Speech-Via-Algorithm Is Still Speech, And Censoring It Is Still Censorship
from the this-makes-no-sense dept
I have to admit that I'm really confused about law professor and FTC advisor Tim Wu's general position on a variety of topics lately. In the past, I've often found him to be thoughtful and (very) insightful on various topics concerning internet policy and regulations. But, at times, he seems to go off the deep end, such as with his recent claims that big automatically means a monopoly. But, his latest piece in the NYTimes goes way further than anything I've seen before: claiming that search results shouldn't get First Amendment protection because it's "computers" speaking, not humans.Is there a compelling argument that computerized decisions should be considered speech? As a matter of legal logic, there is some similarity among Google, Ann Landers, Socrates and other providers of answers. But if you look more closely, the comparison falters. Socrates was a man who died for his views; computer programs are utilitarian instruments meant to serve us. Protecting a computer’s “speech” is only indirectly related to the purposes of the First Amendment, which is intended to protect actual humans against the evil of state censorship. The First Amendment has wandered far from its purposes when it is recruited to protect commercial automatons from regulatory scrutiny.This is wrong. And dangerous.
Let's be clear here: what search engines do is present opinions. They are opinions based on data programmed by humans. There is nothing special in that it's a computer that cranks through the data to output the opinion. Taken to its logical conclusion, Wu's argument is that we should protect uninformed opinions not based on an algorithmic exploration of the data -- but the second you add in a computer to crunch the numbers, that opinion is no longer protected. Contrary to Wu's assertion that this "wanders" from the point of the First Amendment, I'd argue the exact opposite. The First Amendment should protect all kinds of speech, but we should be especially happy about that which is based on data.
Two responses to Wu's piece help highlight this point nicely. Julian Sanchez notes that Wu's argument seems to suggest that any computer generated content doesn't get First Amendment protections -- and that would include computer-generated video games and movies:
Consider an argument for denying First Amendment protection to movies and video games. Human beings, we all agree, have constitutional rights—but mere machines do not. When the computer in your game console or DVD player “decides” to display certain images on a screen, therefore, this is not protected speech, but merely the output of a mechanical process that legislatures may regulate without any special restrictions. All those court rulings that have found these media to be protected forms of expression, therefore, are confused efforts to imbue computers with constitutional rights—surely foreshadowing the ominous rise of Skynet.Similarly, Paul Levy takes Wu to task by comparing his argument to things like university rankings:
Probably nobody finds this argument very convincing, and it hardly takes a legal scholar to see what’s wrong with it: Computers don’t really autonomously “decide” anything: They execute algorithms that embody decisions made by their human programmers.
As the alumnus of a college that proudly rejects the proposition that the quality of educational institutions can be “measured by a series of data points,” I will take any opportunity to denigrate the Useless News and World Distort rankings of colleges, law schools and institutions of higher education. But it would never have occurred to me to offer a “speech by computer” theory as a basis for denying that the ranking is speech or that it is protected opinion. Maybe a stupid opinion, but that is not a basis for shutting the raters down, or enjoining them to change their rating criteria. Indeed, this theory seems to me absurd — it is not the computers that have free speech rights, any more than printing presses have free speech rights. It is the media companies that own the printing presses that have free speech rights, and by the same token it is the people and companies who program the computers and publish the results of their calculations that enjoy protection under the First Amendment.Pretending that Google is a computer that magically generates answers, absent humans regular and consistent input into its algorithm, is a strange position to take, and it really does suggest that we should only protect opinions that don't include a component that uses a computer to analyze the data. I can't see how that's smart policy or anything close to what was intended in the concept of free speech.
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Filed Under: algorithms, first amendment, search engine, tim wu
Companies: google
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But Mike....
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Not fair for the Techdirt trolls
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Re: Not fair for the Techdirt trolls
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Corporations Aren't Human, Either
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Re: Corporations Aren't Human, Either
The rest of your body--hands, mouth, etc--can be censored at any time for any reason.
After all, those are just parts of a biological machine following the orders given from the brain.
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Re: Re: Corporations Aren't Human, Either
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Re: Corporations Aren't Human, Either
Google just needs an algowhatsitmabob to direct funds to the proper politicians.
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Re: Corporations Aren't Human, Either
Humans have free speech rights. They don't lose them when the form a corporation in order to combine their powers. Otherwise, you'd have a situation where only the super rich robber barons could contribute; remember that every charity and non-profit is a corporation. Heck, Citizens United itself is a non-profit.
And yes, free speech includes video games even though they are published by corporations.
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But will the computers be put in jail for theft?
But how does Big Search feel when its computers infringe upon copyright, help people buy illegal drugs, spy on citizens or just about anything else? Oh, well, that was just a mistake. Computers can't be expected to be responsible for these things. They can't be responsible because they're just dumb computers.
If Big Search wants to hide behind the First Amendment when issuing its search rankings, it should also be willing to be held responsible for all of the laws that the computers break. Frankly I think someone should use the RICO act to prosecute the search engines for continuing to link to obvious infringers. Big Search loves to brag that its wonderful search engine can detect the best sites that deliver the most original content. So why does it go blind when it comes to torrent sites and worse?
Not that it matters. They tell humans, "Ignorance of the law is no excuse." And the same goes for the search engines. I say give Big Search their 1st Amendment protection and then put the search engine in jail for all of its infringement, drug running, and worse. Treat the computers just like humans.
And lest anyone not be paying attention, the 1st amendment is not a get-out-jail-free card. A mobster who orders a hit can't claim first amendment protection. The same goes for practically every crime where people are prosecuted for being accessories. So lets treat Big Search just like the average human. Let's see how Big Search likes it then.
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Re: But will the computers be put in jail for theft?
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Re: Re: But will the computers be put in jail for theft?
Judges aren't computers. They aren't are dumb algorithms. They can tell the difference between honest news reporting and becoming part of the crime.
The same goes for lawyers, police officers and many others who are normally protected. There's a line out there. It may be a bit gray, but if you cross it, a jury can send you to jail.
So Big Search should be careful when it wants its computer to be treated like humans.
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So let's put the search engine in jail for the CRIME of assisting infringement. Humans go to jail for helping plan CRIMEs like this all of the time. I propose a sentence of one day for every count of criminal infringement. That should keep the search engine in jail for millions of years.
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Programmer makes something that will skim the web and tell you where things are.
Someone else has a site where they post illicit copies of movies, music and games.
Program points at illicit media.
Programmer is guilty! Not the person who actually infringed!
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http://www.google.com/transparencyreport/removals/government/
As for your point about drug trafficking, do we sue gun manufacturers when someone uses one of their products to murder someone?
As for counterfeit goods, you are equating 'counterfeit' with 'steal'. Stealing is going into a clothing store and taking everything and running. Counterfeiting is making a (often cheap, poor quality) fabrication of the item.
I must admit, bob, you'd make a great cult leader some day.
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Re: But will the computers be put in jail for theft?
But no, it's the Google>/i>!
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Re: But will the computers be put in jail for theft?
"give Big Search their 1st Amendment protection and then put the search engine in jail for all of its infringement, drug running, and worse"
Search engines are drug-running now? Really? Code scripts are moving physical drugs across borders? Really?
And worse as well?
Search engines are doing worse than drug-running? Arson? Homicide? Terrorism?
:¬O
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Re: Re: But will the computers be put in jail for theft?
http://www.justice.gov/opa/pr/2011/August/11-dag-1078.html
http://online.wsj.com/article/SB10 001424053111904787404576528332418595052.html
The point isn't that the code is actually moving the drugs across the border, the point is that the code is helping the criminals. Humans that help are just as guilty as those who commit the actual crime.
But the average human can't skip out of jail by paying a $500m fine. Does Big Search really want to be treated like a human? If so, Big Search should be ready to join these humans in jail where they can exercise their First Amendment right by writing their memoirs.
http://www.nj.com/news/index.ssf/2011/07/5_busted_in_nj_prescription_dr.html
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Re: Re: Re: But will the computers be put in jail for theft?
WOW what an impressive list of government agencies to help protect BIG Pharma keep affordable medicines from coming in from Canada.
Did you even read the articles you linked to?
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Must resist....
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Now I'm not sure I like the way that Big Pharma is gouging the US, but I do know that research costs a pretty penny. So does protecting us against counterfeits and poorly made products. So maybe it's the price we pay.
But that's a distraction here. The point is that many humans are put in jail for smuggling drugs into the US. Big Search should go too.
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Sure and while we are at it lets put Ford, Chrysler, Chevy, Glastron, Checkmate, Piper, Cessna, and every other form of conveyance used to smuggle drugs in jail as well. By your failed logic, they should be to.
Love ya boB.
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Re: Re: Re: But will the computers be put in jail for theft?
That what you're saying?
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Run ads for Bernie madoff, pay a fine equal to all of Madoff's profits!
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It's well-known that newspapers don't accept ads for questionable places that skirt the lines of legality. Yet there are plenty of other places buying ads. It's all a question of how obvious it should be that it's a criminal enterprise.
The fact is that Big Search already knows of many torrent sites that are infringement farms yet it does nothing to shut them out of the search results. Once a human starts to understand this, a human has a responsibility to stop. If Big Search wants human rights, Big Search should get human responsibilities.
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Are Bing big search? Ask? Yahoo (still)? Dogpile? Duck duck go?
Does, as it were, size actually matter?
Or are you really just aiming this at google?
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But I'm not talking about the humans. I'm saying, "Let's put the machine in jail." Shut it down and lock it up until the sentence is passed. A doctor can't help patients while in jail and the same goes for a search engine.
If it wants rights, let's give it rights AND responsibilities.
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thank you.
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Listen to yourself bob. That can only happen if machines were given the same legal status as human beings. Only humans can be put in jail. Not monkeys, tigers, rocks, palm trees or my bedside cabinet.
Besides, Google is protected by Section 230 of the CDA. A tool maker cannot be held responsible for the actions of those who use the tool.
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FULL STOP.
Taking the 5th is not an admission of guilt. Anyone who doesn't take the 5th is an idiot, and anyone who thinks that means they're guilty is doubly so. You don't have to be actually guilty of anything to refuse to speak to the police, answer questions, or say anything in court that might be twisted and used against you. NOT taking the 5th is how innocent people get convicted.
Further proof that your comments lack logic, knowledge, or even the most remote speck of common sense.
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After all, the content industries (I'm not gong to stoop to calling them "big content") have never asked to have anything taken down that later turned out to be authorised, have they ?
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Re: Re: But will the computers be put in jail for theft?
http://articles.baltimoresun.com/2012-04-23/news/bs-md-raid-20120422_1_counterfeit-clothing -counterfeit-goods-federal-agents-raid
So once again, let's treat Big Search just like humans.
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But, contact lenses are different. They present an actual risk that's not related to someone's potential profits, and lenses are generally cheap enough that it wouldn't open up the product to people who could never buy the originals. It turns the story from a "meh, who cares, why are they wasting time with this" to "OK, lock 'em up".
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Re: But will the computers be put in jail for theft?
Thanks for the laughs boB. Just what I needed on a Friday.
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Re: But will the computers be put in jail for theft?
> torrent sites and worse?
Because linking to a torrent site isn't a crime, genius. A search engine merely tells people what's on the internet. Under even the most liberal interpretation of the law, that's not a crime and it can't be a crime merely to report factual information. That in itself would be a 1st Amendment violation. It would be like trying to arrest the local news anchor because they reported that prostitution was happening on Main Street. It would be absurd and it would be a bright line constitutional violation.
And without a crime, RICO is completely inapplicable.
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As I understand his argument...
Sure, that makes perfect sense.
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Citizens United
The right to free speech included the right of the people to hear the speech unfettered. Whether or not Citizens United was a good idea, it seems that the SCOTUS has already ruled on this issue.
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FFS
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Algorithms are Soylent Green
I think we have enough defences with "You do not have a constitutional right to your business model" and "Saying it don't make it so" and so on and so forth without needing to try and shove Google into the 1st Amendment.
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Re: Algorithms are Soylent Green
A simple question for y'all: Did the US Supreme Court rightly decide NAACP v Button back in 1963?
You've heard of the case, of course: It's an historic decision.
Or maybe not. Can you read? Or do you you need me to tell you what the case was about?
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freedom to find out
Christopher Hitchens, 2006 debate on "Be It Resolved: Freedom of Speech Includes the Freedom to Hate."
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Re: freedom to find out
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Re: But will the computers be put in jail for theft?
Strawman, and poisoning the well.
Strawman, and poisoning the well
Strawman, and poisoning the well. I'll stop here since we both know what my criticisms of everything else will be.
Note that anyone can make a website that is indexed by Google. It'd be impossible to moderate every search result. Even if you tried to automate the process, it'd result in too many false positives. Then we consider the fact that torrents have legal uses as a method to download large files while minimizing load on the server (for example, Ubuntu offers torrent downloads of its install discs, in fact I am seeding one right now). And what good would censoring search results do anyway? People would just sigh and go directly to their torrent site. The Pirate Bay even said they'll get more traffic due to it being removed from search results.
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Indeed, much of the first steps of brain processing of audio and visual input, and even smell, has been reverse-engineered at this point. The rest will doubtless follow, eventually.
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but then also every phone book,auto manufacturer, and gun maker ALSO has to go to jail..
and every road in America will have to be torn up as well ( all the darn speeding you see )
what else can we blame for crimes against Humanity, or yeah, Humanity it's self, gotta ban them too.....
/do I really need an "s" tag?
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The computer is my bullhorn.
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Congress shall make no law, except when —in the interests of practicality—
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Like most ideas of restricting civil liberties, all very nice when it's applied to them, but what about when it's applied to us or me?
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I believe it would be more accurate to say that search engines present raw information that is based upon variables/metrics incorporated into code by humans.
Gene Volokh has what he candidly admits is an advocacy paper he and another prepared at the request of Google. His paper can be found on a link at the Volokh Conspiracy.
It should be kept in mind that Gene's paper comprises his legal analysis of the matter, whereas Mr. Wu's contribution is no more than an editorial piece.
A true apples-to-apples comparison would be if Mr. Wu was to present his the rational underlying his article in "legal opinion" form.
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