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

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