Rep. Zoe Lofgren Recognizes The Nuances And Complexities Of Regulating Internet Companies

from the there-are-so-many-tradeoffs dept

It's taken as given among many politicians (and much of the media) that "something must be done" about "big tech" companies. The public seems a lot less concerned about it all. Unfortunately, as we've noted repeatedly, many in the government are focused on specific regulatory levers that seem incredibly unlikely to work (and which have a high likelihood of making any of the problems discussed even worse). A big one is antitrust. We keep hearing grandstanding politicians talk about how they need to break up "big tech" without any of them getting into how that will solve any particular issue. In the House, Rep. David Cicilline has been the poster child of this approach -- insisting that antitrust is the answer, but refusing to actually explore the nuances and tradeoffs of that approach.

One of the big problems with the antitrust approach is that the traditional remedies of antitrust do very little to fix the issues that people insist come about due to the big internet companies. Big fines seem mostly meaningless to them (though they will shift some behavior). And breaking them up really doesn't do very much at all. The value of the internet is the ability to communicate with everyone, and you can't create "BabyBooks" for Facebook in the same way it was possible to create "BabyBells" out of AT&T in the 1980s (and, we can all see how well that worked in the long run).

Some of us have suggested alternative approaches that might lead to more real competition and better end-user control over data. Over the last few months, I have been having more discussions with various different government officials about exploring some of these alternative remedies, but I have been less and less sure if any government official would ever actually pay attention.

So it's actually nice to see Rep. Zoe Lofgren, responding to Cicilline's giant confusing mess of a "Digital Markets" report by posting her own thoughts on better ways to think about regulating the internet. I don't agree with all of Lofgren's points, but it's one of the most sane and reasonable documents I've seen coming from a government official in a long, long time regarding issues on regulating internet companies. Unlike so many, it acknowledges the nuances and trade-offs inherent to this discussion, and the lack of any silver bullet fix.

The more difficult questions are in deciding how and when to regulate single-firm conduct, which the report often describes as a platform exercising its “gatekeeper power” over who uses it and under what terms. Our laws should promote open platform ecosystems as a central objective, but this is far from a simple matter in practice, because many of a digital platform’s assertions of gatekeeping power can be good faith efforts to serve user interests – such as privacy, security, and/or quality of service – and may protect the long-term health of the larger ecosystem. In certain instances, platforms may need to exclude certain parties or content outright – for example, moderating hate speech and the advertisement of fraudulent or harmful products – to ensure that a platform otherwise remains open and vibrant for other speakers and transactions.

A platform company could also abuse gatekeeping power – to promote its own products and services, to lock in users from leaving for other platforms, and so on. The challenge for Congress is to craft a legal framework to allow regulators to distinguish abusive gatekeeping from legitimate efforts to serve user interests and prevent ecosystems from breaking down. These sorts of cases will often resist easy categorizations and generalized answers, as regulators are forced to consider how deeply to intervene in the details of a platform’s operations, such as its precise terms of services or particular design aspects of its user interface.

The document also talks about privacy issues, and whether or not antitrust is truly the tool to deal with that.

The Report contends that privacy abuses by online platforms are symptoms of inadequate competition. This can be true in some cases, and in those instances competition policy could play a useful supporting role to give consumers more privacy-protective alternatives in the marketplace. But it is a mistake to treat privacy largely as a competitive problem with competition-focused remedies. Abusive data practices are found not only in large platforms but also from many smaller companies, as the latter are more likely to buy and sell sensitive user data to data brokers and other third parties. Even in more competitive digital markets, users often do not have enough visibility or understanding into how their personal data is being collected, used, and disseminated, and face insurmountable barriers to defending their own privacy interests, through either individual or collective action.

Effective privacy and data regulations can and will promote competition, both by restricting abusive business models that otherwise can trigger a race to the bottom, and by giving users more practical control over who holds their data and how it is used. The Report’s call for greater authority to promote data portability and interoperability is important. However, as with other privacy measures, it’s unlikely this can be accomplished through the ex post enforcement of generalized antitrust laws. Instead, it requires more specialized, expert, and prospective privacy regulation.

I still worry that we run into the same issues with most privacy legislative proposals as we run into with antitrust remedies: those putting in place the rules will misunderstand the nature of the problem and the remedy, and create results that only favor the largest companies who can comply with silly rules that don't always make sense.

But taking approaches that (1) lead to more interoperability, (2) more end-user control, and (3) greater transparency have always seemed to be the approach that might eventually have a real impact. It's good to see that Lofgren seems to be thinking along similar lines.

And, she also notes that many other private interests are trying to use these discussions to get their own favored results, and Congress should be wary of that. She doesn't name them, but Hollywood, the telcos, and the legacy newspaper business (not to mention big lumbering old tech companies like Oracle and IBM) have been actively trying to co-opt this process in a punitive way against companies which effectively out-innovated them. This gets far too little discussion, but it's great to see Lofgren point out the risk:

In all of this – competition, privacy, and or any other fundamental objective in platform regulation – we must be vigilant against regulatory and legislative agendas being co-opted to serve narrower interests. As I noted above, the rise of digital platforms unleashed a flood of new competition for earlier incumbents in many other industries. While these incumbents can have legitimate complaints about their treatment within platform ecosystems, this does not justify special regulatory protections that would lock down such ecosystems, favor conventional business models against digitally-native content and services, or attempt to restore markets to their pre-digital states.

Exactly.

Filed Under: antitrust, competition, david cicilline, gatekeepers, privacy, tradeoffs, zoe lofgren

Thanks To Section 230, I Can Correct Wired's Portrayal Of My Section 230 Advocacy

from the speaking-about-speaking-about-speech dept

I always thought it would be a great honor to be referenced in the hallowed pages of WIRED magazine. Like Mike, I've been reading it since its beginning, as a then student studying information technology and watching the Internet take hold in the world.

This week it finally happened, and ugh... My work was referenced in support of a terrible take on Section 230, which not only argued that Section 230 should be repealed (something that I spend a great deal of personal and professional energy trying to push back against) but masqueraded as a factual explanation of how there was no possible reasonable defense of the law and that therefore all its defenders (including me) are, essentially, pulling a fast one on the public by insisting it is important to hold onto. After all, as the title says, "Everything you've heard about Section 230 is wrong," including, it would seem, everything we've been saying about it all along.

Such an assertion is, of course, ridiculous. But this isn't the first bad Section 230 take and unfortunately is unlikely to be the last, so if that were all it was it might be much easier to simply let it fade into history. But that wasn't all it was, because the piece didn't just make that general statement; it used my own work to do it, and in the most disingenuous way.

Ordinarily, of course, my work can speak for itself. The problem was, the author of this piece didn't let it speak for itself. Instead he stripped it of its context, plucking out only bits of the overall argument, citing ideas so incompletely, so orphaned from the overall message in which they were delivered, as to effectively mischaracterize my position. And then he used that mischaracterization of what I had argued as ammunition to underpin his anti-230 argument.

Nor did the author let me speak for my work either, which could have corrected his apparent misapprehensions, if not about Section 230's merit at large, then at least the bigger picture I was getting at in the particular brief he had honed in on. But despite speaking with several of the law's detractors, he spoke to only one of its defenders, even though he obviously considered several of us expert enough to misleadingly reference our work in support of his dubious argument.

It reads as a hit piece, not just against the law itself but its supporters, and one that he was apparently so determined to make that speaking with us, and affording us the chance to explain our views and what informs them, was not something he could chance. After all, we might have convinced him of the statute's merit, or at least given him some actual factual fodder to include in his supposedly factual accounting of the law, and that was obviously not the piece he wanted to write.

And so it turns out that my first mention in WIRED is a misrepresentation of my advocacy. Which is rather depressing, personally, but it raises another issue, and one that ties back into the advocacy I do defending the statute and why I do it so fervently.

It's because the only way to make sure that my actual views can get widely expressed is to express them directly myself, and for that I need to use outlets that are protected by Section 230, like Twitter. Or maybe sometimes Facebook. Or even (as we always point out in our briefs) a site like Techdirt. If I have things to say, I obviously cannot depend on traditional media gatekeepers like Conde Nast magazines to help me say them. And while I am obviously eager to set the record straight on my free speech advocacy, I don't just speak for myself in expressing this concern. Without this law, we would all be without these outlets and without these opportunities to express ourselves publicly, even when we need to. Which would ultimately foreclose a lot of expression, including plenty of even more necessary expression.

This stark calculus is also why it is so odd to see some of the law's opponents (including those who were actually quoted in the article) praise the article for having included lots of voices in it. Sure, it shared some voices. But only some. And the absence of other voices shows why Section 230 is so needed: because often Section 230-enabled outlets are the only way many voices – including the most marginalized and vulnerable many of these advocates profess to be championing – can be heard.

Of course, to this point the anti-230 people unhappy about being de-platformed may say, "See? We told you it's bad to lose access to an online outlet for expression. So get rid of 230 so we can come back!" But this call to change Section 230 is silly, for a number of reasons. One is that Section 230 is not at the root of their de-platforming; the First Amendment is. Secondly, while I'm unhappy about WIRED's editorial decision to publish this piece of questionable journalism, I remain perfectly happy and committed to defending its right to publish its questionable journalism. Nobody's expression is vindicated by using law to limit anyone else's expressive rights, even if they have used them questionably; if anything, the situation calls for doubling down on speech protection, including with a law like Section 230 that makes First Amendment rights less illusory and more substantively meaningful for everyone.

Furthermore, as the Copia Institute has talked about many times in our Section 230 advocacy, there is an internal balance to Section 230 that allows it to work effectively. In order to get the most beneficial and least deleterious content online that we can overall, platforms need to be legally safe to leave as much as they want up and take as much as they want down. When either protection, currently guaranteed by Section 230, starts to disappear, it starts tying platforms' hands such that they are no longer able to do the best they can on either front. In other words, making it legally impossible for platforms to remove users is not going to lead to more valuable and less problematic content online. It will just put platforms under strain and make it hard for them to be available for anyone to use.

So repealing Section 230 is not going to help anyone speak online. And that includes both the people who have been de-platformed and also the vulnerable who always need to have a platform available to be able to speak out against those who would seek to hurt them. Which often, ironically, is the very same people complaining of being de-platformed. It is very strange to see the law's opponents quoted in the article, who often claim to oppose the law as a means of protecting the vulnerable, push for a policy change that will only make the vulnerable even more so. Especially when it's the exact same policy change that people who would want to hurt the vulnerable keep calling for themselves. They can't both be right, and the fact that these two fundamentally opposed groups would seem to want the same thing itself suggests that neither of them are.

What this episode shows is that people cannot be dependent on the traditional media gatekeepers to enable their public expression, no matter how much they need to be able to express it. In fact, the less powerful the voice, the more important it is that these voices not be dependent on gatekeepers to speak so that they can always be able to speak against those who might hurt them. And so they need Section 230 to exist to enable other outlets they can use instead (including, potentially, their own, which Section 230 makes it much more practically possible to make). Without that law, and without these outlets, we will be without that expression, and that will be no good for anyone.

Filed Under: advocacy, gatekeepers, section 230

Robinhood App Decides To Stop Helping The Poor Steal From The Rich

from the everything-is-a-content-moderation-story dept

I had been meaning to do another story on the whole GameStop/Reddit/WallStreetBets story, because there's a lot of really fascinating points on this, but my original story got pretty much wiped away this morning when Robinhood, the popular stock trading app that promotes itself as a way of democratizing stock trading and providing free trades -- and which was the main app used by Redditors to drive up the prices of various stocks that a bunch of hedge funds were trying to short -- announced that it was blocking the trades in all of the volatile stocks that Redditors were driving up. It did so in the most ridiculous of statements, claiming that they were pausing buying of those stocks to "[help] our customers navigate this uncertainty."

Amid significant market volatility, it’s important as ever that we help customers stay informed. That’s why we’re committed to providing people with educational resources. We recently revamped and expanded Robinhood Learn to help people take advantage of the hundreds of financial resources we offer and educate themselves, including how to make sense of a volatile market. In 2020, more than 3.2 million people read our articles through Robinhood Learn.

We’re committed to helping our customers navigate this uncertainty. We fundamentally believe that everyone should have access to financial markets. We’re humbled to have helped many people invest in the markets for the first time. And we’re determined to provide new and experienced investors with the tools and resources to help them invest responsibly for their long-term financial futures.

Bull and Shit. The people buying into this stuff didn't need help "navigating this uncertainty." This was a protest. This actually was what happens when you "democratize finance" and stop letting the big giant firms abuse the system for profit. And it turns out that that's not what Robinhood really wanted after all.

As incredible as it seems, it turns out that even this is a content moderation story.

Also, I can pretty much guarantee that Robinhood is going to be hit with a whole bunch of class action lawsuits, probably before the day is out. (Actually, they were hit by lawsuits before even this post was out!)

Many people have recognized that while there's a lot going on here, at least some of what's happening is legitimately smaller individual investors giving a big giant "fuck you" to the big Wall Street hedge funds that were treating the market as a plaything with which to get ever richer. I heard someone jokingly note yesterday that Reddit and Robinhood together accounted for more wealth distribution from the rich to the poor in the past week than the Democratic Party has in years.

And, like every other time that gatekeepers' walls are knocked down, the gatekeepers freak out. This is Hollywood freaking out about Napster all over again. Yesterday the big news was that Discord banned the r/WallStreetBets server, which was where many of the Redditors were gathering (outside of Reddit). The company claimed -- somewhat ridiculously -- that the ban was for hate speech on the server. But the timing of it made that look like a very weak fig leaf. Considering how many gamers use Discord (its original target market), I can assure you that other servers have a lot more hate speech than the WallStreetBets one did.

Then, last night, we had the totally expected old school "Hollywood reacting to Napster" response when NASDAQ's CEO, Adena Friedman, said that they should halt trading in GameStop and the other targeted stocks to allow investors to "recalibrate their positions."

Funny how they never seem to do that when it's retail investors losing their investments.

As with other situations, the events of the past few days only serve to underline how the system itself is rigged to help the big guys on Wall Street, and the second that everyone else figures out how to game the system themselves, the gatekeepers freak out and look to reassert control.

Filed Under: content moderation, gatekeepers, hedge funds, retail investors, stonks, wallstreetbets
Companies: discord, gamestop, reddit, robinhood

Old School TV Gatekeepers (AT&T, Comcast), Struggle With Modern Streaming Gatekeepers (Amazon, Roku)

from the meet-the-new-boss... dept

In years past, incumbent broadband and television giants like Comcast and AT&T enjoyed life from a comfortable position of dominance. If you want to subscribe to broadband, such companies are often your only option. If you wanted to subscribe to television service, you were required to rent a locked down, highly proprietary cable box courtesy of the industry's cable hardware monopoly. Want to have your cable channel in a conspicuous position in the lineup? You could also expect headaches.

As such, it's interesting to watch how these giants of yesterday are now struggling to adapt to a new era in which their interests are not the end all, be all of negotiations.

As AT&T tries to reverse the tide of TV customer defections, it has turned to the launch of yet another streaming service: HBO Max. But the company's efforts haven't gone as planned, with the service unavailable on two of the most dominant TV streaming hardware platforms (Roku and Amazon) due to contract disputes. AT&T, a government pampered giant that traditionally enjoys playing the role of the politically powerful bully (remember net neutrality?), hasn't been able to break this logjam despite HBO Max having launched a month ago:

"But streaming is an entirely new battlefield, with platforms like Roku and Fire TV becoming the main distributors. And legacy media companies like WarnerMedia and Disney are streaming newcomers with everyone seeking to challenge Netflix. None of the three companies would comment on the state of talks or say what the current impasse is over. Analysts agree that it probably harms HBO Max as it seeks to find its footing more than Roku and Amazon, which have built their businesses and subscriber bases over the past few years."

Comcast, despite all of its money, political influence, and power, is running into the same problem. The company's upcoming new streaming service, Peacock, also won't be launching on Roku (39% market share) or Amazon (30% market share) streaming hardware. It's a disadvantaged position AT&T and Comcast certainly aren't quite used to:

"Combined, Roku and Amazon have around 70 percent of the streaming TV-specific hardware market. Both companies have leveraged their market dominance to try to secure distribution deals on terms that are favorable to them. Those deals include data-sharing agreements and the right to sell subscriptions to streaming services to viewers natively through Roku and Amazon’s operating system, according to individuals familiar with the matter."

There are different negotiations hangups for both AT&T and Verizon. The AT&T and Roku standoff purportedly centers around AT&T being unwilling to let Roku customers who've already paid for HBO via Roku (who gets a cut) access AT&T's HBO Max app (read: AT&T doesn't want middlemen getting a cut). The Roku and Comcast standoff, in contrast, allegedly is focused on a dispute over advertising and access to viewer tracking data. In both instances, dominant monopolists are now being forced to compromise as they attempt to pivot to disruption... and at least so far, it's not going particularly well.

Filed Under: broadband, competition, gatekeepers, streaming, tv
Companies: amazon, at&t, comcast, roku

The End Of The Open Internet: Cory Doctorow's Op-Ed From The Future

from the let's-hope-it-doesn't-come-to-this dept

The NY Times is running an "Op-Eds From the Future" series, which is a creative idea. In a recent one, Cory Doctorow matched the theme perfectly by highlighting what world looks like without an open internet, when companies are forced to monitor and filter everything. The point he's making is that, especially with changing laws in the EU and some of the proposals in the US, the liability for hosting content will become too great, and we'll shift from an internet that is open for communmications to one that is a "broacast" world of carefully vetted and fully "licensed" content. His title makes the premise clear: I Shouldn’t Have to Publish This in The New York Times.

Ten years ago, I could have published this on my personal website, or shared it on one of the big social media platforms. But that was before the United States government decided to regulate both the social media platforms and blogging sites as if they were newspapers, making them legally responsible for the content they published.

The move was spurred on by an unholy and unlikely coalition of media companies crying copyright; national security experts wringing their hands about terrorism; and people who were dismayed that our digital public squares had become infested by fascists, harassers and cybercriminals. Bit by bit, the legal immunity of the platforms was eroded — from the judges who put Facebook on the line for the platform’s inaction during the Provo Uprising to the lawmakers who amended section 230 of the Communications Decency Act in a bid to get Twitter to clean up its Nazi problem.

He goes through the inevitable progression of events in a world without Section 230, in which various countries enact stricter and stricter laws, and the liability burdens become increasingly too great on companies, leading them to ramp up automated filters that don't work very well, and then nothing works right, especially if you're discussing a serious topic:

The platforms and personal websites are fine if you want to talk about sports, relate your kids’ latest escapades or shop. But if you want to write something about how the platforms and government legislation can’t tell the difference between sex trafficking and sex, nudity and pornography, terrorism investigations and terrorism itself or copyright infringement and parody, you’re out of luck. Any one of those keywords will give the filters an incurable case of machine anxiety — but all of them together? Forget it.

And the real kicker, none of that automation solved any of the "issues" that lawmakers insisted they were solving in the first place. And the key point in all of this: in deciding that bad stuff on the internet was the fault of big internet companies, you inevitably lock in those giants:

But instead, we decided to vest the platforms with statelike duties to punish them for their domination. In doing so, we cemented that domination. Only the largest companies can afford the kinds of filters we’ve demanded of them, and that means that any would-be trustbuster who wants to break up the companies and bring them to heel first must unwind the mesh of obligations we’ve ensnared the platforms in and build new, state-based mechanisms to perform those duties.

It's a good, fun, readable vision of the world we're currently heading for based on EU regulations and some of the nonsense being suggested regarding Section 230 today.

The really annoying part is how little those who are pushing these regulations seem to realize what they're doing. Everyone is so focused on Section 230 these days as if it's the only "lever" they have to pull in regards to their complaints (some of which are totally reasonable) about the big internet companies. Very few of them bother to consider how all of this plays out -- which is why it's great that Cory is doing so. Of course, those who don't want to recognize what will happen don't seem to care. I've seen a few people dismissing the story as "fiction," which kind of misses the point. Hilariously, they're doing so on social media platforms enabled by the laws that these people are now trying to kill.

Filed Under: broadcast, communications, cory doctorow, filters, gatekeepers, intermediary liability, op-ed from the future, permission

Dear Kara Swisher: Don't Let Your Hatred Of Facebook Destroy Free Speech Online

from the bad-takes dept

I'll start this post off with a brief story about famed tech reporter Kara Swisher. Many, many years ago, she reached out to me and suggested we meet up for some reason or another (I honestly don't remember why). I went to her house in San Francisco and we walked to a fancy nearby coffee shop where she insisted on telling me exactly what type of coffee I should get.

Here's the thing: I don't drink coffee. I can't stand the stuff.

However, Swisher is such an incredible force of nature that I felt like I literally had no choice but to order the coffee that she recommended. I ordered it and drank (a bit of) it. And I'm not exactly a shrinking violet when it comes to expressing my own opinions on things.

That is to say, Swisher is not just strongly opinionated, she has a way of convincing lots of other people that her opinions should be theirs as well. And that's a really powerful ability, and one that Swisher has wielded well over the past few decades -- especially in calling bullshit on dumb tech ideas and policies. We need someone like Swisher holding tech companies accountable.

However, what happens when Swisher's opinion is a bad one? She recently has become so focused on attacking Facebook (in some cases for good reasons) that her thinking on the company is going to cause an awful lot of harm to not just other reporters, but to free speech and the open internet. Last month I was shocked to find Swisher proactively cheering on government censorship in Sri Lanka, after the country blocked Facebook following the terrorist attacks in that country. We pointed out how shortsighted this was, and Trevor Timm from the Freedom of the Press Foundation was even more direct in his criticism, noting how it smacked of Western paternalism, in which "we" can handle free speech, but poor people "over there" somehow can't.

Arguments like Swisher’s smack of “otherism” and paternalism — ordinary Sri Lankans aren’t sophisticated enough to deal with these problems, we know better than they do, and we must trust their political leaders. It’s akin to the tired arguments made by many in the U.S. national security community that people in the Middle East “can’t handle” democracy. It’s insulting.

Unfortunately, it appears that Swisher is continuing to argue for more and more censorship-by-Facebook -- a company that she herself admits we cannot and should not trust. Her latest opinion piece at the NY Times, bizarrely, goes beyond just attacking Facebook to mistakenly attacking Section 230 of the CDA as well.

The story involves the latest "big controversy" on Facebook, in which some trolls have been posting slightly doctored videos of House Speaker Nancy Pelosi, slowed down and (sometimes) edited, to make her appear to be slurring and stumbling over words. The videos have been getting passed around among Trump supporters -- and Trump himself retweeted one of those doctored videos when it was featured on Fox News. There are plenty of reasons to decry the whole mess, as it's a form of disiniformation and propaganda. After people called out Facebook about the video, the company proceeded to include a flag on the video, noting that it had been doctored, and downgrading the ability of the video to be spread more widely, but refusing to take it down entirely.

Many, many people (including Swisher) still disagree with this choice, arguing that since the video is being used for blatant propaganda and disinformation, it should be removed from Facebook entirely. Where you come down on this question may differ depending on where you sit. But Swisher goes beyond that, bizarrely (and ridiculously -- and incorrectly) blaming Section 230 for this situation:

Would a broadcast network air this? Never. Would a newspaper publish it? Not without serious repercussions. Would a marketing campaign like this ever pass muster? False advertising.

No other media could get away with spreading anything like this because they lack the immunity protection that Facebook and other tech companies enjoy under Section 230 of the Communications Decency Act. Section 230 was intended to spur innovation and encourage start-ups. Now it’s a shield to protect behemoths from any sensible rules.

This is wrong on so many levels that it makes me wonder where Swisher is getting her information from. Section 230 is what allows Facebook to flag and "demote" this video in the first place. Without it, the company would be held liable for any of the moderation choices it made (see: Stratton Oakmont v. Prodigy, the law that inspired CDA 230 and which CDA 230 explicitly overrules).

Without a CDA 230, platforms are incentvized to do one of two things: either look the other way and ignore basically all content, so as not to be held liable (which would make the situation Swisher is complaining about even worse), or to basically block almost everything that might possibly be controversial, meaning tons of perfectly legal and important speech would get blocked. This is not a good solution -- and certainly not one that a reporter should be advocating for.

Also, her analysis is simply incorrect. First of all, the claim that "no media could get away" with this is proven incorrect by the fact that Fox News did, in fact, spread one of these videos. And if anyone sued Fox over this, it would win on 1st Amendment grounds. And there have not been "serious repercussions." Unless you count whatever the fuck this tweet from Rudy Giuliani was supposed to say:

Second, the point of CDA 230 is that the internet does not work like a news publication. There is no "editor" who reviews what goes up, because it's a communications medium, like the telephone. We don't expect AT&T to monitor everything everyone says on the telephone (I mean, the NSA may expect it, but most people are rightfully horrified by this concept), so why should we expect the same here?

Some, including Swisher probably, would argue that they're not asking for just ditching CDA 230, but amending it to require some sort of "responsibility". But that also opens up massive questions -- ones that Swisher seems unprepared to deal with. As the UN's expert on free expression, David Kaye, suggested, just try to come up with rules that would force Facebook to remove the Pelosi video but wouldn't then end up being used against dissent, humor, satire or other forms of protected speech:

Or, to be even more to the point, the EFF's Jillian York noted that if you're going to require that Facebook face responsibility for "disinformation" -- or even disinformation that leads to harm -- how exactly is Facebook expected to deal with religious information:

For quite some time now, we've been talking about the "impossibility" of doing content moderation at scale well. There are always going to be disagreements. But Section 230 is what allows for experimentation. People can (and should) criticize Facebook when they think the company made the wrong call, but to blithely toss Section 230 under the bus as the reason for Facebook failing to meet her own exacting standards, Swisher is actually throwing the open internet and free speech under the bus instead. It's a horrifically bad take, and one that Swisher should know better about.

And, if Swisher, wants, I'm happy to discuss this with her in more detail. Perhaps over a cup of tea.

Filed Under: 1st amendment, cda 230, content moderation, free speech, gatekeepers, kara swisher, nancy pelosi, section 230, social media
Companies: facebook

A Century Ago We Killed The Radio Commons; Don't Let The EU Do That To The Internet

from the a-history-lesson dept

As the EU gets set to vote on the EU Copyright Directive, it seemed like a good time for a little history lesson. Many people don't know this, but in the early days of radio, it was not just considered a broadcast media. It was considered an open commons for anyone to use. The airwaves were the public airwaves, and the public was free to use them:

It’s easy to forget that the broadcasting airwaves are—and once were treated as—a commons, owned by citizens, not powerful media companies.

At the dawn of the broadcasting era, the free market prevailed. The government set no rules. The 1912 Radio Act authorized the federal Commerce and Labor Department to issue radio station licenses to U.S. citizens upon request. Which it did...

Admittedly, as that article notes, this created some amount of chaos, mainly because the spectrum got too crowded, and there was widespread interference between different signals that made the whole space a mess. Over time, laws were put in place to "regulate" the wild west, but what happened was we turned what had been an open commons into a locked up space where only giant media companies could prevail. The US, at the very least, decided that the way to deal with this wild west was to treat spectrum as a property right that could be "licensed." And in doing so it set things up such that large broadcasters could collect many licenses and dominate markets.

What had been the open spaces of the public to use for a variety of creative endeavors turned into a locked down space for giant corporations.

While there are some notable differences, the attempt by the EU to pass Article 13 is truly an attempt to replay this unfortunate scenario nearly a century later. There was a good rationale for radio regulations in the past -- dealing with all of the interference that made using radio difficult -- and as one 1927 academic so succinctly put it: "highly annoying and almost destructive."

But, of course, we lost something when we went from an open radio system for the public to use to one that was locked up among just a few corporations. And the wonderful thing about the internet was that we didn't have the same limitations. There is no "interference" like there is with more limited radio spectrum. And while there are reasonable questions about companies dominating parts of the internet, others are not completely locked out as they were in radio.

Unfortunately, the entire design of the EU Copyright Directive is an attempt to do the same sort of thing to the internet: to lock it down. The EU Copyright Directive -- in particular Articles 11 and 13 -- are designed to make the internet a bland corporate broadcast medium dominated by a few giant companies. This dismisses the roots of the internet as a commons-based communications medium that anyone can use.

The very structure of Article 13 makes this clear. The demand that everything must be "licensed" on internet platforms makes no sense. Do you "license" content in order to communicate with your friends? Do you license a song to sing? Do you license it when you quote from a book? Licensing is not necessary for communication -- it is only necessary for "broadcast." This is the core problem that the legacy gatekeepers have with the internet. It's a communications medium, and they come from the broadcast era. Their entire structure is built off of licensing to broadcasters. And rather than recognize that everything has changed, their only play is to try to shove the internet into a similar broadcast structure.

We killed off the open commons of radio nearly a hundred years ago. Hopefully the EU chooses not to do the same to the internet this year.

Filed Under: article 11, article 13, broadcast, commons, communications, copyright, creativity, eu, eu copyright directive, eu parliament, gatekeepers, radio

EU Gives Up On The Open Web Experiment, Decides It Will Be The Licensed Web Going Forward

from the this-is-bad dept

Well, this was not entirely unexpected at this point, but in the EU Parliament earlier today, they voted to end the open web and move to a future of a licensed-only web. It is not final yet, as the adopted version by the EU Parliament is different than the (even worse) version that was agreed to by the EU Council. The two will now need to iron out the differences and then there will be a final vote on whatever awful consolidated version they eventually come up with. There will be plenty to say on this in the coming weeks, months and years, but let's just summarize what has happened.

For nearly two decades, the legacy entertainment industries have always hated the nature of the open web. Their entire business models were based on being gatekeepers, and a "broadcast" world in which everything was licensed and curated was perfect for that. It allowed the gatekeepers to have ultimate control -- and with it the power to extract massive rents from actual creators (including taking control over their copyright). The open web changed much of that. By allowing anyone to publicize, distribute and sell works by themselves, directly to end users, the middlemen were no longer important.

The fundamental nature of the internet was that it was a communications medium rather than a broadcast medium, and as such it allowed for permissionless distribution of content and communication. This has always infuriated the legacy gatekeepers as it completely undermined the control and leverage they had over the market. If you look back at nearly every legal move by these gatekeepers over the last twenty five years concerning the internet, it has always been about trying to move the internet away from an open, permissionless system back towards one that was a closed, licensed, broadcast, curated one. There's historical precedence for this as well. It's the same thing that happened to radio a century ago.

For the most part, the old gatekeepers have not been able to succeed, but that changed today. The proposal adopted by the EU Parliament makes a major move towards ending the open web in the EU and moving to a licensed, curated one, which will limit innovation, harm creators, and only serve to empower the largest internet platforms and some legacy gatekeepers. As Julia Reda notes:

Today’s decision is a severe blow to the free and open internet. By endorsing new legal and technical limits on what we can post and share online, the European Parliament is putting corporate profits over freedom of speech and abandoning long-standing principles that made the internet what it is today.

The Parliament’s version of Article 13 (366 for, 297 against) seeks to make all but the smallest internet platforms liable for any copyright infringements committed by their users. This law leaves sites and apps no choice but to install error-prone upload filters. Anything we want to publish will need to first be approved by these filters, and perfectly legal content like parodies and memes will be caught in the crosshairs.

The adopted version of Article 11 (393 for, 279 against) allows only “individual words” of news articles to be reproduced for free, including in hyperlinks – closely following an existing German law. Five years after the ‘link tax’ came into force in Germany, no journalist or publisher has made an extra penny, startups in the news sector have had to shut down and courts have yet to clear up the legal uncertainty on exactly where to draw the line. The same quagmire will now repeat at the EU level – no argument has been made why it wouldn’t, apart from wishful thinking.

This is a dark day for the open internet in the EU... and around the world. Expect the same gatekeepers to use this move by the EU to put pressure on the US and lots of other countries around the world to "harmonize" and adopt similar standards in trade agreements.

I know that many authors, musicians, journalists and other content creators cheered this on, incorrectly thinking that was a blow to Google and would magically benefit them. But they should recognize just what they've supported. It is not a bill designed to help creators. It is a bill designed to prevent innovation, lock up paths for content creators to have alternatives, and force them back into the greedy, open arms of giant gatekeepers.

Filed Under: article 11, article 13, broadcast, copyright, eu copyright directive, gatekeepers, internet, license, link tax, open web, permission, upload filters

The Constant Pressure For YouTube To Police 'Bad' Content Means That It's Becoming A Gatekeeper

from the this-is-unfortunate dept

For many, many years we've talked about how people were wrong to say that the internet "cut out middlemen" because there are still plenty of middlemen around. Instead, what was important was that the type of middlemen were changing. Specifically, we were moving from an age of gatekeepers to an age of enablers. And the difference here is profound. Gatekeepers keep out most people who want to use their platforms. Think: record labels or movie studios. Most people who wanted to become musicians just a couple of decades ago were not able to. Record labels would not sign them, and without a recording deal, your chance of making any money was just about nil. A few people were signed, a very few of those that signed would make lots of money, the rest would make a little money, and everyone who didn't sign would make basically nothing. The "curve" of how much money people made trying to become musicians was not very smooth. You had a few at the top end, and a giant cliff down to basically zero if you couldn't get past the gatekeeper.

But the internet changed that in a massive way. Anyone could start using the various internet platforms to release their content, to build an audience, and to make some money. There remain complaints from some that the amount most users make isn't very much, but that ignores that under the previous gatekeeper system, that amount was almost certainly zero for the vast majority of people who wished to make money from their creative endeavors. With various internet services -- Kickstarter, Patreon, Spotify, YouTube, etc. -- artists could at least make more than zero.

There has been some fear that yesterday's enablers would turn into tomorrow's gatekeepers. Unfortunately, one of the most disturbing aspects of what's happening with the internet these days is that more and more people seem to be pressuring these enabling services to become gatekeepers and to lock out smaller creators, out of this new fear that some people shouldn't be allowed to use these platforms to make any money at all.

Case in point: YouTube has recently announced new rules around creator monetization, which basically say you need to be pretty popular before you can become a partner who can monetize your videos.

After careful consideration and extended conversations with advertisers and creators, we’re making big changes to the process that determines which channels can run ads on YouTube. Previously, channels had to reach 10,000 total views to be eligible for the YouTube Partner Program (YPP). It’s been clear over the last few months that we need the right requirements and better signals to identify the channels that have earned the right to run ads. Instead of basing acceptance purely on views, we want to take channel size, audience engagement, and creator behavior into consideration to determine eligibility for ads.

That’s why starting today, new channels will need to have 1,000 subscribers and 4,000 hours of watch time within the past 12 months to be eligible for ads. We will begin enforcing these new requirements for existing channels in YPP beginning February 20th, 2018.

The company flat out admits that this is to stop those who somehow don't deserve to make money from getting paid, and also to appease advertisers:

There’s no denying 2017 was a difficult year, with several issues affecting our community and our advertising partners. We are passionate about protecting our users, advertisers and creators and making sure YouTube is not a place that can be co-opted by bad actors. While we took several steps last year to protect advertisers from inappropriate content, we know we need to do more to ensure that their ads run alongside content that reflects their values. As we mentioned in December, we needed a fresh approach to advertising on YouTube.

That "December" link was a YouTube post responding to the widespread controversy over YouTube star Logan Paul's immature and disrespectful videos in Japan and in particular, showing (and basically laughing at) the body of someone who had committed suicide in Aokigahara. And, indeed, many see these new changes to YouTube monetization as a direct response to the Logan Paul debacle -- even though these rules wouldn't have made a difference for Paul. Indeed, Paul's immature antics were a large part of what made him a YouTube star along with his brother (who some argue is even more immature -- and perhaps even more popular).

So, really, these changes seem to be an attempt to appease advertisers rather than YouTubers (who don't seem very happy about this). But, in doing so, YouTube takes a pretty big step from that enabler category into the gatekeeper cateogry. It's not all the way to the extreme of the record labels, of course. There are clear, stated, quantifiable metrics here. But it does move that "cliff" in the monetization scheme, such that those who are just starting out, or who just want to make a few extra dollars, won't be doing so via YouTube.

YouTube, obviously, is free to make that choice. It needs to appease increasingly angry advertisers who don't want their ads showing up in "controversial" places. So that's understandable. But, it's also... a bit sad. The power and excitement many of us felt for what the internet enabled was the fact that it allowed people to make use of these platforms to create, distribute, promote, communicate and monetize without any real gatekeepers. And that's changing.

Filed Under: advertising, advertising revenue, enablers, gatekeepers, logan paul, middlemen, partners, youtube
Companies: google, youtube

Cards Against Humanity's Trolling Of Trump's Border Wall Shows How The Internet Has Removed Gatekeepers

from the trump-card dept

I suppose because too many of my fellow citizens in America have devolved into hyper-partisan rage-beacons, I have to issue the following stupid caveat that I shouldn't have to issue at all: this post is not a commentary on Trump's border wall policy. Great. I'm sure that will keep our comments free and clear of anyone insisting otherwise. With that being said, a common topic we discuss here is how one of the chief benefits of the internet is how it has removed gatekeepers that have long stood in the way of new businesses, or have governed how established businesses do their business. Typically, we have focused on the former, detailing how the internet has allowed for new players in everything from the entertainment industry to products that would have previously existed solely at the pleasure of brick and mortar retail stores.

But this post is about the latter. You may have heard about the viral video making the rounds from the folks behind the hit card game Cards Against Humanity. If you haven't, here it is.

I have to admit, the video is really well done. If nothing else, it serves to remind us that content is advertising and advertising is content.

But it's also true that a campaign that essentially trolls the sitting American President by buying a piece of land where his proposed border wall is going to go and then vowing to defend that land legally for as long as possible is controversial to say the least. Some not inconsequential percentage of Americans -- and, likely, our readers -- think that the border wall is good policy. Some other percentage do not. Whatever you might think, it should be clear that this campaign is likely to piss off some decent chunk of the company's potential customer base. Why the company wants to do this is a valid question, but I'd like to point out why they can do this.

Given the nature of the game, the company has no problem being a bit brash, and because they are self-owned, and don't rely on big box stores to push their product, the company can get away with a bit more.

That's putting it mildly. It's nearly impossible to envision the company taking so staunch a political stance as this were it forced to rely on traditional retail stores, which would likewise feel backlash from supporters of the border wall. You likely have already imagined how many calls there would be on retailers to drop the product if this happened, except it's more likely that the folks behind Cards Against Humanity never would have done this in the first place, save for their ability to sell directly to consumers via the internet.

Political stances are also not a new habit for the company. It's even addressed on the company's FAQ page on its website.

On its FAQ page for the new expansion, one question asks: I don't like that you're getting political. Why don't you just stick to card games?

Their answer? "Why don’t you stick to seeing how many Hot Wheels cars you can fit up your asshole?"

My kind of people, obviously. Again, whatever your political leanings, it's worth recognizing how any company is now more free to engage in controversial behavior like this simply because the gatekeepers are gone and the internet reigns.

Filed Under: card games, cards against humanity, gatekeepers, politics