’s opinion or to have the raw facts of the tragedy synthesized through the narrative of gun control, mental illness, terrorism, or any other matter of public policy. There was just the horrible truth of what had happened without theory or explanation. This is how we used to digest the news: Here’s what we know so far. Stay tuned.

Social media abhors a vacuum. And in the hazy interval between breaking reports of an event like the Las Vegas spree-shooting and the revelation of salient, credible details, the pranksters, trolls, and professional liars come out to play. Brianna Provenzano, writing for Mic.com, states that for several hours, “Facebook and Google’s algorithms prioritized fake news” about the Las Vegas shooting. As she puts it “conservative conspiracy sites like the Gateway Pundit lit up with misinformation about the shooter’s identity.” Her article shows one example of a headline naming some poort guy who had nothing to do with the shooting, calling him a “Democrat Who Likes Rachel Maddow, MoveOn.org, and Associated with Anti-Trump Army.”

According to Provenzano, the Gateway Pundit story was among the top results on Facebook before it was removed, but also that once the innocent man’s name was out there, Google searches for it led readers to a 4Chan thread “labeling him a dangerous leftist,” Provenzano writes. She also reports that Google eventually made algorithmic adjustments to replace the 4Chan story with relevant results and stated it will continue to be vigilant in this regard.

It’s right that Google and Facebook took action to quash, or at least mitigate, misleading “news” about such a gravely serious incident, especially bogus reports naming an innocent man as the perpetrator. But for those of us regularly following the policy positions of the internet industry, the hypocrisy here is not missed. For instance, Google can clearly take remediating steps where to no do so would look bad for them; but in other contexts in which search results may facilitate harm, they will expound ad nauseam upon the sanctity of free speech as a universal rationale to leave all data exactly where it is.

For instance, regarding the Equustek case and the Canadian court order to remove links, I fail to see a substantive distinction, in a speech context, between a counterfeiter using search to hijack customers from a legitimate product-maker and a counterfeit news-maker using search to hijack readers from legitimate reporting. In fact, ironically enough, a bogus news story, harmful and revolting as it may be in the wake of a tragedy like Las Vegas, has a better claim to speech rights than a hyperlink which leads consumers to a product or service that is breaking the law.

So, it’s not that I think Google et al shouldn’t make decisions to remove or demote “news” emanating from the adolescent babooneries of places like 4Chan. They absolutely should. Fake news is toxic, and we have enough problems with grim reality without people inventing and believing bogus narratives. But as I’ve argued more times than I can count, speech cannot be the default rationale for a universal laissez-faire policy in cyberspace. And as this story demonstrates, it’s a lie anyway. The major web platforms can and will manipulate, delete, or demote content, or links to content, when they are motivated to do so. Whether these internal decisions are driven by revenue, public relations, or even altruism, speech-maximalism does not seem to factor into their thinking, so there’s no reason why it should necessarily factor into external motivations like a court order.

Meanwhile, we can’t expect Google and Facebook to stop people from being idiots. Readers may remember that after the Boston Marathon bombing in 2013, netizens took it upon themselves to play law enforcement. Not only did they vilify an innocent man whose whereabouts were unknown, but the cyber-mob soon harassed the man’s family, who would then discover that they young man was missing because he had committed suicide.

In the early days of Web 1.0, I rejected the old cliché Don’t believe anything you read on the internet because, of course, the internet really was just a conduit, and a credible source is a credible source. But now that there’s such a bounty of absolute garbage that can either be designed to look legit or can be algorithmically elevated to undeserved prominence, that I think skepticism should be the default approach to nearly every headline. So far, the “information revolution” is at least half oxymoronic. And part of the problem is that it can be very hard to know which half.

We Are Far From Skokie:  Free Speech in Cyberspace

“I hate Illinois Nazis.”  – Jake Blues, The Blues Brothers (1980)

I think my first introduction to the complexities of living in a nation with a constitutional right like the First Amendment was in the 7th Grade. Our teacher had the class watch and discuss the film Skokie (1981), a dramatization of the circumstances surrounding the 1977 legal case National Socialist Party of America v. Village of Skokie.  At that time, a group of about 30-50 National Socialist Party members wanted to march, dressed in Nazi-style uniforms, through an Illinois village that was home not only to a large Jewish population, but to quite a number of Holocaust survivors.  Concern was reasonably high among state officials that the community’s promise to rally 12,000 to 15,000 counter-demonstrators would lead to violence.

After the Illinois district, appellate, and supreme courts upheld injunctions barring the Nazi group from marching, the U.S. Supreme Court ultimately held that the state courts had not afforded the petitioners proper appellate review when restricting protected First Amendment rights. Thus, the Nazis would be allowed to march.  As I remember it, the main civics lessons we discussed were that, of course, protecting the rights of free speech and peaceable assembly requires protecting the rights of even the most offensive speakers; but also, that a municipality’s concern that violence may result from an otherwise lawful protest is not grounds for prior restraint of First Amendment exercise. The ACLU defended the rights of the National Socialists in Skokie, just as it represented white-nationalists’ right to protest in Charlottesville a week ago.

Although granted a permit, the Nazi group in 1977 chose not to march in Skokie and instead held a rally in downtown Chicago. Ever since then, and until quite recently, gatherings of these and other hate groups have generally been marginalized. Their speech has been protected, ignored, and mocked. Groups like the KKK would set up their flags, don their ridiculous sheets, spew garbage into megaphones that nobody would bother listening to; and then they’d pack up their impotent little circuses and go home. The “Illinois Nazis” were satirized in the 1980 comedy The Blues Brothers; and that was about as worked-up as we needed to get for the better part of the last four decades. But now, it seems we are far from Skokie.

In response to events in Charlottesville—though clearly Boston was a very different affair—it is possible that state and municipal lawmakers may try to re-legislate the meaning of “inciting violence” when it comes to issuing permits for groups claiming their intention to peaceably assemble. For instance, common sense might suggest that a large crowd showing up with firearms, or weapons of any kind, means that the proposed assembly is not “peaceable.” Thus, city officials should be allowed, with respect to the Constitution, to make reasonable decisions as to what risks they consider tolerable for their police officers to manage.

But that’s physical space. And there is probably a fair body of precedent law upon which city and state legislators can build, if they feel the need to strike a new balance between public safety and the First Amendment relative to a new and more dangerous climate.  But what about cyberspace?

If we set aside the hot-button topic of the president’s tacit endorsements of these groups, the most significant catalyst in amplifying previously-marginalized and fragmented hate-groups into large, gun-wielding mobs has got to be the internet. The internet connects people, right? Except the utopians and dreamers usually talk as though it only connects decent people—or even more naively, that the connection itself is the path toward newfound empathy for one another, which should moderate hatred and division. This can be true, but the opposite results are also plainly manifest.

It turns out the internet is a fertile breeding ground for hatred and division. Anyone can create a platform that connects people whose primary common interest may be hatred of other groups. And it’s not always as blatant as white nationalists hating Jews, people of color, homosexuals, etc. It may even be subdivisions among Jews, people of color, homosexuals, etc. hating on one another, which may be why our political process seems overly bogged down by tribal infighting along lines of identity rather than policies of inclusion—or at least tolerance. The internet seethes with conflicts of egocentrism; and I think it’s fair to say that the web is the ideal intersection for a bunch of misguided, chino-wearing, Tiki-torch-carrying college boys to find common cause with actual flag-waving Nazis trying to provoke a race war.

As was widely reported, events in Charlottesville led GoDaddy to finally boot the Nazi-themed site The Daily Stormer off its hosting servers. The site was then denied hosting by Google, kicked out of Cloudflare’s anonymizing service, refused hosting by other OSPs, and has now allegedly migrated to the dark web. No doubt, many people who were outraged by last weekend’s tragic events applauded these decisions to remove The Daily Stormer from the mainstream; but they were also followed up by notes of concern over the protection of free speech online. As the presumptive ACLU of the internet, the Electronic Frontier Foundation unsurprisingly took the position that speech must never be censored by these private platforms.  In a blog post, the EFF states…

“We at EFF defend the right of anyone to choose what speech they provide online; platforms have a First Amendment right to decide what speech does and does not appear on their platforms. That’s what laws like CDA 230 in the United States enable and protect. 

But we strongly believe that what GoDaddy, Google, and Cloudflare did here was dangerous. That’s because, even when the facts are the most vile, we must remain vigilant when platforms exercise these rights. Because Internet intermediaries, especially those with few competitors, control so much online speech, the consequences of their decisions have far-reaching impacts on speech around the world.”

Yes, the language itself is contradictory and equivocal (i.e. sites should have these rights but not exercise them), but there is no denying that the EFF is highlighting the unprecedented challenge we face with regard to the web and speech. On the one hand, private entities do not have the same constitutional obligations as the state; but this legal technicality does not reconcile the fact that a company the size of Google plays an outsized role in facilitating the means of all speech—from the vile to the profound—in the manner that speech is now conducted. Just like the ACLU defended the Nazis in Skokie—because the principle must be upheld if we are to protect other voices like civil rights leaders—the EFF argues the same rule applies in cyberspace. Allowing OSPs and edge providers to censor speech based on business decisions—and this could include government pressure—is potentially hazardous.

Conversely, these concerns contain a lot of overwrought hypocrisy in which the apparent speech defense masks—and even exacerbates—the larger problem. Because it is the combination of free-speech maximalism and “safe harbor” absolutism, with regard to internet policy, that has produced an oligopoly that now owns the primary conduits of speech itself.  That’s the real danger.  Or as my colleague, Mike Katell puts it …

“We have left the barn door open and allowed Silicon Valley to move the popular venues of expression from the community stage and the city street to their proprietary platforms, where they are guided not by constitutional or democratic principles but by terms-of-service strategically designed to maximize profits and offset risk.”

The internet industry, with the help of organizations like the EFF, has consistently swept a million sins (i.e. criminal conduct) under the rug of free speech—not as a matter of principle, but as a matter of revenue growth and competition for market-share. The major platforms manipulate speech all the time in the service of their business interests; and last week, it suddenly became bad for business to host The Daily Stormer. So what does this mean for speech?  Not much I think.

In a world in which private speech on public platforms has ballooned to trillions of interactions per day, the logic of slippery slopes toward censorship must be considered in context to this scale. If The Daily Stormer dies, speech lives. If sites or pages hosting terrorist propaganda are denied service, speech lives. If sites hosting copyright infringing content, selling counterfeit goods, facilitating trafficking, or any other criminal activity are shut down, speech lives. Just like in physical space.

This is to say nothing of the fact that the great, cosmic explosion of speech hasn’t really done democratic principles any favors. As a conveyance of knowledge (that magic ingredient meant to make people more compassionate), the internet also has the capacity to transform reality itself—even documented history—into a choose-your-own-adventure game. Then, because the internet connects people, some ten-thousand flat-earth, tinfoil-hat, conspiracy-theory whack-jobs are no longer dispersed innocuously around the country but will instead coalesce into a tribe that meets daily on TooStupidToBreathe.com. And the next thing we know, they’re a movement requesting a permit to rally in a city park.

As I’ve indicated many times, when the internet activists rush to defend speech in high-profile instances like The Daily Stormer, they consistently overlook a truth that we need to accept:  that laissez-faire internet policies on controlling content has produced—and will always produce—a society where bullies trample speech in ugly and even physically dangerous ways. This cognitive dissonance is reflected in Cloudflare’s wringing its hands over terminating The Daily Stormer account.  In a blog post on the matter, CEO Matthew Prince writes…

“Someone on our team asked after I announced we were going to terminate the Daily Stormer: “Is this the day the Internet dies?” He was half joking, but only half. He’s no fan of the Daily Stormer or sites like it. But he does realize the risks of a company like Cloudflare getting into content policing.”

Maybe they’re trying to answer the wrong question—an immature question. Because I think the answer is no, it’s not the day the “internet dies,” but maybe it’s the day our bullshit, utopian idea of the internet dies. And that’s not a bad thing. Because utopianism is the product of an immature assumption that bad people don’t exist, only bad systems do.  That’s why utopias are always one step away from dystopias. In this regard, not only do OSPs have a right to not facilitate hate, violence, or crime; but it is probably time for the internet industry to accept that taking such action is actually a responsibility for which they need not apologize.

In a broader context, I do not wholly reject the concerns raised by the EFF in this case; but as a matter of policy, I also believe we cannot effectively have this particular debate as though it were a Skokie-era issue. That is simply not the world we inhabit anymore. The internet’s unique capacity to catalyze anti-democratic views, even violent and hate-filled ones that would destroy the First Amendment itself, should factor into the equation when discussing the service providers’ role in protecting speech.

EFF says Section 1201 of the DMCA is Unconstitutional?

Last week, the Electronic Frontier Foundation filed suit against the federal government, naming the DOJ and the Copyright Office as defendants.  The EFF filed on behalf of plaintiffs Dr. Mitchell Green, a computer scientist and researcher at Johns Hopkins; Andrew Huang, an engineer and inventor; and Huang’s company Alphamax LLC.  The crux of the suit argues that Section 1201 of the DMCA, which prohibits circumventing technical protection measures (TPM), or trafficking in devices used for circumventing these measures that are designed to protect copyrighted works violates the First Amendment and is, therefore, unconstitutional.

The most common type of TPM consumers tend to be aware of are applications like the software on a DVD that prevents or mitigates illegal copying of the contents; but TPM are increasingly used in a broad range of devices and products because, of course, computers and software increasingly run everything we touch. For this reason, 1201 applies to a wide range of classes of copyrightable works, including software itself, and so the debate over the law invariably conflates movies and medical devices or cellphones and tractors, which means the public dialogue can be rather confusing for most of us.

We read a brief assertion in an article by Cory Doctorow—or even an opposing view—and the nitty-gritty may be ten pages of complex analysis by the Copyright Office that few people will read let alone fully understand.  Meanwhile, consumers should keep in mind that absent the provisions in 1201, products like DVDs, iPods, and Kindles would simply not exist because rights holders would not have licensed their works for distribution on these platforms. And it is characteristic of the EFF and its colleagues to focus on the restrictive aspects of a legal framework while ignoring the productive ones.

In simple terms, it is illegal to circumvent TPM, whether the copyrighted material being protected is entertainment media like an eBook or it’s the software that runs a medical device or the systems in your car. The EFF’s criticism weighs heavily on the fact that it is a violation of 1201 to circumvent TPM even if the intent is not to infringe copyright, but there are also permanent and termporary exemptions in force, recommended by the Register of Copyrights, that allow for circumvention in a number of circumstances. Every three years, the Copyright Office reviews applications for exemptions, though this process itself has been called “onerous” by the EFF and others and is likewise implicated in the question of constitutionality of the 1201 statute.

As mentioned, there are three named plaintiffs in this suit, though one can think of Andrew Huang and his company Alphamax as representing the same interests.  But in an effort to keep this post under 2,000 words, I’ll focus on the complaint regarding Dr. Green and EFF’s broad complaint that the Copyright Office triennial review process is itself stifling free speech.

That Dr. Matthew Green’s Security Research is Being Stifled

Likely, the most compelling and easiest to understand complainant is that of Dr. Green, who conducts important research into, among other things, the security systems of automobiles. This was the focus of his application for an exemption to 1201 during the last triennial session.

Dr. Green explains on his blog that because the Copyright Office failed to grant the exemptions he applied for, that a project underway in the Fall of 2015 had to be conducted in a manner less efficacious and less thorough than the best method available. He also implies that the opposition to his application from the Business Software Association might have carried undue, industry weight in the decision-making process.  But a review of the Register of Copyright’s analysis and conclusions regarding the relevant class of exemptions reveals that the Copyright Office was substantially more sympathetic to the testimony of Dr. Green and his co-applicants than it was to the opposition arguments of either the software or automotive industries.

In fact, the Copyright Office, in its Final Rule issued on October 28, 2015, recommended a broad exemption for “good faith” research like the work being conducted by Dr. Green, but it also recommended a 12-month waiting period to implement this exemption.  Although this delay may be a source of frustration for researchers and the EFF, it was not proposed due to industry opposition to the exemptions. Instead, the Copyright Office recommended the one-year delay in deference to various federal agencies that had weighed in with concerns regarding some of the proposed exemptions.

For instance, the EPA stated that certain aspects of the work to be conducted could “slow or reverse gains made under the Clean Air Act.”  How?  I have no idea.  But neither does the Copyright Office because they’re not authorized to have an opinion about the environment. So because some of the concerns raised are outside copyright’s purview, the Register proposed  the delay in order to give other federal agencies time to review. That’s what they’re supposed to do, and neither Dr. Green nor the EFF appear to acknowledge that there is an extent to which this research is being slowed by federal agencies which have nothing to do with copyright or Section 1201.

Moreover, the timing of EFF’s big play to argue the unconstitutionality of the entire law is odd in light of the fact that the Copyright Office is largely in agreement with applicants like Dr. Green. In fact, the Copyright Office could not have been more clear in its agreement that the current permanent exemptions for security research are not sufficient to protect Dr. Green and his colleagues from liability.  But when the office called for recommendations to 1201 in the beginning of this year, neither the EFF nor any of its sister organizations filed comments with a view toward amending these permanent exemptions.

So, one question worth asking is why the EFF does not use its considerable resources to seek amendment(s) to the permanent exemptions rather than work toward the less likely outcome that the entire statute will be declared unconstitutional?  After all, as a practical matter, if the real interest is enabling people like Dr. Green to work at his best as soon as possible, fixing the permanent exemptions is a far more practical enterprise than the prospect of having the Supreme Court vitiating all of 1201 several years from now. This seems especially true when the Register already agrees that the current statutes are inadequate.

That the Triennial Review Process is Stifling Speech

Roughly one-third of the EFF’s complaint focuses on the alleged inadequacy of the triennial review process itself. Their contention is that the process is so cumbersome and slow that it fails to fulfill its purpose to provide an adequate counter-balance to 1201’s restrictions and also constitutes a prior restraint on speech by delaying applicants’ ability to engage in otherwise legal, non-infringing research or publication.

Two things seem odd about this section of the complaint.  The first is that it focuses on 1201’s alleged, broad infringement of the speech of filmmakers* and teachers despite the fact that the named plaintiffs in the lawsuit applied for exemptions having nothing to do with filmmaking or teaching.  The second is that the Copyright Office actually did recommend exemptions for a large number of requests pertaining to filmmakers and teachers, though, apparently these did not go far enough for the EFF, which scorns rejections—like an exemption for “narrative filmmakers”—as evidence that 1201 is stifling speech.  Of course, considering this particular class of filmmaker begs detailed analysis because the majority of narrative film uses are not generally fair uses. So, this part of the complaint begins to sound like EFF may be making its usual free speech mountain out of a copyright molehill.

Also, with regard to the alleged onerousness of the review process, the public should note that the process is a rather large task resulting in decisions that have far-reaching implications throughout the market.  Exemptions apply to everyone, not just the applicants.  So, when the CO said that it’s cool for a K-12 teacher to “rip” film clips from his DVD collection to bring into class to teach film or cultural studies, that circumvention is now kosher for all teachers doing the same thing across the country. So, because these rulings are not narrow decisions (like fair use judgments), it seems reasonable that reviews happen triennially and that applicants bear some substantial burden to argue their cases for various exemptions.  The CO’s complete review of the last round of applications is over 400 pages long.  How frequently should the agency engage in that level of detailed analysis and make recommendations that have considerable effect in the market, and which must conform to existing laws beyond the scope of copyright?

And once again, the timing of this complaint is curious because the Register earlier this year recommended that, going forward, all successful petitions not opposed in the next review cycle need not be re-litigated.  This is relevant because the EFF specifically cites the need to re-apply for exemptions every three years as evidence of undue burden, but it ignores the fact that the Copyright Office acknowledges the issue and is making recommendations to mitigate the problem.  So, the big question reprises:  Why is EFF more eager to try to strike down the entire law than it is to work with the Copyright Office to address some of the very flaws the Register agrees exist?

Based on just the complexities I have tried to articulate here—and which only scratch the surface—it seems unlikely the First Amendment complaint will make as much progress as it will make noise. Yes, we want to protect fair use for expression and the ability of researchers to ensure our safety and security while living with our computerized products. But the record indicates that the Copyright Office is in synch with these views.  We’ll see what the courts say.