Category: Culture

Academics Propose Tweaks to CDA Section 230

When EFF co-founder John Perry Barlow delivered his Declararion of the Independence of Cyberspace in Davos, Switzerland in February of 1996, it was in response to the Telecommunications Act, which had become law just a month earlier. In this speech that would become a manifesto for the industry’s libertarian nature, Barlow proclaimed the web as a place beyond the scope of legislation, a “home of mind” that would be self-governed by the only law people really need—the Golden Rule. Ironically enough, though, a part of the Telecommunications Act known as Section 230 of the Communications Decency Act, is at least one cyber law that the EFF and similar organizations believe is sacrosanct—even to the extent that it should protect those who break the Golden Rule in some very ugly ways.

Section 230 of the Communications Decency Act was designed to support good samaritans, but those who defend its status quo today are often blind to the reality that it provides cover for many bad samaritans, which is the term used in the title of a new paper called The Internet Will Not Break:  Denying Bad Samaritans Section 230 Immunity.  It’s authors, law professor Danielle Keats Citron at the University of Maryland and Benjamin Wittes of the Brookings Institute, focus primarily on influence of the courts, which have consistently applied the Section 230 liability shield so broadly as to distort—if not invert—the original intent of the statute.

The paper begins with a description of the social media site Omegle, whose slogan “Talk to Strangers!” is the antithesis of that rule (right after the Golden one) that our parents used to preach.  As Citron and Wittes put it, “Omegle is not exactly a social media site for sexual predators, but it’s fair to say that a social network designed for the particular benefit of the predator community would look a lot like it.”  The point the authors are making is that the site’s own disclaimers acknowledge their awareness that predators use the platform, which in any non-web context, would be an admission of potential liability for harm that may come to children. But thanks to Section 230 of the CDA, the site can basically say, “Swim in our pond at your own risk. Pirhannas happen.”

As the paper describes, CDA 230 was a Congressional response to the 1995 case Stratton Oakmont v. Prodigy, in which the service provider’s voluntary, good-faith efforts to weed out noxious content from its platform provided the legal basis for the plaintiff to hold Prodigy liable for defamation committed by a third-party user of its services. In other words, the mere fact that Prodigy exercised any control over content meant that it could be held liable for user actions that it could not reasonably have been expected to mitigate. The case cost Prodigy $200 million in damages, signalling reasonable fears among early investors in the internet that they could be the targets of civil or criminal liability suits stemming from the actions of their users.

In response to the Prodigy case—and especially because Congress wanted to encourage ISPs to remove “indecent” (i.e. pornographic) material from their sites—Section 230 was written to provide that actions taken by site managers to remove illegal or unsavory material would not, in a legal sense, make their companies “publishers” vis-a-vis potential liabilities stemming from third-party actions.  “Lawmakers thought they were devising a limited safe harbor from liability for online providers engaged in self-regulation. Because regulators could not keep up with the volume of noxious material online, the participation of private actors was essential,” write Citron and Wittes.

That was 1996.  Today, as many parties have observed, and the authors of this paper further explain, Section 230 paradoxically insulates content and behaviors that can be more toxic than anything it was originally intended to reduce.  “…its overbroad interpretation [by the courts] has left victims of online abuse with no leverage against sites whose business model is abuse,” write the authors. While the internet industry, along with “digital rights” organizations, argue the absolute necessity to maintain the status quo of Section 230, Citron and Wittes counter that the liability shield too easily immunizes bad actors who knowingly allow, or intentionally invite, harmful conduct ranging from harassment and defamation to child sex-trafficking and terrorist propaganda. From the paper …

“A physical magazine devoted to publishing user-submitted malicious gossip about non-public figures would face a blizzard of lawsuits as false and privacy-invading materials harmed people’s lives. And a company that knowingly allowed designated foreign terrorist groups to use their physical services would face all sorts of lawsuits from victims of terrorist attacks. Something is out of whack—and requires rethinking—when such activities are categorically immunized from liability merely because they happen online.” 

The authors emphasize one of my personal gripes whenever any kind proposed enforcement is claimed to be a threat to Free Speech, which is that defenders of Section 230 often overlook the myriad ways in which bad actors stifle the speech of their victims.  For instance, the paper cites the website Dirty.com, which essentially trades in privacy-invading gossip about non-public figures; and if this enterprise were published on paper rather than online, it would have easily been sued out of existence by now.  But thanks to Section 230, “Posts have led to a torrent of abuse, with commenters accusing the subjects of ‘dirt’ of having sexually transmitted infections, psychiatric disorders, and financial problems.  [The Site Owner] has admittedly ‘ruined people sometimes out of fun.’ That admission is not against interest—he knows well that he cannot be sued for his role in the abuse because what users do is on them,” write Citron and Wittes.

In reference to the EFF, the paper quotes the organization as acknowledging that cyber-harassment and related activity does stifle the speech of users; but the authors also highlight the organization as one which treats Section 230 as “an untouchable protection of near constitutional status.”  As reported in this post, the EFF and related groups are so committed to defending the status quo of Section 230 that they have defended its application in the the Backpage case, despite compelling evidence alleging that the site operators knowingly facilitated sex-traffcking of minors.

Something is clearly wrong when a law originally intended to protect children from mere exposure to sexually explicit material may be applied to protect criminals who facilitate the trafficking of children as prostitutes — simply because that facilitation happens online. It is possible that the Backpage case will wind up at the Supreme Court and that the egregious nature of the harm—child sex-trafficking—will be severe enough to recallibrate a judicial reading of the statute’s meaning and intent.  Citron and Wittes view substantial reform from the bench  as a long shot and, therefore, recommend that the courts at least limit the scope of Section 230 defenses to claims related solely to the publication of user generated content.  By contrast, the authors describe the expanding application of the statute thus:

“Many legal theories advanced under the law do not turn on whether a defendant is a “publisher” or “speaker.” Liability for aiding and abetting others’ wrongful acts does not depend on the manner in which aid was provided. Designing a site to enable defamation or sex trafficking could result in liability in the absence of a finding that a site was being sued for publishing or speaking.”

Perhaps more realistically, the authors suggest that some statutory amendment is the only viable solution, and they contend that this can be achieved with a modicum of alteration, leaving intact the liability shield as it was intended for site operators acting in good faith.  For instance, they suggest …

“Mirroring section 230’s current exemption of federal law and intellectual property, the amendment could state, ‘Nothing in section 230 shall be construed to limit or expand the application of civil or criminal liability for any website or other content host that purposefully encourages cyber stalking, nonconsensual pornography, sex trafficking, child sexual exploitation, or that principally hosts such material.’”

In essence, Citron and Wittes argue, this would allow the Twitters and Facebooks of the world to make good-faith efforts to weed out harmful or illegal content and remain protected by Section 230, while immunity would no longer apply to site owners who purposely profit from harmful conduct.  The authors remind readers that this change simply removes the atuomatic immunity (i.e. the opportunity for bad samaritans to file motions to dismiss under Section 230) but in no way alters their rights as defendants in a potential litigation.

On the subject of free speech, the authors reject (as I have many times) the premise that just because nearly all internet activity takes the form of communication, this does inherently place service providers in a unique category universally protected by the First Amendment.

“… to the extent that our proposal is resisted on the grounds that online platforms deserve special protection from liability because they operate as zones of public discourse, we offer the modest rejoinder that while the internet is special, it is not so fundamentally special that all normal legal rules should not apply to it. Yes, online platforms facilitate expression, along with other key life opportunities, but no more and no less so than do workplaces, schools, and coffee shops, which are all also zones of conversations and are not categorically exempted from legal responsibility for operating safely.”

Amen.

Orlowski: Google Returns to CA Court on Equustek

“What should govern the behavior of huge multinationals like Google: the law Google makes for itself, or the laws that people make?” asks Andrew Orlowski.  Indeed.  For anyone interested in whether or not the tech giants are simply going to be allowed to operate above the law, the Equustek case is one to watch.  As reported, Google was ordered by the Canadian Supreme Court to remove links worldwide pending trial between tech manufacturer Equustek Solutions and alleged counterfeiter Datalink.  As Orlowski reports for The Register, Google has now filed a complaint in a California federal court hoping to reverse the global order to delist the links. Orlowski writes …

“The EFF, which has previously taken Google’s coin, was predictably screaming about “web censorship.” A professor from another Google-funded organization – the Cyberlaw School at Stanford, which received $2m in funding from the ad giant – is also fretting. Wikimedia Foundation, another organization rich with Google’s cash, is jolly concerned, and joined the Canadian case as an intervener.”

Read full article here.

 

How Napster Gave Us Donald Trump

I finally had a chance to read Move Fast and Break Things by Jonathan Taplin.  A former music manager and film producer from the period I would describe as America’s true golden age, Taplin is now director emeritus of the Annenberg Innovation Lab at the University of Southern California. The book, which debuted a few months ago, explains how the internet oligopoly has steadily undermined democratic principles—and how we’ve helped them do it.  Taplin condenses a lot of information into a highly-accessible book that I would recommend for anyone first approaching these issues, or as a well-articulated reference for anyone already engaged.

While reading Taplin, the thought occured to me that I bet the left-leaning advocates of media piracy, along with many of the anti-copyright voices in academia, and the “digital rights” groups who scorn enforcement of copyright online would hate to know how much they helped elect a guy like Donald Trump as president.  But that’s kinda what happened.

When young, digital natives first bought into the idea that music piracy was justified because they were “sticking it to the Man,” they could not see that they were lighting the first match on a long fuse that would blow their own labor rights all to hell by the time they entered the workforce.  By consuming all the free candy, and subscribing to the progressive-sounding PR of Silicon Valley corporatists, millions of Americans unwittingly surrendered in the first battle of a war they didn’t even know was being waged against the basic rules of democracy.  Now that war is becoming more apparent. As Taplin describes in the book, it is a war being prosecuted by ultra-libertarian, monopolists like technology VC Peter Thiel—a member of Donald Trump’s inner circle—who has publicly stated his disdain for us “unthinking demos,” as he likes to put it.

Democracy is of course anathema to the warped ideology of Silicon Valley’s most powerful corporate leaders; it’s messy and inefficient, imposing rules (like copyright) that stand in the way of boy geniuses who’ve overindulged at the gold-plated bong of libertarianism while swooning to the ravings of Ayn Rand. These are men who want more than the unprecedented wealth they’ve already acquired—men who sincerely believe that their ability to reshape society with technology has earned them the right to be the new landlords of the nation. And we plebs have no business trying to stop them.  Notice I keep saying men. Here’s Taplin’s citation of Thiel’s allusion to American women’s suffrage, as written on the CATO Institute website in 2009:

“Since 1920, the vast increase in welfare beneficiaries and the extension of the franchise to women — two constituencies that are notoriously tough for libertarians — have rendered the notion of ‘capitalist democracy’ into an oxymoron.” [Emphasis added]

That’s the kind of thinking that permissionless innovation, beginning with piracy and the erosion of copyrights, has helped finance into extraordinary political power today. So, let’s not mince words.  If copyright infringement was in fact the first battle in a larger technological war against individual rights, led by a group of egotistical, male capitalists, then I’m afraid every woman who ever justified piracy has—like Ayn Rand’s Dagny Taggart in Atlas Shrugged—demurely told these assholes she’d like them to be in charge.

The extraordinary power of the tech oligopoly owes much to both political parties’ unwillingness to wield anti-trust law, and to a business and technology press too busy star-fucking to notice that journalists’ heads have been on the chopping block for years.  But perhaps the most insidious element in this narrative is the role played by “digital rights” organizations like the Electronic Frontier Foundation, PublicKnowledge, and Fight for the Future, along with their satellite and sister organizations around the world.  Adopting the tone of left-leaning, anti-corporate activists, the people in these organizations would probably hate to think that their advocacy dovetailed quite nicely with the election of a guy like Donald Trump. But it has.

Whether these institutions are co-conspirators or just useful idiots for Silicon Valley’s wealthy elite, their absolute rejection of copyright—or of any enforceable, democratic rules—in cyberspace has largely served to advance the interests of the most powerful aristocrats the modern world has ever known. The paradox the folks in these organizations refuse to recognize—indeed, which they cannot afford to recognize—is that their micro-defenses of the First Amendment on the internet have largely empowerd a tiny group of men whose stated ambition is to disrupt the Republic as an incovenient, inefficient, and outdated model.  And since no Republic means no First Amendment, it’s hard to fathom what exactly these activists think they’re achieving.

The fact that mass copyright infringement is still viewed as rebellion against corporatists, rather than playing into the hands of oligarchs, probably has a lot to do with the word property.  This is a particularly loaded word in America. Liberty, as it was codified into law at the beginning of the nation, meant liberty for property-owning, white men, including white men who owned black men and women as property. From these morally corrupt beginnings, the progress of demanding that civil liberties apply to all citizens has generally been one of wresting control from the propertied and privileged classes, which is why labor rights are so deeply intertwined with civil rights overall.

While copyright is a kind of property right, it is also analogous to a labor right whereby the right of the worker to negotiate terms is embodied in the protection of the work after completion.  With the appearance of Napster in 1999, the subsequent growth in piracy, and all the ideological bullshit that growth spawned, copyright was incorrectly subsumed into the broader narrative of the people reclaiming territory that was unfairly occupied by the propertied classes.

Though it would not be accurate to say that the major, corporate rights holders are beyond reproach, the general failure to recognize copyright as an individual right was a huge mistake—one that accelerated and financed the agendas of elitists, who view a wide range of individual rights as barriers to their own wealth and power. The destruction of copyright in the service of Silicon Valley’s interests may prove to be the cracked keystone that ultimately allows the whole democratic structure to collapse.  Unless of course we find the political will to tell these guys to get stuffed.

In this narrative, Trump himself, like the “digital rights” activists, is just another useful idiot. His innate disdain for the pesky rules (and even common courtesies) of democracy, coupled with his allegiance to the wealthy elite, make him an effective tool for the likes of much smarter men like Thiel, Larry Page, Sergey Brin, Marc Andreesen, Mark Zuckerberg, and Jeff Bezos.

If we think of the unorthodox presidency of Trump as one that defies traditional, ideological labels, what it really represents is a vote of no confidence in American democracy. And that’s what makes it so dangerous. As noted in a recent post, the World Values Survey concluded that only 30% of Americans born after 1980 believe that it’s important to live in a democratically governed society at all. Presumably, then, the remaining 70% comprises that cacophony of views we see on social media—including many that would be opposed to Trump, but are equally anti-democratic in other ways.  To be clear, I would not make a case that Hillary Clinton, or any other candidate who has yet emerged, reveals the kind of Teddy Roosevelt moxie needed to restore balance between public and corporate interests; but electing such a figure would actually require the public to restore some faith in the system itself.

I’ve speculated in past posts that the anti-establishment trend is creating an ideological vacuum, which is already being filled by tech corporations and their owners’ libertarian agendas. This may lead to a state of technological feudalism, when all labor rights will be obliterated, taking the soul of other civil liberties with them.  The right of free speech, for instance, would become mere illusion because no citizen’s voice would actually matter in that kind of society. Speech would thoroughly devolve to noise—as effective as playing with a fidget spinner—we make on tech devices just to amuse ourselves, and to tell the computers how we can serve them rather than the other way around.

There’s a reason why one of the first steps toward authoritarianism is to silence the artists. To acheive this in a democratic society, it must be done subtly by degrees, by eroding their rights and economic power.  So, wouldn’t it be a cruel joke on ourselves if the anti-democratic, dystopian end game really did begin with everybody stealing music?