Tag: EFF

Turkewitz: Disruption, Fear and Slippery Slopes: Baby Steps in Building a Better Internet

(republished by permission)

The biggest story of 2017? To my mind, there is no contest — the broad emergence of an awareness that the irresponsibility masquerading as Internet freedom represented a threat to global societies and to cherished aspects of our humanity, and that a course correction was badly needed. While recognition of the fact that rewarding lack of accountability would likely incentivize anti-social and illegal conduct took longer than it should have, such an awareness came to fruition throughout 2017. Whether motivated by concerns about sex trafficking or the prevalence of other internet-enabled crimes, fake news, foreign government interference in elections, monopoly or monopsony power, or the perceived political or cultural biases of platforms, the question at the end of 2017 wasn’t whether the current legal framework for platform responsibility should be amended, but how. It became clear that the twin pillars upholding the current lack of accountability in the internet ecosystem — Section 230 of the Communications Decency Act and Section 512 of the DMCA, each of which was adopted at the dawn of the commercial internet, would need to be reexamined and a new framework established. Ideas ranged from minor course corrections such as amending Section 230 to address issues related to sex trafficking (SESTA) and changes to the DMCA to require greater use of technical tools to prevent infringement going beyond mere takedown, to proposals to broadly regulate the operation of platforms given perceived monopoly power over the last mile (access to, and influence over, users). In short, there appeared to be universal acknowledgement that the status quo wasn’t working, and some — as yet unspecified — change was needed.

But apparently, if not unsurprisingly, this acknowledgement that the status quo needs to be disrupted isn’t quite shared by everyone. In an end of the year post by EFF’s Jeremy Malcom entitled “Time to Rethink Copyright Safe Harbors? 2017 in Review,” Malcolm writes: “They [safe harbors such as the provisions of Section 512 of the DMCA] are as vital to the Internet today as they have ever been.” His argument is summed up neatly here: “Without that legal protection, it would be impossible for such platforms to operate as they do today.” Well, yeah. That’s the very point of effecting change — to modify how platforms operate. Malcom apparently looks at the internet and sees the flowering of culture and the emancipation of humanity. I want his internet. And I am prepared to work to achieve it rather than pretending it is our reality, and without employing absurd reductionism as if we were holding a referendum on whether technological progress and the internet are good or bad things. The internet is a remarkable tool for expanding communications and access to information in a truly transformational manner. The question is: can we be better stewards, and how can we most fully achieve its potential for enhancing the welfare of societies. We should not let the perfect be the enemy of the good, but nor should we let the good stand in the way of the better.

It would also be nice, but alas probably a bridge too far, to engage in dialogue about solutions without fear-mongering and labeling. In order for Malcolm’s narrative to hold, he has to take the individual creator out of the equation and to pretend that somehow the cultural marketplace is of no concern to actual creators — only to the ominous dark media lords, the dreaded “Big Content.” The ones who brought you SOPA. You know who I am talking about. The Man. Aiming only to defend a failing and exploitative business model. Malcolm works hard to reinforce this false picture, repeatedly referring to “copyright industry lobbyists,” “industry representatives,” “Big Content,” and of course, EFF’s favorite…”monopoly rents.” And suggesting that these industry trolls working in secret to destroy the internet would have gone unnoticed but for EFF’s vigilance. All of which leads to his central lie:

“But Big Content isn’t satisfied with such laws, because they place responsibility on copyright holders to request the removal of infringing content, and because the availability of free, user-uploaded content supposedly depresses the value of mainstream, paid entertainment. The content industry thinks a filtered, regulated Internet that suppresses user-uploaded content will deliver them higher revenues, and they describe the absence of these imaginary monopoly rents as a “value gap.”

There is no part of this that reflects the world we actually inhabit.

1-Large media companies (whatever that means) are not alone in calling for reform of safe harbors. A quick review of comments and submissions in the EU and US will reveal a creative community unified in its support for reform: businesses and labor, major studios and indies, individual creators and trade associations. And our problem is not that safe harbors place responsibility on copyright owners to request removal, but rather that they fail to place corresponding obligations on platforms to take meaningful action when they know, or should know, of infringing materials. Existing safe harbors in the US, EU and elsewhere create incentives for platforms to avoid knowledge of infringement, and then only obligate platforms to take remedial action which fails to provide an actual remedy. We need to reset the incentives to breathe life into the legislative intent behind existing legislation to promote cooperation in addressing infringement and expanding the digital marketplace.

2-The notion that the creative community is worried about competition to “mainstream, paid entertainment” from free user-uploaded content is truly outrageous. The creative community has no issue with creators determining that they want to offer their works for free. The problem is when users decide to upload the works of others without the creator’s permission. And yes, forcing creators to directly compete against unauthorized versions of their own works is both prejudicial and fundamentally unfair. That doesn’t require a lot of imagination, just a basic sense of fairness and justice.

3-Malcom asserts that there are two alternatives: his free and open internet, or the copyright industries’ filtered, regulated internet that suppresses freedom of expression and delivers monopoly rents. Reductionism at its very worst. The status quo, or some Orwellian nightmare of control. But of course, this is pure fantasy. The core issues related to safe harbors are not about regulation, but rather address the development of a technology-neutral way to achieve the kind of responsibility we would expect in the offline environment. Not more, and not less. To eliminate incentives for recklessness and willful blindness. And yes, to change the status quo. That’s what gets Malcom — he clings to the world he knows, and lives on a slippery slope. But when we resist doing what’s right out of fear of some future unknown, then something is fundamentally wrong.

An article published just yesterday neatly captured our reality: “The DMCA and CDA protections enabled a few Silicon Valley giants to become sinfully rich, with a concentration of power not seen since the 1920s. The digital revolution could have succeeded without the ‘disruption’ and their disregard for copyright and content creators.”

I have a modest proposal for 2018: let’s abandon evangelical fervor in favor of policy-making grounded in the observable universe. Let’s acknowledge that lack of accountability will produce unaccountable actions. And let’s be prepared to challenge the status quo to produce the kind of outcomes that enhance societal welfare. A recent article in Ars Technica entitled “How do you change the most important law in Internet history? Carefully.” While the underlying notion that Section 230 is “the most important law in Internet history” represents, as Devlin Hartline has noted, a fetishization of Section 230, I nevertheless agree with the proposition that we must exercise care. But Ars, unlike EFF, doesn’t ask whether the present framework should be amended, only how.

Image by Aenota

Internet Association Reverses on SESTA. EFF Cranky.

I can’t say I was surprised when the Internet Association announced on Friday that the major internet companies would be halting their lobbying efforts against the Stop Enabling Sex Trafficking (SESTA) bill. While representatives for Google, Facebook, and Twitter were enjoying Day Three of occasionally intense inquiry by the Senate Judiciary Committee over foreign meddling in our politics via social media, one thing became abundantly clear: the generic defense that everything online is free speech isn’t going to fly. Not with lawmakers. And not with the American people, it seems.

The reversal on SESTA did rankle the EFF, though, which announced almost immediately that “the Internet Association does not speak for the web,” leaving us to conclude that, presumably, the EFF speaks for the web. Whatever that quite means. Perhaps what the “digital rights” group is most concerned about is that when SESTA passes, which it almost certainly will, people might notice the lack of chilling effect it will have on free speech and think, “Hey, maybe these guys who speak for the web are prone to exaggeration.”

After all, these organizations have spent a lot of energy telling Americans that the liability shield extended to online providers in Section 230 of the Communications Decency Act is the reason the web has thrived at all. And one way to understand the extent to which this is hyperbole is to note that the amended SESTA bill, which the Internet Association now backs, does not include any changes that would make it any less a “censorship bill” if it had ever been one in the first place.

In fact, the substantive amendments now agreed upon primarily provide for changes to Chapter 77 of the U.S. criminal code (Title 18), which addresses both criminal and civil litigation that may stem from acts of slavery and trafficking, including trafficking of minors for the commercial sex trade. One amendment tightens up the definition of “participation in a venture” that facilitates or profits from crimes committed under §1591 (sex-trafficking of children) by describing this as “knowingly assisting, supporting, or facilitating a violation of…”. The other major amendment to Chapter 77 adds a section to the civil remedies for all slavery and trafficking-related crimes—allowing State Attorneys General to file civil claims in federal court where such remedies may be appropriate.

The EFF insists that SESTA will place smaller entities, which don’t have the financial/legal resources of Google and Facebook, at greater risk of potential litigation by victims of sex trafficking. They further assert that, according to various experts on trafficking, SESTA will not help victims and may even place them in greater jeopardy.

SESTA Doesn’t “Go After” Anyone

It’s important to understand that the purpose of SESTA is not trafficking interdiction itself. All the change to the CDA really does is lower one narrowly-defined barrier for alleged victims of sex trafficking to potentially hold a web business liable, if their owners knowingly profit from their victimization as minors trafficked in the sex trade. That’s a lot of conditions and a fairly high burden to meet in a litigation. Yet, the EFF cites critics like Kristen DiAngelo of the Sex Workers Outreach Project (SWOP), which paints a picture of SESTA driving sex workers off the web and back onto the streets where they are more likely to be preyed upon by traffickers.

Organizations run by former victims should be afforded considerable respect with regard to their views on stemming trafficking; but I think DiAngelo misconstrues the nature of SESTA when she writes in her letter to Senator Thune, “To victims of sex trafficking, the idea of shifting liability to publishers for the actions of actual pimps and traffickers is terrifying.” But that isn’t what SESTA does. While I agree with Ms. DiAngelo that the broader spectrum of criminal justice vis-a-vis prostitution is often hypocritical and too frequently criminalizes victims rather than traffickers or customers, SESTA has nothing to do with criminal prosecution at all. It only slightly amends the landscape for civil action, and it should no more lead to a flood of lawsuits by trafficking victims anymore than we’ve seen mass litigation by victims of child pornography since the CDA became law in 1996.

To put it in practical terms, a group of sex workers could theoretically start their own website tomorrow and maintain that site without concern that SESTA has made them more vulnerable to litigation. As explained in an earlier post, the only issue of criminal or civil liability for Backpage* is whether its owners engaged in willful blindness, or worse, with regard to ads that either explicitly or implicitly promoted minors for sex. What SESTA does is actually limit the liability for the site owners who do take affirmative steps to weed out, mitigate, or report attempts to advertise minors on their platform. If SWOP were interested, for instance, in fostering safer online environments for sex workers, SESTA should actually be conducive to that effort.

Perhaps if the EFF would stop calling SESTA a censorship bill and explain in some clear example how this legislation could possibly cause any of the systemic problems they claim, theirs would be a counterpoint worth considering. Meanwhile, they may want to read the moods of both Congress and many citizens, who seem far less receptive to the universal “hands off my web” message that has prevailed up until now. The danger, of course, is that there may yet be an actual threat to free speech in digital space, and if that happens, who will speak for the internet? Surely not the organization that has cried wolf so many times.

Speech Maximalism on SESTA is Madness

This refrain keeps playing over in my head lately:  The EFF and its sister organizations are to cyberlaw as the NRA is to rational gun policy in America.  That seems like a pretty harsh thing to say about a bunch of progressives (and one must even include the ACLU in this discussion), but in the context of policy debate, the maximalism with which these organizations continue to defend the liability shield (Sec. 230) of the Communications Decency Act (1996) on behalf of a single multi-billion-dollar industry is logically comparable to the maximalism with which the NRA has marketed so much ahistorical nonsense about the Second Amendment on behalf of gun manufacturers.

While it’s hard to look away from the circus playing round-the-clock at the White House, it is certainly necessary to look beyond it.  The story of where American democracy is heading is not Donald Trump, though it may be (metaphorically speaking) Elon Musk.  The fact that Musk announced he could power Puerto Rico in response to official U.S. dithering is both intriguing and generous, but it is also a frightening commentary on the condition of the American state.  Even as an idea, Musk’s offer is a subtle harbinger of the tipping point I fear we may be approaching—that the state becomes so dysfunctional, the people turn to the oligarchy of technologists and say, “save us” from ourselves. At that point, American democracy will come to an end. Cue 21st-century American feudalism.

Before we head quite that far into a sci-fi thriller, though, we are truly at an inflection point when the fate of a couple of bills in Congress will say a lot about how much power and influence Google and the other major internet players have in Washington.  H.R. 1865 and S. 1693 (SESTA) would amend Section 230 of the CDA to explicitly prohibit online support of trafficking minors in the sex trade and thus open pathways to both civil and criminal prosecution.  These bills are largely a response to allegations stemming from investigations into Backpage, which the National Center for Missing and Exploited Children estimates is how 73% of all children trafficked in prostitution are bought and sold.

I am told by various contacts in D.C. that Google’s lobbyists—parent company Alphabet now ranks among the top five spenders in the country—have been out in force to kill these anti-trafficking bills in committee. Meanwhile, the EFF and other Google-funded organizations have the unenviable task of telling the American people—once again—that free speech on the web will suffer if we pass legislation designed to help protect children from sex-trafficking.  As explained in a previous post, SESTA proposes a change in the Section 230 statute that is so narrow it could never affect the vast majority of internet users.

Your site would have to be a lot like Backpage, or would have to be as big as Google or Facebook just to be in the orbit of potential liability under SESTA.  Even a pornography site that might inadvertently host video depicting sex acts with trafficked minors (and that’s a big hypothetical) would not necessarily be liable under SESTA because, depending on what actions the site owners were to take, they could still qualify for the safe harbor provisions of Section 230.  Any implication that the vast majority of us who do not run globally substantial sites, or who do not use the web to conduct transactions in the sex trade, will somehow feel a tremor in the force of free speech is rank hysteria.

But Google, with all its wealth and influence, would rather not have so much as a pinhole of liability pierced into the CDA shield—even if it means providing a modicum of legal remedy for victims of sex-trafficking by prosecuting individuals who have nothing whatsoever to do with Google. I can only imagine there must be a few members of the EFF who are either experiencing moral crises over this issue, or downing 10 a.m. shots just to quiet the cognitive dissonance because they’ve got to know their free speech arguments against SESTA are complete hogwash.

Overcoming Free Speech Maximalism

In the same way that the NRA markets a message that guns create freedom, the internet industry has sold a very similar maximalist view that the First Amendment is perpetually strengthened by the immeasurable volume of interactions on the internet.  Just as the American who owns ten guns is not ten times freer than the American who owns one gun, the American who tweets a hundred times a day is not freer than the American who doesn’t have a Twitter account at all.  Nevertheless, when one reads the declarations insisting that every peep uttered in cyberspace is sacred, it is hard to miss the rhetorical similarities between the NRA and the internet activist organizations.

Like anyone with a maximalist view—or a financial stake in espousing one—both the NRA and the EFF reveal a callous disregard for the harm being done by the policies they endorse.  The EFF hasn’t explicitly said “child sex-trafficking is the price we pay for freedom,” but that’s effectively the argument they’re making with their overplayed appeals to the First Amendment in context to SESTA.  Adding further to this irony is a complete disregard for the fact that the internet as we know it is actually making quite a hash of the democratic principles which the protection of speech is meant to serve.

In almost the same manner in which Citizens United undermines the intent of speech by giving a louder voice to financially empowered corporations, the economics of the web do the same thing more broadly and more insidiously.  If it is fundamental to American democracy that the population has access to relevant and accurate information, it is no surprise that the economics of attracting and monetizing web traffic fails to serve this purpose. (Or have I missed something and American democracy is healthier than ever?)  Journalism (i.e. information) is supposed to be the practice of telling people what they need to know while the design of the web we have is fundamentally built to tell people what they want to hear.

Adaptive algorithms that anticipate our interests, biases, and desires are relatively innocuous, perhaps even beneficial, if we’re shopping for toasters; but these designs can be toxic to democracy when we’re “shopping” for news.  In a solid, concise OpEd for Forbes about the folly of current support for Obama-era net-neutrality policies, Fred Campbell calls the internet as we know it “a mess.” “Policies that net neutrality advocates are clamoring to preserve have facilitated the internet’s roles in undermining fair elections, providing a safe haven for sex traffickers, destroying privacy, nurturing the world’s largest information monopolies (e.g., Google, Amazon), subverting free speech, and devastating publishing industries,” Campbell writes, suggesting that we should let the internet be overhauled because it’s hardly living up to the vision of its founders in the 1960s.

Campbell cites a paper by Professor Shoshana Zuboff of the Berkman Center for Internet & Society; Harvard Business School (an organization typically aligned with internet industry views), who calls the current economics of the web surveillance capitalism.  “This new form of information capitalism aims to predict and modify human behavior as a means to produce revenue and market control,” Zuboff writes.  That description certainly rings true with experience and hardly seems to jibe with the foundational assumption that the internet is “the greatest tool for democracy ever created.”

In 1783, in the uncertain period between the end of the American revolution and the establishment of the United States, Alexander Hamilton wrote to John Jay, “It is hoped when prejudice and folly have run themselves out of breath, we may embrace reason and correct our errors.”  He was referring to the many competing forces driving people away from the establishment of a unified nation.  Today, Hamilton could easily be talking about Facebook and Twitter because it would be hard to make the case that the internet is not, on balance, having a centrifugal effect on the electorate.  As such, free speech maximalism is  not only specifically immoral as a response to a bill like SESTA, but it is also generally untenable as a premise for broader debates about cyberlaw.

Image by stawy13