Tag: social media

A Broader View of Packingham SCOTUS Decision

Public protest.

Public protest.Photo by wellphoto

My last post focused narrowly on responding to assertions that the Supreme Court decision in Packingham casts doubt on the constitutionality of DMCA Sec. 512(i).  But as my friend and colleague Mike Katell observes on his blog, the rhetoric employed by Justice Kennedy in that decision underscores a particular challenge we face as social media continues to alter our relationships to politics, civil rights, and even to one another.  In his recent post, Packingham:  The Danger of Confusing Cyberspace with Public Space, Katell writes …

“Packingham is a case about constitutional rights that overlooks the increasing privatization of those rights. It is also part of a larger problem of misrepresenting cyberspace as a zone of freedom. This transformation in our relationships to rights, and our perceptions about those rights, is aided by the invisibility of power online.”

A PhD candidate and researcher at the University of Washington Information School, Katell’s post fairly well sums up the hazards of over-valuing social media platforms as the ultimate turbo-boost to civil liberties, particularly free speech. But among the first matters to address in context to Packingham is to remember that we’re not really talking in general terms about “the internet.”

We Don’t Use “The Internet”

The internet is infrastructure. Most of us don’t really think much about the cables, signals, servers, packets, etc. When we use “the internet,” we really mean platforms that are owned by massive corporations; and increasingly our needs are fulfilled by just a handful of companies.  In Packingham, Kennedy seems to be partly addressing the matter of access to the internet as a whole, particularly in striking down a State law that would too broadly deny that access.  So, in this context, Kennedy’s effusive rhetoric about cyberspace being the “most important place for the exchange of views” is somewhat understandable.  At the same time, when the opinion states, “On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos,” this more narrow focus on a single platform invokes the context Katell and others are talking about.

Social Media is Not Like a Public Park

The main problem with viewing social media platforms as analogous to public spaces is that this view is apt to overlook the extent to which speech itself on these platforms is manipulated by their owners.  “Through a combination of architecture (code) and policies (terms of service), social media users are guided and constrained in what they can do or say. Twitter, Facebook, and other platforms routinely block users and delete content that would most likely be considered protected speech if it took place in a public venue,” Katell writes.

It is very likely true that some blocking and deleting would be protected speech in real space, though some blocking and deleting would not be. Web platforms do have a habit of defending speech—defamation, copyright infringement, harassment, incitement of violence—that isn’t protected in any context. But to Katell’s point, probably the first dangerous mistake is to ignore the fact that speech on these platforms is controlled—even to the extent that false or tangential stories can gather considerable steam in the minds of the electorate just by virtue of an algorithm repeatedly feeding similar messages. A steady social-media diet of certain messages can make almost any citizen feel rather under siege by a narrative that might not be true or particularly substantive.  We must, therefore, continuously ask to what extent these platforms fuel the present divisive climate rather than ameliorate it with their promises of promoting discourse.

The other danger, however, does arise from the internet industry’s chronic claims to be defenders of speech in numerous cases where harm is actually being done.  We have to ask to what extent this warps Americans’ understanding of the speech right, to say nothing of vesting corporations with the power to “protect” speech on our behalf.  Every time an edge provider cites the First Amendment as grounds for a business decision—usually to not remove some harmful content—and too many users support this view, we are conferring substantial authority to these private companies to secure our civil liberties for us.  Meanwhile, this industry posture feeds a misunderstanding that speech is absolute, which it is not.

The First Amendment prohibits the government from silencing speech. Period.  This means that a) everyone will occasionally be offended; and b) some who are offended will take such extreme action that they will effectively stifle the speech of their fellow citizens. This has always been true, and perhaps Justice Kennedy’s exuberant praise of the web ignores the new ways in which social platforms enable some citizens (or non-citizens) to silence others. We see it happen all the time.  Twitter mobs erupt and dox an individual by sharing home address, and other private information, with the intent to harass and intimidate the individual into silence. And these mobs come in every flavor across the socio-political spectrum.

This dysfunctional rise in mob culture and tribalism is a bigger topic, but the disconnect regarding speech has often occurred when the site owner and its users defend the mob’s responses as protected speech, which is simply not true by any definition.  These privately-owned platforms have every right (and perhaps an obligation) to deny the use of their services to those who would intimidate or harass other users, especially when the speech in question would not be protected outside the realm of cyberspace.  Basically, if a restaurant can throw a customer out for harassing another customer, there is no reason to think that Twitter may not do the same thing without raising a real First Amendment challenge.  But …

Social Media is Not Exactly a Mall Either

“This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium,” states Kennedy’s opinion in Packingham.

While the digital rights crowd will love the second sentence in that statement (and I generally agree with it by the way), the first sentence indicating that this is relatively new territory is the more interesting one.  A social platform is not exactly analogous to a park or a shopping mall;  and public policy has yet to really address constitutional rights in context to these new kinds of spaces—i.e. privately-owned, virtual space that is built for the purpose of public speech.

Parks and malls do no exist for the purpose of speech, although there is a considerable body of local, state, and federal case law, revealing a mosaic of views on allowing or limiting various types of speech at these venues.  For instance, a California Appeals court held that a mall could not limit or control visitors who come with the purpose of proselytizing religious, social, or political views to other visitors.  I am admittedly anti-pester and think a private facility has a right to restrict a certain amount of pestering on behalf of its customers; but it seems as though the mall’s restrictions, in this case, were viewed as too broad in context to the California State Constitution.

As policy takes shape in relation to cyber-venues, legislators and the courts will look to statutes and decisions associated with physical spaces, but at some point, those analogies must break down, and we enter new territory.  It has been a general bias—and certainly the desire of Silicon Valley—that government keep its mitts off “the internet.”  But if indeed access to a privately-owned platform like Facebook is held to be a civil right because of the First Amendment, then some form of social-media regulation may be the result of that conclusion.  Won’t that get interesting?

The Morning After or Social Media is a Humbug

Looking through window blinds, sun light coming inside.
Photo by photocreo.

Time for a hard look in the mirror?  We’ve been on a social media bender for years, and I’m thinking January 1, 2017 might be the day we begin to sober up and come to grips with its more negative effects.  When I began writing about all this stuff in 2011, it was partly in response to the fact that people seemed too eager to give the internet industry itself a free pass on the ill-effects of several major platforms because the internet writ large is perceived as so essential to democracy. And thanks to social media, the internet became an extension of our egos, in much the same way that liquor makes us all good looking and smart.

In January of 2012, a relatively small cadre of internet wonks rallied people to shout down SOPA—a bill almost nobody understood—and progressives in particular congratulated themselves for participating in “true democracy in action.” It scared the hell out of me because it was not democracy in action but industry-backed manipulation disguised as democracy.  Or as just one example of its insidious nature, the campaign was partly driven by the same anonymous denizens of a site called 4Chan, whence come many agitators of the alt-right that people now realize is a thing. My left-leaning friends who helped drive SOPA over the cliff failed to recognize the dark genie they’d let out of the bottle.  Forget that SOPA was not the toxic legislation everyone had been told it was; that’s just a minor, nagging detail. What matters is that the campaign against it was a blueprint for circumventing the democratic process itself.

The capacity to unleash thoughtless reaction in any number of directions is a power we have ceded to social media platforms.  If spurious Trump-tweets are disconcerting to you, I’d note that this was the same pavlovian mechanism at work in the anti-SOPA campaign and is more or less the manner in which we continue to dumb down the most complex issues into bites, memes, and zingers.  Kind of like those big ideas that seem really smart while under the influence, but are best left unfulfilled in the harsh reality of the ensuing hangover. So, here’s a question:  Is a platform like Twitter valuable because people get to respond to what a politician might say, or is it toxic because it gives a politician a round-the-clock platform for riling people up with some insipid one-liner in the first place?  Hint: Twitter is fine for sharing links but a stupid way to discuss real issues. The word twit is right there in the name.

With all the attention the election has focused on fake news and manipulation of information by a foreign power, it has been interesting to observe—at least anecdotally—a renewed sense of vigilance about the sources of information people choose to share or cite on Facebook.  It was not surprising, of course, that some folks wanted to blame the platform operators for failing to weed out fake news. And although it isn’t exactly Facebook’s fault that people are happy to believe nonsense in the first place, the medium is still the message; and it is a medium that instantly rewards what’s popular, not necessarily what is true, decent, thoughtful, or fair.  That was what frightened me about the anti-SOPA campaign—that suddenly being “right” en masse completely overwhelmed common sense, rational analysis, or the exchange of ideas.  The fact that nobody happened to be right was just bitter icing on the cake.

I’ve seen people respond to the fake news problem with the sentiment that they don’t want corporations like Facebook editing what we see online, but the fact is these entities already do edit what we see, but in a manner that serves their advertising and data-harvesting interests. So, while they’re at it, as long as people are going to use search engines and social media for acquiring news and information, the OSPs could be better corporate citizens and take a harder look at the negative effects that their anything-goes approach can have on business and consumers; on politics and journalism; on social behaviors and discourse; and even on the advertising that is their bread-and-butter.

One question I ask now is whether or not this sudden, wider realization that the internet may be chockfull of garbage—and is highly vulnerable to manipulation—will change the mood of the public with regard to giving OSPs quite so much latitude to sweep a million sins under the rug of the First Amendment. Invariably, whether we’re talking about copyright infringement, counterfeit operations, or predators, criminals, and terrorists using legal platforms for illegal purposes, the general response from Google & Friends has been that these problems cannot be addressed without harming otherwise protected speech.  It’s been an effective message but largely not a true one—especially when an OSP may earn revenue from the activities of bad actors and good actors at the same time.

In recent weeks, two stories trended about harassment of Muslims—one on the New York subway and one on a Delta flight—that proved to be false.  The second of these was perpetrated by a known prankster, who creates these spectacles for his YouTube channel. Historically, the progressive view would be to defend his free speech rights in defense of YouTube itself; but creating false claims of harassment is not only not protected speech, it is purposely throwing fuel on an already dangerous fire. Is YouTube required to support this guy’s channel because of the First Amendment?  Absolutely not. No more than they are required to support terrorist recruiting videos or videos demonstrating how to hack someone’s computer or videos that infringe the rights of musicians or other creators.

In reality, web platforms do not have the kind of constraints under the First Amendment that they often claim. The First Amendment protects American citizens and entities against censorship by state actors, while a privately-owned business like a social media site can adopt nearly any Terms of Service its operators choose.  Quite simply, YouTube could decide tomorrow to become a platform exclusively for videos featuring left-handed,  yodeling, Ukrainian, sword swallowers, and the creators of the millions of videos that would consequently be removed would not be able to make a First Amendment infringement claim against the company.  To the contrary, such a suit would be in conflict with the First Amendment rights of YouTube, which happen to be the same rights that allow a newspaper to employ editorial oversight of its content.

Getting Real About Free Speech

The big question is instantly tricky, of course, because the new president-elect is the first in living memory to voice such an openly hostile relationship with the free press and free speech; and we can, therefore, imagine real policy that could become legit First Amendment challenges. As such, it’s a good time to make more sober distinctions between actual First Amendment threats and perceived ones.  Because for the last several years, the internet industry has successfully labeled just about every effort to enforce reasonable, legal protections for consumers and businesses as a threat to free speech. But mitigating tangible harm in cyberspace is not in conflict with the First Amendment any more than it is in physical space.  In fact, it is often less of an issue because the harmful actors are neither located in the U.S. nor U.S. citizens, which means they do not technically enjoy—or even necessarily respect—First Amendment protections.

Of course, the conversation is probably going to get a lot dicier now. One major flaw of the Obama administration was that it gave way too much latitude to Google and other Silicon Valley firms to shape policy in a number of areas.  If the Trump administration and Congress take meaningful action to mitigate various types of harm online, the internet industry and the “digital rights” activists will likely amp up their free speech and “open internet” rhetoric, which will play even louder against the drumbeat of the Trump administration than it did during the Obama years.

Even trickier is the possibility that the new Executive really will advocate policies that run afoul of constitutional protections; and we don’t honestly know the extent to which Silicon Valley firms, to whom we’ve volunteered so much information, will cooperate.  One way or another, it’s going to be a bumpy damn ride, and a lot of crazy shit is going to fly around the web in the coming years—a lot of it disposable, trendy nonsense that will only further divide people who might otherwise find social and political common ground.

We’ve already seen attempts by the EFF, Techdirt, and the Press Freedom Foundation to conflate Trump’s press censorship rhetoric with the News Media Alliance’s interests in protecting its own copyrights online. And we can expect more of this kind of blurry messaging in the months and years to come. I believe these parties mean well, or want to mean well, but they’re still so drunk from the tech-utopian punchbowl that they don’t notice the bowl is full of all-sorts.*

With their over-broad invocations of the First Amendment, and their love of online anonymity, the tech-utopian observers fail to acknowledge the role major online platforms have played in making our political process uglier than it was 20 years ago. We’ve managed to recreate the outrageous theatrics of the turbulent 19th century rather than the more contemplative and moderated environment we had promised ourselves for the 21st.  Rational people are suddenly noticing that we’ve entered what they’re calling a post-truth era, which sounds to my ear like the queen mother of unintended consequences for what was billed as the “information age.”

In a recent video, Robert Reich recommended that people find opportunities to talk to one another in real life, especially if they are on opposite sides of the Trump divide.  Personally, I think he has the right idea.  After five years working on a non-partisan issue like copyright, I have become friends with some extraordinarily brilliant, generous, and empathetic individuals who are traditionally conservative and whom I certainly trust to uphold the core principles of the Republic, even as we discuss different views on a wide variety of issues.

Traditionally, in physical space, people are human beings whose personal narratives  and opinions remain invisible to one another.  On social media platforms, it’s the opposite; everyone’s narrative is on display while their basic humanity remains invisible. In this sense, social media’s promise to “connect” us is a bit of a humbug. Not that I would advocate outright abstention any more than I intend to give up scotch; but the start of 2017 is probably a good time for a reality check and a freshly moderated approach to the pros and cons of these platforms.

*All-sorts was a cask full of the combined dregs from drinks left on tables in a tavern, including God-knows how much backwash. A cup of all-sorts was the cheapest drink available, and for good reason.

Social Media’s Power to Manipulate

The FCC, in a narrow vote this week, elected to adopt rules to protect the principle known as “net neutrality.” The agency will now regulate broadband as a public utility in order to ensure that ISPs cannot discriminate between one kind of customer and another, namely that they may not speed up traffic for higher paying users or slow it down for lower paying ones.  Many view the vote for “net neutrality” as a win for universal digital rights, others see it as government overreach into the free market; and both sides claim to be on the side of free speech.  I have expressed doubts before about some of the more extreme fears of a world without net neutrality, and Alex Pareene, writing for Gawker, reminds us that the “win” in this case can be credited to what he calls a “cartel” of Internet industry giants like Google, Microsoft, eBay, Facebook, and Amazon. Whether or not net neutrality is essential for maintaining a level playing field for competing interests, one rhetorical talking point overused by all parties is this idea of preserving the Internet as “the greatest tool for free expression and democracy.”  It ought to be, but the more I consider this premise, the more I wonder if it may prove to be one of the worst lies of the digital age — no matter how fast it travels through the proverbial tubes.

In an article posted on Ars Technica, cryptographer and security expert Bruce Schneier explains exactly how easy it can be to manipulate public opinion through social media.  I’ve been on this kick since starting this blog — the idea that more expression can actually make the electorate less well informed, not because people are necessarily dumb or lazy, but because the way in which we take in information now is so heavily bombarded with aggregated impressions.  Unless one really has time to research and calmly consider every story that might pop up on a Facebook feed, for instance, it’s almost impossible not to be influenced by the constant flow of impressions being made with images, headlines, and memes.  The more these impressions jibe with our own biases, the more they solidify those prejudices, making us less receptive to ideas that might challenge our thinking.  And because a walled garden like Facebook tends to expose us to items based on our group of like-minded Friends and on an algorithmic interpretation of our tastes and interests, the experience is far more circumscribed than we might necessarily notice. Schneier offers a relatively simple example of possible political manipulation thus:

“During the 2012 election, Facebook users had the opportunity to post an “I Voted” icon, much like the real stickers many of us get at polling places after voting. There is a documented bandwagon effect with respect to voting; you are more likely to vote if you believe your friends are voting, too. This manipulation had the effect of increasing voter turnout 0.4% nationwide. So far, so good. But now imagine if Facebook manipulated the visibility of the “I Voted” icon based on either party affiliation or some decent proxy of it: ZIP code of residence, blogs linked to, URLs liked, and so on. It didn’t, but if it did, it would have had the effect of increasing voter turnout in one direction. It would be hard to detect, and it wouldn’t even be illegal. Facebook could easily tilt a close election by selectively manipulating what posts its users see. Google might do something similar with its search results.”

The implications of that are rather staggering.  Forget lobbying and other forms of corporate meddling in the political process.  A vested interest could sway an election at the local, state, or federal level without anyone really noticing, and paradoxically by using these same technologies we believe provide us with better insight and a stronger voice in the process. The Internet can hardly be a tool for transparency, if we’re each looking through our own opaque set of lenses; but then combine this habit of human nature with  manipulation of the data, and you get the opposite result of the new enlightenment that was supposed to come with the digital age. Again from Schneier:

“The first listing in a Google search result gets a third of the clicks, and if you’re not on the first page, you might as well not exist. The result is that the Internet you see is increasingly tailored to what your profile indicates your interests are. This leads to a phenomenon that political activist Eli Pariser has called the “filter bubble”: an Internet optimized to your preferences, where you never have to encounter an opinion you don’t agree with.”

I think Pariser’s “filter bubble” accurately describes the human component that is so often excluded from the discussion, but I will also be presumptuous enough to examine this notion of “an opinion you don’t agree with.”  Depending on how we define that phrase, I actually find the social media experience is chockfull of opinions with which I disagree and that I could spend an unreasonable amount of time sifting through all those opinions in search of competing ideas. After all, opinions and ideas are not quite the same thing. Competing ideas are about problem solving. Competing opinions are mostly theater, and media loves theater. Cable TV news produced many years worth of passive theater comprising competing opinions in the service of few ideas.  Social media turns this into participatory theater that adds the element of narcissism, which serves to exacerbate the divisiveness in our political process.  In short, I suspect the environment is ideal for manipulators to subtly manipulate political outcomes without us  noticing.  The promise that the Internet “democratizes” information certainly sounds progressive, but the ways in which we interact with these tools as they are designed doesn’t necessarily foster progress; and to Schneier’s point, it doesn’t have to be the least bit democratic.