Tag: Featured

The EFF Taking on Big Tech?

Last week, CreativeFuture CEO Ruth Vitale wrote a post wondering whether she had stepped into a parallel universe upon reading a June 27 missive by the EFF’s Mitch Stoltz. Related to my last post on the theme of tech-utopians doing policy pirouettes in the current climate we call the “techlash,” Stoltz declared Big Tech too big, with “extraordinary power to censor and surveil.” Really? Welcome to the resistance, Mitch.

I know what Vitale means of course. The EFF has consistently endorsed policies that bolster the interests of Big Tech, namely internet companies, so Stoltz’s post does look like a staggering about-face begging for a jab in the ribs.  But taking his statement at face value, Stoltz’s main point is that the lack of competition in the internet market is dangerous, and he primarily advocates a re-invigorated approach to antitrust law as a solution. He writes…

“Restraining Internet giants’ ability to squash new competitors can help allow new services and platforms to arise, including ones that are not based on a surveillance business model. We also need new ways to measure and describe the harms of censorship and loss of privacy as a basis for antitrust analysis. Where these harms flow from abuse of monopoly power, or improper attempts to gain or maintain such power, regulators may need to consider breaking up companies as well.”

While I don’t see anything wrong with the EFF throwing its resources behind antitrust action against any big tech corporation, where it’s appropriate, I still maintain that certain web platforms are natural monopolies for which is there no public policy solution. Ain’t none of us got time for two Facebooks, so Facebook will retain its dominant position unless we all either migrate en masse to a platform we like better, or just bail on these types of platforms because we lose interest. In general, I suspect the challenges inherent to consolidation, combined with the prospects of automation, are far more complex and unprecedented than anything antitrust law was ever designed to address. But that’s another topic for another day.

Taking on Big Tech?  Really?

Meanwhile, a subsection of Stoltz’s post caught my attention because he mentioned that among the legislative reforms necessary to mitigate corporate dominance by the majors is Section 1201 of the DMCA. These are the statutes which provide for technical protections of copyrighted material and prohibit tampering with those protections for the purpose of infringing copyrighted material. But in the context of Stoltz’s new post, it has to be noted that the EFF in particular has advocated policy views on Section 1201 which, in some cases, would amount to a gift to Google—one of the aforementioned “too big” corporations Stoltz now says needs to be reined in.

For instance, in the Summer of 2016, there was a big row over the FCC’s proposal known as the “Set Top Box” Rule. If passed, it would have forced the TV cable companies to make programming and data available to third-party manufacturers of new boxes—naturally Google was in the lead among these—they would sell to consumers. The problem for TV producers was that the programming would, by federal mandate, have been made available to Google et al without any kind of licensing regime, thus bypassing the complex network of licensing among producers and distributors of TV programming that actually gets the show-makers paid.

The EFF, specifically Stoltz, declared that the proposed FCC Rule had “nothing to do with copyright” despite the fact that the proposal had a lot to with copyright, including the implication of Section 1201 because the current cable boxes we use are one form of technical protection of all those licensing deals that result in TV shows getting made.

Meanwhile, this “nothing to do with copyright” message re. the TV boxes was articulated by the EFF at about the same time that the organization filed suit against the government to have the entire statute declared unconstitutional. The EFF has a longstanding beef with 1201 (which is not without flaws), but both the EFF lawsuit and its public messaging on the subject tends to omit a considerable amount of complexity in the issue, seeking to draw readers toward the talking point that “copyright is standing in the way of…innovation, safety, consumer fairness, etc.”

That was essentially how the “Set Top Box” narrative was portrayed, even though it cannot be denied that passage of the FCC Rule would have been a major gift to Google, expanding both its market presence and its capacity to exploit what Stoltz described above as a “surveillance business model.” All while exploiting billions of dollars worth of programming without paying a cent in license fees.

Declaring 1201 Unconstitutional

In the Summer of 2016, when the EFF announced this litigation, I wrote a long post describing why I believed their case against 1201 was flawed—or at least why it was portrayed over-simply for public consumption. In general, complaints about this section of the DMCA seep into public perception as a prohibition against fixing our own cars or other devices because 1201 prohibits tampering with the tech that protects the software that runs so many products today. And then copyright in general gets a bad rap, which groups like EFF are happy to exploit in their messaging.

In fact, during that same period, PublicKnowledge launched an all-out smear campaign against the USCO, and then register Pallante, in part accusing the agency of favoring rightsholders with regard to its triennial Rulemaking process, which considers exemptions to 1201 protections for petitioners who file requests. In that case, PK actually vilified the USCO for deferring to other federal agencies that have an interest—in fact a more acute interest—in device tampering than copyright owners.

As explained my post at the time, the Register’s report revealed the opposite attitude of which it was accused—that not only was the USCO highly sympathetic to “good-faith researchers” seeking exemptions, but that the major hurdles to some of the exemptions being sought came from agencies outside the purview of the Copyright Office, including the Environmental Protection Agency, the Department of Transportation, and the Department of Justice. Suffice to say, the subject of device tampering is not simply a DMCA issue, and the DMCA is often a minor player in a bundle of regulations designed for consumer protection, environmental protection, etc. As a June 28, 2018 letter from DOJ counsel recommending some amendment to 1201 exemptions states …

“… the DMCA is not the sole nor even the primary legal protection preventing malicious tampering with such devices, or otherwise defining the contours of appropriate research. The fact that malicious tampering with certain devices or works could cause serious harm is reason to maintain legal prohibitions against such tampering, but not necessarily to try to mirror all such legal prohibitions within the DMCA’s exemptions.”

In other words copyright may be a factor with regard to device tampering—either for illegal or legal purposes—but it is quite often not the factor. To the extent DMCA may be inappropriately intertwined with other federal protections, that is a matter for Congress to consider, but that exploration seems unlikely to implicate the unconstitutionality of 1201 as a copyright protection regime. In the meantime, it is unhelpful when EFF acolytes like Cory Doctorow fire off misleading blurbs that distill the complexity of the Rulemaking process down to crazy shit like “copyright is the reason diabetics can’t get generic insulin.”

The EFF may yet demonstrate ways in which DMCA 1201 is helping to keep Big Tech too big (i.e. stifling competition), but the organization tends not to mention ways in which the statute has fostered innovation. For instance eReaders would not exist without technical protection measures that provide publishers and authors a reason to license digital versions of their books; and DRM these days is generally invisible to consumers, playing a role in the innovation called streaming. In this regard, if the EFF truly intends to take on Big Tech for anti-competitive practices, then welcome to the party; but their chronic assault on copyright law alone has only helped to foster and sustain the market dominance of some of the major companies now allegedly in their sights.

Platforms Wrestle With the Difficult After Years of Ignoring the Easy

A new, in-depth post by Mike Masnick at Techdirt correctly describes many of the challenges inherent to platform moderation of content. It was enough of a departure from his usual “anything goes” stance that he wrote a preamble acknowledging that he was likely to piss off a few readers. And it is, admittedly, a little bit fun to watch some of the web cheerleaders stumble these days as they try to walk back the utopian view that all content online is fundamentally free speech and that removal of anything is inherently censorship.

Now that the public conversation is less comfortable with “free speech” as a universal answer—beginning with Facebook taking money for political ads made by Russian agents—Masnick et al have little choice other than to engage in a more nuanced dialogue that at least begins with the premise that some platform responsibility is worth considering. His post highlights a few possible solutions to “bad” content, including his own proposal; and while I think he correctly describes the complex nature of content moderation by administrators, I’m not sure any of the solutions cited address the real problem. His highlights include the following:

Yari Rosenberg recommends counterprogramming, which is essentially responding to misinformation with facts at the point of user interaction. Tim Lee advocates down-ranking less credible sources that appear to be news. David French proposes that the platforms only remove libel and slander because these don’t require new legal definitions. And Masnick proposes that, for instance, Facebook abdicate its centralized control over filtering or adjusting its algorithm and instead cede that power to users to set parameters for what they want to see.

“And, yes, that might mean some awful people create filter bubbles of nonsense and hatred,” Masnick writes, “but average people could avoid those cesspools while at the same time those tasked with monitoring those kinds of idiots and their behavior could still do so.” To me, this statement implies that Masnick’s “protocols” solution is largely cosmetic, that it may result in us “average people” not seeing as much garbage, but it in no way alters the underlying model of “surveillance capitalism” and merely papers over the social disease whereby garbage continues to gain undue support and have undue influence in the mainstream. (This was discussed in my last post about the paper by Alice E. Marwick on why we share fake news.)

When YouTube and Facebook shut down the accounts of conspiracy nut Alex Jones’s Infowars last week, doubtless some cheered, others cried foul, and others warned that attempting to silence even the outrageous wack-jobs can turn them into martyrs and galvanize their cult-like followers into an even larger mob. This prediction is almost certainly correct and, thus, points to the real question I have, which is not whether Facebook should keep Jones off my feed to avoid offending me, but why so much outright garbage information is currently playing such an outsized role in the social and political narrative of the United States?

I can see how some of the solutions Masnick mentions, including his own, might diminish some of the low-level sharing of junk news by “average” thoughtful people, but none of these proposals tackles the big social phenomenon itself — that the internet has been the catalyst for elevating toxic misinformation to an unprecedented level of tangible influence. The crazies who used to be conveniently segregated by geography (the proverbial idiots in every village) can now coalesce in cyberspace, finding strength in numbers, reinforcing their “deep stories,” (to use Alice Marwick’s term), and taking tangible action in the streets or at the polls.

So, while the tech pundits and the internet companies look for (or pay lip-service to looking for) technological responses to these social ills, the underlying reasons why we are suddenly reacting to “bad” content and putting pressure on the major platforms may not actually be addressable—either by the companies simply removing content or by public policy that attempts to parse hate speech and other highly-subjective concepts.

Masnick is not wrong that the task of editing speech by the platforms is extremely difficult, which is presumably the main reason he advocates putting that control in the hands of users. As I say, I’m ambivalent about this approach because I think the end result will be the same—increased credibility for outright crazy shit via one portal or another. If there is an antidote to that problem, I strongly suspect it is not technological but human. But, at least even the tech-utopians now have to acknowledge that treating all online content as sacred has had some very negative consequences, so perhaps we can now have a different discussion about content that would not be protected speech in any context.

For those of us who have advocated platform responsibility for quite some time, it is amusing, if not frustrating, to watch the industry wrestle with the truly difficult issue of moderation after years of refusing to compromise on the comparatively simpler issue of removing material that is patently illegal. For instance, weeding out material that infringes copyright, or which a court has held to be libelous or otherwise harmful to a claimant, is much easier than deciding when it’s okay to remove or demote “bad” speech. Yet the major platforms, along with considerable help from opinion-makers like Masnick, have historically responded to the proposed removal of unprotected or illegal content as a prelude to “rampant censorship” and the destruction of all that is beautiful about the internet.

This recent shift in posture implies two things in my view: the first is that the platforms can indeed be more cooperative in responding to illegal content without damaging the benefits of the internet; and the second is that those benefits have never been all they’re cracked up to be. Admitting to the latter would go a long way toward reframing a more rational discussion about the former.

Why Do We Share Fake News?

The underlying premise of this blog—indeed its title—is a rejection of the tech-utopian pursuit of more as a virtue unto itself.  It is true that the presumed benefit of more access to more content happens to be one of the commonly-alleged rationales for mass copyright infringement, but the destructive power of more goes far beyond the interests of authors of creative works. And we’re watching this destruction happen in real time.

That the current President of the United States can get away with labeling news he does not like as “fake news” is one consequence of our misguided faith in more—arguably the most prominent and acutely-negative result of information democratization. By contrast, the very subtle moment that inspired this blog was the day a friend of mine—well-educated and liberal—shared a story in 2011 that I knew to be false.  When I pointed out the inaccuracy, he countered that he cared more about the point of view being advocated than the legitimacy of the article.  Then, when I discovered how many places this same article had been re-published online, the name The Illusion of More became a thing.

But why do people share fake news? Why was my otherwise-reasonable friend unwilling to temper his eagerness to share a story that was simply untrue? “When someone chooses to share a fake news story on Facebook, Twitter, via text message, or on Whatsapp; when they post a conservative meme to their wall; or when they ‘like’ a YouTube video about a pro-Trump conspiracy theory, they may well be doing it to signal their identity and affiliate themselves with like-minded others,” writes Alice E. Marwick in a new academic paper titled Why Do People Share Fake News? A Sociotechnical Model of Media Effects.

An assistant professor in the Department of Communication at the University of North Carolina, Marwick does not fully answer her titular question, acknowledging that she and her colleagues are far from those conclusions. Instead, she describes the complexity of the fake news problem, recommending avenues for further research and a language for more accurately discussing the issues.

The term “fake news” itself is simultaneously too broad and too narrow,” says Marwick, who advocates the more general term problematic information to encompass the complex universe of “hoaxes, memes, YouTube videos, conspiracy theories, and hyper-partisan news sites,” which all contribute in different ways to the fun-house mirror version of contemporary society we see via social media. At the same time, she describes political news as “one ingredient in a bouillabaisse of photographs, personal stories, advertisements, movie trailers, celebrity gossip, sports news…,” asserting that “In social spaces, the traditional journalistic value of objectivity no longer makes sense: virtually every story is augmented with someone’s opinion.”

The literal meaning of “fake news” is typically an enterprise in which the creator of a spoof has no agenda other than to chum the waters of social media with click-bait in order to generate ad revenue. Often, these “stories” are polysemous, says Marwick, meaning they can be interpreted in divergent ways and, therefore, shared for opposing reasons. She writes the following about one of these false stories: “‘White Baseball Players Kneel in the 50’s [sic] to Protest Black Lynchings,’ could be interpreted in support of NFL player Colin Kaepernick’s position on Black Lives Matter, or it could be a refutation of the history of White racism.”

The polysemy of this untrue story might mean more revenue for the fake news-maker, but it certainly means more reinforcement of competing, phantom narratives driving potentially reasonable citizens further apart.  Or if the story was created by a malicious actor, like a Russian agent, then the division it sows is the intent of the spoof. Regardless, the lack of truth in the story does not stop its being shared by people for divergent reasons, and Marwick wants to better understand why this is the case.

Opening the Overton Window

At present, Marwick notes that the data does reveal that Republicans are swimming in a larger pond of problematic information than Democrats, but there is “still a plethora of false content that appeals to people with left-wing sensibilities.” By democratizing news (meaning anybody gets to produce it), we have widened the Overton window, “the range of political viewpoints that are socially acceptable in American society,” thereby fostering what Marwick describes as an often subtle correspondence between problematic information online and more mainstream outlets that will encode extremist views into moderate sounding reportage or messaging.

A good example of this occurred recently in my congressional district in Upstate New York. The white, Republican incumbent employed a rhetorical attack on his Black, Democratic challenger that likely would not have been attempted as recently as two years ago. Although the Democratic candidate is a pro-business attorney and Rhodes Scholar (qualities that might normally invite labels like “elitist”), the fact that he briefly dabbled in rap music early in his career inspired the incumbent Republican to assert that a “former rapper does not represent our rural values.”

The coded “former rapper” standing in for “Black man” cannot be seen as simply a consequence of Trumpism because Trump’s presidency itself is a manifestation of our having thrown open that Overton window long before he announced his candidacy. Instead, Marwick would likely identify the Republican’s rhetorical strategy as tapping into a “deep story,” in which the interests of rural Americans have allegedly been moved to the “back of the line” behind immigrants, refugees, people of color, etc. at the urging of liberal urbanites.

While this particular narrative may be grounded in the fact that, indeed, city-centric politics often do overlook the interests of rural citizens, the crazy, racist, and divisive aspects of this deep story have been reinvigorated and amplified by the diverse range of problematic information fed non-stop via internet platforms. The Illusion of More effect kicks in as consensus builds around repeated themes shared by like-minded people; and no amount of fact-checking, or even platform moderation per se, is going to dislodge misinformation from someone committed to finding evidence for his deep story.

And this folly knows no political loyalty. The “sudden” appearance of QAnon—a collective of conspiracy-minded Trump zealots who coalesced on chat boards like 4Chan—comprises both “right” and “left” identity types, but who share a common belief in a “deep state” conspiracy to which they imagine Trump stands in opposition. QAnon may be the main act in the center ring at the moment, but they are hardly the only clowns in the circus believing and spreading fake news. In fact, it would be a serious mistake—not to mention an arrogant one—to believe that disinformation is only aimed at, or effective upon, these caricatures. Take for example this statement:

“Morals, values, and identity will always defeat facts, reason, logic, and self-interest.”

If you think that reads like something out of a training manual for cult indoctrination or the Tao of authoritarianism, it actually comes from a slide deck created by Open Media to instruct its activists in the proper way to “frame” issues in support of—get this—digital rights! Think about that for a moment …

The fundamental premise of “digital rights” is that an “open internet” must thoroughly democratize speech and information because more information is inherently good for democratic society.  But Open Media states that the ideal way to evangelize these principles is to appeal to people’s emotions, because emotion will always defeat reason, thus contradicting the presumed value of information in the first place.

Intent of the Fakers Less Important Than the Effect of the Fakes

“…the networked nature of the internet and the ability to replicate and remix images, text, and video makes it impossible to determine where a particular idea, image, or meme originated, let alone pinpoint the intent of the author. This is particularly true considering the dominance of irony as an expressive and affective force in native internet content.”

To me, this statement by Marwick alludes to one of the most difficult problems in addressing the fake news disease—the often subtle correlation between the harmlessly entertaining and the poisonously effective. All those ironic, political memes (and I’ve shared a few) can have the tangible effect of eroding basic reason, even if the meme-maker was just going for laughs. “…messaging is reinforced through repetition; the more people see fake news headlines, the more likely they are to think they are accurate,” writes Marwick. “This is true even if the story is repeated in order to debunk it.”

In the seminal example of my friend sharing fake news in 2011, there was no way of knowing who had cut and paste the original “story” just like there is no way to know whether that political meme you just shared was made by some kid amusing himself or by a Russian hacker paid to make mischief or by some guy taking the wrong medication. But if we are indeed all steadily eroding our capacity for reason and widening the Overton window, Marwick warns that fact-checking is probably not the answer …

“Fact-checking is predicated on the assumption that people will change their mind [sic] when confronted with correct information,” writes Marwick, “which implies a very passive model of the audience … [but] this ignores a wide variety of social and cultural factors, and is not supported by empirical evidence. In fact, fact-checking may have the opposite effect of making stories ‘more sticky.’”

It is true that trying to get someone to reconsider a statement based on evidence alone is like trying to flick that nagging ball of Scotch tape from the end of your fingertips. The assumption that fact-checking is the antidote to fake news is derivative of the original, mistaken assumption that more information is the only solution to bad information. Marwick’s paper casts considerable doubt on the rhetoric that a society networked by information systems is inherently self-correcting, and it provides a conversation-starter that seeks a holistic approach to understanding why people share so much utter nonsense.

The why is important because it is largely a sociological or psychological inquiry rather than a purely technological—let alone legal—one.  As much as I advocate more platform responsibility in specific contexts, the fake news problem is not one we can blame solely on Facebook et al, or certainly expect these companies to solve for us. To the contrary, if Marwick’s line of inquiry is on the right track, it suggests that the question why is something most of us should constantly be asking ourselves.

Photo by NomadSoul1