Category: Journalism

Fool me once, shame on Facebook …

In several posts on the subject of Facebook and fake news, I have opined that if we users are going to believe and disseminate bogus information, that’s mostly an us problem, one which Facebook likely cannot solve. In that spirit, there is an extent to which I agree with Mike Masnick’s Techdirt post on May 2 calling Facebook’s plans to rank news sources according to trustworthiness a “bad idea.” At least I agree with Masnick that a human flaw like confirmation bias is a “hell of a drug,” which cannot be counteracted by whatever algorithmic wizardry Zuckerberg & Team may devise.

But other than conceding that people are imperfect, subjective beings, and therefore susceptible to false information, I disagree with the rationale Masnick seems to apply in his critique of Facebook’s plans. He writes, “…as with the lack of an objective definition of ‘bad,’ you’ve got the same problem with ‘trust.’ For example, I sure don’t trust ‘the system’ that Zuckerberg mentions…to do a particularly good job of determining which news sources are trustworthy.”

Perhaps that’s just wordplay, but I find Masnick’s allusion to the subjectivity of trust to be symptomatic of the same populist affliction that precipitated the post-truth world in which we now live. I had hoped that the moment we elected a president who openly lies on Twitter, that this might at least serve as a clear and profound rebuttal to the cyber-utopian mantra that everything—including journalism—needed disrupting. Because if trustworthiness in news is not, on some level, objectively quantifiable, then all journalism must devolve to the exigencies of confirmation bias.

A functioning and humane democratic society depends on limits to democracy itself—on deference to expertise based on certain objective criteria to decide when that deference has been earned. It is essential that a reporter write, This Thing Happened—or even Here’s Why This Matters—and that a plurality of reasonable people accept the report as reliable based on objective (if subtle) metrics. Years of experience, background, track record, tone and style, and, yes, the organization a reporter works for should all factor into this assessment. So, I reject the proposal that “trust” is nearly so subjective as “bad” in this context. The integrity of a news report is not a matter of taste. Yet, Masnick writes …

“Facebook should never be the arbiter of truth, no matter how much people push it to be. Instead, it can and should be providing tools for its users to have more control. Let them create better filters. Let them apply their own “trust” metrics, or share trust metrics that others create.”

Call me a curmudgeon, but how is “applying one’s own trust metrics” any different from the same confirmation bias problem that social media tends to exacerbate in the first place? Masnick’s solution appears to be more confirmation bias, resembling the cliché that insists “more speech is the only solution to bad speech.” If that premise was ever true (and I have my doubts), it has been obliterated by the phenomenon of social media where more is often the enemy of reason.

Masnick is right, of course, that users who like Infowars are going to respond negatively if Facebook ranks that platform as less trustworthy than The New York Times or Wall Street Journal; but that’s a business problem for Facebook—one I could care less about because Infowars IS objectively less trustworthy than those news sources. And lest anyone think that’s liberal bias talking, I’ll say the same thing about Occupy Democrats or any of the other non-news sources my friends link to all the time.

These platforms don’t deserve equal footing with actual journalism, and if Facebook wants to rank news sources, fine. Whatever. I’m probably as skeptical as Masnick that it will do much good in the grand scheme of public discourse, but I think he exaggerates when he calls Facebook an “arbiter of truth.” This sounds more like the blogger who tends to oppose platform responsibility full stop than a complaint about what Facebook is doing wrong in grappling with its role as a conduit of news. In fact, it’s hard to fathom exactly what Masnick proposes as a solution when he writes, “The answer isn’t to force Facebook to police all bad stuff, it should be to move back towards a system where information is more distributed, and we’re not pressured into certain content because that same Facebook thinks it will lead to the most ‘engagement.’”

That reads like the suggestion is Facebook should not be Facebook, which is probably a non-starter as far as the shareholders are concerned. Instead, I tend to think that Facebook should be recognized for the flawed, highly-manipulated, walled-garden it is and placed in its proper context—as an activity to be moderated like video gaming or junk food. Because with or without rankings, we really have no idea what the psychological effect is of just scrolling past images and headlines that trigger dozens of subconscious emotional responses in a matter of minutes. Meanwhile, to the extent that Facebook remains a source of news and information, if ranking means I’ll encounter The Daily Beast more often than The Daily Democrat, I’ll count that as a win.

Fake News Tops Results After Las Vegas Shooting

On Monday, I was up early and first heard about the Las Vegas shooting on the radio in the car. It was still dark, and the winding road thick with fog, lending an eerie mood to the sound of Scott Simon’s voice on NPR reporting what little was known about this latest incident in what is now an epidemic of mass-killings. I had yet to look at any social media, to read anyone else’s opinion or to have the raw facts of the tragedy synthesized through the narrative of gun control, mental illness, terrorism, or any other matter of public policy. There was just the horrible truth of what had happened without theory or explanation. This is how we used to digest the news: Here’s what we know so far. Stay tuned.

Social media abhors a vacuum. And in the hazy interval between breaking reports of an event like the Las Vegas spree-shooting and the revelation of salient, credible details, the pranksters, trolls, and professional liars come out to play. Brianna Provenzano, writing for Mic.com, states that for several hours, “Facebook and Google’s algorithms prioritized fake news” about the Las Vegas shooting. As she puts it “conservative conspiracy sites like the Gateway Pundit lit up with misinformation about the shooter’s identity.” Her article shows one example of a headline naming some poort guy who had nothing to do with the shooting, calling him a “Democrat Who Likes Rachel Maddow, MoveOn.org, and Associated with Anti-Trump Army.”

According to Provenzano, the Gateway Pundit story was among the top results on Facebook before it was removed, but also that once the innocent man’s name was out there, Google searches for it led readers to a 4Chan thread “labeling him a dangerous leftist,” Provenzano writes. She also reports that Google eventually made algorithmic adjustments to replace the 4Chan story with relevant results and stated it will continue to be vigilant in this regard.

It’s right that Google and Facebook took action to quash, or at least mitigate, misleading “news” about such a gravely serious incident, especially bogus reports naming an innocent man as the perpetrator. But for those of us regularly following the policy positions of the internet industry, the hypocrisy here is not missed. For instance, Google can clearly take remediating steps where to no do so would look bad for them; but in other contexts in which search results may facilitate harm, they will expound ad nauseam upon the sanctity of free speech as a universal rationale to leave all data exactly where it is.

For instance, regarding the Equustek case and the Canadian court order to remove links, I fail to see a substantive distinction, in a speech context, between a counterfeiter using search to hijack customers from a legitimate product-maker and a counterfeit news-maker using search to hijack readers from legitimate reporting. In fact, ironically enough, a bogus news story, harmful and revolting as it may be in the wake of a tragedy like Las Vegas, has a better claim to speech rights than a hyperlink which leads consumers to a product or service that is breaking the law.

So, it’s not that I think Google et al shouldn’t make decisions to remove or demote “news” emanating from the adolescent babooneries of places like 4Chan. They absolutely should. Fake news is toxic, and we have enough problems with grim reality without people inventing and believing bogus narratives. But as I’ve argued more times than I can count, speech cannot be the default rationale for a universal laissez-faire policy in cyberspace. And as this story demonstrates, it’s a lie anyway. The major web platforms can and will manipulate, delete, or demote content, or links to content, when they are motivated to do so. Whether these internal decisions are driven by revenue, public relations, or even altruism, speech-maximalism does not seem to factor into their thinking, so there’s no reason why it should necessarily factor into external motivations like a court order.

Meanwhile, we can’t expect Google and Facebook to stop people from being idiots. Readers may remember that after the Boston Marathon bombing in 2013, netizens took it upon themselves to play law enforcement. Not only did they vilify an innocent man whose whereabouts were unknown, but the cyber-mob soon harassed the man’s family, who would then discover that they young man was missing because he had committed suicide.

In the early days of Web 1.0, I rejected the old cliché Don’t believe anything you read on the internet because, of course, the internet really was just a conduit, and a credible source is a credible source. But now that there’s such a bounty of absolute garbage that can either be designed to look legit or can be algorithmically elevated to undeserved prominence, that I think skepticism should be the default approach to nearly every headline. So far, the “information revolution” is at least half oxymoronic. And part of the problem is that it can be very hard to know which half.

Sirius XM Takedown of Stern/Trump Interviews Is Not Censorship

The implication that copyright is fundamentally a tool of censorship is a favorite theme among its critics.  They rarely miss an opportunity to ring this particular bell when the chance presents itself; and most recently, Cyrus Farivar, writing for Ars Technica, reported that Sirius XM filed a DMCA notice to have an archive of interviews between Howard Stern and Donald Trump removed from the blog site factba.se.  On cue, Mike Masnick at Techdirt was quick to describe this as “yet another situation where copyright law is being used to censor information that is in the public interest.”

Or maybe not exactly.

As a general note, it’s a pretty easy target, whenever material is arguably of historic or newsy significance, to make an emotional claim that the exigencies of copyright stand between the public and its right to know. But the hyperbole that is so often employed (e.g. Masnick’s saying the interviews are now in a “memory hole”) invariably suggests that copyright enforcement is tantamount to erasing information or sequestering it permanently from any form of public access.

In this regard, and for the discussion that follows, it’s important to note that just about every major news organization in the world maintains archives of works of historic significance and will license the use of this protected content for any purposes that require licensing. So, Sirius issuing a DMCA takedown notice in this case does not mean they’ve locked the content away for good.  In the meantime, if the public is desperately in need of insight into Donald Trump’s character, it seems amply covered.

Masnick states that the Ars Technica article cites “a bunch of lawyers” offering theories as to whether factba.se’s hosting of the radio interviews might be fair use. This bunch is actually four lawyers, all who have publicly espoused varying degrees of copyright skepticism, with opinions siding 3 to 1 that factba.se’s use would likely be held fair use.   Masnick then offers a mini analysis of his own, theorizing that hosting Sirius’s content in this manner would favor a finding of fair use under the first, second, and fourth factors.  And since neither Mike nor I are actually attorneys, let’s do this…

First Factor:  Purpose and Character of the Use

Under the first factor, Masnick states, “…the newsworthy nature of it and the purpose of the archive push it pretty strongly towards being transformative….”  I disagree.  In fact, what factba.se did was to make available exactly the same content that Sirius has the exclusive right to exploit under copyright.  Factba.se did not build upon the work to produce commentary or a new creative expression; and neither did it produce a transformative use akin to the Google Books research tool.  As was re-affirmed recently in the KinderGuides case, the fact that a rights holder has not yet made these works available does not forfeit the protection and allow another party to exploit the works in any matter normally protected by copyright.

Second Factor:  Nature of the Copyrighted Work

Under the second factor, Masnick notes the relative lack of “originality” in works that comprise interviews between Howard Stern and Donald Trump.  This is perhaps the strongest argument favoring a finding of fair use, although a court would have to do a more detailed analysis of the interviews themselves.  But as long as we’re making assumptions, there is ample precedent to demonstrate that copyright protects “original” works of a factual nature (e.g. all journalism); and given the irreverent and creative style that made Howard Stern the star he is, it’s very hard to imagine that a court would not find that these interviews meet the “creativity” standard for protection under copyright.

Third Factor:  Amount and Substantiality of the Work

We can assume that even the staunchest critic of copyright will agree that this use would likely fail under the third factor analysis because of course factba.se used the entire work.

Fourth Factor:  Effect of the Use on the Potential Market

Masnick states that this use “clearly” does not harm the market for the Howard Stern Show, thus implying analysis would tilt toward fair use under the fourth factor.  But here, he is either purposely or carelessly applying the wrong standard and adding more noise to the galloping confusion about fair use these days.  In a case like this, the court would hardly consider whether or not the use of Sirius’s archival material may cause harm to the market for current Howard Stern programs.

The court would instead consider whether or not the unlicensed publication of these archival materials threatens the potential market for Sirius to exploit these precise works under the exclusive rights of copyright.  For example, if Sirius wants to release a special boxed-set of the Stern/Trump interviews, it has the exclusive right to do so; and a use like the one made by factba.se would almost certainly be seen as threatening that potential market.  This concept of the rights holder’s potential market is often the most overlooked aspect of the fourth factor when it’s described in articles and blogs for general readers.  But potentiality is paramount to how the analysis is generally applied.

Once again, to stress the emphasis made by Judge Rakoff in his KinderGuides opinion, copyright’s exclusive bundle of rights is not a use-it-or-loose it proposition.  Simply because Sirius has not yet made these interviews available in this way does not grant factba.se or any other party the right to do so.  That the works may be considered newsworthy or historic does not substantially alter this underlying principle.

As is often the case, critics like Masnick are looking for censorship where it doesn’t exist.  At least not yet.  Yes, the fact that Trump is now president does elevate the historic significance of these interviews, but it is false to assert that this circumstance then demands an immediate release by a party that had nothing to do with producing the works.  If there were a substantive revelation in one of the interviews pertaining to matters of state, one could make a solid fair use argument for using that interview or portion in reportage.  But as we’re talking about Howard Stern and Donald Trump, I’m going out on a limb and guessing that the full archive is about 80% “locker-room” talk. And while the audience that wants to hear these works as news or entertainment is entitled to do so, the creators who produced them are entitled to exploit them like any other protected work.