Category: Law & Policy

Should Bot Disclosure Be Required by Law?

Recently, California legislators introduced the B.O.T. Act of 2018, which, as the Electronic Frontier Foundation summarizes, “would make it unlawful for any person to use a social bot to communicate or interact with natural persons online without disclosing that the bot is not a natural person.” The EFF describes the proposed bill as an understandable but over-broad response to Russia’s use of bots to influence the 2016 election as well as the use of spambots to commit online fraud. While it is tempting to accuse the EFF of defending bot rights, they haven’t quite taken that position, though they do come close.

As would be expected, the EFF alleges that the California bill can “chill the use of bots for protected speech activities,” and although the post written by Jamie Williams alludes to some interesting areas to explore vis-a-vis bots and speech, one important flaw in her summary of the bill is that it leaves off an important condition that says, “with the intention of misleading.” There may be circumstances in which intentionally misleading consumers, constituents, fans, voters, etc. can be considered protected speech, but it seems reasonable to assume that most actors who intentionally mislead are doing something harmful, and probably illegal.

It is characteristic of the EFF to trivialize a legitimate problem by imagining hypothetical negative consequences of the legislation proposed to address that problem. Even the couple of Twitter-feed examples Williams cites* as speech that may be chilled do not appear to be bot uses that would necessarily run afoul of the California law.

The first of theses is @soft_focuses, which is essentially a bot-generated version of fridge-magnet poetry. The second, rather interesting, example is @censusAmericans, which interprets anodyne census data and turns lines of information into “real” people. So, a typical tweet says, “I live with my father. He works. I speak German at home. I have never been married.”

If indeed both of these examples are protected speech, neither appears to “intentionally mislead” anyone. To the contrary, both the bot-generated poetry and the bot-generated census characters seem to be a) obviously the “speech” of bots; and/or b) harmless to the rare viewer who might somehow mistake either as the expression of a natural person. Correspondingly, even if either feed were required to more explicitly “label” its use of bots, the speech in question would not be in anyway diminished.

Do Bots Have Free Speech Rights?

I certainly hope we never come to the conclusion that they do. But a distinction I would make between the two examples presented by EFF is that the poetry Twitter account, although owned by a human (or humans), does not appear to communicate much protectable speech at the direction of that human. It simply produces random combinations of words that sound kinda like poetry.

Assuming that is correct, each tweet is a an example of purely bot-generated content, which should not be protected because machines do not have natural rights. One could argue that the human’s decision to present the whole twitter feed constitutes an artistic statement in itself, though not a very original one and not one that would likely differ in character from another feed doing exactly the same thing. Hence, the amount of protected speech would seem to be very thin and, therefore, not likely to be infringed by the California proposal. (This dovetails with the discussion of AI’s owning copyrights.)

By contrast, although each tweet in the census example may be partly the result of data-interpretation by a bot, the output is not random words. In fact, human authors have clearly set certain rules like the imposition of the pronoun “I” to generate first person statements as well as the basic subject-verb-object structure of English sentences. The cumulative result is a mosaic of fictional characters that represents real Americans in a Twitter-only narrative, not unlike the way in which characters in a movie or play represent real people. Thus, the owner of @censusAmericans is the natural person exercising a free speech right by presenting this collage to the public, which constitutes creative and politically-substantive speech.

Bot Speech is the Least of Our Worries

Beyond sci-fi wish-fulfillment, I’m not sure why it is necessary or beneficial, in many cases, to want bots to behave more like humans in the first place. Granted, I’m not bringing a smart device into my home like an Alexa or a Duplex because I’ve read my Huxley, Orwell, and Bradbury; but if I did own such a device, I’d want a giant wall of separation between me and the machine, lest I find myself locked out of the house one day and the thing telling me why it can’t “afford to jeopardize the mission.” (It’s bad enough when the toast pops up too late.)

Meanwhile, as the EFF opposes what amounts to a consumer-protection bill on highly-speculative free speech grounds, I have to say that, at present, I’m more concerned with humans behaving like bots than the other way around. Let’s face it, every time one of us clicks “Like” or shares a post or article based solely on the headline, we’re pretty much doing bot-work. The right keywords appear in front of our little sensors, and CLICK!—we pass it on to our circles of bots, who pass it on to their circles of bots.

And that doesn’t even account for the volume of ingrained misconception across the political spectrum on a wide range of issues boiled down to a few buzzwords. The folks at EFF are, in fact, expert at exploiting this phenomenon, at triggering Pavlovian responses to keyword conclusions on otherwise complex topics. Remember how the IP provisions in the TPP were going to chill speech on the internet? Is that claim any less absurd than the current administration’s rationale for pulling out of the most important trade deal in recent history? Stare at that Venn diagram for a while and try not to lose your mind.

My point is that we are already treading water in sea of externally and internally inflicted deceptions and obfuscations written by human beings. So, to the extent California’s bot “warning label” might diminish the amplification of all that noise, I think it’s a can’t hurt/might help proposition. At the same time, if, under very specific circumstances, this law could be invoked to chill someone’s speech, that’s for the court to address on a case-by-case basis.

The relatively narrow circumstances in which this law might be misapplied and also implicate speech does not make it “constitutionally flawed,” as the EFF claims. One can misapply a wide variety of laws we have right now to chill someone’s speech, which is why we appeal to courts to address such conflicts. Meanwhile, it seems reasonable to conclude that the intent to deceive, whether by bot or any other means, is rarely benign.

* The post cites three examples, but the third links to a dead URL.

Image by graphicwithart

Is the ACCESS Bill Mean-Spirited or Ill-Advised?

Last week, Senator Ron Wyden (D-OR) suddenly—and I do mean suddenly—introduced a bill in the Senate that many of the usual copyright-haters are applauding as an “alternative” to the CLASSICS Act.  It’s hard to decide whether Wyden and whatever narrow constituency he’s serving are using this bill as a political stunt aimed at killing CLASSICS, or if they’re really arrogant enough to believe this bill would not become the legal briar patch the authors of CLASSICS worked hard to avoid for the time being.  In fact, just dropping this bill in the Senate’s lap at the eleventh hour has the potential to upset the entire, multi-stakeholder-negotiated Music Modernization Act omnibus package—the one in which digital platforms like Spotify have a stake—and which passed the full House with a vote of 415-0.

Despite all that, Wyden unilaterally chose to disregard the many years invested by his colleagues in the House Judiciary Committee, the volumes of testimony and negotiations, and the 2011 recommendations of the Copyright Office, to introduce a counter-proposal called the ACCESS to Recordings Act.  The acronym stands for the Accessibility for Curators, Creators, Educators, Scholars, and Society.  Seriously?  I know legislation can get a bit agitprop in its nomenclature, but ACCESS?  The curators, creators, educators, scholars, and society have access!  We’re awash in access!  What we need is fairness in the commercial markets for the artists whose works we access all the time.

Anyway, the bills …

The function of the CLASSICS Act is fairly simple, and for good reason—because the current copyright status of these pre-1972 sound recordings, protected under myriad state laws, is complicated.  For instance in one state, the owner of a physical master recording may be considered the rights holder of the underlying work but not so in another state.  The list of potential variables is long, but suffice to say CLASSICS doesn’t address any of this common law complexity because, as noted in an earlier post, it would be an undertaking lasting many years, possibly achieving nothing.  By contrast, ratification of CLASSICS, as part of the MMA, means these legacy artists get paid immediately, and the relevant digital streaming services achieve legal certainty in a historically gray area that has incubated numerous lawsuits.

CLASSICS leaves the common law protections for these sound recordings in place, along with the existing copyright expiration date for all of these works of February 15, 2067.  The only thing CLASSICS does is to create a new federal protection exclusively for non-interactive (e.g. SiriusXM or Pandora) digital transmissions where these recordings are played all the time but without compensating the artists.  As Robert Levine, reporting for Billboard, writes, “…a few big companies will pay artists and labels a bit more money. That’s it.”

ACCESS is Sham Full Federalization

It is important to keep in mind that the detractors currently attacking CLASSICS cannot point to single constituency whose interests are in any way diminished from the status quo.  Yet,  rather than endorse a simple solution to compensate these relatively contemporary artists through one narrow licensing regime, the anti-copyright forces, including library organizations, have chosen to crash the legislative process with this bill.  ACCESS is a ham-handed version of what these parties really want—full-federalization of pre-72 recordings—but both the timing and substance of the proposal blithely glosses over the complexity of this more ambitious agenda.

For instance, ACCESS presumes to erase all common law copyrights and migrate these sound recordings into their own niche of federal protection with the stroke of a pen.  But as Levine observes in that same Billboard article, this could be interpreted as an unconstitutional “taking,” an obstacle which alone suggests the bill is not designed to pass so much as it is to stymie the MMA until it perhaps expires with the mid-terms.  Additionally, this over-simple proposal to federalize this collection of sound recordings could trigger a festival of litigation among artists and labels over issues pertaining to who owns what, all in reaction to such a radical and ill-conceived change in legal status.

The ACCESS bill proposes different expiration terms than CLASSICS for these works, namely a flat 95 years from publication date, even though the meaning of “publication” under the presiding 1909 Act is a bit of a challenge in itself.  While this proposal would mean more of these works falling into the public domain sooner, this would largely be a symbolic “victory” for the copyright haters providing little value to the general public and varying degrees of unfair treatment to the artists.  (And that’s if the act didn’t cause any other chaos.)

For instance, Don McClean’s “American Pie” would expire one year earlier under ACCESS than under CLASSICS; Smokey Robinson’s “Shop Around” would expire thirteen years earlier; and Artie Shaw’s “Stardust” would expire thirty-one years earlier.  And while all that may make some anti-copyright folks feel good about themselves, it is demonstrably irrelevant to us consumers because we already enjoy anytime-anywhere access to these popular recordings, and copyright term expiration cannot improve on 24/7 availability.  At the same time, it’s worth noting that for many of these recordings which are not commercialized, all the major labels have granted free licenses to the Library of Congress’s National Jukebox to provide free, public access to these works.

Finally, the ACCESS bill contains what can I best describe as a three-year grace period during which a major, corporate user may get away with all the infringement possible of these sound recordings.  The logic is labyrinthine, but it says that a rights holder must notify an alleged infringer no later than six months prior to taking action in a claim; and this limitation lasts for three years after passage of the act.  This provision can only be explained as a favor to the commercial digital broadcasters because, of course, they need Congress to protect them from the musicians.

What About Libraries?

The libraries have applauded the ACCESS bill, though it’s hard to fathom exactly why, other an appetite for futile defeat and antagonism.  While it cannot be denied that full federalization of these sound recordings would benefit libraries and archives, ACCESS will almost surely not achieve this goal.  Consequently, these organizations are either being naïve or callous in their support for Wyden’s tossing a legislative grenade at this late stage of the process.

The specific needs of libraries are entirely separate from the purpose of CLASSICS.  Yet, rather than engage in the normal legislative work needed to obtain the statutory exceptions libraries would like to see, they choose to back a dead horse and, once again, needlessly position themselves in opposition to a group of artists.  Then, as if to exacerbate the decision, they make inaccurate public statements that stretch way beyond their sphere of interest.  For instance, the Library Copyright Alliance published a letter signed by its member library associations, which states:

“While the ACCESS to Recordings Act provides more protections to artists than CLASSICS, it also provides more protections to libraries, archives, and museums.  The federal copyright standard provided by the ACCESS to Recordings Act includes important exceptions that permit digital preservation of pre-1972 sound recordings. These uniform exceptions would enable cultural heritage institutions to engage in critical preservation activities without concern about violating a multiplicity of different state law regimes.”

That first part of about providing “more protections” to artists is not exactly true from the artists’ perspective.  The libraries make this claim because ACCESS would transport all  the exclusive rights—reproduction, performance, derivative works—into federal protection, but the nation’s librarians are in no way qualified to say whether this is better or worse than the state laws currently protecting some of these works, thus implicating the aforementioned “takings” problem in the proposed bill.

As for the libraries, it is true that the common law status of many pre-72 sound recordings can be an obstacle to certain preservation activities, but none of that will be solved by endorsing a makeshift proposal that is almost certainly destined to fail.  Meanwhile, the CLASSICS Act explicitly extends library-focused exceptions that would enable these institutions to make recordings available that are otherwise not found in the commercial market.  (Isn’t that what the public really needs a library or archive to do anyway?)  But rather than win this small provision in CLASSICS today and collaborate on the more complex issues tomorrow, the library groups are going to endorse a fatally flawed bill and persist in their adversarial relationship with artists and authors for no imaginable reason.

What’s Really Behind This?

The ACCESS proposal cannot help but implicate the Gordian issues that legal experts, artists, and legislators sought to at least postpone with the narrowly-tailored CLASSICS Act.  It seems reasonable, therefore, to assume that Senator Wyden and his bill’s supporters know this to be the case and that the introduction of ACCESS is designed solely to run out the clock on the Music Modernization Act. Not only would this trash years of work by a lot of people, but there is not a single provision in the omnibus package which would negatively affect the parties suddenly endorsing ACCESS.  Hence, one can only conclude that this belated proposal is either mean-spirited or ill-advised.  Though it is arguably a bit of both.

Trump’s Blocking Twitter Followers Unconstitutional Says Court

On Wednesday, a federal court for the Southern District of New York held that President Trump violated the First Amendment when he and his Social Media Director Daniel Scavino blocked users on Twitter because they were critical of the President and/or his policies via the @RealDonaldTrump account. The story caught my attention—not only as a citizen who wants a president to both respect the Constitution and have the backbone to endure a little criticism—but also because I wondered if the court’s opinion might state or imply that the Twitter platform as a whole is a public forum vis-a-vis the First Amendment. The short answer is No.

Readers may remember when “digital rights” groups swooned over the opinion in Packingham v. North Carolina, finding the State had overreached in barring internet access to registered sex-offenders, and in which Justice Kennedy described the internet as one of the “most important places for the exchange of views.” The digerati even speculated that the opinion in Packingham might imply that Section 512(i) of the DMCA, requiring account termination for repeat copyright infringement, could be held unconstitutional.

The major internet platforms have long overstated their obligation to the First Amendment on behalf of users—usually citing our free speech as the reason to keep their digits off all user-uploaded content, even if the content is illegal or otherwise harmful. This posture is based on the “neutral platform” principle, which has less to to with free speech and more to do with avoiding corporate liability for actionable uses of their platforms.

For several years, the public generally bought into the “neutral platform” concept until the Russian meddling story broke, and then everyone remembered that, in fact, social media platforms are private companies free to exercise editorial control over content without implicating the First Amendment. And in a recent twist, The Guardian reports that Facebook is seeking to have a lawsuit dismissed on the grounds that, get this, it’s a publisher with the right to edit content. Stay tuned on that one.

Still, the question remains, from our perspective as users, as to exactly when a social media platform constitutes a public forum in a constitutional sense and when it doesn’t; and this recent decision involving the @RealDonaldTrump Twitter account is among the first opinions to provide some answers.

Judge Naomi Reice Buchwald awarded the plaintiffs declaratory relief stating that President Trump’s blocking them from following his Twitter account was an abridgment of their First Amendment rights—but only under a very narrow analysis in which the @RealDonaldTrump account constitutes a public forum. In this case, the forum arises from a combination of two sets of facts: first, that the once-personal account of Donald Trump is now used to make official statements by the President of the United States; and second, that only a follower of a Twitter account can interact directly with the account-holder’s tweets by composing tweets that are then visible to all other users in that specific context. As stated in the opinion …

“The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience.”

As I said, it’s a very narrow standard defining this particular account as a public forum, and the opinion even calls the injury done by blocking di minimis but also states that di minimis abridgment of speech is still unconstitutional. The defense’s arguments that a blocked user can still read the Twitter feed of @RealDonaldTrump and remains free to criticize the president in any other manner were not persuasive that a First Amendment violation did not exist.

Judge Buchwald also noted in her opinion that a public official who uses social media for purely personal communications would be free to block users without implicating the First Amendment. Public officials are still entitled to private lives, including the right to ignore or avoid critics or haters—even on a publicly-visible, but privately-used, social media feed.

The defense also sought to argue a separation challenge—that the court does not have jurisdiction in this case over the Executive, but countering this, Judge Buchwald states that an order to unblock these users does not, “direct the President to execute the laws in a certain way, nor would it mandate that he pursue any substantive policy ends.” Instead, the court affirms that the President must comply with the Constitution he took an oath to protect and defend.

That said, in order to steer a wide path away from any separation conflicts, Judge Buchwald stopped short of issuing an injunction (an order) to unblock the users and instead issued a declaratory judgment (more like a recommendation) that the President has violated the First Amendment. According to Newsweek yesterday, Trump has so far defied the court, and users remain blocked.

Assuming the Republic survives this mess and social media remains something we all use in the foreseeable future, this case may prove instructive as a first step in defining when use of these platforms legitimately implicate the First Amendment. I suspect the answers will continue to be narrow—that it will not suffice return to the over-broad assumption that platforms are merely neutral hosts of protected speech because it seems clear that such absolutes do not apply.

This has implications for cyber policy going forward. As many colleagues have repeated—and are only now being heard—the pecuniary interests of web platforms trained society to obliterate boundaries like consent and decency—to say nothing of truth. And there is an extent to which the current President’s apparently cult-like use of Twitter to speak only to admirers is a byproduct of that same folly. Yes, in this instance, I believe the President should unblock those users in deference to the court’s opinion; but in general we should also should take note that the internet industry’s chronic appeals to our free speech as their liability defense is as legally untenable as it is morally objectionable.