Mistakes And Strategic Failures: The Killing Of The Open Internet
from the unfortunate dept
Sometime tomorrow, it's widely expected that the House will approve a terrible Frankenstein bill that merges two separate bills we've spoken about, FOSTA and SESTA. The bills are bad. They will not actually do what the passionate and vocal supporters of those bills claim they will do -- which is take on the problem of sex trafficking. Neither bill actually targets sex traffickers (which, you know, one would think would be a prime consideration in pushing a bill that you claim will take on sex trafficking). Instead, they seek to hold third parties (websites) responsible if people involved in sex trafficking use them. This has all sorts of problems that we've been discussing for months, so I won't reiterate all of them here, but suffice it to say if these bills were really about stopping sex trafficking, they sure do a horrible job of it. If you want to try to stop these bills, check out EFF's action page and please call your Congressional Rep., and let them know they're about to do a really bad thing. If you want more in-depth information, CDT has you covered as well. Finally, Professor Eric Goldman details piece by piece what this Frankenstein bill does and how bolting SESTA and FOSTA together make two bad bills... even worse, and even less clear as to what it actually does.
Over the last week, I've spoken, either on background or off the record, to over a dozen different people on a variety of sides and in a variety of different positions concerning these bills, trying to understand how we got to the point that horrible bills that will undoubtedly do serious harm to the internet -- without actually doing much of anything to stop sex trafficking -- are actually likely to get passed. And the story that emerges is one of a series of blunders, misunderstandings, strategic errors and outside forces that drove things in this direction -- helped along quietly by some anti-internet industries that were all too willing (if not eager) to exploit legitimate concerns about sex trafficking to get what they wanted (without actually helping sex trafficking victims).
Let's start with the blundering. There were both large scale blunders and small scale ones. The large scale blunder is that too many folks who work at the big internet companies failed to recognize how the narrative was shifting on "the internet" over the past two years or so. Despite some efforts to warn people that the tide was shifting, many in the internet world insisted it was all overblown. And, to some extent, they are right. Recent polls show that the public still views all the big internet firms very favorably. But, sometimes a narrative can trump reality and, over the past year especially, the "narrative" is that the public doesn't trust those companies anymore. Some of that is driven by the results of the 2016 election and the (exaggerated) claims of "fake news."
But a narrative can be so powerful that even if it doesn't match up with reality, it can become reality as more and more people buy into it. And, right now, many in the media and in politics have both grabbed onto the "people no longer trust big internet" narrative with a chokehold and won't let go. And the big internet companies seemed wholly unprepared for this.
The second blunder appears to be more specific to Facebook -- and it involves a complete misunderstanding of CDA 230. Last week, I pointed to a big Wired cover story about Facebook, where I called out the reporters for explaining CDA 230 exactly backwards -- falsely claiming that CDA 230 meant they couldn't take a more proactive role in moderating the site. Of course, that's wrong. CDA 230 is explicitly why they can take a more active role.
However, since posting that article, I've heard from a few people at Facebook who told me that the view expressed in the article was actually the view within Facebook. That is, Facebook's own legal and policy team pushed the idea internally that heavy moderation may run afoul of CDA 230. This is wrong. But, incredibly, Facebook's own confusion about how the law works may now make their incorrect belief a reality, as it may have helped lead to the tech backlash, leading to things like SESTA, which would put in place a "knowledge" standard for losing CDA 230 immunity... meaning that companies will be much less proactive in monitoring.
That's a huge, huge blunder.
Next up were the strategic errors. Back in November, the Internet Association -- the trade group that represents the largest internet companies (but not the smaller ones) surprised many people by coming out in favor of a modestly update version of SESTA. As we pointed out at the time, this was selling out the internet way too early and way too cheaply. There are a few different explanations of how this happened making the rounds, but one that has come up repeatedly is that Facebook threw in the towel, believing two things (1) that it's getting hit so hard on so many things, it couldn't risk (falsely) being labeled as "soft on sex trafficking" and (2) it knew that it could survive whatever legal mess was created by SESTA. Some smaller internet companies believe that this second point is one that Facebook actually likes because it knows that smaller competitors will be hobbled. To say that these companies are pissed off at Facebook and the Internet Association would not accurately convey the level of anger that came across. But it wasn't just Facebook. We heard that a few other Internet Association members -- mainly those who don't rely quite as much on CDA 230 -- wanted to just "get past" the issue, and supported the Internet Association cutting whatever deal it could and moving on.
This has greatly pissed off a lot of people -- including many other (smaller) Internet Association members who feel that their own trade association sold them out. And it has greatly pissed off many other groups, including other trade groups representing internet organizations and especially public interest, civil society and free speech organizations, who historically have aligned well with the Internet Association on efforts to protect an open internet. Within these groups, a feeling of trust with the Internet Association has been broken. There is plenty of support for the idea that the Internet Association, with the help of Facebook, got played and made a huge strategic mistake in settling. The Internet Association wouldn't go on record with me, but suffice it to say the organization disputes my characterization of what happened and would really, really prefer I didn't write this post. However, after talking to multiple other people who were deeply involved in negotiations over SESTA, there is a general feeling that the Internet Association caved and did so way too quickly when better, more workable solutions were still on the table. But, in caving, most of those discussions were tossed aside. Many people are mad that the Internet Association, with the help of Facebook, seemed to get desperate and got played right into a bad deal that harms the internet.
And note that unlike the RIAA/MPAA, which the Internet Association was basically set up to mimic as an opposing force, the Internet Association refused to take a hard line stance on this. The RIAA and MPAA don't exactly have a history of caving on issues (even when they should). The Internet Association folded, and many people involved in protecting and building the internet are not at all happy about this. And just as the internet companies failed to recognize the power of the narrative, I'd argue that the Internet Association has failed to grasp the level of anger it has generated with its moves over the last few months as well.
Speaking of the MPAA, its fingerprints are all over SESTA, even as it's tried to keep them mostly out of sight. For years, part of the MPAA's "strategy" against the internet disrupting its business was to tar and feather internet companies for enabling illegal activity totally unrelated to copyright infringement (after realizing that whining about piracy wasn't winning them any sympathy). They tried to focus on drug sales for a while. And terrorism. But it appears that sex trafficking was finally the one that caught on in Congress.
And that leads to the final point: the convenient exploitation of all of the above by "foes" of the open internet and free speech. The MPAA, officially, has been pretty quiet about SESTA, though some of its studios officially endorsed the bill. Going through lobbying records, Disney appears to be the only major studio that officially lobbied on behalf of SESTA, but multiple people suggested that former top 20th Century Fox lobbyist Rick Lane was heavily involved as well. While I don't see his name in any official lobbying disclosure forms, a group pushing for SESTA officially thanked Lane for helping them go around Capitol Hill to stump for SESTA, calling him an "extraordinary partner." And, not surprisingly, Lane recently posted a giddy LinkedIn post, excited about tomorrow's vote, while totally misrepresnting both what SESTA does and the reasons many are concerned about it. Oh, and let's not forget Oracle. The company that has seemingly decided that attacking internet companies is more important than actually innovating has been one of the most vocal supporters of SESTA, and also lobbied heavily in favor of it in Congress.
Thus, a key aspect of how the internet works -- which many of this bill's supporters don't actually understand -- is at serious risk. The internet companies probably should have realized sooner how the narrative was shifting. They probably should have better understood -- and explained -- how CDA 230 actually enables more monitoring and filtering, not less. But, that's not what happened. The Internet Association could have continued to fight, rather than giving in. But none of that happened, creating an unfortunate perfect storm to do serious harm to the internet. And, again, perhaps that would all be worth it if SESTA would actually help stop sex trafficking. But it will almost certainly make the problem worse.
And, that doesn't even get into the fact that the company almost always cited as an example of why we need SESTA, Backpage.com, is almost certainly about to face a ruling in a case saying that Backpage is not protected by CDA 230. The fact that Congress is unwilling to even wait and see how that case turns out (or what a grand jury that is supposedly investigating Backpage decides) suggests that this bill has never actually been about stopping sites like Backpage, but about punching a huge hole in CDA 230 and creating havoc for tons of internet platforms -- especially smaller ones.
This situation is a pretty big mess, and it wasn't helped by misjudgments and strategic errors by various internet companies and the Internet Association. But the effort to undermine aspects of the internet also has some "help" from those who are gleeful about how this is all working out. And it's not because they think this will do a damn thing to stop sex trafficking. And it's really too bad, as the end result of this bill may make it that much harder to actually deal with sex trafficking online.
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Filed Under: cda 230, fosta, intermediary liability, narrative, rick lane, section 230, sesta
Companies: facebook, internet association, mpaa
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That's only because there haven't been any new child pornography bills drafted in a while.
I can't recall the organization which chided how they just love child pornography laws because they can put clauses in the bills to circumvent the copyright laws they don't like.
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Grudge
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Re: Grudge
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Re: Grudge
Report to who? The sites themselves might want to avoid having "report" buttons, to avoid having any "knowledge" which could make them liable. Already they generally don't provide phone numbers or email addresses for support.
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...of which Google is part as well.
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All companies that should know better.
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You're absolutely right: they weren't
Let me interrupt myself to say that this is a really good article that provides a solid assessment of where this issue stands. I've bookmarked it and am going to refer others to it as well -- not that I agree with all of it, but it's better than anything else I've read.
Not then, let me get to the quote just above. These companies were not only unprepared for this, they were unprepared to run themselves at scale. They broke one of the core rules of the Internet, something that we learned decades ago: never build anything beyond your competence and capabilities. Because if you do, and you plug it into the network, then the consequences will be bad not only for you, but for everyone else.
Their failure has taken many forms, and I've written about some of the specifics in other comments here. But the high-level view is that they were so love with their own cleverness, so enamored with the cool things they wanted to do, and so captivated by high growth rates, that they didn't do the hard boring grinding work that they should have.
And that's why Facebook has 200M+ bots (and no doubt Twitter has the same) and YouTube is overrun by exploitive videos targeting children and Google News trends clearly fake stories and so on. They weren't ready. They weren't even CLOSE to ready. And now they're all frantically trying to retrofit the things that they should have had in place before they ever went live.
It won't work. It never works.
And there is -- as this article covers so well -- going to be political and legal fallout from that that affects not only them, but everyone else, including companies that behaved far more responsibly.
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Re: You're absolutely right: they weren't
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Re: You're absolutely right: they weren't
There is no way to make something (anything really, internet related or not) so fool proof that the bad actors and idiot users of the world won't find a way to screw it all up.
Did they probably make some mistakes along the way? Yes. Are they still making mistakes? Yes. But that doesn't constitute failure. Life is about mistakes, learning from them and moving forward, all of which is what these companies seem to be doing. No one can predict the future and when these companies were founded, very few people (even non-techies) would or could have conceived these platforms being used in such a way. To say that they should have known better is simplistic and not based in reality. That's basically the same as saying Orville and Wilbur Wright should have known that inventing the airplane would cause it to be used for unspeakable acts not only in world wars but by oppressive governments to commit heinous acts against humanity and they should have built in a way to prevent that from happening.
You also are completely wrong about one of the core rules of the Internet being "never build anything beyond your competence and capabilities". The Internet is ALL ABOUT pushing boundaries and seeing how high you can fly before you start to fall. That is what makes it such an awesome thing and it is exactly that attitude, from companies like these, that have helped mold the Internet into the awesome tool and platform it is today.
And I would go even further, it's not just about the Internet, if humanity never ever tried to push the boundaries and exceed their "competence and capabilities", we'd still be in the stone age. It's only because of people like the Wright brothers, Isaac Newton, Thomas Edison, Nikola Tesla, Albert Einstein, John Glenn, and many many others like them that we are where we are today. They decided to push beyond their competences and capabilities into places and areas they had no clue about that gave us things we take for granted today.
So while I don't agree with a lot of things big internet companies do, harping on them because someone or a group of people figured out a way to use their platforms maliciously is not something that should be held against them.
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Re: Re: You're absolutely right: they weren't
We knew. Lots of us knew. We wrote about it, about OUR failures, for many years. All they had to do was read, and learn, and architect/build/operate to avoid the mistakes we made (and plan to deal with the other ones that they would make, ones that they should have realized were inevitable).
To put it another way: it was crystal-clear to anybody who was paying attention that anything that could be abused, would be abused. SMTP relays. Usenet newsgroups. Recursive DNS resolvers. HTTP proxies. It's a long list, and anybody reading it would (and should) quickly realize that if they built something, it would be targeted too. And probably sooner, rather than later. And probably by determined, clueful people. So I don't buy the "nobody could have foreseen" argument. It WAS foreseen, because frankly, it was trivially easy to foresee.
But it was ignored because it was inconvenient.
"You also are completely wrong about one of the core rules of the Internet being "never build anything beyond your competence and capabilities"."
No, I'm not. Pushing the boundaries is fine: I've done it plenty of times, with mixed results (mostly failures, but that is to be expected). What's NOT fine is inflicting the consequences of those failures on everyone else, doubly so if it's done without their consent. That's why we don't allow medical researchers to experiment on entire populations: while it would greatly accelerate the pace of research, it's clearly unethical and insanely risky.
And let's be honest: nearly everything these companies have done is not about advancing the state of the Internet. It's about making money. Yes, there are a few interesting things and a few good things that have fallen out of that as incidental byproducts, and the people that have done those deserve credit for them. But let's not paint these companies as bold pioneers trying to do the unthinkably difficult for the good of us all: they're not. They aren't. (There ARE people doing that work, but they're doing it quietly and in near-obscurity.)
A more accurate picture of these companies is that they rushed to build something as large and as profitable as possible as fast as possible while refusing to learn from past failures, and a result they've not only repeated those, but they've made horrendous new ones of their own that they have no clue how to address.
One of the things about pushing boundaries is that you have to accept failure -- usually repeated failure -- as the price. Otherwise you WON'T succeed, ever. There are 200M+ (note: likely a seriously lowball estimate, because self-reported) bots on Facebook. That's a total failure. If they were really the bold pioneers you imagine, they'd admit it, shut it down, wipe it, and start over. Because that's the only way to fix the problem.
Let me know when that happens.
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Re: Re: Re: You're absolutely right: they weren't
I think part of the problem was that someone who ignored the problems would have a short-to-mid-term competitive advantage over someone who didn't, precisely because of how intractable the problems were.
And so it was inevitable that someone who ignored the problems was going to win out in the marketplace, at least until such time as the problems became too big to keep ignoring.
The current market giants just happen to be the ones (among all those who ignored the problems) who did grab that brass ring, at whatever the long-term cost may turn out to be.
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Re: Re: Re: You're absolutely right: they weren't
Those platforms also allow in some form or another for people to select who they follow. That runs into the general social problem that there are a lot of people out there who rather than ignoring and avoiding that which offends, demand that someone censor the medium to meet their sensibilities.
When it come to outright illegal actions, the best means of dealing with them is to work on catching the perpetrators, and not criminalizing service providers for an easy conviction.
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Re: Re: Re: Re: You're absolutely right: they weren't
Why don't they?
That's what responsible professionals do.
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What you keep calling responsible professionals are no more that a self selecting elite deciding who has the right to publishing their works.
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If they closed it off and only allowed a select group in, then people would quit using it (or be intentionally forced off) and it would dry up and die. The reason because it is so successful is because it is so open. You know, kind of like the entire rest of the internet.
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Re: Re: Re: You're absolutely right: they weren't
Who's we? Is this the royal we?
You got links to back that up? Cause this is the first I'm hearing about the fact that this was common knowledge.
Of course anything can be abused, the devil is in HOW it can be abused. I doubt that back in the 90s and early 2000s, no one thought that Russia would start a troll farm whose sole purpose would be to spread propaganda through massive amounts of facebook accounts and google news aggregation. Hell, when google came out, those features didn't even exist. Even if you can foresee that something will be abused doesn't mean you can foresee all the many ways in which it will be abused. If that was possible, and is apparently so trivially obvious and easy, then explain why we still have insecure operating systems, why when new operating systems come out they have to constantly be patched because the developers didn't account for specific use cases for the OS? Please, do explain, I'm waiting.
So then what you're saying is you're wrong and I'm right. Can't really interpret that any other way. These companies pushed the boundaries and (in your opinion) failed, but that's to be expected. So what's the problem?
Please show me where it says I HAVE to use facebook, google, etc... When you choose to use such a service, you inherently accept the risk that something bad might happen. Hell, you accept that risk just going on the internet at all.
This has to be some of the worst load of crock I've ever heard. Are you seriously going to sit there and tell me that the core features of google, facebook, youtube, twitter, etc... that were there from the beginning and what their entire business is based around was really just incidental byproducts?????? And that they are only "a few interesting things and a few good things"?????
You're seriously going to say that google's search engine was an incidental byproduct that just happened to completely revolutionize searching the internet? Or sharing videos on Youtube? Or connecting with friends and family on facebook all over the world? Do you understand exactly what you are saying?
I'm not going to deny that they all probably did it because they thought that they could make some money, but I will bet that wasn't the ONLY reason. Let's take Wikipedia as an example, another Internet company that has revolutionized part of our lives, they don't run ads and are non-profit. Or what about Mozilla, makers of the Firefox browser, direct competitor to Google Chrome? Also non-profit. All these companies, including google, facebook, youtube and the like, weren't in it solely for the money, they saw a need or were frustrated because something didn't exist, so they set out to create it. Sure some of them probably had designs on hopefully getting rich off it, but it was by no means guaranteed back then.
Not all of them may have been doing it for the "good of us all", certainly some of them were and are, but they absolutely were bold pioneers. They dared to do something no one else had before and what they did completely revolutionized how we communicate and use the Internet. Or do you want to argue that all these companies didn't completely revolutionize the digital word?
What have they done? What are their accomplishments? How have they revolutionized the Internet and how I use it? Do you have links to their work? If they are doing such awesome and amazing things for the good of humanity, let's highlight them and thank them for what they do.
You realize that facebook was essentially in beta testing for 3 years right? And Google was in development for 2 years before it launched? Hard to find dev numbers on some of the other sites but you get my point. These were not rushed by any means and when they first started were a tiny tiny fraction of their current size and had a fraction of their current offerings. Also, way to call all these guys a bunch of idiots. Because a bunch of idiots are certainly capable of creating the most popular online services in the world.
And as you just said (in the same paragraph no less), failures are ok. So they are all doing fine. Also, how does 200M+ bots out of over 2 BILLION total users count as a total failure????????? And until you can provide evidence to the contrary of that number, I have absolutely no reason to believe you.
No, that's not how this works. That's not how life works. In some cases, yes, you may need to start from scratch, but in most cases that's not how progress is made. You build on what you've created previously. The core idea is good but it needs some tweaking. Straight wings on an airplane were a great first step, but turns out swept wings work better.
Plus, if internet companies just deleted it all and started over every time something went wrong, NO ONE would use their services. You know why? Because that is the definition of an unstable system. A stable system is one that may not be perfect when you first deploy it, but you continue to patch, maintain, and upgrade it over time as you learn.
I know you think it's simple to create something perfectly on the first try but it's not. You live in a fantasy land. That's why software is in development for years before it gets released. Because they are constantly tweaking and improving it. And that's also why after it gets released, it's constantly updated because they missed something or didn't account for a particular use case.
Another perfect example? The Internet in general. Why didn't google, facebook, and the internet as we know it spring forth fully formed back in the 60s/70s when it was first being developed? Maybe because they had a good idea but it had to be developed and updated for things they couldn't account for at the time?
Your entire argument is flawed and unrealistic. Honestly it seems like you are jealous that someone was able to create something you can only dream of creating and were able to make a ton of money from it. When you have facts, sources, and citations to back up ALL your claims, then we can talk about it and I will seriously re-consider my position in light of your facts. However, I seriously doubt that you can provide many, indeed if you can provide them at all.
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So by this logic...
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Re: So by this logic...
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Re: So by this logic...
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Re: So by this logic...
One thing it will allow you to do is commit a felony with a minimum sentence of say 20 years, and make sure that the local DA includes your IPS as a defendent. Viola, we get Charter, Comcast, and/or ATT jailed for 20 years.
Or say, you're in the Army, and you use your Yahoo mail account to send classified data to Putin. Both you and Verizon will get the death penalty.
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I think it wasn't a "mistake" on the part of the Internet Association to cave. I think Facebook (and the other big players) looked this over, saw they can handle this better than others, and decided to go ahead and kill the competition.
There are multiple internet companies who believe this is 100% true. And, so far, Facebook has done nothing at all to counter that opinion.
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And here I thought that they liked capitalism and its to the death competition, apparently that is not the case at all - go figure.
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Never attribute to stupidity that which is adequately explained by malice.
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Ramifications?
No more taxes..
HOW to shut down Random and smart Comments INSIDE the nation.
How to Curtail OPEN DISCUSSION..
BACK tot he TV world of Mis-knowledge.
Convoluted and Abusive to both Citizens and States..
e) Section 230 would exclude any civil claims where the victim can prove a violation of the federal sex trafficking crime.
f) Section 230 would exclude any state criminal prosecution where the state can prove a violation of the federal sex trafficking crime.
g) Section 230 would exclude any state criminal prosecution where the state can prove a violation of (b).
#1..is there a Full legal definition of Human trafficking or prostitution. Prostitution is a big word with many meanings..
#2 remove STATE prosecution??
#3, I wonder if we could prove that the USA gov/Corps have FORCED a person into Prostitution?? THAT could be a BIG WIN..
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Yes.
Here's the “All Actions” page for H.R. 1865. Note that updates to these pages do lag actual actions by the House or Senate, sometimes by several days.
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if it passes the House does it still need to pass the senate?
Yes, it still needs to pass the Senate, but it has a large number of sponsors already and the general belief is that it will pass easily. And today the White House indicated that Trump would sign it.
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If it passes into law what can we do then?
A few different things, but there will almost certainly be lawsuits challenging the Constitutionality of the law. And they may win.
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Websites and their owners on the other hand at least to my knowledge do not have advantage. Unless there's more stronger action against bills like this, it could haunt the internet for years to come, but of course you know that.
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'the "narrative" is that the public doesn't trust those companies anymore.' -- No, that IS reality. Most people now see internet corporations are amoral globalist machines that make fake news and propaganda bubbles while stripping privacy.
"The Killing Of The Open Internet". -- Sez you. I suppose you go into bars and restaurants for vile screaming idiots pushing drugs and sex at you.
You're wrong about Facebook: it actually has (or had?) right view that if "moderates" too much then becomes responsible. -- AND YET on other hand, isn't licensed to just let its forum become a cesspit, either. There's PUBLIC DUTY in exchange for chance at big money, kid. (Warned you about lack of civility here many years ago, and now you're down to a few fanboys and me, hooting.)
Anyhoo, turns out you were WRONG about this passing, your notions here are WRONG, and you WILL BE WRONG that will make any sweeping changes, it's fairly narrowly targeted. Don't you ever get tired of being wrong?
And again with "the unfortunate dept"! "Unfortunate" means CHANCE, not "bad". This is not "unfortunate", except that it may help prevent corporations from piling up fortunes so easily! When you mis-use a common word, it tells much of how unclear your mind.
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RE
Most people would and do disagree with you.
Seriously blue, no one believes a thing you say because everything you say is so demonstrably untrue. The only one who doesn't see it is you.
Flagged and tagged.
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Wait... you were wrong, blue.
How about them apples?
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wut?
You're wrong about Facebook: it actually has (or had?) right view that if "moderates" too much then becomes responsible. -- AND YET on other hand, isn't licensed to just let its forum become a cesspit, either.
But, Blue, you keep telling me Techdirt violates "common law" any time your comment is caught by the spam filter, or the readers here vote your comment down. Now you're saying that Facebook must moderate to stop its forums from becoming a cesspit.
Why, it's almost as if you have no coherent theory and you just make shit up as you go along.
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Re: wut?
Never. He is the Chosen One, the Messiah of our times. He is the bearer of Truth, the Guardian of all that's good and right.
Do I smell sarcasm?
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Re: wut?
Why, it's almost as if you have no coherent theory and you just make shit up as you go along.
While that's certainly part of it, I think in this case it's his glaring hypocrisy that's involved. His stuff getting 'moderated' is unacceptable because it's his. Other people's stuff being moderated is perfectly fine because they are not him.
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Rush Limbaugh might block this, if given a reason.
Intelligent elements on the Right, however, might yet be mobilized to oppose this concentration of power with Facebook and Google. They already know that Facebook is trimming right-wing accounts, and Google is firing right-wing employees. "Google is not your friend." If Rush Limbaugh used his show to raise the alarm, Capitol Hill switchboards could be flooded with demands that Republicans send this poorly conceived bill back to committee and rewrite it narrowly to achieve its ostensible purpose.
Other anti-establishment Right-wing voices should also be contacted by those who know how to address them.
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Re: Rush Limbaugh might block this, if given a reason.
Also, you seem to be misinformed -- the House bill has twice as many Republican cosponsors (114) as Democratic ones (60). This is not a liberal leftist bill aiming to collude with big business -- this is a conservative right-wing bill restricting freedoms in the name of protecting morality.
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