Category: Politics

Cybercrime and Terrorism Sponsored by Your Candidate

If you were watching TV and a show came on called How to Hack Computers and Commit Credit Card Fraud with a lead commercial from Bank of America, you might think there’s something amiss.  Like, where does the network get off airing a show specifically teaching people how to commit crimes?  And did BofA really mean to be the sponsor?  If not, they must be pretty pissed off at the network.  And if they did mean to be the sponsor, we consumers should be pretty pissed off at the network and the sponsor, right? That’s how the world of media and advertising works. Except on YouTube.

Digital Citizens Alliance released a new report last month covering a familiar theme with an election-year twist.  As the organization has reported in the past, advertisers who spend money to place ads on YouTube are essentially cheated out of some portion of their media buy when their ads appear in conjunction with videos selling or promoting criminal or terrorist activity.  I and others have cited examples of mainstream American brands unwittingly sponsoring ISIS recruiting videos or clips teaching people how to deliver malware to steal identities and data.  But this new report by DCA called Fear, Loathing, and Jihad calls attention to the fact that all of the current presidential campaigns are in one way or another sponsoring these criminal or terrorist-produced videos.  From the report:

“How does the Kasich campaign, whose credibility is based on fiscal aptitude and efficiency, feel about their ads showing up next to a video by those actively committing financial fraud?”

“Support from young voters is the main reason why Senator Bernie Sanders is able to challenge Hillary Clinton. Why would he want a campaign ad showing up next to a video demonstrating how to “slave” the computer of a young male victim?”   

Political ads are a variation on the larger theme of poor-quality placement that affects all advertisers in the digital market, but DCA is not wrong to point out the uniqueness of these dichotomous pairings when we see American presidential candidates effectively hosting videos calling for jihad or selling fake IDs and other contraband. Moreover, in several cases the candidate’s ad buy may actually be putting money into the pockets of the criminal video makers. So, it’s not farfetched to say that you can donate twenty bucks to your candidate and that money can end up in the pocket of some homegrown, would-be jihadist by way of Google AdSense and the YouTube Partner program. Unfortunately, it seems that Google is about as diligent in vetting YouTube Partners to participate in ad revenue sharing as it is in mitigating copyright infringement on its platforms.

According to Google’s own Terms and Conditions, a prospective Partner must upload “advertiser friendly content”, and here’s what the company says might be considered unfriendly:

Content includes, but is not limited to:

•Sexually suggestive content, including partial nudity and sexual humor

•Violence, including display of serious injury and events related to violent extremism

•Inappropriate language, including harassment, profanity and vulgar language

•Promotion of drugs and regulated substances, including selling, use and abuse of such items

•Controversial or sensitive subjects and events, including subjects related to war, political conflicts, natural disasters and tragedies, even if graphic imagery is not shown

Now, my own read of those conditions would want to to see them applied with considerable latitude given that plenty of high-quality satire, news reporting, and entertainment is likely to implicate any number of those descriptions.  But if Google is not able to, for instance, separate the combat-related humor in videos made by the veterans group Ranger Up and an ISIL recruiting video—or a video made by some jerk showing people how to invade a girl’s privacy through her computer—then maybe those conditions are really not conditions so much as they’re just a bunch of words Google universally ignores.

DCA states that when their reports and the news media have brought attention in the past to this same issue, YouTube has made an effort to remove ads from many offending videos, but the report also implies that this type of action is a band-aid in response to momentary pressure.  Just like infringing material is restored as fast as it is taken down, ads continue to be linked to videos that no brand—let alone any political candidate—would choose to sponsor.

Although advertisers do have a measure of control in setting parameters to properly target their ads, the automated nature of the system is nothing like the control advertisers have with traditional media buys.  As the report states, “Let’s be clear: Google is not giving advertisers the opportunity to veto undesirable videos, but to opt-in and minimize the possibilities of ads showing up in undesirable places.” As we see in the context of rights holders and the DMCA, Google’s own financial incentive is grounds to play ignorant and incapable and to shift the burden to everyone else.  Again, to quote the report, “Right now, the best thing you [campaign operative] can do is report the videos to YouTube, which may pull these videos down. Google has deputized all of us to do the work it can’t…or won’t.”

Speaking of incentive, why the leadership of Google does not display the basic human decency or corporate responsibility to delete these videos as clear abuses of their service is inexplicable beyond basic greed.  Because let’s be grown-ups:  free speech doesn’t even enter this conversation. Speech does not protect criminal activity, incitement to violence, or training in the commission of crimes; and it sure as hell does not protect the video productions of violent extremists whose agenda fundamentally betrays the natural rights philosophy upon which free speech is predicated. And more prosaically, any private company is within its right to provide or not provide content based on its own internal judgments without violating free speech.  But there’s the rub.

It seems that YouTube is in sort of a logical pickle, trapped between its safe harbor status from liabilities like copyright infringement and what could become a growing demand to guarantee quality impressions to the advertisers who pay all of the company’s bills.  In order to avoid liability for the millions of user-caused copyright infringements on the platform, YouTube has to maintain that it is blind to the content on its servers prior to a specific notification. Meanwhile, the advertisers (and frankly the public) would be better served if YouTube were to make a serious effort to remove videos that are clearly dedicated to promoting or abetting the commission of crimes and acts of terrorism.  But the more YouTube exerts this kind of editorial control, the thinner their veil of ignorance becomes, which can then expose the company to liability for copyright infringement and other abuses of its platform.  Meanwhile, as the monopolistic YouTube hovers in this limbo raking in millions, the advertisers, rights holders, and public are not well served.

The DCA report states that this year the presidential campaigns will spend $1 billion in digital advertising, with Google, Facebook, and Twitter receiving most of that revenue.  For perspective, the report explains that if Google takes the same percentage of that billion as it made from all digital US advertising in 2015, it will earn $387 million from campaign spending alone. Meanwhile, the company that claims to provide the tools of political transparency to the public is anything but transparent on this matter according to the report.  “We have no idea how much Google and YouTube make from videos marketing illegal or illicit activities,” the report states. “Google has fought back against elected officials and regulators who’ve asked questions about the money. So far, the company has been successful at keeping its numbers a secret.” Maybe the point at which political campaign dollars are being split 45/55 between Google and terrorists is the moment when federal regulators decide to get serious.

Would Bernie’s supporters let him take on Silicon Valley?

If Bernie Sanders became president and was then tough on the growing power of the Internet industry, would the progressives currently singing his praises still support him?  With this post, I am neither endorsing nor indicting the candidacy of Senator Sanders himself, but as his campaign is built on a theme of holding Wall Street and corporations accountable, I have to wonder if his supporters have contemplated the idea that, as president, if he were to wield Teddy Roosevelt’s sledgehammer, this means Silicon Valley and its capitalists, too.

After all, Google alone is among the largest corporate tax dodgers in the country; it now consistently ranks as in the top ten biggest lobbyists; it is among the federally subsidized; it has wriggled out of anti-trust investigations and paid its way out of criminal indictments for its executives; part of the businesses strategy is based on invading your privacy; the company is racing toward a trillion-dollar valuation without being profitable while its top execs live among an elite fraction of the one percent; it doesn’t employ very many people; and the company built a considerable portion of its market share by exploiting other people’s labor without permission.  Google isn’t the only Internet company to resemble these remarks—they’re just the biggest and most pervasive.

But we’ve seen what happens when the government tries to tell the Internet industry what to do, haven’t we? The industry rallies the masses by scaring the hell out of everyone with messages about free speech and a broken Internet and the end of democracy itself. And you’re right in the middle of a Candy Crush game, dammit! (On a side note, watching this particular campaign season, the idea that the “Information Age” has been a boon to democracy is a very tough sell.  If it really is possible to break the Internet, somebody show me how.)  Okay, back to the point …

I’m not at all surprised that Sanders’s message is popular with a lot of 18-29-year-old progressive voters.  Like the humane antithesis of Trump’s cultish message of intolerance, the Sanders campaign is certainly about being fed up—fed up with the fact that the system is rigged—and this frustration cannot be denied.  But how holistically this political base is willing to look at the rigging is another matter. When Sanders says “Wall Street”, how does that translate among his supporters?  Does it consider the networked economy of the 21st century?

Given the extent to which the sanctity of the Internet is hugely important to this same demographic, is anyone paying attention (including Bernie?) to the fact that the industry which has accelerated wealth consolidation, which has produced paper billionaires out of the most speculative—and often predatory—investments, and which evangelizes an ethos of operating above the rule of law is led by Google, Amazon, Facebook, Apple, Uber, Spotify, etc.  Like it or not, many of the same people who say they want a guy like Sanders to take the fight to Wall Street are trapped in a dichotomy in which simply sharing that message on social media is telling Wall Street to keep doing exactly what it’s doing. Or consider another example …

With an infusion this January of $2 billion in private equity from China, Uber is now valued at over $60 billion, making it bigger on paper than Dow Chemical, General Motors, or Time Warner.  Although there are many drivers currently operating, the company technically employs almost nobody, and it has recently invested some of its VC money in the future of driverless cars.  In fact, in recent announcements, Uber founder Travis Kalanick has stated that if they can eliminate the driver altogether, the price of using services like Uber will become cheaper than owning a car. In theory, he may be right; but that statement alone implies a dramatic, multi-decade transformation to our economy and our infrastructure. This may include ground-transportation services consolidated down to just one or two dominant companies by the same mechanisms that enabled Amazon to become the category killer in product fulfillment. But what exactly do we think that sixty-billion-dollar speculation is about, a ride-hailing service? Yeah. So, when Bernie says he wants to tax Wall Street and pay for infrastructure, how does the current capitalist bet on Uber’s future change that conversation?  We’ll “tax” Wall Street to pay for a public subsidy of a ground-transportation paradigm that is still owned by the 1%?

What the tech-utopian promise and the Sanders campaign have in common is that they both reflect frustration with the status quo, and both will frame issues in the language of democratization; but where the agendas differ is considerable and seems to highlight the two opposing streams in which the millennial generation in particular is standing.  Sanders voters want to make college free and healthcare more affordable while the Internet industry wants to make doctors and professors, to a certain extent, obsolete.  Sanders voters want to level the playing field while the Internet industry wants to own the field, the ball, the bat, and the photos you took while you were playing.  Sanders voters want to make America less corporate, the Internet industry is the ultimate corporatization (see networking) of everything.  Sanders voters talk about American jobs while the tech-utopian’s rhetoric has confused the mantra of “disruption” with Schumpeter’s creative destruction.  Sanders voters cannot possibly say they want any president to go after Wall Street today and not include the hugely speculative bets on the technological future this same constituency says it wants in the palm of its hand.

It’s not that we cannot or should not have the best future technology can provide, but if a Bernie Sanders (or even Hillary Clinton) were to take this economic agenda to the doorstep of Silicon Valley, and that industry responds with its standard barrage of messages that the Internet and our rights are “under attack”, will this segment of the electorate keep faith with its stated mission, or will they get fooled again?

Music on the Campaign Trail

In the Fall of 1977, just weeks before gay rights activist Harvey Milk won a seat on the San Francisco Board of Supervisors, the English rock band Queen released the album News of the World. The LP included a short, heavily-rhythmic single called “We Will Rock You”, which typically segues into the anthemic “We Are the Champions”. Written by Queen’s lead guitarist Brian May, “We Will Rock You” was recorded in an abandoned church in north London because the band liked the acoustics. And as Seth Wickersham, writing for ESPN reports, “For weeks, Mercury and May took turns stomping on old pews and clapping, until they got the right sound.”

Nearly four decades later, “We Will Rock You” remains the number one track played at American sporting events—a fact that has intrigued me as much as I imagine it’s made a few structural engineers nervous since the trend began. Forgive the generalized stereotype implicit in this observation, but to watch, for instance, forty thousand Dallas Cowboys fans sing along with gay Freddie Mercury in virile support of their football team is  exactly the kind of cultural counterpoint I appreciate when it happens. The song was literally born in a church; it was sung by an incredible artist whose identity was at least somewhat restrained by the semi-tolerant limbo of homosexuality through the 1980s and the AIDS crisis; and then it became the Sunday hymnal of some of the most mainstream and socially conservative Americans, all rallied into chorus by May’s thump-thump-clap rhythm.

The fact that the verses of “We Will Rock You” are about loss and futility only adds another layer of irony to its role in sports fandom; but this is generally what we make of music anyway. The chorus and the rhythm fit our moods of triumph, sorrow, defiance, momentum, heartbreak, and so on, even if the lyrics and melody tell a very different story. And this relationship to music often comes into sharp relief when political candidates use a popular song—almost always because of the chorus—at campaign events.

In particular, when candidates represent or evangelize a point of view that is anathema to the authors’ beliefs—or even in direct opposition to what a song itself might be about—it has lately become a regular feature of our politics to hear of artists either asking or demanding that politicians not use their works. These stories, of course, lead to all manner of confusion about copyright, fair use, and the control an artist may or may not exert in these contexts. In most cases, people seem to side with artists, which is certainly encouraging, though hatred of a political candidate and love of a musician isn’t necessarily the clearest lens through which one might view these conflicts.

When Neil Young demanded that Donald Trump stop using his song “Rockin’ in the Free World” at campaign events, fans praised Young, though it’s not clear that he was on solid legal ground at the time. In general, a campaign is covered as long as the venue or the campaign itself has paid fees to Performing Rights Organization (PRO) like ASCAP, BMI, or SESAC (or all three) to license the use of nearly any song for public performance. The campaign has a responsibility to ensure the venue has these licenses (or to get its own), but as long as the PROs are covered, the artists and songwriters generally have no say, from a legal perspective, about the context in which their songs may be used at live events.

Artists may certainly ask a political candidate not to use a song, and they are free to publicly criticize the use as much as they want, but they can’t rely on copyright law to stop a politician from making this kind of use if the licenses are up to date. In another context, however, if a candidate makes repeated use of a song to the extent that it starts to become his/her theme music, the artist may see this as unlicensed endorsement and seek to enforce his/her right of publicity in order to stop the use. I’m not sure what the legal facts were in the Trump/Young kerfuffle; I’m guessing the campaign was most likely in the clear but decided to let the song go rather than allow a public fight with Neil Young to distract from its core message at the time of hating on Mexicans. One must prioritize.

Mike Huckabee Uses Eye of the Tiger at Kentucky Rally

In a different—and slightly bizarre—circumstance, the organization Huckabee for President, Inc. is facing a lawsuit by publisher Rude Music for copyright infringement stemming from a public performance of the song “Eye of the Tiger”, co-authored by Rude Music’s owner Frank Sullivan for the 1982 motion picture Rocky III. Approximately one quarter of the four-minute song was played outdoors at a rally in Grayson, KY on September 8, 2015 immediately after candidate Huckabee introduced Kim Davis to the podium following her release from the Carter County Detention Center, where she had been jailed for her refusal to issue marriage licenses to same-sex couples. It’s a safe bet the county jail hadn’t paid any PRO licenses as they probably don’t host a lot of parties or other events requiring music. Ostensibly, this suggests the Huckabee campaign messed up in one way or another, and the defense presented in their case seems a little odd.

The attorney for Huckabee has presented affirmative fair use defenses addressing all four factors, including a less-frequently-cited exception for use of music at a religious assembly. In fact, the defense states that the candidate was only in attendance as an evangelical Christian in support of a rally called the “We Stand With God Pro Family Rally”, organized by a religious group and not the Huckabee campaign. What seems odd to me, though—and speaking as a layman of course—is that the foundation of Huckabee’s defense would appear to be that the Grayson event simply was not his show—that their operatives did not publicly perform “Eye of the Tiger” as part of the Huckabee for President campaign. And the reason I say this is odd is that if this fact can be proven—or cannot be disproven—then the fair use defenses presented would be moot.  If Huckabee for President, Inc. did not publicly perform the song, then it cannot have infringed, which begs the question of offering any fair use defenses at all. If a use by a defendant does not exist, then there is no question of fairness to be judged.

So, the defense of religious assembly is irrelevant if it was not Huckabee’s assembly; and if it was in any way his assembly, he will have to prove that it was a purely religious gathering having nothing to do with the campaign. How he might hope to make that distinction, particularly when Mike Huckabee barely recognizes a separation between church and state, would appear to require a rather fine legal scalpel.

In particular, as mentioned, the candidate introduced Kim Davis to the stage and then somebody pushed Play on “Eye of the Tiger”; so even if this coordinated bit of theater came together impromptu, it looks an awful lot like the event became a Huckabee for President moment, regardless of whether it began as a religious assembly. One way or another—whether professionally planned or divinely arranged—candidate Huckabee certainly ended up with a neatly choreographed moment—shared via amateur video online—in which Davis joins him at the podium to the beat and triumphant lyrics of Sullivan’s famous comeback song. The fact that this particular visual is just one of many reasons Mike Huckabee will never be president has of course no bearing on the infringement case.

As our politics have become more divisive, and side-show happenings can gain wider exposure than in pre-Internet years, politicians’ use of popular music is likely to produce more frequent points of contention for both artists and their fans. And, as I say, while the particulars of these cases often sow confusion about copyright and its limitations, the emotional response is anything but irrelevant. That bile-in-the-throat feeling one might get if Donald Trump played Bowie’s “Heroes” at a campaign rally is neither petty nor dismissible. Because music is more powerful than either the smartest or the dumbest thing any political figure has ever said. It is simultaneously more primal and more enlightened. It’s why Brian May’s rhythm can induce Pavlovian harmony among millions of sports fans, who in another context might have righteously trampled Freddie Mercury’s civil rights. Maybe music for politicians should come with a label:  WARNING. CONTENTS MAY ROCK YOU. USE WITH CAUTION.