Category: Law & Policy

On Cyber Policy, Biden Should Make a Fresh Start

As the Biden administration seeks to restore normalcy in American governance—from constitutional legality to ordinary decency to an actual response to the COVID crisis—it is little surprise to see officials from the Obama administration return to Washington. But as we emerge from the political and emotional rubble, the new administration should recognize and reject one of the major errors made by its Democratic predecessor—a seemingly technophilic friendship with Big Tech that placed Google in particular at the heart of the executive branch.

President Biden stated in his inaugural address that we must reject the assault on truth that has galvanized cult-like beliefs among too much of the electorate, and which exploded at the Capitol on January 6th. Amen. But in order to effectively address the unprecedented role the internet has played in the transmission of conspiracy theories and other toxic content, the Biden administration must understand the relationship between the dire outcomes we have witnessed and Big Tech’s influence on public policy—namely antitrust law, privacy law, and copyright enforcement.

By carving out its own exceptions within these and other legal frameworks, the major internet companies have for too long shirked their responsibilities as corporate citizens, and the new administration should make every effort to begin with a blank slate vis-à-vis cyber policy and not reopen the revolving door that once facilitated contact between Google and the White House.

In 2016, Vox reported that the Obama White House had more interaction with Google lobbyists than those representing any other industry. In 2017, the Campaign for Accountability published a report identifying extensive Google funding of academic papers “tied to specific issues that Google sought to influence,” of which two-thirds reportedly did not disclose Google’s backing. We cannot return to this paradigm in which Big Tech writes its own rules of the game. We need to hit the reset button on the whole conversation.

Silicon Valley’s historic positions on antitrust, privacy, patent and copyright enforcement, and more recently on disinformation and anti-harassment initiatives have something in common. To many of us, they look like familiar guardrails of societal norms, but the tech industry has often characterized these as obstacles to the frictionless flow of data—i.e. their bottom line. Let’s be clear. By the time Facebook, Twitter, Google et al finally began to remove radicalizing misinformation and propaganda from their platforms, they
had already earned billions monetizing that same content right up to the point when it became untenable from a PR perspective.

The New Administration Should Listen to American Artists

Songwriters, for instance, had good reason to raise concern last week about reports that the DOJ might rehire Renata Hesse as Assistant Attorney General for Antitrust. In 2016, Hesse determined that rather than end the age-of-radio licensing regime that eviscerates songwriter royalties in the streaming market, she proposed aggravating matters by ending “fractional licensing,” for works with multiple authors—in essence using her antitrust authority against the Davids instead of the Goliaths in the room.

Similarly, as of last night, it appears the administration has tapped Gene Kimmelman for the antitrust role, and again, this rings alarm bells. Kimmelman was formerly CEO of PublicKnowledge, a Google-funded organization that rarely advocates a position incompatible with Big Tech’s interests. And as author and monopolist critic Matthew Stoller noted in a tweet: “Kimmelman is generally a consumer welfare advocate, and he supported the DOJ under Obama suing book publishers on behalf of Amazon because supporting Amazon’s monopoly would lower consumer prices. It’s possible he has rethought his approach.”

Tech millionaires are not the people who need support from the Biden administration. The creators do—the people whose works we recognize mean more than ever in a time of crisis and isolation. While the EU has much more forcefully addressed Google and others’ non-competitive practices, figures like Hesse and Kimmelman have both advocated ways to exacerbate creators’ already weakened bargaining position in the 21st century market. That is the opposite direction we need to go—especially when a global health crisis has revealed 1) how profoundly dependent we are upon the arts; and 2) how economically precarious artists are in the digital age.

Big Tech did not cause the pandemic or the consequent shutdown of many sources of artists’ revenues—from live theater to film shoots to classroom teaching. And admittedly, those companies get some of the credit for helping to build the infrastructure that gives us access to music, shows, movies, etc. when we are all stuck at home. But on a much more profound level, Big Tech practices and policy agendas obliterated the source of revenue that might otherwise help sustain many creators in a time of crisis:  sales of works at fair-market prices, backed by strong copyright enforcement and anti-piracy initiatives. Efforts in this regard gained little purchase in the Obama years, especially once Google flooded the zone with lobbyists beginning in early 2012.

As many have discussed in the past, policymakers can learn a great deal from the creative community. Musical artists were the proverbial canaries in the coal mine we called the digital revolution, and from the moment citizens were sold the premise that copyrights were outdated, it was a short logical hop to the argument that permission itself was outdated. And so, the floodgates opened until the romanticism of the internet as wild west eventually looked too much like the real wild west—feral, lawless, and violent. Of the many things that need restoring in Washington, showing the major internet companies more deference than scrutiny should not be on that list.

Copyright Advocacy in Turbulent Times

copyright war

It is admittedly difficult, maybe even a bit ridiculous, to think about a policy matter as arcane as copyright law when the headline story of the moment is an attempted coup d’etat—let alone one fomented by the President of the United States and endorsed by some Members of Congress. But against the backdrop of existential threat from within, I am also reminded why I believe a subject like copyright is so important:  first, because it exemplifies the hard truth that our democracy is built on fragile principles requiring careful and persistent stewardship; and second, because it expresses the almost quixotic hope among the founders that the nation might eventually be great enough to produce art and culture. In a different post, I cited this quote from a letter written in May of 1780 by John Adams to Abigail:

 I must study politics and war, that our sons may have liberty to study mathematics and philosophy. Our sons ought to study mathematics and philosophy, geography, natural history and naval architecture, navigation, commerce and agriculture in order to give their children a right to study painting, poetry, music, architecture, statuary, tapestry and porcelain.

Although Adams could not possibly envision the modern, technological media that would emerge in the late nineteenth century, his allusion to such delicate arts expresses that aspiration toward an American greatness that could one day be a nation strong enough to indulge in creativity and invention. Yorktown was still a year and half into the war’s uncertain future when Adams wrote those words to his wife. Thirty-four years later, during the war that some historians call the “second American revolution,” an adversary occupied a congressional chamber in the U.S. Capitol, which was still newly under construction. On August 24, 1814, Admiral Cockburn of the Royal Navy sat down in the Speaker’s chair and in a mocking, parliamentary tone asked his troops, “Gentlemen, the question is, Shall this harbor of Yankee democracy be burned? All in favor of burning it will say Aye!”

This anecdote appears in the Handbook of the New Library of Congress, published in 1897 to commemorate the grand opening of the beautiful Beaux Arts building—today the Jefferson Building—situated just east of the Capitol with its copper dome topped by the flame of liberty. Although the story has a whiff of mythologizing in it, the account of Cockburn’s farcical, legislative theater as a prelude to lighting up the Capitol is at least a metaphorically fair reflection of England’s disdain for the American experiment when they burned down icons that they noted had been so hypocritically built with slave labor.

The reason that story was published in the Handbook of the New Library is that the precursor to the Library of Congress was burned by the British as the library within Congress—a narrow skylit atrium of hardwood and wrought iron, originally located along the west wall we see behind the stage where presidents are inaugurated. The new library, as envisioned by Lincoln’s appointed Librarian of Congress Ainsworth Spofford, was not only meant to be a house for the people, but a repository for the latent genius of the people by collecting copies of works deposited for copyright registration. As cited in the book I published in November:

Immediately following passage of the 1870 Copyright Act, the library received just over 5,700 deposits, or roughly one work for every 6,600 citizens; by the peak year (for the century) of 1893, the library received just over 48,000 deposits, or roughly one work for every 1,360 citizens. So while the population nearly doubled in this same period (from about 38 million to about 75 million), creative output increased roughly fivefold.

To put it mildly, the goons who ransacked the Capitol have no better understanding of what the leaders of the Revolution hoped for America than they were clear about what they might ultimately achieve with their grotesque misadventure on the Mall. By the end of the nation’s first century, Adams’s modest hope that the United States would be strong enough to be creative was beginning to be realized. And one terrible irony of the present is that in so many areas, real American greatness—its capacity to invent, to create, and to reinvent itself—was alive and well the day Donald Trump told the nation that all he could see was “carnage.”   

It is no coincidence that the corporations most responsible for the aggressive assault on creators’ rights are the same companies now finally understood to have played a substantial role in cultivating that alternate reality in which too many citizens now operate. Mischaracterizing copyrights as barriers to access has been a key ingredient in Silicon Valley’s magic elixir they sold to the world as the “free flow of information.” And for years, they simply refused to acknowledge that truly dangerous disinformation flows just as freely and twice as quickly.

I jumped into this debate almost a decade ago because I believe that an empowered population of authors and creators is essential for a thriving democracy. In 2013, I wrote, “To put it whimsically, a great bulwark against tyranny would be a class of unusually wealthy poets.” Having now witnessed a closer brush with tyranny than many would have thought possible in the United States, I am more committed than ever to that particular kind of whimsy.

Section 230 and Trump’s Legislative Circus

Recently, the law called Section 230 of the Communications Decency Act (1996) has featured in a political cacophony that is becoming more ridiculous since the day Twitter first presumed to label Trump’s disinformation for what it was. Now, the noise has continued to exacerbate legislative dysfunction down to the final hours in this toxic year.

After vetoing the 2020 National Defense Authorization Act (NDAA) because the must-pass legislation did not contain a rider to repeal Section 230, Trump then pivoted to making the same proposal (along with another unfounded investigation into election fraud) a condition of passing a broader COVID relief package favored by Democrats, but less so by most Republicans. As long as those riders are part of the spending increase bill in the Senate, Democrats cannot vote for it, which will presumably suit Leader McConnell and several other Republican senators just fine.

What any of this means with regard to Americans getting the financial assistance they need, or to Trump’s continued influence over the Republican party remains to be seen. But for sure, the president’s very fragile ego has elevated an arcane cyber law to prominence by grossly distorting its intent and meaning, and by injecting divisive partisanship into a policy matter where lawmakers might otherwise reach consensus.

Real Section 230 Problems

The ill effects of Section 230 have nothing to do with political speech bias and everything to do with harmful conduct like harassment, libel, sexual extortion, etc. that has too-often been shielded by the statute. These unintended consequences, akin to the DMCA Section 512 problem, are largely the result of the courts’ over-broad interpretations of Section 230, resulting in dismissals, incompatible with justice, of various civil claims.

Nowhere in American life are parties that contribute to, or profit from, harmful conduct automatically immunized against civil liability, except for internet platforms. And automatic, wholesale immunity was never the intent of Section 230. As described in this post, 230 was written to encourage platform moderation, but over the years, the conditional immunity it was meant to provide was steadily asserted by platform owners as grounds to reject nearly all moderation altogether—even the basic courtesy of removing material that is known to be harmful.

So, whether a site intentionally or unintentionally hosts material that is harassing, libelous, nonconsensual pornography, or content that may be otherwise actionable in the real world, platforms have almost never been forced by court order to be so much as helpful to victims of these crimes. As attorney Carrie Goldberg can describe in detail, her client Matthew Herrick was unable enjoin the dating site Grindr simply to demand that it remove posts made by another user with the explicit intent to cause Herrick to be physically harassed and quite possibly raped. All Grindr had to do was remove the posts, but it refused to do so on claims of protecting speech—a constitutional fallacy that is only possible because the courts have held 230 to be too broadly immunizing.

Consequently, Trump’s rhetoric on Section 230—lashing out at platforms like Twitter for presuming to label disinformation for what it is—has muddied the waters on a legal framework that otherwise requires sensible and humane review. Although Trump likely could not explain 230 to save his life, his gibbering amplified one of the most popular misconceptions about it:  that “viewpoint neutrality” is either the aim of the statute or a condition for maintaining a platform’s liability shield.

Neither of those premises is true, but it is worth remembering that it was the platforms themselves who promoted this false neutrality narrative long before the Trump administration put them in a moral bind of their own making. Every Big Tech PR message for the last 20 years has been one in which it is presumed to be axiomatic that internet platforms are enhancements to and defenders of the speech right. Neutrality and speech were the public rationales for laissez-faire moderation policies that just so happened to enable the big platforms to monetize all activity. Only when disinformation became the official word of a sitting president, and hate speech spilled over more prominently into hate crimes, did any of Silicon Valley’s leaders begin to wonder if they had made egregious errors in their systems or management practices.

Meanwhile, the outgoing president’s vindictive assault on Section 230 has largely been a PR gift to the companies he would like to hobble and to those ardent believers in the failed maxim that “more speech is the antidote to bad speech.” The Electronic Frontier Foundation published a post on December 9 entitled It’s Not Section 230 President Trump Hates, It’s the First Amendment. Naturally, it seized upon the Trump tantrum as an opportunity to incorrectly reiterate that 1) maintaining the status quo of 230 is synonymous with protecting speech online; and 2) all critics of 230 are hellbent on repeal as an assault on the First Amendment, just like Trump.

Real Section 230 Reform

On the contrary, while some reformers have advocated apolitical reasons for a repeal of Section 230, others recommend restoring the original intent through legal reform—a reform that begins by recognizing that the bad conduct shielded by 230 means that speech is not exactly protected as universal right on the internet in the first place. As scholars Mary Anne Franks and Danielle Citron, two of the most important thought leaders working on the 230 issue, describe in a paper published in February with the Boston University School of Law [1]:

Marginalized groups in particular, including women and racial minorities, have long battled with private censorial forces as well as governmental ones. But the unregulated internet — or rather, the selectively regulated internet—is exacerbating, not ameliorating, this problem. The current state of Section 230 may ensure free speech for the privileged few; protecting free speech for all requires reform.

Franks and Citron have made major contributions to legislative reform, addressing harms like nonconsensual pornography, and to our understanding of how Section 230, combined with “speech fundamentalism,” results in conduct like online harassment without consequence for the perpetrators or the facilitators. So, the implication that the president, or any elected official, is having his speech chilled by means of fact-checking, is blatant, privileged hypocrisy in contrast to what really happens to people who do not sit in seats of power …

Failing to address online abuse does not just inflict economic, physical, and psychological harms on victims—it also jeopardizes their right to free speech. Online abuse silences victims. Targeted individuals often shut down social media profiles and e-mail accounts and withdraw from public discourse. Those with political ambitions are deterred from running for office. Journalists refrain from reporting on controversial topics. Sextortion victims are coerced into silence with threats of violence, insulating perpetrators from accountability.

Rather than a piecemeal approach to reforming Section 230, Franks and Citron propose two broad remedies—one statutory, the other judicial—to ameliorate the inadvertent shield the law presently provides to bad actors. The statutory remedy is to clarify that 230 only applies to protected speech and not to the broader term “information,” which is the word that currently animates the immunity enjoyed by platforms.

In theory, this focus on protected speech might rein in Big Tech’s rhetorical agenda to define everything posted online as “speech.” As Franks and Citron recommend, if the statute is more clearly defined, the courts can distinguish protected speech from tortious conduct posing as speech. In fact, most of us can make this commonsense distinction without law degrees; but having said that, the speech bar is not an easy one to overcome by amending the 230 statute accordingly. For better or worse, protected speech can encompass some very bad conduct, and the legal remedies tend to require narrowly tailored statutes, outside the scope of 230, to prohibit the conduct itself.

For instance, as I was writing this post, Dr. Franks happened to tweet the news that the Minnesota Supreme Court upheld that state’s nonconsensual pornography law as constitutional, but it is worth noting that the court rejected the state’s assertion that the conduct was a new form unprotected speech. Instead, it held that the law served a compelling interest and was narrowly tailored to serve that purpose (i.e. strict scrutiny). It is also worth mentioning that defenders of Section 230’s status quo have generally opposed statutes prohibiting nonconsensual pornography.

In addition to possible statutory amendment to Section 230, Franks and Citron’s paper describes a judicial approach that would apply precedent understanding of “reasonableness” on a case-by-case basis to examine whether a platform has taken “reasonable” steps to remove or mitigate unprotected, harmful content from its servers. In practical terms, then, Matthew Herrick’s conflict with Grindr would not arise because 1) the posts at issue were not protected speech;[2] and 2) because Grindr’s refusal to remove the posts would likely not meet a “reasonableness” standard familiar to any court in comparable areas of law.

On that second point, Franks and Citron cite judicial principles sounding in, for instance, copyright law, which begs the question whether “reasonableness” could be more effectively applied under Section 230 than “knowledge” of infringement has been under Section 512. But I shall leave that question open for consideration in a future post.

In general, I would argue that a very compelling reason to close the Section 230 loopholes that allow site operators to shirk responsibility is the premise that opportunity becomes motive. If we ask, for instance, why there has been an increase in nonconsensual pornography, often perpetrated by some idiot ex-boyfriend with a gripe, we can blame the weak morals of the individual, misogyny in general, or a bottle of tequila and a bad day; but a key factor that cannot be ignored is that it is just too damned easy. The opportunity to cause someone harm—potentially much greater harm than might be contemplated or intended—with the tap of a few buttons only exists because certain platforms trade in misery while others simply practice depraved indifference to it. And that is the psychosis which needs to be addressed by legitimate Section 230 reform.

[1] The Internet as a Speech Machine and Other Myths Confounding Section 230 Reform. Link.

[2] Even worse, because the posts “spoofed” (i.e. pretended to be) Herrick, they were a form of coerced speech in addition to attempts to cause him physical harm.