Category: Culture

Internet Platforms Above the Law?

Silicon Valley may have done ‘bare minimum’ to help Russia investigation, Senate Intel Committee told … 

That headline from CNN, and which was echoed in several news stories that began appearing late Monday, will elicit no surprise among my friends and colleagues working in IP law, privacy, publicity rights, security, and various other matters of justice in the digital marketplace.  Those of us who believe that the rule of law is not anathema to the internet are used to the major platforms behaving as though they operate in some alternate universe where the laws of old-model, physical humans do not apply.  After all, these companies and their executives were nurtured on exactly that manifesto when the late John Perry Barlow first read his Declaration of the Independence of Cyberspace at Davos in 1996. 

To put it mildly, Barlow was utterly full of shit when he declared the internet to be a “home of mind” that could not, or should not, be governed by the “weary giants of flesh and steel.”  Perhaps he can be forgiven some poetic license in the service of a sincere hope that the internet might truly be an incorporeal space that would help us transcend human folly and connect to one another through our better angels.  But that’s not what happened.  And debates about cyber policy should stop pretending it can still happen.

Fast-forward to the harsh realities of the present, and the “home of mind” is dominated by glorified advertising platforms, easily exploited by the worst kind of malicious actors and which clearly appeal to our lesser—even our profoundly stupid—angels.  And the sad irony is that, far from operating benignly adjacent to physical society, social media platforms have been exploited to infiltrate, corrupt, demoralize, and degrade the foundations of society in very real and very dangerous ways.

Two independent reports commissioned by the Senate Select Committee on Intelligence investigated the St. Petersburg-based Internet Research Agency (IRA), the professional troll farm erected for the sole purpose of inflaming political discord in the United States and other liberal democracies around the world.   The reports reveal that disinformation on all major platforms was, and still is, more widespread than initially believed; and they describe the methods by which specific groups like African Americans were targeted in an effort to dissuade voter turnout for the 2016 election.

I plan to read both reports and follow up, but for now, I thought it worth highlighting the detail that the reports’ authors allege that the major platforms were far less cooperative than one might hope given the gravity of the circumstances.   As The Washington Post quotes …

“Unfortunately, Google made the unusual choice to provide data to the Committee in nonmachine‐readable format.  The ads data was provided in lengthy PDF format whose pages displayed copies of information previously organized in spreadsheets (Google could have provided the original spreadsheets in CSV or JSON files).”

Think about that one.  Google stifling the use of computers as the U.S. Senate tries to better understand exactly how a foreign and hostile power has been working to fracture the American democratic process.  Further, while skimming the report submitted by New Knowledge, I caught the statement that begins, “Regrettably, it appears that the platforms may have misrepresented or evaded in some of their statements to Congress.”  

In this regard, I was intrigued by the strident tone lately adopted by Senator Ron Wyden in response to Silicon Valley’s less than forthright conduct in these investigations.  Vowing to pass “legislation with teeth,” Wyden has proposed a new consumer privacy bill aimed at restricting what these platforms may do with user data, particularly with respect to the manner in which that data may be leveraged to target disinformation about politics and policy issues.  Further, the proverbial “teeth” in Wyden’s bill would impose substantial penalties, including potential imprisonment for executives, for failing to provide honest and complete testimony to Congress.

For my colleagues who work in copyright advocacy, Wyden has not exactly been the rule-of-law representative when it comes to holding Silicon Valley accountable.  But perhaps the thinking will change as the senator and his colleagues must now address the many indisputable ways in which a liability-free internet industry has, quite possibly, done more harm than good for American democracy.

Meanwhile, despite mounting evidence that the major social platforms are more often a home of mindlessness than mind, Barlow’s Declaration remains the cosmic background noise still ringing in the heads of too many defenders of what we generically call “the internet.”  Whether it’s the Electronic Frontier Foundation or Techdirt or MEP Julia Reda’s anti-copyright campaign in the EU or the Internet Association or even the American Library Association, one can still hear the strains of a misguided faith in a pure internet, unsullied by the taint of law, in the rhetoric deployed against almost any policy that might demand platform responsibility.

For far too long, a false premise undermining copyright enforcement specifically—and almost all other types of enforcement generally—has been that it is better to allow harmful or illegal content to remain online than to risk censoring even a micro-byte of protected speech.  But that premise is, paradoxically enough, a pre-digital-age idea and a blind allegiance to Barlow’s naive cyber-utopianism.  It is a laissez-faire approach, which casually ignores the new reality in which an unfettered amount of harmful or illegal content continues to undermine the values it claims to uphold.  

After all, if an American inadvertently shares a political meme that was written by a malicious actor in St. Petersburg—and whose goal is to weaken global democracy—can anyone honestly say that free speech is fulfilling its purpose in that moment?  This is just one reason why, about a month ago, I personally stopped most activity on Facebook:  because I’m not sure it’s possible to avoid feeding that particular cancer.  At the same time, it is notable that we do not even need bad actors as dramatically well-organized as the IRA to weaponize disinformation on a wide range of issues; but that’s a subject for a different post. 

So, I look forward to reading the Senate-commissioned reports; but for now, I thought it worth noting the allegations that the major platforms are stonewalling and obfuscating in these investigations—still behaving as though they operate outside the rule of law.   Of course. the tragically ironic twist to Barlow’s vision of cyberspace as separate from, and elevated above, “weary” reality is that our present reality too often resembles the craven, mean-spirited, and willfully misinformed cyber-world of social media.

Robot image source by digitalstormcinema

Might As Well Be Bots

So, I don’t engage very often via Twitter, but once in a while, I respond to something that catches my attention and then usually regret spending time responding to the responses.  Last week, I noticed that Pirate Party MEP Julia Reda—the face, voice, and tweetdeck of anti-Article 13 activism in the EU—posted an odd tweet, and I replied … 

Because, of course, even if Tumblr’s efforts to use AI to identify pornography are a) accurately reported; and b) laughably ineffective, it is misleading for Reda to suggest that this folly is particularly instructive to the purpose or eventual function of Article 13.  What she means to imply, of course, is that any comparable technology, which may be used to identify content that allegedly infringes copyright on a large platform like YouTube, will result in the same kind of errors that are reportedly happening on Tumblr.  

I consider this tweet to be scare-mongering for many reasons, but here are three simple ones:  1) existing technologies currently in use for identifying copyrighted material is already better than whatever is being described in the Tumblr/porn example; 2) it is needlessly defeatist to say that these technologies can never be improved and/or supported by human oversight to alleviate error; and 3) if any copyright ID system is too aggressive and error-prone, the rights holders advocating Article 13 aren’t going to like it either.  All of which leads me to conclude that calming down is more rational than, once again, declaring that the internet needs to be “saved.”

So, Reda and I had a brief exchange in the service of nothing (i.e. the reason I don’t like the forum), and went our merry ways.  But I did notice that at least one of the “users” who liked and retweeted one of Reda’s responses to me looked an awful lot like a bot.  The account was a handle and an avatar, it had just a few followers, and its tweetdeck was almost exclusively about the evils of Article 13.  So, while scrolling that thread and wondering whether the account might be a bot programmed to RT anti-Article 13 stuff, I saw this tweet posted by a different account with zero followers…

And this prompted a new thought.  What difference does it make if a tweet like the above is posted by a bot or a real person?  Because if social media platforms like Twitter train real people to respond with pavlovian certainty to any given issue, they might as well be bots.  Either this individual simply doesn’t know that the platforms he says will be “destroyed” are the biggest of big corporations; or he is so well trained to respond to certain signals, that he’ll just remain blissfully unaware of his own cognitive dissonance.  Or he’s a bot.  

Either way, same result.  Some other bot, or mindless person, or ten-year-old child repeats the unfounded assertion that, for instance, the legislative language is “vague,” and boom—it’s now a fact.  Why would anyone take some anonymous tweet at face value which claims that a body of legislative language—in any area of law—is vague?  Because they want to believe it, and the desire to perpetuate that narrative is sustained by knowing diddly squat about the legislative language itself.

When the hyperventilating saga that was the anti-SOPA campaign peaked in early 2012, the internet giants still enjoyed a general benefit of the doubt that they had built platforms that were truly making global democracy work better.  (And that they had built these platforms out of the goodness of their hearts!)  So, all those anti-SOPA headlines warning people not to let anyone “break the internet” were understandably hard to counter with any kind of cool reason.

Today, though, it is curious—if not a little bit frightening—that even after the fallout from stories like Cambridge Analytica, the “Save Your Internet” battle cry is still effective in the current opposition to Article 13.  It is, after all, a reprise of the same digital dirge that was so effective seven years ago; but surely, this general call to arms cannot jibe with what we’ve learned over the past two years about major platforms and a number of paradigms not worth saving.

In 2011, I wondered how many non-constituents were marshaled to stop American legislation (SOPA/PIPA) in its tracks.  How many foreign citizens? How many children?  How many bots?  Because, as David Lowery has detailed in a multi-part post, the methods employed by Big Tech to sway public policy may be one of a handful of legitimate threats to democracies around the world.  And on this topic as to who—or what—is being rallied to action, TorrentFreak published a new post that misses, or purposely obfuscates, a very important distinction.  Andy calls hypocrisy on the IFPI for criticizing Julia Reda’s shout-out to children in this tweet:  

Andy compares Reda’s appeal to children to the fact that major copyright interests have often launched initiatives to educate kids about copyright and piracy.  “…it’s pretty ironic that IFPI has called out Reda for informing kids about copyright law to further the aims of ‘big tech companies’. As we all know, the music and movie industries have been happily doing exactly the same to further their own aims for at least ten years and probably more,” he writes.   

But the differences between Reda’s targeting kids on social media and the kind of initiatives Andy refers to are substantial and significant.  At a very basic level, educating children about how copyright works may be offensive to the pirates out there, but copyright has been part of the legal fabric of Europe and the U.S. for a couple of centuries, so it’s not exactly propagandist to explain its function in age-appropriate ways to groups of schoolchildren.  And given the fact that plagiarism can end someone’s college or university career, the foundations of copyright are in no way anathema to general education.  Outreach to schools on the subject of piracy and copyright tend to include the following lessons or discussions:

  1. education about the skilled people who make the movies, music, etc. people enjoy.
  2. a message that taking things without paying for them is both illegal and wrong.
  3. a message that respecting creators falls under the principle of the golden rule.

While these themes may be antithetical to pirate rationalizations for mass infringement, they’re not exactly outliers to the fundamentals that most people try to teach their kids. (Substitute creator for farmer, and the discussion will be very similar.)  In contrast to the implications of Reda’s tweet, major rights holders don’t generally engage children via Twitter to take direct action aimed at promoting or stopping specific legislation.

Though nobody can doubt that when organizations like movie studios fund education programs in response to piracy, the effort is industry-serving, but those types of broad initiatives do not compare to an elected official addressing teens and tweens on social medial and telling them (untruthfully) that YouTube won’t work anymore because of a policy those kids are not going to understand. And that fairly well sums up what I think about all of this—that the so-called defenders of “the internet,” who appeal to democratic principles in that effort, consistently demonstrate exactly why “the internet” isn’t worth defending.  

Photo source by davincidig

Another Inscrutable Attack on Copyright by CCIA 

In a blog post last week for Project DiSCO (of the CCIA), Jonathan Band uses less-than-subtle sleight of hand to conflate the potential business implications of new photographic technology with photographers’ interests in copyright enforcement.  Citing a Washington Post article by Geoffrey Fowler, which proposes that ever-improving, AI-enhanced photographic tools built into smart phones are “democratizing” the opportunity for anyone to make “beautiful” photographs, Band notes that these technological advancements threaten the livelihoods of at least some segment of professional photographers.  

“Now, someone with a decent eye and a Pixel 3 can take photographs that are good enough for many events. The default aesthetics of Night Sight [a new technology] will satisfy many, if not most, potential customers,” Band writes.  And this may be true up to a point.  Off-the-shelf, push-button technical “perfection” in the hands of everyone can threaten the market value of many types of professional photographers.  

Of course that premise opens up a multi-faceted discussion about the myriad skills necessary to be a great portraitist, photojournalist, fine-art photographer, and so on.  And while that particular conversation may be very engaging, it has almost nothing to do with any particular photographer’s interest in her copyrights, and it has even less to do with the target of Band’s criticism—the copyright small-claim proposal called the CASE Act. 

“In response to this changing technological landscape, many of the organizations representing photographers have focused their energies on reforming copyright,” Band writes.  But this is a disingenuous segue because CASE is not remotely a response to changes in photographic capture technology.  The right or ability to protect an image is agnostic with regard to how the image is made.  Period.  Moreover, the premise of the CASE Act (i.e. enforcing a copyright claim for less than the cost of federal litigation) actually predates digital technology, although widespread infringement of works online does emphasize the urgent need for a small-claim remedy.

As described in this post about the House Judiciary hearings on CASE in September, one of the major complaints among independent creators is that commercial entities use their works for online marketing etc. without license.  If CASE passes, we can probably expect to see rights holders most often avail themselves of the small claim tribunal for these types of claims; and it is frankly impossible to fathom why anybody who cares about basic fairness in the market would have a problem with that.  Least of all the corporate behemoths represented by CCIA.  

Moreover, while it is true that advocacy of CASE has emphasized the plight of photographers—because theirs are the works most often infringed on the web—we should remind the CCIA and its readers that the bill proposes a small-claim option for all copyrightable works.  So, at best, Band’s focus on the latest advancements in cellphone photography have nothing to do with, say, musicians or graphic artists whose works are infringed in cases ideally suited to a small claim. 

Band’s post is, of course, a variation on a tired theme; and in that regard, I feel confident about telling the folks at CCIA (and the Internet Association also opposed to CASE) that authors of all stripes are sick to death of the following words of wisdom …

“The energy of associations representing photographers would be better directed toward helping photographers develop business models and skills that would allow them to thrive in the digital environment, rather than lobbying Congress to make changes to copyright law of questionable utility.”

Perhaps the energy of associations representing THE BIGGEST TECH CORPORATIONS ON EARTH would be better directed at playing Beer Pong than smugly telling professional creators time and again how little they they understand their own crafts and business interests.  Maybe CCIA can adapt to that new model.

 Photo source by meatbull