Tag: Featured

Cruz Asks Zuckerberg the Section 230 Question

During Tuesday’s Joint Senate Committee hearing, as Mark Zuckerberg kept promising to take better control over content on Facebook, Senator Ted Cruz (R-TX) asked the CEO point blank if the site is a neutral platform or a publisher. Cruz acknowledged the company’s right to act as a publisher but also alluded to the fact that its liability protection under Section 230 of the Communications Decency Act is based on the fact that, as a host of user-generated content, Facebook is presumed to be a neutral platform.

It was a little surprising when Zuckerberg said he’s not familiar with the statute that universally shields his company from most forms of liability, but Section 230 of the CDA is just that. As explained in an older post, this statute broadly immunizes websites that host user-generated content against civil and criminal liabilities that may arise from users’ online conduct. It is in fact so universally applied as a defense that on Wednesday, FOSTA (Fight Online Sex Trafficking Act) was passed in order to clarify that Section 230 was not meant to shield site owners from liabilities stemming from sex-trafficking minors.

But the real bee in Cruz’s bonnet provoking his question is his general belief that social media platforms censor “conservative” content while favoring “liberal” content. I have no idea whether there’s any data to support that allegation, but I doubt the senator has the data himself, or he probably would have alluded to more than anecdotal evidence during the hearing.

Regardless, Cruz’s line of inquiry, without necessarily meaning to, gets to the heart of just how complicated Facebook’s current challenges may be—that is if they really intend to address them. It’s hard enough to define “liberal” and “conservative” these days, but that seems like child’s play compared to expecting Facebook to draw lines for appropriate censorship that a majority of users will agree are the right lines, independent of our political opinions.

I’m inclined to believe Zuckerberg when he says he wants Facebook to be an engine of social good, but for most organizations, striving for that goal usually requires making a decision about what is and is not good and then earning the support of those who agree and accepting the opprobrium of those who do not. This is a fundamental problem with being a so-called neutral platform for social good: there’s nothing neutral about our diverse opinions about goodness. Plus, it’s the nature of politics to cross lines of decorum and truth; and social media is a very cost-effective means of provoking emotional responses to messaging on just about any topic.

So, it’s easy for senators to allude rhetorically to a consensus about where the lines are for internal, corporate censorship, but I am skeptical that such a consensus actually exists for us Americans, let alone Facebook’s majority non-American users. And the hotter the issue, the more jagged the lines are going to be. Plus, social media algorithms respond to popularity; so an issue like guns, for instance, may naturally trend in opposition to a guy like Cruz if in fact most Americans favor regulation.

On that topic, if a friend takes and posts a photo of a billboard in Louisville that says “Kill the NRA,” will that be that someone’s (or some AI’s) definition of inciting violence? Probably. According to USA Today, when that billboard appeared in February, the NRA’s Facebook page posted a photo of it, saying the billboard was, “a wakeup call. They’re coming after us.”

From a First Amendment standpoint, neither the photos of the billboard nor the NRA’s response warrants censorship, and perhaps this would be true of Facebook policy as well. Or Facebook could make a decision that both the billboard photo and the NRA response cross some line in the violence category, although it seems very hard to completely remove the rhetoric of violence when the issue itself is weapons.

Throughout the hearing, Zuckerberg consistently reiterated plans to eventually deploy AI to help weed out toxic content; and although this may address the manpower challenge of moderation, it doesn’t help answer the more nuanced problem that we as a society do not have a common definition of what content would qualify as toxic. Does this mean we would cede that ethical calculus to the AI, which is eerie on a whole other level?

Predictably, the EFF published a post arguing that reliance on AI for content filtering will only result in over-censorship, and I have to say (rare though it is) that I tend to agree with the organization that it seems almost impossible to distinguish between, for instance, “hate speech” and a discussion about “hate speech.” Where the EFF and I part on this subject is that they’ve already concluded that Facebook has an obligation to free speech, while I view this current dust-up as a catalyst for, perhaps, finally addressing that unresolved assumption.

Still, it seems damn difficult to reconcile the fact that social media adds an especially volatile fuel to the political tinderbox while Zuckerberg sincerely hopes that Facebook will be an “engine of good.” Maybe Facebook will ultimately have to answer Cruz’s question by saying that it is a publisher, and that it has both a right and a responsibility to cultivate whatever community its leadership deems to be a “social good.”

Yes, this would obliterate the liability protections established by both the CDA and the DMCA, but maybe there are remedies other than a blanket shield for platforms that achieve the size, scope, and influence of a Facebook or a YouTube. After all, if Congress is actually trying to achieve anything in this investigation—if this isn’t just political theater—their questions imply a new paradigm for public/private cooperation in cyberspace. As described in a recent post, we have yet to attempt the unprecedented balancing act between the kind of public commons/private community that a Facebook truly is.

A Low-Tech Solution to the Russian Hack Problem

So, here’s my non-technological, non-regulatory, short-term solution for what we’ll generally call the Russian hack problem:  Share less. A lot less.

If 100 million or so citizens shared just a little less noise, this would substantially mitigate the intended effects of Russian meddlers and other manipulators who stand to gain from Americans hating each other and, by extension, hating democratic principles. And just maybe such a dramatic shift in user behavior would also provide Facebook with useful information for redesigning the platform. Here’s a recent post a friend put up …

https://www.rawstory.com/2018/04/nras-dana-loesch-says-mlk-might-alive-today-carrying-concealed-weapon/

This a perfect example of a story that  I will not “Like” or share despite my gut instinct to believe that Dana Loesch might be crazy enough to say something that stupid. But here’s a rough calculus as to why I won’t promote this post:

Is it likely that the headline accurately reflects what she said? Maybe.

Is RawStory a serious, investigative news organization? No.

Is this story addressing the gun-control issue in a substantive way? No.

Is it satire (because satire has value)?  No.

Are my friends and I already broadly disgusted by Loesch and the NRA?  Yes.

Even if she said this, does it really change the broader narrative? No.

By sharing, would I add to the level of noise and outrage? Yes.

By sharing, would I feed the data-harvesting machine for no good reason?  Yes!

By sharing, would I be aiding the efforts of foreign manipulators?  Yes!!!!!

I’m not suggesting that my personal approach represents a universal rationale. But if a large percentage of users were to adopt some rationale for simply not promoting the least-substantive and most sensational posts (unless they’re legit funny), this would probably have a mitigating effect on the current problem before either Facebook or Congress does anything. At the very least, it would be interesting to see what happens.  Not that I’m holding my breath.

Whatever the Response to the Facebook Fallout, Don’t Blame Copyright

Attorney and journalist Charles J. Glasser published an editorial  in The Daily Caller titled: Mind Manipulation? No, Censorship By Copyright is The REAL Threat to Elections.

The irony of that misleading headline, which does not truly reflect the substance of Glasser’s article, is that it reinforces a general bias about copyright (i.e. that it is censorship) for the simple reason that many people will not read past the headline itself. Thus, even before we get to the article, Glasser has, ironically enough, proven that the “mind manipulation” issue (though I wouldn’t call it that) is a legitimate problem.  He believes otherwise, stating …

“I have serious doubts about the veracity about “mind control” conspiracies favored by the progressive left that assumes Americans are not autonomous actors or are in fact stupid, gullible hicks who simply can’t be trusted to think for themselves.”

I’ve expressed a similar sentiment on this blog but take a different view that people across the political spectrum are both autonomous actors and stupid, gullible, hicks who can’t be trusted to think for themselves because everybody is, to some degree, susceptible to impressions made by words and pictures. If this were not the case, advertising simply would not work. But it does.

This susceptibility has nothing to do with intelligence, but it is a more relevant subject now that we acquire news and commentary via social media. We simply cannot read every article shared by every one of our friends, or we would never do anything else. Nevertheless, all those headlines and photos do leave impressions—even subconscious ones that function exactly like advertising. This is one reason why I think Glasser is wrong to outright dismiss the conversation finally being had about “manipulation” via social media—even if there were no party actively seeking to manipulate.

Meanwhile, his headline, feeding the false narrative–perhaps inadvertently–that copyright equals censorship, is a bit overwrought given the article’s central complaint. Glasser asserts that various parties are abusing the DMCA takedown provision for the purpose of censorship, and, in turn, this censorship is skewing the democratic process. Not helping the article’s credibility is the quote from Elliot Harmon of the EFF as stating, “…without fair use protections, people and companies in the public eye could use copyright law to ban coverage that’s critical of them.”

That’s overstating the relationship between criticism and fair use just a tad since a whole universe of criticism exists without appropriating copyrighted works.  In fact, I would argue the most important political criticism — thoughtful, researched editorials about candidates or policies — often don’t rely on fair use at all.  What does rely on fair use are the political ads to which Glasser refers in his article; and while it is perhaps inappropriate that these were removed, political ads are hardly the thinking American’s medium of choice.

Without unpacking each of the examples to which Glasser alludes, we can stipulate that various parties do use, or try to use, DMCA takedown as a means to silence opposition or criticism; and he fairly calls the practice a “pox on both houses,” meaning the left and the right. But I would offer a few caveats about this article.

First, because DMCA is an extra-judicial, sometimes automated, process, it’s going to be misused—either purposely or by accident—by rights holders, by non-rights holders, by users, and by platform owners. It is a 1998 remedy for copyright infringement and OSP liability that, at best, cannot truly respond to the scope of the contemporary internet. It is a unique sub-category of copyright law with its own complex narrative, and Glasser seems to be cherry-picking a small portion of that narrative to justify an article that lodges various unrelated complaints.  He also fails to mention the DMCA counter-notice procedure for restoring material and the fact that there is a path of legal remedy for abuse of DMCA.

Next, Glasser seems to have a personal or political beef with the current response to these data-mining revelations that, whether he’s right or wrong, should not be misdirected as an attack on copyright law. He writes …

“The panic about data-mining is driven largely by the paternalistic, if not authoritarian view that ‘only the right people’ should determine what is read and heard, because after all, those ‘bitter clingers’ are too stupid to have a voice.”

Responding as someone who criticizes ‘bitter clingers’ on the left and the right, I fail to see how this accusation does not imply a much bigger debate that has nothing to do with copyright. It seems that DMCA is being made into a  scapegoat in this regard, which brings me to the most substantive point.

In a society now brimming with equal parts journalism and gibberish, we would need a much larger data set than a few anecdotes to conclude that censorship by DMCA is both rampant and measurably effective in what I will generously call our current “political process.” In fact, Glasser’s own skepticism about data-mining manipulation should also serve to mollify his stated concerns about censorship via DMCA because I strongly suspect that incidents of abuse represent a drop in the bucket among the trillions of information exchanges occurring every day. And if Americans are indeed autonomous actors who can think for themselves, this should counterbalance the silence of a few deleted political ads as easily as Glasser suggests it would counterbalance the alleged “mind control.”  So, whatever he’s truly criticizing, I don’t think it’s copyright.