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

President Obama: I'm A Big Believer In Strong Encryption... But...

from the let's-drop-the-but-part dept

Last Friday, at the White House's Cybersecurity Summit at Stanford, reporter Kara Swisher sat down for a half-hour interview with President Obama (and she even dragged her famous red chairs along). It's a better, more in-depth interview than you're ever likely to see from the established mainstream press, and touches on a variety of issues regarding technology and security. While I don't agree with some of the answers, I will say that the President appears to be extremely well-briefed on these issues, and didn't make any totally ridiculous or glaringly misleading remarks. You can see the whole interview here: In it, he admits that the "Snowden disclosures" (as he calls them) hurt "trust" between DC and the tech industry, and admits that the government has been "a little slow" in updating the laws for how the NSA operates online. However, he does say that surveillance on US persons is very carefully controlled and that he can say "with almost complete certainty that there haven't been abuses on US soil." He admits that's not entirely the case overseas, where there are basically no limits on the NSA's surveillance, and he recognizes that needs to change. Of course, if that's the case, he can do that right now -- because the NSA's authority for all of that is an executive order, 12333, and he could revoke it and write a new one. But he hasn't.

Then he gets to the area I found most interesting and want to focus on, the question of encryption. After discussing how he's looking to update the rules for surveillance and his relationship with tech, the interview proceeds like this:

Obama: There's still some issues like encryption...

Swisher: Let's talk about encryption.

Obama: ... that are challenging, and that's something that's been brought up...

Swisher: What's wrong with what Google and Apple are doing? You have encrypted email.

Obama: Absolutely.

Swisher: Shouldn't everybody have encrypted email and have their protections?

Obama: Everybody should. And I'm a strong believer in strong encryption. Where the tension has come up, is historically what's happened is that... let's say you knew a particular person was involved in a terrorist plot, and the FBI is trying to figure out who else are they trying to communicate with to prevent the plot. Traditionally, what's been able to happen is they get a court order, the FBI goes to the company, they request those records, the same way they'd go get a court order to request a wiretap. The company technically can comply.

The issue here is, partly in response to consumer demand, partly in response to legitimate concerns about consumer privacy, the technologies may be built to a point where, when the government goes...

Swisher: They can't get the information.

Obama: ... the company says "sorry, we just can't pull it. It's so sealed and tight that even though the government has a legitimate request, technologically we cannot do it."

Swisher: Is what they're doing wrong?

Obama: No. I think they are properly responding to a market demand. All of us are really concerned about making sure our...

Swisher: So what are you going to do?

Obama: Well, what we're going to try to do is see if there's a way for us to narrow this gap. Ultimately, everybody -- and certainly this is true for me and my family -- we all want to know if we're using a smartphone for transactions, sending messages, having private conversations, we don't have a bunch of people compromising that process. There's no scenario in which we don't want really strong encryption.

The narrow question is going to be: if there is a proper request for -- this isn't bulk collection, this isn't fishing expeditions by government -- where there's a situation in which we're trying to get a specific case of a possible national security threat, is there a way of accessing it? If it turns out there's not, then we're really going to have to have a public debate. And, I think some in Silicon Valley would make the argument -- which is a fair argument, and I get -- that the harms done by having any kind of compromised encryption are far greater than...

Swisher: That's an argument you used to make, you would have made. Has something changed?

Obama: No, I still make it. It's just that I'm sympathetic to law enforcement...

Swisher: Why? What happened? Because you were much stronger on...

Obama: No, I'm as strong as I have been. I think the only concern is... our law enforcement is expected to stop every plot. Every attack. Any bomb on a plane. The first time that attack takes place, where it turns out we had a lead and couldn't follow up on it, the public's going to demand answers. This is a public conversation that we should be having. I lean probably further in the direction of strong encryption than some do inside law enforcement. But I am sympathetic to law enforcement, because I know the kind of pressure they're under to keep us safe. And it's not as black and white as it's sometimes portrayed. Now, in fairness, I think those in favor of air tight encryption also want to be protected from terrorists.

Swisher: True.

Obama: One of the interesting things about being in this job, is that it does give you a bird's eye view. You are smack dab in the middle of these tensions that exist. But, there are times where folks who see this through a civil liberties or privacy lens reject that there's any tradeoffs involved. And, in fact, there are. And you've got to own the fact that it may be that we want to value privacy and civil liberties far more than we do the safety issues. But we can't pretend that there are no tradeoffs whatsoever.

I actually think this is a very good, nuanced answer to this issue. It doesn't descend into hyperbole about child predators and ticking time bombs like law enforcement officials have done. He admits that there are tradeoffs and, at least publicly, seems to be willing to admit that stronger encryption without compromise might be the best solution.

Of course, where we're left with questions is about his requested "public debate." Where and how is that happening? Because, to date, the only noise on this issue coming out of his administration has been on the other side, pushing for new legislation that would require backdoors and compromise encryption. We haven't seen anyone in the administration presenting the other side at all. And, for those of us who strongly believe that a basic cost/benefit analysis of weakening encryption vs. letting law enforcement do their job through traditional detective work would show that the "costs" of weakened encryption vastly outweigh the "threats" of criminals getting away with stuff, it would be nice to see the government at least recognizing that as well.

President Obama chides civil liberties and privacy folks for not getting that there are tradeoffs here, and I don't think that's accurate. Most do recognize the tradeoffs. It's just that they believe the true benefit in terms of "stopping criminals" to weakening encryption is not very great, while the cost to everyone in risking their own privacy is massive. What we have not seen is any indication that law enforcement recognizes that there are tradeoffs, or that they care. Yes, as the President admits, they're weighing some of this against "not getting blamed" when an inevitable "bad event" happens -- but they don't seem to be willing to recognize, at all, the risks to everyone's privacy. That's why they keep talking about golden keys and magic wizards who can make special encryption that only good guys can use.

So I'm glad that the President at least seems to recognize this is a nuanced issue with tradeoffs, but I wish that others in his administration, especially from the law enforcement side, were willing to recognize that as well.

Filed Under: barack obama, cybersecurity, encryption, kara swisher, law enforcement, mobile encryption, national security, president obama, privacy, security, surveillance

Update On The Free Summit: Speakers Announced

from the update dept

Wanted to give everyone an update on The Free Summit that I'll be emceeing next month. We've lined up most of the speakers, so check out the agenda. As already mentioned, Chris Anderson will be doing the keynote, talking about some of the concepts from his new book on "Free" (I'm reading it now -- and it's great). There will also be two panels that should be quite interesting. One of the things that we wanted to ensure was that the panels we put together didn't just involve people who all agreed with each other (or with me, certainly), so that the discussion would remain quite interesting. So, on the panel about music, we're having Jim Griffin (who I've certainly clashed with in the past) from Choruss, the major record label-backed attempt to come up with a new business model for licensing music, Gigi Sohn from Public Knowledge, the public advocacy group that has taken a strong pro-consumer position on copyright issues, and Dave Allen from the seminal band Gang of Four, a big advocate of "free," and who now helps plenty of other bands learn how to embrace and profit from "free." It should be an exciting discussion.

We've also got a panel on the news business, involving Kara Swisher from AllthingsD/Dow Jones, Dan Gillmor, the director of the Knight Center for Digital Media Entrepreneurship as well as one of the first "old school" reporters to jump on the participatory media bandwagon, Alan Mutter, a journalism professor/investor/entrepreneur/former reporter who's been a vocal critic of newspapers' decision to go free online (calling it "the original sin") and Marshall Van Alstyne, an economics professor from Boston University and MIT who has studied information economics and who recently debated with Mutter and others on the Freakonomics blog about news organization business models. There will also be a session from Alex Iskold (another person I've disagreed with in the past) who will be presenting on "the dangers of free."

What's great about this is that it really is a mix of folks with (sometimes starkly) different opinions -- but who all believe quite strongly in their positions and are willing to discuss and defend them. I'm hopeful that what comes out of all of this will be some great new insights from all sides about what "free" means in terms of business models and economics today.

Finally, we're excited to announce that, as a part of this, we'll be including a mini-Techdirt Greenhouse at the beginning of the event. For those who have followed Techdirt for a while, you may recall we ran a series of "idea workshops" called the Techdirt Greenhouse, where individuals would do short, 5-minute presentations not as a "demo," but to discuss a challenge they were facing -- and then we broke up the audience into workgroups to take on those challenges and come up with ideas/plans/suggestions. Those events were a lot of fun, and we received a ton of great feedback. We've been meaning to start them up again (and we still get emails from attendees demanding we do so), but have been too busy to focus on them -- so this is a good way to sneak in a mini-Greenhouse, and also get us geared up to do a full Greenhouse again in the near future. In this mini-Greenhouse, we'll be focusing on the challenges associated with using "free" in a business model. It should be a lot of fun...

Filed Under: alan mutter, alex iskold, chris anderson, dan gillmor, dave allen, free summit, gigi sohn, jim griffin, kara swisher, marshall van alstyne, speakers