Do Your Part, Rights Holders: Open The Vaults!

from the help-the-people-out dept

For those who can stay at home, please do. We've all been advised to socially distance -- the safest thing anyone can do in their individual capacity.

Of course, stir craziness can set in quite easily. (I'm stuck in my apartment with my dog, and while he's good company he's not much for conversation.) This is a great time to catch up on all of the books, shows, movies, and video games you've been meaning to read, watch, play, etc.

While each of us is doing our part to stay indoors, rights holders can do their part to make these trying times a little less tedious for the home-bound. How? By making their content freely available for streamers and downloaders.

So we're clear, I'm not talking about independent artists or those who rely on touring income. These folks are most certainly going to take a hit, and would hopefully be covered by any kind of broad-based stimulus that comes from Congress. (This would also be an excellent time to consider Dean Baker's proposal to give every American a creative works tax credit to donate to an artist of their choosing. To qualify, the artist would have to make their works public domain).

No, I'm talking about the collectors of passive income, those who actually hold the rights to the content: Disney, Netflix, CBS, NBC, Amazon, etc. Rights holders for video games, like Bethesda Studios, Paradox, EA, and Activision could also help. Even if they don't want to release relatively new titles, this would be a great time to make older games free for all to stream, download, and play. Audible should also give everyone a few free downloads, and a few free months of Kindle Unlimited would go a long way.

Now would also be a great time to release the directors' cuts or other deleted scenes that never made it to the theater or online. I personally would love to see the older versions of Rogue One or the rumored J.J. Abrams's cut of The Rise of Skywalker, and I'm sure there are lots of other clips left on the cutting room floor that fans would love to hear.

More controversially, I implore all major rights holders to forgo prosecutions for torrenting, streaming, and other forms of infringement during these times. If illegally streaming keeps someone indoors, then let them stream.

The penalties for copyright infringement are astronomical and disproportionate, and simple peer-to-peer file sharing should be decriminalized in the first place (large torrenting sites and streamers are a separate case). But now is not the time for that -- a lot of people need just a little bit of joy, and the owners of infringed copyrights must appreciate this.

This is especially true when it comes to going after YouTubers and other online commentators who must make use of others' content when producing their own. A great deal of their use is fair to begin with, but dealing with a 512 notice or copystrike is the last thing they need on their minds.

This is a time where everyone must sacrifice both for their own personal safety and the safety of others. Rights holders should pitch in and forgo the benefits of the subsidy that has been given to them to make everyone else's sacrifice a little more bearable.

Filed Under: copyright, covid-19, culture, openness, sharing, vaults
Companies: amazon, cbs, disney, nbc, netflix

FTC's Privacy Settlement With Facebook Gets Pretty Much Everything Backwards; Probably Helps Facebook

from the guys-come-on dept

So, as was leaked a couple of weeks ago, the FTC has now made its $5 billion settlement with Facebook official. There's quite a bit that's interesting in the stipulated order that is worth reading. I'm actually glad to see that this wasn't just about Cambridge Analytica, where I think the "breach" issue was much less concrete. Instead, it does include a bunch of other very real violations by Facebook, including:

1. Storing passwords in plaintext
2. Using phone numbers that were provided for security (two factor authentication) for advertising (a massively dangerous and stupid practice by Facebook)
3. It's questionable use of facial recognition without consent
4. Sucking up logins to other services.

Frankly, all of those are much more serious breaches than what happened with Cambridge Analytica.

Separately, as I discussed two weeks ago, if you're mad at the size of the fine, you're missing the point. This is, by far, the largest fine the FTC has ever issued, and goes way beyond anything that it's done before. The real problem is that this is basically all that the FTC can do. That's the only weapon it has and it's never going to be enough because the FTC isn't really set up to handle modern privacy questions like this -- and that would require a new mandate from Congress. This is in Congress's court.

That said, my bigger concern, as always, is that everyone's obsession over "protecting privacy" is going to mean significantly less competition. I raised this issue last year, soon after everyone freaked out about Cambridge Analytica, noting that I feared what would happen is that Facebook would be driven to lock down everyone's data rather than making it more accessible to third party and competing services.

There are significant and important trade-offs here. For years now I've been talking about the real way to create more competition on the internet, and much of it involves pressuring the big internet companies into opening up. Have them create APIs that allow others to build services on top of their data so that we're not so locked into the giant platforms. Enable more competition at the service level, rather than the data collection level.

But this agreement does the opposite. It is basically giving up and saying that the FTC and regulators now think that Facebook will be the dominant platform for ages, and therefore it needs to better police data and better lock it down. This is not a good solution (except if you're Facebook). As former Facebook CSO Alex Stamos points out in a very thoughtful thread, while this is a slap on the wrist regarding Facebook's problematic privacy practices, it actually helps stop future competition:

The real threat to the tech giants is competition, not regulation, and everybody is missing what really happened today: Facebook paid the FTC $5B for a letter that says "You never again have to create mechanisms that could facilitate competition."

Facebook already has ~2.5B users. It has the world's second largest ad network. It never again needs data from anybody else to make money or third parties to facilitate growth. This order doesn't include the word competition or include any balancing tests. It's fantastic for FB.

"You need to allow for 3rd party clients."

Sorry, mean FTC won't let us.

"Other companies can build on your graph."

Sorry, mean FTC won't let us.

"You need a real data export feature that allows users to move."

Sorry, mean FTC won't let us.

I can't believe Facebook didn't pay more for this. If the FTC offered to "order" Amazon to help consumers save money by offering house branded options in every top category, Bezos would leap across the table with a $10B check and a massive grin. This is a natural consequence of the shallow nature of the "techlash". The US doesn't have a substantive privacy law, and the FTC has to base work on what they consider unfair or misleading practices. If critics don't understand the equities balance, they can't balance equities. This isn't binding on other companies, but it will be interesting to see if they use this as a reason to reduce APIs and favor their own apps. The data stolen and exported to the cloud (GPS, SMS, contacts, mail, calendar) from Android/iOS dwarfs SCL/CA.

This is part of the problem I keep trying to highlight. When your only focus is on punishing big tech companies like Facebook, be careful about how you do so, because there are so many important tradeoffs, that if you don't pay attention to what you're doing, all you really end up doing is locking them in as the dominant platforms.

And that's really what's happening there. Our lack of understanding about privacy or about data and "ownership" will lead people to a very dangerous place, where we make short term decisions -- such as what happened here -- that are focused on "punishing" one particular set of companies for one particular set of actions (many of which were really bad). But the end result is even worse. You've set up the system such that the only logical and reasonable way out of this bad situation is foreclosed.

The best way out of Facebook's dominance is to have it give up total control over the data it collects. But, here, the FTC has done the reverse. It has given Facebook more control over the data it collects in the name of "protecting" privacy. This is backwards. Rather than saying that Facebook shouldn't be the one protecting all that data, the FTC is just saying "protect it better, and don't let any other service be allowed to come in and do anything." And that includes the kinds of competitive services that are necessary to eat away at Facebook's position.

I know a lot of people are mad the fine wasn't larger, but the fine doesn't matter. All that really matters is whether or not competitive services are enabled or not, and this agreement forecloses the best way to actually chip away at Facebook's market position. And that's the real shame.

Filed Under: apis, competition, fines, ftc, openness, privacy, regulations, settlement, sharing
Companies: facebook

Both Things Are True: Press Freakouts Over Facebook's Practices Have Been Misleading & Facebook Has A Privacy Problem

from the facebook-derangement-syndrome dept

And so we're back with Facebook Derangement Syndrome. As we've noted a few times in the past, many of the freakouts about Facebook's privacy practices involve completely misunderstanding or exaggerating the nature of what Facebook did -- and presenting things not just in the worst possible light, but in an actively misleading way. This is especially true in the context of privacy questions, where many people seem to interpret Facebook's good decisions not to lock down YOUR OWN access to your own data as a bad thing and then pressure the company to lock up access to your own data, limiting what you can do with it.

Of course, there is some amount of inherent conflict between open systems and privacy. Indeed, going back eleven years, we had a post highlighting the potential privacy conflicts of Facebook's "open social graph." And, of course, at the time, Facebook was celebrated for being so open and not locking up everyone's data, but enabling it to be used more widely in other systems.

And that brings us to this week's big NY Times story on Facebook. As we already discussed, what it really highlighted is what a terrible job Facebook does in being open and transparent about how it uses data. But we were also left with some questions about some of the claims in the NYT report, especially regarding the claims that other companies had access to messages.

As more people have looked at it, it increasingly appears that the NY Times reporting on this was really, really bad and contributed to the hysteria, rather than improving understanding. The companies that had access to Facebook messages involved software integrations where those third party apps allowed you to directly access Facebook Messenger from those apps -- in the same way that if you want to use Facebook Messenger on your mobile phone, you have to give that phone access to your messages so that... you can use FB Messenger.

As Mathew Ingram notes in an article about this, early on, many people rightfully celebrated Facebook's open approach, which involved the opposite of locking down data, but purposefully exposing it to make the rest of the internet more useful. It was the kind of openness and open integration most people used to celebrate. It was the opposite of building a locked box silo of your data.

Will Oremus, over at Slate, further notes that the integrations Facebook is now being slammed for in the Times were ones that people were happy about in the past, though, perhaps naively.

The companies’ Facebook integrations simply allowed existing customers to log into their Facebook accounts from within the streaming app and use its messaging features without having to navigate to Facebook proper. It’s the sort of arrangement that looks foolhardy or even sinister today but that many internet users took for granted at the time.

I know that because I was one of them. I thought nothing of using Facebook to log into Spotify, because I naïvely trusted Facebook to guard my data, probably more so than I trusted Spotify. I even tested for a while a Mozilla Firefox feature that brought a Facebook feed directly into your browser, as a sidebar, so that you could see what your friends were up to even when you were on other websites. It eventually dawned on me that this was imprudent, and certainly there were some activists at the time who were sounding alarms, but it was hardly a scandal.

None of that is to say that Facebook doesn't have serious problems. As I wrote when the NY Times piece first came out, the company seems to trip over itself to be sneaky and combative in explaining all of this, and it has always done a terrible job of transparently explaining how the data is and can be used.

But we should be focusing on the real issues regarding our privacy online, rather than cooking up bogus issues to argue about. When we focus on the wrong things, inevitably, whatever "solution" is proposed will make things much, much worse.

And, again, there are real issues here. Facebook letting Amazon look at who you know to determine whether or not reviews are allowed... that's a problem. No one was told about that. And that wasn't just about creating integrations to help users do something. That was a questionable sharing of information with a corporate partner, without user permission.

So, we should be able to admit that Facebook has a real privacy problem (and perhaps an even bigger transparency/honesty problem), without immediately jumping on every conspiracy theory about Facebook, when many are not actually accurate.

Filed Under: data, integrations, journalism, openness, privacy, reporting, silos
Companies: facebook

Brief To FISA Court Says The Presumption Of Openness Should Apply There, Too

from the it's-a-court,-not-a-wing-of-the-NSA dept

The court system belongs to the people. That's what a "presumption of openness" means. It's a public system, accessed by the public or by representatives of the public. With rare exception, documents filed with the court system should be made available for viewing by the public.

The FISA court, which oversees a multitude of surveillance programs and national security investigations is a closed book. Until very recently, it operated in total darkness, much like the agencies seeking its approval for surveillance. The Snowden leaks changed that, moving it very slightly closer to a presumption of openness.

The Director of National Intelligence -- nodding towards transparency in a mostly self-serving way -- has begun to declassify orders and rulings from the FISC. But a majority of FISC documents released by the ODNI haven't come from this hesitant step towards transparency. They've been forced out the government's hands by numerous FOIA lawsuits.

Access to court documents shouldn't have to be litigated, even in the FISA court. That's the argument being made by Georgetown professor Laura K. Donohue in her FISA court brief [PDF]. The long, very interesting brief covers a number of issues and government arguments, but it all boils down to public access as a presumption, rather than a grudging concession after a courtroom loss in a FOIA case.

Her brief note the FISA court controls the documents submitted to it and the orders/opinions it issues. When it decides its subservient to surveillance agencies and their national security assertions, the system of checks and balances is thrown out of whack. That's what's happened over the 40 years the court has been in operation. Government agencies and a number of administrations have decided it does not have the discretion to handle the release of court documents.

This is obviously wrong. Donohue's brief sets the stage with a dismantling of the government's opacity arguments -- all designed to override the court's inherent authority to control the release of court documents. [Paragraph breaks added for readability.]

FISC has inherent supervisory authority over its own records and therefore exercises non-statutory jurisdiction over all common law and First Amendment public rights of access. Each of the... arguments offered by the response brief to the contrary fails.

First, the jurisprudence establishes that no statutory cause of action is required for the court to exercise its inherent powers. The court with original jurisdiction over the case oversees all contemporaneous and future motions for access to records. None of the myriad inherent powers cases at issue rely on a separate, statutory cause of action. The FISC would have to rule against the Supreme Court, every circuit, and four prior decisions of the FISC, to find for the government…

There's plenty of precedent to be had but the government wants to ignore it. Instead, it would rather funnel access through the FOIA process so it can retain complete control over documents filed in court, claiming the court's power for itself. But the government also wants it both ways and will "allow" the FISC to control court documents if it seems like a better route for an FOIA denial.

FOIA cannot serve as a substitute for judicial action as it does not (because it cannot) create a cause of action for records held by the judiciary. That statute focuses exclusively on agency records. Regardless of whether the executive branch happens to have judicial records in its files, as the Supreme Court has held, courts retain jurisdiction over their own documents.

The government response brief is further in tension with two arguments that the government has elsewhere raised. In both district court and at the FISC, it has argued that even under FOIA, FISC opinions are still subject to the FISC's control, suggesting that the court does, in fact still retain jurisdiction. Perhaps more concerning, the government has gone into district court and argued that because the FISC is a specialized court, the district court should not exercise jurisdiction over FISC records-an argument at odds with the argument it advances in its representations to this court, where it suggests that (non-specialized) district courts have jurisdiction over FISC documents.

The presumption of openness and disclosure should include the FISA court. The American public has a right to know what the government's doing with its money and its tacit approval. If there are national security concerns, they must be explicitly detailed rather than broad-brushed across a stack of documents. The FISC should ensure the government doesn't cut corners on its redaction paperwork.

And that's the very reason redacting exists. The government could allow the release of documents as soon as they're redacted (after making their case in court) to protect national security interests. Opening up the FISA court doesn't mean exposing a long list of surveillance means and methods. It simply means treating the FISA court like any other federal court where documents and dockets can be viewed by the public to better educate themselves on legal processes, issues, and government activities. Considering the NSA's long history of abuses, the more eyes on the process the better, especially when its oversight has devolved into a partisan point-scoring exercise.

The never-before-seen release of FISA warrant affidavits should be the tip of the iceberg. There's a lot the court oversees and it's doing it with almost no assistance from the outside. This leaves it at the mercy of the agencies seeking its approval. That's not the way the system should work.

Filed Under: court system, fisa court, fisc, openness, transparency

Microsoft And Nintendo Team Up To Troll Playstation In Ads For Not Giving Gamers What They Want

from the trolling-as-advertising dept

Buckle up, because this seemingly mildly interesting story has a ton of intersections on topics we typically talk about here at Techdirt. As a preface, you should recall that we firmly believe that content is advertising and advertising is content. By this we mean that every bit of content a producer makes serves to advertise that producer's wider content library and that advertisements, in order to be engaging, must be useful and/or entertaining every bit as much as more traditional content typically is. We've also talked a great deal about how content producers in the digital spaces must connect with their fanbases, treat them well, and provide them what they want, or risk backlash. Add to that, finally, that we think restrictive protectionism in the name of wider profits often achieves the opposite of that goal.

Which brings us to Microsoft and Nintendo somewhat suprisingly teaming up to push out a bunch of ads centered on the ability for users of either to crossplay games across both systems.

For those of you who cannot see the video embed, it's an ad put out by both Nintendo and Microsoft pointing out that gamers on both systems can crossplay with one another on some games, including the example shown in Minecraft. Frankly, it's quite jarring to see these combo-ads (there are more) put out by two rivals in the console space. If you weren't well-tuned to the video game industry, you'd probably be left wondering what the hell was going on here.

The answer is that these ads are rather entertaining trolling attacks targeting Sony's Playstation 4, which has been the subject of some recent backlash coming out of E3 over the platform's lockdown on its system's games. While there is pretty much no such thing as a Playstation user that does not want crossplay enabled, and there are many who want it very much, Sony has gone the protectionist route. This is an attempt to convince friends of friends to buy Playstations so that they can play together, I suppose, but it's stupid and awful.

Some of the world's biggest games, from Fortnite to Minecraft to Rocket League, all support some variety of crossplay, allowing people with PCs, Xbox Ones, mobiles and Nintendo consoles to play on the same servers. Yet Sony continues to refuse to allow PlayStation consoles to get in on the fun when it comes to playing with Microsoft or Nintendo consoles.

In the wake of E3 and the disappointment of Fortnite's account locking, then, two of the companies that do allow crossplay have teamed up to take a swing at the PlayStation 4 with this commercial for Minecraft, a game that's also available on PS4.

A couple of reactions. First, Sony made this shit-sandwich for itself by not giving its customers what they want for no other reason than protectionism, so it's not without fun to see them have to eat it up. Second, the combo-ads put out by Microsoft and Nintendo are both useful and, if you enjoy watching huge companies troll one another, fairly entertaining. And the companies have kept this up as a coordinated effort, rather than just limiting it to a one-off video ad.

And the Xbox Twitter account responded, of course, happily saying they're ready to build something together. While this might have flown right past many gamers, enough will realize that both companies are going out of their way to rub Sony's nose in crap to make this all a bit fun. Whether Sony will respond to the ribbing by finally unlocking its garden remains to be seen.

In the meantime, though, this is a great example of advertising as content.

Filed Under: advertising as content, content as advertising, crossplay, games, openness, ps4, sharing, trolling, xbox
Companies: microsofty, nintendo, sony

How 'Regulating Facebook' Could Make Everyone's Concerns Worse, Not Better

from the it's-a-mess dept

In my last post, I described why it was wrong to focus on claims of Facebook "selling" your data as the "problem" that came out over the weekend concerning Cambridge Analytica and the data it had on 50 million Facebook users. As we described in detail in that post, that's not the problem at all. Instead, much of the problem has to do with Facebook's utter failure to be transparent in a way that matters -- specifically in a way that its users actually understand what's happening (or what may happen) to their data. Facebook would likely respond that it has tried to make that information clear (or, alternatively, it may say that it can't force users to understand what they don't take the time to understand). But I don't think that's a good answer. As we've learned, there's a lot more at stake here than I think even Facebook recognized, and providing much more real transparency (rather than superficial transparency) is what's necessary.

But that's not what most people are suggesting. For example, a bunch of people are calling for "Know Your Customer" type regulations similar to what's found in the financial space. Others seem to just be blindly demanding "oversight" without being able to clearly articulate what that even means. And some are bizarrely advocating "nationalizing Facebook", which would literally mean giving billions in taxpayer dollars to Mark Zuckerberg. But these "solutions" won't solve the actual issues. In that article about "KYC" rules, there's the following, for example:

“They should know who’s paying them,” said Vasant Dhar, a professor of information systems at New York University, “because the consequences are very serious.” In December, Dhar wrote an op-ed calling for social media regulation — specifically, something similar to the “know your customer” laws that apply to banks. “The US government and our regulators need to understand how digital platforms can be weaponized and misused against its citizens, and equally importantly, against democracy itself,” he wrote at the time.

Antonio García-Martinez, Facebook’s first targeted ads manager, thinks so too. “For certain classes of advertising, like politics, a random schmo with a credit card shouldn’t just be able to randomly run ads over the entire Facebook system,” he told me.

Except... that has literally nothing to do with what the Cambridge Analytica controversy is all about. And, anyway, as we've discussed before, the Russians bent over backwards to pretend to be Americans when buying ads, so it's not like KYC rules would really have helped for the ads. And the whole Cambridge Analytica may have involved some ads (and lots of other stuff), but Facebook knew who "the customer" was in that instance. And it knew how an "academic" was slurping up some data for "academic research." Knowing your customer wouldn't have made the slightest difference at all here.

Even Tim Berners-Lee, who recently stirred the pot by suggesting regulations for social media doesn't seem to have much concrete information that would have mattered here.

What’s more, the fact that power is concentrated among so few companies has made it possible to weaponise the web at scale. In recent years, we’ve seen conspiracy theories trend on social media platforms, fake Twitter and Facebook accounts stoke social tensions, external actors interfere in elections, and criminals steal troves of personal data.

We’ve looked to the platforms themselves for answers. Companies are aware of the problems and are making efforts to fix them — with each change they make affecting millions of people. The responsibility — and sometimes burden — of making these decisions falls on companies that have been built to maximise profit more than to maximise social good. A legal or regulatory framework that accounts for social objectives may help ease those tensions.

I don't think Tim is wrong per se in arguing that there are issues in how much power is concentrated between a small group of large companies -- but I'm not sure that "a legal or regulatory framework" actually fixes any of that. Indeed, it seems highly likely to do the reverse.

As Ben Thompson notes in his own post about this mess, most of the regulatory suggestions being proffered will lock in Facebook as an entrenched incumbent. That's because it will (a) create barriers that Facebook can deal with, but startups cannot and (b) focus on "cementing" Facebook's model (with safeguards) rather than letting the next wave of creative destruction take down Facebook.

It seems far more likely that Facebook will be directly regulated than Google; arguably this is already the case in Europe with the GDPR. What is worth noting, though, is that regulations like the GDPR entrench incumbents: protecting users from Facebook will, in all likelihood, lock in Facebook’s competitive position.

This episode is a perfect example: an unintended casualty of this weekend’s firestorm is the idea of data portability: I have argued that social networks like Facebook should make it trivial to export your network; it seems far more likely that most social networks will respond to this Cambridge Analytica scandal by locking down data even further. That may be good for privacy, but it’s not so good for competition. Everything is a trade-off.

Note that last bit? A good way to take away Facebook's dominance is to enable others to compete in the space. The best way to do that? Make it easy for people to switch from Facebook to upstart competitors. The best way to do that? Make it easier for Facebook users to export their data... and use it on another service. But as soon as you do that, you're actually right back into the risky zone. Why is Facebook in so much hot water right now? Because it made it too easy to export user data to third party platforms! And, any kind of GDPR-type solution is just going to lock down that data, rather than enabling them to help seed competition.

Cory Doctorow, over at EFF, has what I think is the most reasonable idea of all: enable third parties to build tools that help Facebook's (and every other platform's!) users better manager and understand their privacy settings and what's being done with their data. That's an actual solution to the problem we laid out in the previous post: Facebook's failed transparency. Doctorow compares the situation to ad-blockers. Ads became too intrusive, and users were able to make use of 3rd party services to stop the bad stuff. We should be able to do something similar with privacy and data controls. But, thanks to some pretty dumb laws and court rulings (including a key one that Facebook itself caused), that's really not possible:

This week, we made you a tutorial explaining the torturous process by which you can change your Facebook preferences to keep the company’s “partners” from seeing all your friends’ data. But what many folks would really like to do is give you a tool that does it for you: go through the tedious work of figuring out Facebook’s inscrutable privacy dashboard, and roll that expertise up in a self-executing recipe — a piece of computer code that autopiloted your browser to login to Facebook on your behalf and ticked all the right boxes for you, with no need for you to do the fiddly work.

But they can’t. Not without risking serious legal consequences, at least. A series of court decisions — often stemming from the online gaming world, sometimes about Facebook itself — has made fielding code that fights for the user into a legal risk that all too few programmers are willing to take.

That's a serious problem. Programmers can swiftly make tools that allow us to express our moral preferences, allowing us to push back against bad behavior long before any government official can be convinced to take an interest — and if your government never takes an interest, or if you are worried about the government's use of technology to interfere in your life, you can still push back, with the right code.

So if we really, truly, want to deal with the problem, then we need to push for more control by the end users. Let users control and export their data, and let people build tools that allow them to do so, and to control and transparently understand what others do with their data.

If someone comes up with a "regulatory regime" that does that, it would be fantastic. But so far, nearly every suggestion I've seen has gone in the other direction. They will do things like force Facebook to "lock down" its data even more, making it harder for users to extract it, or for third parties to provide users the tools they need to control their own data. They'll put useless, but onerous, Know Your Customer rules that Facebook will be able to throw money at to solve, but every smaller platform will find incredibly costly.

I'm not optimistic about how all of this works out. Even if you absolutely hate Facebook and think the company is evil, doesn't care one wit about your privacy, and is run by the most evil person on the planet, you should be especially worried with the regulatory suggestions that are coming. They're not going to help. They're going to entrench Facebook and lock down your data.

Filed Under: data, elections, know your customer, openness, platforms, regulations, social media, transparency
Companies: cambridge analytica, facebook

Even If The Russian Troll Factory Abused Our Openness Against Us, That Doesn't Mean We Should Close Up

from the giving-them-what-they-wanted dept

Last week, we wrote about the Mueller indictment of 13 Russians and three Russian organizations for fraud in trying to sow discord among Americans and potentially influence the election by trolling them on social media. If you haven't read the indictment yet, I recommend doing so -- or at least reading Garrett Graff's impressive attempt at basically turning the indictment into one hell of a narrative story. The key point I raised in that article was that the efforts the Russians undertook to appear to be American shows how difficult-to-impossible it would be to demand that the various internet platforms magically block such trolling attempts in the future.

But, there's a larger issue here that seems worth exploring as well. Among the various attacks aimed at social media companies (mainly Facebook) it feels that many are using this as yet another excuse to demand more regulation of these platforms or to poke more holes in Section 230 of the CDA.

We've already spent many posts explaining why undermining CDA 230 will do a lot more harm than good, but it seems worth especially highlighting how undermining it here in response to Russian attacks would only help the Russians accomplish what it is they've set out to do. CDA 230 is a key aspect of enabling free speech online. It's what allows platforms to host our speech without having to carefully review it before it's allowed, or take it down at the first sign of complaint (allowing a heckler's veto). This is tremendously important in making the internet a platform for everyone, as opposed to just the elite and connected. And, yes, with that comes serious challenges, because some people will inevitably seek to abuse that openness to try to turn us against each other (as appears to have happened here).

But it would be quite an "own goal" to turn around and dismantle the tools that enable free speech in response to foreign attacks.

As Julian Sanchez points out at the NY Times, the Russian government is annoyed by the US criticizing them for online censorship -- so pushing social media companies to censor more in the US would help the Russians point out what hypocrites the Americans are and continue to suppress opposing political points of view:

No less than our “meddling” in their internal elections, Russia has long resented United States criticism of the country’s repressive approach to online speech. Their use of online platforms to tamper with our presidential race reads not only as an attack, but as an implicit argument: “The freedoms you trumpet so loudly, your unwillingness to regulate political speech on the internet, your tolerance for anonymity — all these are weaknesses, which we’ll prove by exploiting them.”

Urgent as it is for the United States to take measures to prevent similar meddling in the next election, we should be careful that our response doesn’t constitute a tacit agreement.

I'm not one to believe the idea that Russians are such implicitly brilliant tacticians that they'd deliberately play the US into taking the exact response they want, but we should be quite careful about undermining our own freedoms and our own services just because some people were able to exploit them. Not only does it harm our own society in the long run, it also gives a fairly explicit basis for lots of repressive regimes (including, but in no way limited to, Russia) to use that as something to point to as they push much greater suppression of free speech.

Filed Under: censorship, free speech, intermediary liability, openness, platforms, russia, trolling
Companies: facebook, twitter

EU Commission Releases Plans To More Directly Regulate Internet, Pretending It's Not Regulating The Internet

from the this-is-an-issue dept

Well, this isn't a surprise. After all, we warned you that it was likely to happen, and we helped get together folks to warn the EU Commission that this was a bad idea, but the EU Commission has always seemed dead set on a plan that they believe will hold back big successful American internet firms, while fostering support for European ones. This week they made their first move by releasing details of some of their plans. This is all part of the "Digital Single Market" plan, which, in theory, makes a ton of sense. The idea is to knock down geographical regulatory barriers on the internet, such as geoblocking. And the first part of the EU's plan is right in line with that idea and makes perfect sense. It talks about getting rid of geoblocking and also making cross-border delivery of packages easier and less expensive -- basically making e-commerce work better. That's all good.

But it's the second part that is concerning, and that's where they start talking about updating "audiovisual rights" and the regulation of "online platforms." The audiovisual rights stuff is getting most of the press attention, because of silly rules like requiring video platforms to promote more European-created content.

Currently, European TV broadcasters invest around 20% of their revenues in original content and on-demand providers less than 1%. The Commission wants TV broadcasters to continue to dedicate at least half of viewing time to European works and will oblige on-demand providers to ensure at least 20% share of European content in their catalogues.

This is a silly protectionist measure that we've seen in various countries for TV for ages and it's a joke. If you want more people viewing European content have them make better content. Forcing content on people because it's "from Europe" isn't going to make anyone want to watch it if it sucks. It will also, of course, make life more difficult for new entrants who will have to make sure that enough of their content meets this arbitrary standard.

But the much more concerning stuff involves the regulation of the internet. Now, yes, the EU Commission basically tries to bend over backwards to say that this isn't about creating new regulations for the internet. And also to claim that they're not changing the "intermediary liability" regime as laid out in the E-Commerce Directive that is a decent, if unfortunately weaker, version of US intermediary liability protections, saying that platforms aren't responsible for actions of their users. But... there's a big "but" after those claims, and it basically undermines those claims. You can read the following and see them swearing no new regulations and no changes, but the four bullet points and the details buried in them suggest something entirely different:

Today's Communication on platforms does not propose a new general law on online platforms, nor does it suggest to change the liability regime set by the e-Commerce Directive.

The aim is to make sure that platforms can be created, scale up and grow in the European Union. To reach this goal we need a functioning Digital Single Market where online platforms (both startups and established market operators) are not hampered by heavy regulation.

Online platforms are already subject to EU legislation such as consumer and data protection rules, and competition law. New initiatives will only be taken to tackle any specific problems identified and only if it is established that better enforcement of existing rules is not sufficient to address these.

In our approach to online platforms, we will be guided by the following principles:

• a level-playing field for comparable digital services
• responsible behaviour of online platforms to protect core values,
• transparency and fairness for maintaining user trust and safeguarding innovation,
• open and non-discriminatory markets in a data-driven economy.

Let's go one by one. First the "level playing field." This is a popular line, but it's kind of meaningless. What does it even mean? Some companies are going to be more successful than others, or use different business models or strategies. And those, by their very nature, create a different kind of playing field. We should be worried when the government is arguing for tilting the playing field one way or the other. For example, in earlier discussions about this, there were arguments that YouTube's model was unfair, but Spotify's model was fine. Why should the government favor one over the other?

Also, within the details, they make it clear that, despite what was said above, this is about extending new censorship regulations to platforms. "Data protection" regulations include things like "the right to be forgotten." Recognize that when reading this:

In the new e-Privacy Directive the Commission will consider, for example, extending data protection obligations currently applicable only to telecoms companies to platforms.

The next one is the big concern, because it's so... broad: "Ensuring that online platforms behave responsibly." What does that mean? Who determines what's "responsible?" Because you have the RIAA and MPAA insisting that "responsible" means vast censorship of platforms to block anything that might even remotely be infringing. Or you have the FBI insisting that "responsible" means keeping log files for a really long time and not encrypting stuff (or encrypting it with holes in it). There's a lot of wiggle room within "behaving responsibly" that should be a cause for concern.

And, indeed, it looks like the EU Commission is buying the MPAA/RIAA's view of what "behaving responsibly" means:

In the third quarter of 2016, the Commission will propose a copyright reform package aiming to achieve a fairer allocation of value generated by the online distribution of copyright-protected content by online platforms providing access to such content.

This is a fairly loud dog whistle to the RIAA. In the past few months the RIAA has been going on and on about what they're ridiculously calling the "value gap" in online platforms. In short that "value gap" is that internet companies are making lots of money... while record labels are not. To them, that's because of some sort of unfairness in the law. To most everyone else it's because the markets have shifted, and the record labels failed to adapt. And, really, if we're talking about unfair markets and "fair allocation of value" why didn't anyone complain through the 70s, 80s and 90s when the laws were so tilted that the labels basically got all of the "allocation of value" while the actual artists got stiffed?

And, of course, despite the EU Commission initially saying that there would be no impact on the intermediary liability protections in the E-Commerce Directive, they pretty quickly walk that back in the details:

In relation to the liability regime of online intermediaries established by the e-Commerce Directive, the Commission will assess:

• the need for guidance on the liability of online platforms when putting in place voluntary measures to fight illegal content online [starting in the second half of 2016], and
• the need for a formal notice-and-action procedures [after taking due account of the updated audiovisual media and copyright frameworks].

Got that? So now the government will be pushing for "voluntary measures" to take down content. But since it's the government looking into it, it's not so voluntary, is it? And then a "notice and action procedure" which means "notice and takedown." In the US, obviously, we have that for copyright, which has created a massive censorship regime, but we don't have such a setup for other kinds of content. The EU, generally, does have a sort of notice-and-takedown for things like defamation, and it looks like that may expand.

Oh, and then the ever amorphous censorship of "hate speech," which no one ever seems to define clearly:

In addition to revised audiovisual media rules, the Commission will further encourage coordinated EU-wide self-regulatory efforts by online platforms in tackling illegal content online. The Commission is currently discussing with IT companies on a code of conduct on combatting hate speech online.

Sure, I dislike hate speech as much as the next guy, but attempts to suppress hate speech tend to lead to straight up government censorship or as a way to attack speech governments don't like.

Next up, we've got: "Fostering trust, transparency and ensuring fairness." Yup, there's that "fairness" again. Obviously, fostering trust and transparency are actually things I'm very, very supportive of. But I'm not clear on what the government needs to be doing here, when there are often good ways for the market to do that itself. Companies that are more transparent generate more trust by themselves. And many new platforms rely on public trust to actually provide any value. So, sure, I don't want fake reviews online either, but isn't that something that platforms can handle by themselves?

The Commission will encourage industry to step up voluntary efforts, which it will help in framing, to prevent trust-diminishing practices (in particular, but not limited to, tackling fake or misleading online reviews) and monitor the implementation of the self-regulatory principles agreed on comparison websites and apps.

So, while we applaud the idea of doing away with geoblocking, as well as the general principles of fairness, trust and transparency, it's extremely frightening to think about what the government has to do in this arena at all, since almost all of the suggested ideas are wide open to abuse in the form of just attacking platforms the government or legacy industries don't like, rather than focusing on what actually creates the most value for the public.

Filed Under: content, copyright, eu, fairness, intermediary liability, internet, openness, platforms, regulations, transparency