Tag: Featured

Fake News Tops Results After Las Vegas Shooting

On Monday, I was up early and first heard about the Las Vegas shooting on the radio in the car. It was still dark, and the winding road thick with fog, lending an eerie mood to the sound of Scott Simon’s voice on NPR reporting what little was known about this latest incident in what is now an epidemic of mass-killings. I had yet to look at any social media, to read anyone else’s opinion or to have the raw facts of the tragedy synthesized through the narrative of gun control, mental illness, terrorism, or any other matter of public policy. There was just the horrible truth of what had happened without theory or explanation. This is how we used to digest the news: Here’s what we know so far. Stay tuned.

Social media abhors a vacuum. And in the hazy interval between breaking reports of an event like the Las Vegas spree-shooting and the revelation of salient, credible details, the pranksters, trolls, and professional liars come out to play. Brianna Provenzano, writing for Mic.com, states that for several hours, “Facebook and Google’s algorithms prioritized fake news” about the Las Vegas shooting. As she puts it “conservative conspiracy sites like the Gateway Pundit lit up with misinformation about the shooter’s identity.” Her article shows one example of a headline naming some poort guy who had nothing to do with the shooting, calling him a “Democrat Who Likes Rachel Maddow, MoveOn.org, and Associated with Anti-Trump Army.”

According to Provenzano, the Gateway Pundit story was among the top results on Facebook before it was removed, but also that once the innocent man’s name was out there, Google searches for it led readers to a 4Chan thread “labeling him a dangerous leftist,” Provenzano writes. She also reports that Google eventually made algorithmic adjustments to replace the 4Chan story with relevant results and stated it will continue to be vigilant in this regard.

It’s right that Google and Facebook took action to quash, or at least mitigate, misleading “news” about such a gravely serious incident, especially bogus reports naming an innocent man as the perpetrator. But for those of us regularly following the policy positions of the internet industry, the hypocrisy here is not missed. For instance, Google can clearly take remediating steps where to no do so would look bad for them; but in other contexts in which search results may facilitate harm, they will expound ad nauseam upon the sanctity of free speech as a universal rationale to leave all data exactly where it is.

For instance, regarding the Equustek case and the Canadian court order to remove links, I fail to see a substantive distinction, in a speech context, between a counterfeiter using search to hijack customers from a legitimate product-maker and a counterfeit news-maker using search to hijack readers from legitimate reporting. In fact, ironically enough, a bogus news story, harmful and revolting as it may be in the wake of a tragedy like Las Vegas, has a better claim to speech rights than a hyperlink which leads consumers to a product or service that is breaking the law.

So, it’s not that I think Google et al shouldn’t make decisions to remove or demote “news” emanating from the adolescent babooneries of places like 4Chan. They absolutely should. Fake news is toxic, and we have enough problems with grim reality without people inventing and believing bogus narratives. But as I’ve argued more times than I can count, speech cannot be the default rationale for a universal laissez-faire policy in cyberspace. And as this story demonstrates, it’s a lie anyway. The major web platforms can and will manipulate, delete, or demote content, or links to content, when they are motivated to do so. Whether these internal decisions are driven by revenue, public relations, or even altruism, speech-maximalism does not seem to factor into their thinking, so there’s no reason why it should necessarily factor into external motivations like a court order.

Meanwhile, we can’t expect Google and Facebook to stop people from being idiots. Readers may remember that after the Boston Marathon bombing in 2013, netizens took it upon themselves to play law enforcement. Not only did they vilify an innocent man whose whereabouts were unknown, but the cyber-mob soon harassed the man’s family, who would then discover that they young man was missing because he had committed suicide.

In the early days of Web 1.0, I rejected the old cliché Don’t believe anything you read on the internet because, of course, the internet really was just a conduit, and a credible source is a credible source. But now that there’s such a bounty of absolute garbage that can either be designed to look legit or can be algorithmically elevated to undeserved prominence, that I think skepticism should be the default approach to nearly every headline. So far, the “information revolution” is at least half oxymoronic. And part of the problem is that it can be very hard to know which half.

Sirius XM Takedown of Stern/Trump Interviews Is Not Censorship

The implication that copyright is fundamentally a tool of censorship is a favorite theme among its critics.  They rarely miss an opportunity to ring this particular bell when the chance presents itself; and most recently, Cyrus Farivar, writing for Ars Technica, reported that Sirius XM filed a DMCA notice to have an archive of interviews between Howard Stern and Donald Trump removed from the blog site factba.se.  On cue, Mike Masnick at Techdirt was quick to describe this as “yet another situation where copyright law is being used to censor information that is in the public interest.”

Or maybe not exactly.

As a general note, it’s a pretty easy target, whenever material is arguably of historic or newsy significance, to make an emotional claim that the exigencies of copyright stand between the public and its right to know. But the hyperbole that is so often employed (e.g. Masnick’s saying the interviews are now in a “memory hole”) invariably suggests that copyright enforcement is tantamount to erasing information or sequestering it permanently from any form of public access.

In this regard, and for the discussion that follows, it’s important to note that just about every major news organization in the world maintains archives of works of historic significance and will license the use of this protected content for any purposes that require licensing. So, Sirius issuing a DMCA takedown notice in this case does not mean they’ve locked the content away for good.  In the meantime, if the public is desperately in need of insight into Donald Trump’s character, it seems amply covered.

Masnick states that the Ars Technica article cites “a bunch of lawyers” offering theories as to whether factba.se’s hosting of the radio interviews might be fair use. This bunch is actually four lawyers, all who have publicly espoused varying degrees of copyright skepticism, with opinions siding 3 to 1 that factba.se’s use would likely be held fair use.   Masnick then offers a mini analysis of his own, theorizing that hosting Sirius’s content in this manner would favor a finding of fair use under the first, second, and fourth factors.  And since neither Mike nor I are actually attorneys, let’s do this…

First Factor:  Purpose and Character of the Use

Under the first factor, Masnick states, “…the newsworthy nature of it and the purpose of the archive push it pretty strongly towards being transformative….”  I disagree.  In fact, what factba.se did was to make available exactly the same content that Sirius has the exclusive right to exploit under copyright.  Factba.se did not build upon the work to produce commentary or a new creative expression; and neither did it produce a transformative use akin to the Google Books research tool.  As was re-affirmed recently in the KinderGuides case, the fact that a rights holder has not yet made these works available does not forfeit the protection and allow another party to exploit the works in any matter normally protected by copyright.

Second Factor:  Nature of the Copyrighted Work

Under the second factor, Masnick notes the relative lack of “originality” in works that comprise interviews between Howard Stern and Donald Trump.  This is perhaps the strongest argument favoring a finding of fair use, although a court would have to do a more detailed analysis of the interviews themselves.  But as long as we’re making assumptions, there is ample precedent to demonstrate that copyright protects “original” works of a factual nature (e.g. all journalism); and given the irreverent and creative style that made Howard Stern the star he is, it’s very hard to imagine that a court would not find that these interviews meet the “creativity” standard for protection under copyright.

Third Factor:  Amount and Substantiality of the Work

We can assume that even the staunchest critic of copyright will agree that this use would likely fail under the third factor analysis because of course factba.se used the entire work.

Fourth Factor:  Effect of the Use on the Potential Market

Masnick states that this use “clearly” does not harm the market for the Howard Stern Show, thus implying analysis would tilt toward fair use under the fourth factor.  But here, he is either purposely or carelessly applying the wrong standard and adding more noise to the galloping confusion about fair use these days.  In a case like this, the court would hardly consider whether or not the use of Sirius’s archival material may cause harm to the market for current Howard Stern programs.

The court would instead consider whether or not the unlicensed publication of these archival materials threatens the potential market for Sirius to exploit these precise works under the exclusive rights of copyright.  For example, if Sirius wants to release a special boxed-set of the Stern/Trump interviews, it has the exclusive right to do so; and a use like the one made by factba.se would almost certainly be seen as threatening that potential market.  This concept of the rights holder’s potential market is often the most overlooked aspect of the fourth factor when it’s described in articles and blogs for general readers.  But potentiality is paramount to how the analysis is generally applied.

Once again, to stress the emphasis made by Judge Rakoff in his KinderGuides opinion, copyright’s exclusive bundle of rights is not a use-it-or-loose it proposition.  Simply because Sirius has not yet made these interviews available in this way does not grant factba.se or any other party the right to do so.  That the works may be considered newsworthy or historic does not substantially alter this underlying principle.

As is often the case, critics like Masnick are looking for censorship where it doesn’t exist.  At least not yet.  Yes, the fact that Trump is now president does elevate the historic significance of these interviews, but it is false to assert that this circumstance then demands an immediate release by a party that had nothing to do with producing the works.  If there were a substantive revelation in one of the interviews pertaining to matters of state, one could make a solid fair use argument for using that interview or portion in reportage.  But as we’re talking about Howard Stern and Donald Trump, I’m going out on a limb and guessing that the full archive is about 80% “locker-room” talk. And while the audience that wants to hear these works as news or entertainment is entitled to do so, the creators who produced them are entitled to exploit them like any other protected work.

Google Supports Child Slavery with Anti-SESTA Campaign?

That would be an incendiary claim, wouldn’t it?

But let’s be honest. If a different industry (say the motion picture industry) were opposing the anti-trafficking bill called SESTA, then the EFF, Fight for the Future, PublicKnowledge, Techdirt, and about 30 other Google-backed organizations would surely not hesitate to righteously declare from their laptops that “Hollywood Loves Child Sex Slaves.”  There would be a flood of editorials, graphics, memes, tweets, rumors, and maybe even some skywriting, all hammering away at the industry they love to hate.  No analysis of the bill. No nuance. It’s what they did with SOPA, and it worked.

Conversely, we have not seen a coordinated campaign to portray the internet industry and its syndicate of sycophants as a bunch of rich, white, ivory-tower, dilettantes indifferent to the plight of child sex-slaves.  Perhaps this is because it would be in bad taste to do so; perhaps it’s because no other industry finances quite so vast a network of opinion-makers as Google does all by itself; perhaps it’s because the people who believe that reasonable law-enforcement can and must apply in cyberspace are reasonable people still committed to arguing the merits of a policy proposal rather than jumping into the mud-fight that passes for political activism on the internet.  Perhaps calling someone a supporter of child slavery is a bridge too far.  But like I say, if the situation were reversed, they’d do it in heartbeat.

I’ve tried not to go there.  In the posts I’ve written about Backpage or the Stop Enabling Sex Trafficking Act (SESTA), I’ve stated that I don’t believe the folks at EFF or its sister organizations are so morally corrupt that they simply do not care about the victims of human trafficking.  But it is admittedly hard to give them the benefit of that doubt under the circumstances.  Because the bottom line, as I read it, is that these groups are just completely full of crap about the threats SESTA poses to internet users; and it’s hard to remain polite in response to their rolling out the standard hyperbole when the subject is so grave.

To my reading, SESTA proposes a very modest and narrow change to Section 230 of the CDA. It adds language pertaining to sex-trafficking that would be constructed in the statute as equal to the existing language about hosting child pornography online. It does not change the core mechanism of Section 230, namely the underlying rationale or function of the liability shield. The proposed change to the law is short and simple. Anyone can read it for themselves. Basically, if you’ve been using the internet and have thus far managed to avoid being accused of hosting child pornography (because you don’t), that’s about how vulnerable you would be to an accusation of supporting sex-trafficking after passage of SESTA.

The major internet interests are probably less concerned about possible litigation from victims of trafficking than they are with insisting that the CDA should remain calcified in its form as ratified in 1996.  Assuming this is true, the concern on their part would be that a change in the CDA creates a precedent for other changes in cyber-law, for instance in the DMCA, that might limit the manner in which many of the major platforms have profited from infringement since their inception.  But tough noogies. These are the wealthiest and most powerful corporations on the planet. They can behave like citizens.

Surely, we should be able to set aside the underlying debate over the DMCA just long enough to show some solidarity on the far more serious matter of trafficking minors in the sex trade. I’d like to believe that we all agree this is a criminal enterprise depraved enough, and deserving of enough empathy for its victims, that even Google and its network of activist carny barkers would mute their scare-mongering “censorship” rhetoric for a change.  But apparently, there is no criminal conduct deserving of such deference.

Can SESTA impose new liabilities on sites the scale of YouTube? Probably.  But so what?  Google has the the money and the resources to figure it out. Meanwhile, children are being kidnapped, abused, and raped for profit; and if Congress cannot even take this tiny step toward mitigating the role the internet plays in fostering that crime, then shame on us.  Or as a colleague of mine said to me yesterday, “Are we really saying that filming and distributing images of child abuse is illegal, but committing the act itself is okay?” We cannot possibly have our heads that far up Google’s ass, can we?

The Campaign for Accountability states in a recent post, “At least 34 groups that receive Google funding have opposed the Stop Enabling Sex Traffickers Act (SESTA), according to research from the Google Transparency Project.”  These include many of the usual suspects like EFF, R Street Institute, and Mike Masnick’s Copia Institute, but also lists the ACLU and PEN America, whose voices on such matters tend to be more sober.  As stated in other posts, funding source alone is not an indictment of a policy position; but Google’s now widely-reported scope of influence through academia and activist groups, combined with messaging that sounds more like PR than debate, paints a picture that is hard to take at face value. For instance, the following paragraph appears to be the meat of the letter sent to the U.S. Senate Committee on Commerce, Science, and Transportation by the ACLU:

“Online providers cannot and should not suffer criminal liability merely for facilitating the speech of others even if elements those communications are distasteful or even unlawful.  To do so would discourage online hosts from making responsible efforts to police their sites, and that in turn would make it more difficult to expose those actually engaged in criminal behavior.  Just as Internet commerce and speech would not have grown exponentially without the protections of section 230, so penalizing service providers now will discourage online entrepreneurs from moving the miracle of modern Internet communications into its next magical phase.” [Emphasis added]

So, cutting through the fog of language alluding to miracles and magic, the sentence in bold is the alleged problem with SESTA.  But as noted above, it is very hard to see how the proposed amendment to the statute substantially alters the liability implications from the status quo for the vast majority of internet users and entrepreneurs.  And because every complaint I have read so far, like the ACLU letter, spends more energy praising the broad virtues of Section 230 than making a clear case for why SESTA would be hazardous, I will continue to believe there is no there there.  Or to put it another way, to be potentially liable under SESTA, it seems your site would basically have to be Backpage.  And as there is one Backpage out of about a billion websites, I think these organizations are protesting a bit much.