Tag: censorship

Section 230 Review: Right Topic, Wrong Administration

I think Senator Blumenthal summed it up about right, as he was quoted in this week in the Wall Street Journal:

“I’ve certainly been one of Congress’ loudest critics of Section 230, but I have no interest in being an agent of Bill Barr’s speech police.”

In the post I wrote right after Trump threw a hissy fit because Twitter fact-checked him, I said that I have been worried about the platform responsibility narrative becoming grossly distorted by the nature of this administration. It’s no surprise that the laissez-faire policies of the major platforms, with regard to content moderation, were set on a collision course with America’s new reality-bending president.

As Trump’s unbridled contempt for facts, his tacit endorsements of hate groups, and his violations of core American principles morphed into official policy, it was inevitable that there would be a clash of conscience for at least some of Silicon Valley’s leaders and employees. They should have seen it coming but chose not to.

Instead, high on their own utopian, guardians-of-democracy rhetoric, and insulated by liability shields like 230, Big Tech refused even to consider how their grand experiment in speech absolutism, and the wisdom of crowds, might create a monster. So, when the beast finally broke out of the lab, they should hardly have been surprised that their futile efforts to contain it would only make it angry.

Of course Trump is demanding platform neutrality. Neutral is exactly what the platforms kept saying they were for years. Silicon Valley wants the platform liability shields left just as they are. And in defense of that status quo, they have long claimed, and largely maintained, a policy of “neutrality” with regard to user uploaded content. But this assertion, already dubious, became both untenable and dicey for Big Tech operators, when the worst abuser of their community standards became the federal government itself.

But let’s be honest. Most Americans, left, right, and center, agreed that neutral was the right gear for Facebook and Twitter et al. Never mind that neutrality is not the aim of Section 230. That’s just a pesky little detail about the law itself. But for years, Big Tech used the protection of 230 to justify “neutrality” and to evangelize that policy as allegedly protecting our speech rights. So, the maddening irony of the moment is that Trump is merely insisting upon the internet that everyone naively said they wanted — and many still say they want, even as the Republic seems to hang by a thread most days. So, stick that in your bong and burble it for a while.

There is no other way to frame the so-called political party conversation now. Anyone with a basic working knowledge of American civics and history knows that the current administration is neither Republican nor conservative by any reasonable definition of either of those terms. When Trump and his flock complain about “censorship of conservative views,” online, what they are referring to is moderation of potentially hazardous lies, conspiracy theories, incitements of violence, and hate speech. If those modalities are truly part of the Republican party’s new brand, we’re going to have a civil war of some kind, at which point there will be no need to worry about nuanced legislation like Section 230.

But as I said before, that’s a problem the Republicans will have to work out for themselves. They’ll have to decide, and soon, whether they are all-in on this cult of galloping ignorance, incompetence, and cruelty. Meanwhile, I see legitimate conservatives tweeting several times a day—and quite often to criticize Trump for what he has done to their party. Bill Kristol’s tweets aren’t being taken down, and last I checked, he’s pretty damned conservative.

In the meantime, what will unfortunately be obscured by all this noise are the very serious reasons why reasonable people of good faith seek amendment to the Section 230 liability shield. These include people like attorney Carrie Goldberg, whose Brooklyn law firm defends real victims of online exploitation and severe harassment, while the platforms enabling those crimes (even intentionally) remain shielded by Section 230. This is the kind of policy conversation we are supposed to be having. And we were having it, until Trump got involved.

It is a tragic irony that whiny old men put Section 230 on the table for their whiny old man purposes, when so many of the real citizens seeking reform happen to be (as usual) vulnerable women. For instance, after years of reasoned debate on ways to address revenge porn online, Senator Hawley introduced an amended bill, dated today, that does nothing for people who have suffered, or may suffer, real harm from the misapplication of Section 230. Instead, the Hawley bill is merely a reaction to claims of “politically biased moderation,” which is a euphemism for removing the toxic, conspiracy-laden bullshit spread by the current president. Because that’s where we are now.

Because many (if not all) of these new, reactionary proposals for 230 revision will seek to punish Silicon Valley for moderating the worst of Trump (and that’s saying something), it seems unlikely that any such legislation will make it through this Congress before the end of the year. By that time, if there is any hope left for America, this national nightmare will end, and the historians can get to work on the Bruegel-inspired pop-up books describing this era.

I have yet to review the June 2020 DOJ report on Section 230, and because that review started before this topic floated all the way onto Trump’s radar, it may contain some reasonable recommendations that go beyond political theater. We’ll see. But now that the 230 conversation has been subsumed by Trump’s personal beef with Silicon Valley, it’s just another side show in the circus. It would be nice if one day, sober heads can resume this important conversation. Now, all we need are some sober heads.

See also: Civil rights groups call for ‘pause’ on Facebook ads.

EU Copyright Proposal Article 13 Set to Destroy the Internet (Again)

As mentioned in my previous post, Article 13 of the EU Directive on Copyright in the Digital Single Market is the latest proposal that will “destroy the internet as we know it,” if the statute is ratified in its present form. The #copyright feed on Twitter seems dominated by messages proclaiming the existential toxicity of Article 13, and, as usual, there are a lot of articles agreeing with one another that this proposal is really bad—all of them long on synonyms for bad, but short on substance as to why bad things will actually come to pass. And the reason for this is that Article 13 does not outline any specific practices but rather proposes to adopt certain practices. If that sounds like a distinction without a difference, it isn’t.

The broad goal of the EU Directive is to create a Digital Single Market (DSM), something that consumers, digital rights activists, and even many rightholders have been advocating for years. Harmonizing the disparate copyright laws (as they relate to internet distribution) of the 28 member countries should facilitate better access for users and, in principle, foster more robust trade in digital goods throughout the continent.

But the European Commission simultaneously recognizes various threats posed by the internet industry to the authors of works—especially from major platforms that host vast amounts of user-uploaded, copyrighted material.  In the European Commission, these are called Online Content Sharing Service Providers (OCSSP), a category that excludes non-commercial sites like encyclopedias or sites where “content is uploaded with the authorisation of all concerned rigthholders, such as education or scientific repositories.”

Presently, the Directive’s Article 13 mandates that Member States work with major service providers, user representatives, and rightholders to develop technical measures designed to filter content in order to prevent or mitigate the uploading of infringing material. Here’s the language from the current draft:

“Member States shall facilitate, where appropriate, the cooperation between the online content sharing service providers, users, and rightholders through stakeholder dialogues to define best practices for the implementation of the measures referred to in paragraph 1 in a manner that is proportionate and efficient, taking into account, among others, the nature of the services, the availability of technologies and their effectiveness in light of technological developments.”

This is what will supposedly destroy the internet as we know it.  A provision that Member States work with stakeholders to develop technical measures to filter unlicensed content from various platforms.  A process that, if it happens at all, will take several years of negotiating (and bickering) to implement.  I feel compelled to interject that when the DMCA was passed in the U.S. in 1998, it also contained a mandate that rightholders and service providers collaborate to develop technical measures in order to filter for infringing content. In fact, the service providers testified to the availability of such technical measures as part of their rationale for lobbying for the safe harbors in DMCA in the first place.

If America’s past is Europe’s prologue, the major service providers—with ample help from anti-copyright ideologues—will fight the implementation of such measures at every phase, so we’re at least 10-15 years from “destroying the internet we know.”  I find this funny because the “internet we know” (using YouTube as a reference) isn’t 15 years old yet, and I’m not sure why the internet of 2031 should be required to resemble the internet of today in any context whatsoever.

Although the EU Directive is not specific about what technical measures should be developed and implemented, the usual chorus of critics hear the death knell of the internet in the mere suggestion that such technical measures should even be considered. Thus, the main message they’re selling—the one they always sell—is that no technical measure could ever be implemented without fostering censorship of protected speech. Hence, Pirate Party Member of the European Commission Julia Reda’s labeling these provisions “censorship machines.” Then, the anti-copyright voices in academia and “digital rights” groups jump on board with scary-sounding declarations like this one:

Algorithms Can’t Assess Fair Use!

It’s true. They can’t.  And the day they can, I’m going into the bunker because this would indicate the machines have woken up and are about to kill us. Of course, most human users who upload copyrighted works aren’t very good at assessing fair use either—or more to the point, most human users don’t bother thinking about what they’re uploading, period. It is simply assumed at this point that every user is free to upload whatever he wants without considering whether he has any right to make a work available online.

Just because digital activists and copyright haters paint a picture of an internet replete  with fair uses, that doesn’t make it true.  In fact, in my anecdotal experience with friends—including artists who don’t want to infringe—almost nobody has taken the time to understand fair use. So, are social media platforms more richly populated by fair uses or infringing uses? I don’t know. But neither do any of the people currently overstating assumptions about fair use in order to scare users about the provisions in Article 13.

Moreover, as alluded to in my last post, if content filtering systems are too hypersensitive, this will adversely disrupt the use of licensed works. For instance, I pay for the stock photos I use on this blog, but if WordPress deploys a filter that is too robust and rejects every image, that’s bad for me and the rightholders of those images. This is a tiny example as to why Article 13 requires stakeholders to develop technical measures through collaboration.

And on that point, why don’t the digital activists ever seem to want to collaborate on such initiatives rather than invoke Revelations at the mere prospect of having the conversation? Because a) they fundamentally hate copyright and have no intention of finding compromise; or b) because they really are in Silicon Valley’s pocket and seek policies that serve the interests of Google et al.

It is important to keep in mind that almost no proposal—from voluntary to statutory—is ever endorsed by these parties if it implies even a hint of platform responsibility for user-uploaded content. This remains true despite the staggering evidence that our 20-year policy of leaving platforms to their own “merits” resulted in the Facebook/Russia/Cambridge-Analytica scandal. These events have led many citizens to reconsider the need to preserve “the internet as we know it” in favor of adapting to an internet that better serves society. To achieve this, we will have to accept that, in fact, there are laws applicable in physical space which are not rendered obsolete by interacting in cyberspace. Maybe if we describe this approach as disrupting the internet, the digital activists will get it.

Looking for Censorship in All the Wrong Places

Last week, I stumbled on a tweet by a staff member at the Electronic Frontier Foundation warning California citizens to “take action” in protest against the passage of Assembly Bill 2880.  The linked article on the EFF website written by Ernesto Falcon begins by asserting in its headline, subhead, and first paragraph that California will be venturing into brand new territory with regard to registering or enforcing state-owned intellectual property and that this will have the usual litany of ill effects—“chill speech, stifle open government, and harm the public domain.” Falcon’s first sentence reads, “The California Assembly Committee on Judiciary recently approved a bill (AB 2880) to grant local and state governments’ copyright authority along with other intellectual property rights.”  (Emphasis added.)

It is standard procedure for the EFF to make scary declarations while avoiding specifics. They have a habit of telling people that a proposal will be really bad while shirking the effort of quite explaining how. The organization also tends to focus almost entirely on copyrights when a broader view of IP might be relevant in a given circumstance, as it is with a state, which may have at least as much interest in patents and trademarks as in copyrights.  What Falcon wants the reader to conclude is that AB 2880 will grant new authority to the State of California to copyright works like public records, which would then give elected officials a means of stifling speech by misusing copyright law.  You might recognize this theme as one of the EFF’s Greatest Hits, but of course, this bill does nothing of the sort.

AB 2880 does not establish new IP rights for the State of California.  California and other states have owned intellectual property for a very long time.  A  FY2000 California audit of IP states, “In total, 125 state agencies own more than 113,000 identified items of intellectual property.” What this proposed bill does do is to clarify California’s position on its IP and then requires procedures (e.g. developing guidlines for contractors) to be overseen by the Department of Governmental Services for better management of state-owned intellectual property. A need for clarification in the law is noted in the comments from the State Assembly floor, which cites lessons learned from the widely publicized, 2015 dispute between the National Park Service and the Yosemite National Park concessioner Delaware North.  The floor comments include the following:

”…the lack of a robust intellectual property framework has led to confusion among state agencies, loose and informal practices, and possibly confusion among state and federal courts. Several recent court decisions have held that state agencies need legislative authority to hold intellectual property rights. In light of the recent Yosemite trademark issue and the recent court decisions, this bill builds on the framework established by AB 744 in order to assist state agencies manage and protect the state’s intellectual property rights, particularly in state contracts where state-owned intellectual property is at stake.” 

That’s not exactly spellbinding, but neither the character nor the language in this bill gets anywhere near the EFF’s implication that California agencies will have “new powers” to use copyright law in order to stifle speech or limit access to public records after passage of 2880.  Nevertheless,  Falcon writes, “As things stand today, works created by California state and local governments (like reports, video, maps, and so on) aren’t subject to copyright except in a few special cases. That ensures that Californians who funded the creation of those works through their tax dollars can use those works freely.”

Not quite.  Falcon is purposely being vague in order to have the reader assume that public records will be treated the same as expressive works or other IP that is funded by California taxpayers, especially where third-party contractors are involved.  At the same time, he’s sowing a bit of confusion about the difference between public property and the public domain—as if all works funded by taxpayers are automatically in the public domain, which is not the case.

A work, invention, or process that is in the public domain is no longer property of any kind.  It is entirely fair game for anyone anywhere to use for any purpose.  Public property, on the other hand, is just that; and state agencies have a responsibility to protect the investment of the constituency who paid for the development of the property.  For instance, it is common that public property, whether physical or intellectual, may not be used by a for-profit entity without that entity paying a license fee that goes back to the public fund.  And this is as it should be; the taxpayer isn’t typically expected to fund free resources to be used by for-profit entities without getting something in return.   To manage this, states need an intellectual property regime, and AB 2880 is a rather mundane update to that regime.

On the subject of censorship, Falcon draws our attention to the case in which the City of Inglewood wrongly filed a lawsuit against Joseph Teixeira, who posted city council videos (which are public records) on YouTube in remixes that were critical of the city’s Mayor James Butts.  The lawsuit was, to put it mildly, an act of rank stupidity on the part of city officials, which is pretty much what Federal Court Judge Fitzgerald said when he not only tossed out the case as “meritless,” but also ordered the City of Inglewood to pay the full fees of bringing the case in the first place.

And although Falcon is following the EFF playbook by riling up readers with a reference to this attempted abuse of copyright law, there is nothing in AB 2880 that would newly empower a future state public official to get any further with a federal court than Mayor Butts did.  It should also be noted that nothing in AB 2880—or any other statute for that matter—can fully prevent people from attempting to misuse the law, which is one reason why a judge determines whether or not a case has any standing before it can proceed. If anything, the Teixeria story ought to chasten city and state officials against future temptation to use copyright to stifle speech.

In addition to conflating public property with the public domain, Falcon is purposely mixing public records with other types of works that are copyrightable and is also confusing federal policy with state policy.  It goes without saying that federal public property belongs to all American citizens while state public property belongs to the citizens of that state, but it is not true that all public property in either case is the same thing as the public domain.   Still, Falcon declares that AB 2880 will impose new restrictions on California’s taxpayer-funded works, as if the proposed bill will move these works from the public domain into the protection of copyright. He writes, “… a vast majority of state created works are free to the public with only five exceptions. All other audio, visual, and written work of state and local govenment employees is in the public domain upon creation and free for the public to use however they see fit.”

Again, not quite. The legal precedent to which Falcon’s link refers states that the California Public Records Act “prohibits copyright in state government records unless there is specific statutory authority to do so.”  And this precedent is not overturned by the new language proposed in 2880, which reads as follows:

A public entity may own, license, and, if it deems it appropriate, formally register intellectual property it creates or otherwise acquires. A public entity’s intellectual property right shall not preclude the public entity from disclosing any information otherwise accessible under the California Public Records Act. A disclosure under the California Public Records Act shall not be construed as waiving any rights afforded under the federal Copyright Act of 1976.

All that says is that state agencies may own intellectual property (which was already true), that copyrigths may not preclude public access to public records, and that disclosure of public information does not inherently void the state’s copyrights. Not only does this language not override existing law, it seeks to clarify the law in light of some of the lessons learned from various court cases, as described in the floor comments cited above. Of course it is entirely possible that this clarification is exactly what the EFF doesn’t like about this bill. Clearer copyright laws are the opposite of no copyright laws, and it seems as though that organization is only ever interested in the latter.