Category: Law & Policy

Platform Responsibility? How about starting with legal content?

It may be hip these day to talk about platform responsibility, but just a couple years ago, there were no mainstream conversations about how the operations and policies of online service providers might be enabling misinformation, hate speech, propaganda, etc. And while mea culpas from Facebook’s Mark Zuckerberg and Twitter’s Jack Dorsey make headlines, and Google tries to pitch the general message that “we’re all in this together,” my more cynical self wonders whether these service providers are just waiting out the news cycle. Waiting until we grow weary of this new discussion, which just happens to be focused on some of the most difficult (if not intractable) questions, like where to draw lines on protected speech.

As alluded to in this post, it is my personal theory that if the major service providers do not change their policies, practices, and rhetoric with regard to illegal content—or support of illegal content—then all this chatter about finding balance in the realm of protected speech is just pandering noise that will soon die down. I do not doubt that Zuckerberg, Dorsey, et al feel personally conflicted about the role their platforms have played in elevating rank divisiveness into the mainstream of political discourse; but when these guys, and other representatives of OSPs say things like “We have to do better,” I can’t help but think of the litany of cases in which internet companies have fought against complying with established legal principles at every turn.

I think of Google fighting a Canadian Supreme Court order in Equustek v. Google to delist links to a counterfeit product supplier. Or Yelp in Hassell v. Bird refusing to remove a review that a court held to be libelous. Or the fact pattern in BMG v. Cox Communications which revealed a systemic policy whereby the OSP avoided compliance with the terms of the DMCA. Or even Viacom v. YouTube, which, though settled without trial, revealed a similar fact pattern of knowingly enabling users to infringe copyrights. Or one of my favorite moments in internet hubris: Reddit’s hand-wringing, apologetic rationale for removing a subreddit that was hosting stolen nude photos of celebrities, who happened to be victims of a hacker.

Not one of the cases alluded to above involves protected speech, yet the responses have all been variations on the same theme: that removing anything from the web can only be a slippery slope toward “censorship.” And despite the fact that these, and other examples, generally entail unprotected, illegal content, we are now suddenly expecting the OSPs to grapple with the more complicated matter of monitoring legal speech and to do…something…as a matter of principle. Don’t get me wrong. A change in attitude would be welcome in so many ways. But if the major platforms cannot first amend their practices with regard to illegal material, I am highly doubtful they will come anywhere near striking the balance that everyone who is now having the “responsibility” conversation says is so essential.

In a panel discussion about platform responsibility hosted yesterday by the Technology Policy Institute, Daphne Keller of the Center for Internet and Society said that she “did not want to return to the copyright wars” in context to the discussion now being had. That’s her prerogative, of course, but copyright infringement is probably the vanguard issue that is most instructive to this moment of internal and external consideration of what platform responsibility actually means. Two decades worth of policies adopted by the major OSPs to first profit from copyright infringement and then seek to reshape copyright law itself in the courts, in academia, and in the public sphere reveal the sense of “responsibility” these companies have felt toward the people they have been exploiting. And of course when the exploited complained they were told they were wrong—that they did not understand the future.

In fact, in yesterday’s panel, I believe it was Keller who alluded to the “false dichotomy” that pits technology against rightholders, but let us not forget the origin of that bullshit narrative. Because it didn’t come from the rightholders. Shall we do a search for all the editorials posted by Techdirt, by EFF, by Lessig and Lefsetz—by copyright critics large and small—who have labeled creative rightholders as technology Luddites “clinging to old models”? That’s not the copyright owner’s narrative, it’s Big Tech’s narrative. So, if there is a false dichotomy, which now demands clarification, it ought to be recanted by the liars who wrote it and are still repeating it. That would be taking responsibility.

Interestingly enough, as a former Associate General Counsel for Google, Keller worked on the aforementioned Equustek case, and in June of 2017, she wrote a blog post for CIS in which she labeled the Canadian Court order that Google remove search results globally as an “ominous” proposal. In simple terms, this was a case in which a counterfeit business infringed Equustek’s trade secrets and then sold knock-off products via multiple sites on the web. Equustek sought and won a court order to remove the counterfeiter’s sites globally from Goolge’s search results.

I cite this example because it is comparatively straightforward. The legit company deserves the business earned by its products; consumers deserve to know what they’re buying and from whom; and there is no speech protection for trade in counterfeit goods. Equustek is also instructive because there is a clear parallel between its prayer for injunctive relief and, say, the motion picture industry’s efforts to have Google delist or demote major pirate sites, which are also not protected speech. Yet, in her 2017 post, Keller sums up the “ominous” nature of the Canadian Court order thus:

“Canada’s endorsement of cross-border content removal orders is deeply troubling. It speeds the day when we will see the same kinds of orders from countries with problematic human rights records and oppressive speech laws. And it increases any individual speaker’s vulnerability to laws and state actors elsewhere in the world. Content hosting and distribution are increasingly centralized in the hands of a few multinational companies – Google, Facebook, Apple, Amazon and Microsoft with their web hosting services, etc. Those companies have local presence and vulnerability to formal jurisdiction and real world threats of arrest or asset seizure in scores of countries.”

Apropos that first sentence, Keller asks rhetorically in the same post, “Can Russia use its anti-gay laws to make search results unavailable to Canadians?” I have two responses to this: the first is No, because the hypothetical, Russian court order would violate both Canadian and American law, which is not the case in Canada’s order to Google in Equustek. Keller, who is really citing Canada’s Michael Geist, falsely alleges that the defendant in Equustek is disseminating protected “speech and information,” which is not the case because the content is infringing and misleading in a manner that could be construed as fraudulent.

My second response is to mention that the policy view Keller seems to advocate—that the rule of law just doesn’t work in cyberspace—is exactly how we arrived at the moment in history when the Russian government is in fact exporting its agenda to the U.S. by using our own speech rights against us on social media. The Geist/Keller example of the Russian court order is pure hypothetical hysteria, but the phenomenon in which paid Russian hackers are fomenting anti-gay, and other hateful sentiments, to ratchet up divisiveness in the U.S. is a verified reality. I happen to think this makes pretty compelling evidence that the rule of lawlessness in cyberspace hasn’t worked out so well, but perhaps that’s just my inner Luddite talking.

So, although the topic of platform responsibility may be trending right now, I maintain some doubt that the OSPs can, or even should, try to protect society against the social and political effects of problematic information. That topic may be what sparked the conversation, but the complexity of that challenge, as it is currently framed, may wind up allowing the service providers to revert to the status quo, in which they moderate almost nothing and monetize almost everything.

Instead, taking on the less-challenging task of actually mitigating illegal content—copyright infringement, harassment, counterfeiting, trafficking, libel, etc.—does not require platform administrators to wade into the murky complexities of moderating speech. So, if they really mean it when they say, “We have to do better,” they can certainly start by complying with reasonable court orders and working with—rather than against—key stakeholders seeking a more lawful internet ecosystem.

Photo by David Crockett

The EFF Taking on Big Tech?

Last week, CreativeFuture CEO Ruth Vitale wrote a post wondering whether she had stepped into a parallel universe upon reading a June 27 missive by the EFF’s Mitch Stoltz. Related to my last post on the theme of tech-utopians doing policy pirouettes in the current climate we call the “techlash,” Stoltz declared Big Tech too big, with “extraordinary power to censor and surveil.” Really? Welcome to the resistance, Mitch.

I know what Vitale means of course. The EFF has consistently endorsed policies that bolster the interests of Big Tech, namely internet companies, so Stoltz’s post does look like a staggering about-face begging for a jab in the ribs.  But taking his statement at face value, Stoltz’s main point is that the lack of competition in the internet market is dangerous, and he primarily advocates a re-invigorated approach to antitrust law as a solution. He writes…

“Restraining Internet giants’ ability to squash new competitors can help allow new services and platforms to arise, including ones that are not based on a surveillance business model. We also need new ways to measure and describe the harms of censorship and loss of privacy as a basis for antitrust analysis. Where these harms flow from abuse of monopoly power, or improper attempts to gain or maintain such power, regulators may need to consider breaking up companies as well.”

While I don’t see anything wrong with the EFF throwing its resources behind antitrust action against any big tech corporation, where it’s appropriate, I still maintain that certain web platforms are natural monopolies for which is there no public policy solution. Ain’t none of us got time for two Facebooks, so Facebook will retain its dominant position unless we all either migrate en masse to a platform we like better, or just bail on these types of platforms because we lose interest. In general, I suspect the challenges inherent to consolidation, combined with the prospects of automation, are far more complex and unprecedented than anything antitrust law was ever designed to address. But that’s another topic for another day.

Taking on Big Tech?  Really?

Meanwhile, a subsection of Stoltz’s post caught my attention because he mentioned that among the legislative reforms necessary to mitigate corporate dominance by the majors is Section 1201 of the DMCA. These are the statutes which provide for technical protections of copyrighted material and prohibit tampering with those protections for the purpose of infringing copyrighted material. But in the context of Stoltz’s new post, it has to be noted that the EFF in particular has advocated policy views on Section 1201 which, in some cases, would amount to a gift to Google—one of the aforementioned “too big” corporations Stoltz now says needs to be reined in.

For instance, in the Summer of 2016, there was a big row over the FCC’s proposal known as the “Set Top Box” Rule. If passed, it would have forced the TV cable companies to make programming and data available to third-party manufacturers of new boxes—naturally Google was in the lead among these—they would sell to consumers. The problem for TV producers was that the programming would, by federal mandate, have been made available to Google et al without any kind of licensing regime, thus bypassing the complex network of licensing among producers and distributors of TV programming that actually gets the show-makers paid.

The EFF, specifically Stoltz, declared that the proposed FCC Rule had “nothing to do with copyright” despite the fact that the proposal had a lot to with copyright, including the implication of Section 1201 because the current cable boxes we use are one form of technical protection of all those licensing deals that result in TV shows getting made.

Meanwhile, this “nothing to do with copyright” message re. the TV boxes was articulated by the EFF at about the same time that the organization filed suit against the government to have the entire statute declared unconstitutional. The EFF has a longstanding beef with 1201 (which is not without flaws), but both the EFF lawsuit and its public messaging on the subject tends to omit a considerable amount of complexity in the issue, seeking to draw readers toward the talking point that “copyright is standing in the way of…innovation, safety, consumer fairness, etc.”

That was essentially how the “Set Top Box” narrative was portrayed, even though it cannot be denied that passage of the FCC Rule would have been a major gift to Google, expanding both its market presence and its capacity to exploit what Stoltz described above as a “surveillance business model.” All while exploiting billions of dollars worth of programming without paying a cent in license fees.

Declaring 1201 Unconstitutional

In the Summer of 2016, when the EFF announced this litigation, I wrote a long post describing why I believed their case against 1201 was flawed—or at least why it was portrayed over-simply for public consumption. In general, complaints about this section of the DMCA seep into public perception as a prohibition against fixing our own cars or other devices because 1201 prohibits tampering with the tech that protects the software that runs so many products today. And then copyright in general gets a bad rap, which groups like EFF are happy to exploit in their messaging.

In fact, during that same period, PublicKnowledge launched an all-out smear campaign against the USCO, and then register Pallante, in part accusing the agency of favoring rightsholders with regard to its triennial Rulemaking process, which considers exemptions to 1201 protections for petitioners who file requests. In that case, PK actually vilified the USCO for deferring to other federal agencies that have an interest—in fact a more acute interest—in device tampering than copyright owners.

As explained my post at the time, the Register’s report revealed the opposite attitude of which it was accused—that not only was the USCO highly sympathetic to “good-faith researchers” seeking exemptions, but that the major hurdles to some of the exemptions being sought came from agencies outside the purview of the Copyright Office, including the Environmental Protection Agency, the Department of Transportation, and the Department of Justice. Suffice to say, the subject of device tampering is not simply a DMCA issue, and the DMCA is often a minor player in a bundle of regulations designed for consumer protection, environmental protection, etc. As a June 28, 2018 letter from DOJ counsel recommending some amendment to 1201 exemptions states …

“… the DMCA is not the sole nor even the primary legal protection preventing malicious tampering with such devices, or otherwise defining the contours of appropriate research. The fact that malicious tampering with certain devices or works could cause serious harm is reason to maintain legal prohibitions against such tampering, but not necessarily to try to mirror all such legal prohibitions within the DMCA’s exemptions.”

In other words copyright may be a factor with regard to device tampering—either for illegal or legal purposes—but it is quite often not the factor. To the extent DMCA may be inappropriately intertwined with other federal protections, that is a matter for Congress to consider, but that exploration seems unlikely to implicate the unconstitutionality of 1201 as a copyright protection regime. In the meantime, it is unhelpful when EFF acolytes like Cory Doctorow fire off misleading blurbs that distill the complexity of the Rulemaking process down to crazy shit like “copyright is the reason diabetics can’t get generic insulin.”

The EFF may yet demonstrate ways in which DMCA 1201 is helping to keep Big Tech too big (i.e. stifling competition), but the organization tends not to mention ways in which the statute has fostered innovation. For instance eReaders would not exist without technical protection measures that provide publishers and authors a reason to license digital versions of their books; and DRM these days is generally invisible to consumers, playing a role in the innovation called streaming. In this regard, if the EFF truly intends to take on Big Tech for anti-competitive practices, then welcome to the party; but their chronic assault on copyright law alone has only helped to foster and sustain the market dominance of some of the major companies now allegedly in their sights.

Platforms Wrestle With the Difficult After Years of Ignoring the Easy

A new, in-depth post by Mike Masnick at Techdirt correctly describes many of the challenges inherent to platform moderation of content. It was enough of a departure from his usual “anything goes” stance that he wrote a preamble acknowledging that he was likely to piss off a few readers. And it is, admittedly, a little bit fun to watch some of the web cheerleaders stumble these days as they try to walk back the utopian view that all content online is fundamentally free speech and that removal of anything is inherently censorship.

Now that the public conversation is less comfortable with “free speech” as a universal answer—beginning with Facebook taking money for political ads made by Russian agents—Masnick et al have little choice other than to engage in a more nuanced dialogue that at least begins with the premise that some platform responsibility is worth considering. His post highlights a few possible solutions to “bad” content, including his own proposal; and while I think he correctly describes the complex nature of content moderation by administrators, I’m not sure any of the solutions cited address the real problem. His highlights include the following:

Yari Rosenberg recommends counterprogramming, which is essentially responding to misinformation with facts at the point of user interaction. Tim Lee advocates down-ranking less credible sources that appear to be news. David French proposes that the platforms only remove libel and slander because these don’t require new legal definitions. And Masnick proposes that, for instance, Facebook abdicate its centralized control over filtering or adjusting its algorithm and instead cede that power to users to set parameters for what they want to see.

“And, yes, that might mean some awful people create filter bubbles of nonsense and hatred,” Masnick writes, “but average people could avoid those cesspools while at the same time those tasked with monitoring those kinds of idiots and their behavior could still do so.” To me, this statement implies that Masnick’s “protocols” solution is largely cosmetic, that it may result in us “average people” not seeing as much garbage, but it in no way alters the underlying model of “surveillance capitalism” and merely papers over the social disease whereby garbage continues to gain undue support and have undue influence in the mainstream. (This was discussed in my last post about the paper by Alice E. Marwick on why we share fake news.)

When YouTube and Facebook shut down the accounts of conspiracy nut Alex Jones’s Infowars last week, doubtless some cheered, others cried foul, and others warned that attempting to silence even the outrageous wack-jobs can turn them into martyrs and galvanize their cult-like followers into an even larger mob. This prediction is almost certainly correct and, thus, points to the real question I have, which is not whether Facebook should keep Jones off my feed to avoid offending me, but why so much outright garbage information is currently playing such an outsized role in the social and political narrative of the United States?

I can see how some of the solutions Masnick mentions, including his own, might diminish some of the low-level sharing of junk news by “average” thoughtful people, but none of these proposals tackles the big social phenomenon itself — that the internet has been the catalyst for elevating toxic misinformation to an unprecedented level of tangible influence. The crazies who used to be conveniently segregated by geography (the proverbial idiots in every village) can now coalesce in cyberspace, finding strength in numbers, reinforcing their “deep stories,” (to use Alice Marwick’s term), and taking tangible action in the streets or at the polls.

So, while the tech pundits and the internet companies look for (or pay lip-service to looking for) technological responses to these social ills, the underlying reasons why we are suddenly reacting to “bad” content and putting pressure on the major platforms may not actually be addressable—either by the companies simply removing content or by public policy that attempts to parse hate speech and other highly-subjective concepts.

Masnick is not wrong that the task of editing speech by the platforms is extremely difficult, which is presumably the main reason he advocates putting that control in the hands of users. As I say, I’m ambivalent about this approach because I think the end result will be the same—increased credibility for outright crazy shit via one portal or another. If there is an antidote to that problem, I strongly suspect it is not technological but human. But, at least even the tech-utopians now have to acknowledge that treating all online content as sacred has had some very negative consequences, so perhaps we can now have a different discussion about content that would not be protected speech in any context.

For those of us who have advocated platform responsibility for quite some time, it is amusing, if not frustrating, to watch the industry wrestle with the truly difficult issue of moderation after years of refusing to compromise on the comparatively simpler issue of removing material that is patently illegal. For instance, weeding out material that infringes copyright, or which a court has held to be libelous or otherwise harmful to a claimant, is much easier than deciding when it’s okay to remove or demote “bad” speech. Yet the major platforms, along with considerable help from opinion-makers like Masnick, have historically responded to the proposed removal of unprotected or illegal content as a prelude to “rampant censorship” and the destruction of all that is beautiful about the internet.

This recent shift in posture implies two things in my view: the first is that the platforms can indeed be more cooperative in responding to illegal content without damaging the benefits of the internet; and the second is that those benefits have never been all they’re cracked up to be. Admitting to the latter would go a long way toward reframing a more rational discussion about the former.