Pondering “loss of net neutrality” and Masterpiece Cakeshop — the underlying debates are similar

There are useful parallels in the issues behind both the network neutrality debate (that is, the Trump administration’s determination to end it all on Dec. 14) and the Masterpiece Cakeshop case regarding (in over-simplified rhetoric) balancing anti-discrimination (against gay couples) with free speech and property rights (the latter may be more relevant in the end).  True, net neutrality isn’t back in court yet, but it probably soon will be.

I’ll walk this plank starting with the net neutering (pun?) first.  I have to admit, I personally would feel more comfortable if telecom companies were forced to keep the legal designation as utilities (common carriers), which will end some time after Dec. 14.  But regulating the designation category of any business can have unintended consequences.

So, first, we have to ask ourselves:  may we regulate very large businesses more closely than some small businesses?  Libertarians may not like the idea, but in practice the need to do that is very well established in our system.  We needed “better regulation” after 2008 of large financial institutions to prevent massive Ponzi setups.  Likewise, we’ve long had some regulation in broadcast television.  We’ve had rules that prevent movie studios from owning theaters (they seem to be circumvented sometimes), supposedly to prevent too much power in which films consumers see staying with the largest studios. It’s easy for me to imagine extensions of these rules that would prevent me from producing a film literally from my own books, in order to enhance employment opportunities for union writers. Ajit Pai is correct in opposing too much regulation.  But – it’s true – with big companies, we have different concerns, like anti-trust laws.  The FTC and DOJ can still enforce these against anti-competitive practices by the Comcasts of the world.  As a single author and micro-business person, I can’t monopolize an industry or threaten it.

So then we ask, what is a “utility”.  A telephone company (Ma-Bell in the past) is a utility, but a TV network is not – the later is a content company (and it is regulated because airwave space, like real estate, is finite).  A cable company, however less regulated than a legacy airwaves network, is a content company.  A telecom company offers Internet, digital voice phone, and cable, so it is a hybrid of common carrier and content company.  A social network like Facebook is a content company (and that gets into Section 230 as to whether Facbook is really a “publisher”).  A hosting provider like Blue Host functions like it was a utility for Internet content publishers, but it’s possible imagine that such a company has some influence over content (look at what happened after Charlottesville and the Daily Stormer problem). Most of these companies have fiduciary responsibilities to investors, so regulation is a sensitive issue.  Where does the public interest fit in?  There seem to be competing interests and various ideological scenarios that can play out.  For example, I could imagine (after Charlottesville) some day winding up with a system where no one self publishes until he/she demonstrates some “community engagement”.  But it’s also hard to imagine how such a rule could comport with economic self interest (even if the abrogation of net neutrality would let it happen legally).

I do think that over time small business has reason to worry, if Congress and the courts don’t force some sort of regulatory balance.  Small business could be forced into franchising to afford the branding that large favored websites have.  They could have new requirements for security (https everywhere), website rating, or “pay your own way” reportability some day.  And hurting “really small business” in favor of the oligarchs will not promote local manufacturing; it will not “make America great again” as Trump wants.  So the “Dems” have some reason to want to regulate.  Yet, I have no right to demand that the regulatory environment protect me from more accountability myself, even if that means that a couple years from now many consumers might not be able to access this posting through their own Internet Service provider (which I still doubt will really happen).

I’ll interrupt myself for a moment – and note the PBS interview where one speaker notes that in Portugal, there is no net neutrality and only one provider, and consumers have to pick “bundles”.  Can ordinary sites be accessed in Portugal, like on a hotel’s broadband?  (I was there in 2001 and could.)   The important thing from my perspective is that a consumer be able to get access to everything as today in one package, still reasonably priced if at the high end (as with cable offering all possible channels).

A quick check of Godaddy and other hosting companies still shows inexpensive hosting and an expectation that their business would continue as usual.

I’m left grasping for straws on what the principled answer to Aji Pai’s libertarian-leading claims should be.  You need some regulation, but where do you draw the line?

So then, we circle back to “gay rights” and “marriage equality”  — where we’ve made so much progress even as the safety of the country is threatened (previous post) and as tribalism frays the political process (as with Trump’s election and his horrible appointments in some areas, even if Trump is all right on gay people himself). And we come to the Masterpiece Cakeshop case, argued before the Supreme Court Tuesday.

There are three areas at issue:  property rights, free speech (as connected to religion), and discrimination.  Although I sympathize with the libertarian focus on private property rights (as Jacob Hornberge explains on Intellectual Takeout), civil rights law with respect to public accommodations (retail businesses open to the public) is well established.  The owner can’t rightfully refuse to sell a cake to a gay couple.  Saying we don’t serve “gay weddings” is a bit more ambiguous. I am sympathetic to the idea that the cakeshop owner shouldn’t have to design a cake showing a same-sex couple as décor – but what if his business is based on made-to-order cakes?  What if an artist at a county fair refuses to draw black people, or even transgender people?  The artist has made himself a public accommodation.

How all these things could affect me – it’s all pretty distal.  I could, for example, start a small press (I’ve thought about it) or a small movie production company – because I’m aware of a few projects around the country that could use help that have something in common with what I do.  As a small business – yes, unfettered Internet access from the public would matter (so net neutrality could matter). But the right to chose my own content to promote would matter.  Publishers, and movie studios, like any content-oriented business, pick the content that they want to promote. “Property rights” is what allows them to do that (which they can’t do the same way in places like Russia and China, where the government demands the content producer serve some higher statist common good, just like movie studios had to during WWII). It’s all too easy, though, once I start selling to consumers with a store – what about providing for other kinds of consumers – like blind ones – that I don’t have the scale to serve. I’ve been pestered quite a bit in the past few years to become more involved with scalable operations – to the point that it jeopardizes my time to spend on content and research.

Supplementary legacy posting in network neutrality ending.

Supplementary legacy posting on Masterpiece Cakeshop and legally married same-sex couple in Colorado.

(Posted: Friday, December 8, 2017 at 11:30 AM EST)

Activists warn users about FCC vote Dec. 14 to reverse net neutrality rules; will telecom companies really do anything drastic?

Here we go again.  Yesterday, shortly before boarding a plane to return from a long weekend in “Paradise” (the south Florida beaches – and the Keys, not in such good shape), I got a coercive email form FTFF (Fight for the Future) urging donations and “taking action” for a call-in (link)  The FCC, if you haven’t heard, will vote on suspending Obama’s network neutrality rules, taking the vote on Thursday Fec. 14, 2017.  It’s a little unclear how long the “unchanges” would take to happen.  Expect more litigation.  Ajit Pai gives us his own words on this PDF.

The Washington Post this morning produced a brief article by Brian Fung almost as menacing, hinting that the FCC will soon allow the cats into the refrigerator, with telecom companies dictating which sites readers can have.  (More details in Post here).

Back around the time of the July 12 protest more moderate sites like Vox had opined, and warned on a slower, less equal Internet as probably inevitable.  Indeed, panicky protests from activists scaring readers with sensational emails aren’t

Kate Cox from the Consumerist has an analysis of NCTA’s informal promise (June 30 here) to honor free speech from the small fries. “18 cable companies promise to honor net neutrality; none will guarantee you in writing.”   Along these lines, Comcast had made a lukewarm reassurance to users in this blog post. And see “broadbandforAmerica” weigh in here.

Bloomberg, with its modestly libertarian leanings, has several articles.  The first one I found is a bit muddy, but the Tyler Cowen offers a reassuring perspective here.

Along these lines, it’s important to remember that the regulatory authority would move from the FCC back to the FTC, which cannot make rules about throttling content, but can enforce rules about “transparency.” The FCC would also abandon its classification of backbone telecom companies as “Title II” utility providers.

But a formal editorial in Bloomberg suggests Congress intervene, and require what sounds like common sense: that telecom companies not interfere with normal access to legal websites as it works today, but allow paid fast lanes when the scope is limited (like for medical services, enhancements for gaming or streaming, etc).  Speculation in the past has suggested that doing so would degrade ordinary service, but not if bandwidth in a geographical area has enough capacity (which it doesn’t in some poorer areas). Bloomberg mentions the incidents after Charlottesville this summer when Cloudflare and then other major Internet companies denied Daily Stormer the capacity to be connected or register through their services, so you can make the argument that private companies already have the ability to control what their users are allowed to see based on somewhat arbitrary grounds.  (Daily Stormer’s content was called “immoral”, but not, compared to child pornography or perhaps sex trafficking ads, illegal). While the Stormer content seems quite extreme and unprecedented in the minds of average users, this does sound like a slippery slope.  But Comcast, at least, has promised it would never block lawfully permitted (even if offensive) content (NYTimes article 11/22) and hopefully other major companies like Cox and Verizon will say the same thing.

Bloomberg is hinting, however, that the threat that activists perceive that the loss of net neutrality (which we didn’t have until 2015) to small business or to small websites face, needs to be viewed in the context of other problems, such as erosion of Section 230 (with the Backpage controversy), and concerns over terror recruiting and fake news.  Companies in both telecom transmission and content hosting or service businesses have to wonder about their fiduciary responsibilities to investors, and it could get harder to serve users whose content doesn’t pay its own way. So, yes, the editorial suggests a sensible compromise, which needs Congress.

I would add that DOJ’s litigation to hinder merging of Time Warner with ATT does suggest that “even” the Trump administration is concerned  (in the anti-trust sense) about monopoly and lack of competition.  So, if there is any competition at all, will large telecom companies have any reason to hinder consumer access to all legal content?  I would think not – but we do wonder about incidents like Stormer and rising extremism.

I noticed when on a Southwest flight yesterday that the airlines do their own version of withdrawing net neutrality.  They offer free wifi to passengers, but only to show their content.  You can pay $8 for regular access.

The Wall Street Journal has a fairly balanced perspective by John McKinnon Nov. 20 here.

Wired has a comprehensive story (leading to other links) by Klint Finley explaining that the Administrative Procedure Act, design to prevent capricious regulatory policy changes following partisan administration change, could form the basis to a legal challenge to Pai’s intentions.

“Leftist” Truthout gives this analysis, getting into the regulatory environment pretty well.  Trickle down doesn’t trickle?   Think Progress also talks about erosion of a program giving poor people phone service — and I can recall in my early days of retirement job hunting that distribution of phone cards came up as a possibility.

On Nov. 14, I had posted a legacy blog summary of Pai’s reappointment, and on Oct. 28 this one about his recent testimony in House hearings.

(Posted: Tuesday, Nov. 21, 2017 at 6 PM EST)

Update: Wednesday, Nov. 22, 2017 at 1 PM

The Wall Street Journal weighs in heavily again today, as with Ajit Pai’s own libertarian op-ed that says that loosening regulations will help most users and consumers.  Yes, Reagan-style Republicanism (not Trump) is good for a lot of more sentient consumers.  MacKinnon and Knutson have a newer piece predicting that telecom companies will make deals with large content companies like Facebook and Google to speed up their content.  That worries me because small businesses and niche bloggers who have their own separate hosted sites need to set themselves up this way to “brand” themselves rather than depend on “somebody else’s free service”.  Ajit Pai probably believes that hosting companies (like BlueHost) can set up deals with the large providers (Comcast, Cox, Verizon, etc) and pass the benefits (for slight increases in hosting prices) on to customers who have their own sites.  I suspect it would take some time for all of these changes to happen, maybe most of 2018.

It’s interesting that FCC Commissioner Clyburn has his own piece opposing Pai’s move on the FCC site, here. It’s noteworthy that he thinks telecom companies could disrupt small site access “on a whim”, which sounds unlikely in a real world. There were few such disruptions before 2015 (although I do remember a controversy about BitTorrent).

SESTA clears Senate committee, and Congress seems serious about stopping trafficking, even if it requires sacrifices from Internet users — and it seems superfluous

Electronic Frontier Foundation has reported that the Senate Commerce Committee has approved a version of SESTA, the Stop Enabling Sex Traffickers Act, S. 1693.  Elliot Harmon’s article calls it “still an awful bill”.   Harmon goes into the feasibility of using automated filters to detect trafficking-related material, which very large companies like Google and Facebook might be half-way OK with. We saw this debate on the COPA trial, about filtering, more than a decade ago (I attended one day of that trial in Philadelphia in October 2006). No doubt, automated filtering would cause a lot of false positives and implicit self-censoring.

Apparently the bill contains or uses a “manager’s amendment”  (text) floated by John Thune (R-SD) which tries to deal with the degree of knowledge that a platform may have about its users.  The theory seems to be that it is easy to recognize the intentions of customers of Backpage but not of a shared hosting service. Sophia Cope criticizes the amendment here.

Elliot Harmon also writes that the Internet Association (which represents large companies like Google) has given some lukewarm support to modified versions of SESTA, which would not affect large companies as much as small startups that want user-generated content   It’s important to note that SESTA (and a related House bill) could make it harder for victims of trafficking to discuss what happened to them online, an unintended consequence, perhaps.  Some observers have said that the law regarding sex trafficking should be patterned after child pornography (where the law seems to work without too much interference of users) and that the law is already “there” now.

But “Law.com” has published a historical summary by Cindy Cohn and Jamie Williams that traces the history of Section 230 all the way back to a possibly libelous item in an AOL message board regarding Oklahoma City (the Zeran case).  Then others wanted to punish Craigslist and other sites for allowing users to post ads that were discriminatory in a Civil Rights sense. The law need to recognize the difference between a publisher and a distributor (and a simple utility, like a telecom company, which can migrate us toward the network neutrality debate).   Facebook and Twitter are arguably a lot more involved with what their users do than are shared hosting sites like BlueHost and Verio, an observation that seems to get overlooked.   It’s interesting that some observers think this puts Wikipedia at particular risk.

I don’t have much an issue with my blogs, because the volume of comments I get is small (thanks to the diversion by Facebook) these days compared to 8 years ago.  When I accept a guest post, I should add that Section 230 would not protect me, since I really have become the “publisher” so if a guest post is controversial, I tend to fact-check some of the content (especially accusations of crimes) myself online.

I’d also say that a recent story by Mitch Stoltz about Sci-Hub, relating to the Open Access debate which, for example. Jack Andraka has stimulated in some of his Ted Talks, gets to be relevant (in the sense that DMCA Safe Harbor is the analogy to Section 230 in the copyright law world). A federal court in Virginia ruled against Sci-Hub (Alexandra Elbakyan) recently after a complaint by a particular science journal, the American Chemical Society  But it also put intermediaries (ranging from hosting companies to search engines) at unpredictable risk if they support “open access” sites like this. The case also runs some risk of conflating copyright issues with trademark, but that’s a bit peripheral to discussing 230 itself.

Again, I think we have a major break in our society over the value of personalized free speech (outside of the control of organizational hierarchy and aggregate partisan or identity politics).  It’s particularly discouraging when you look at reports of surveys at campuses where students seem to believe that safe places are more important than open debate, and that some things should not be discussed openly (especially involving “oppressed” minorities) because debating them implies that the issues are not settled and that societal protections could be taken away again by future political changes (Trump doesn’t help). We’ve noted here a lot of the other issues besides defamation, privacy and copyright; they include bullying, stalking, hate speech, terror recruiting, fake news, and even manipulation of elections (am issue we already had an earlier run-in about in the mid 2000s over campaign finance reform, well before Russia and Trump and even Facebook). So it’s understandable that many people, maybe used to tribal values and culture, could view user-generated content as a gratuitous luxury for some (the more privileged like me) that diverts attention from remedying inequality and protecting minorities.  Many people think everyone should operate only by participating in organized social structures run top-down, but that throws us back, at least slouching toward authoritarianism (Trump is the obvious example). That is how societies like Russia, China, and say Singapore see things (let alone the world of radical Islam, or the hyper-communism of North Korea).

The permissive climate for user-generated content that has evolved, almost by default, since the late 1990s, seems to presume individuals can speak and act on their own, without too much concern about their group affiliations.  That idea from Ayn Rand doesn’t seem to represent how real people express themselves in social media, so a lot of us (like me) seem to be preaching to our own choirs, and not “caring” personally about people out of our own “cognitive”  circles.  We have our own kind of tribalism.

(Posted: Wednesday, Nov. 15, 2017 at 2 PM EST)

Update: Monday, Nov 27, 10 AM EST

I’ve said that this doesn’t sound like a direct problem for bloggers moderating comments, but could it mean legal liability if a blogger approved a comment that linked to a site trying to sell sex trafficking. Normally I don’t go to links from many comments out of fear of malware, and I don’t guarantee that commenter’s own embedded hyperlinks are “safe”.  Some comments are in foreign languages, and I generally don’t translate them (I usually insist that they use the normal alphabet).   Could this change?  I suppose however that issue could exist with child pornography now.  This concern applies even though I use a webhosting partner service (Akismet) to filter spam comments.

 

As “Internet-Wide Day of Action to Save Net Neutrality” approaches, the doomsday debate heats up

Just as “The Event” approaches July 12, I got into more debate over network neutrality expiration in the U.S. on Facebook yesterday, and here is a summary of the latest in my own following of the topic.

If you want to make a comment to the FCC (before July 17), go to the “browse-popular-proceedings” link, where you can search and look for comments people have already made. The proper from to submit an “express comment” seems to be this one.

The FCC has already been bombarded by spam comments, some of them hateful or even racist toward the FCC chairman, according to this story on the Verge (Vox Media).

The Internet and Television Association makes this comment, reaffirming its commitment to an “open Internet”, which it followed up with paid print newspaper ads.  The New York Times had thrown cold water on Pai’s promised of “voluntary compliance” with no-throttle ethics in this editorial late in April.

But back in April, Rand Fishkin, on a Marketing Industry WhiteBoard, wrote a particularly telling predictive analysis of what could happen over time. The comments (closed now) add a lot to the debate and are well worth reading.

The most likely adverse scenario (which would probably take two or three years to develop) sounds like it comes out of the T-Mobile’s “illegal” plan a few months back to offer a bare-bones service that didn’t offer full Internet. There would seem to be a possibility that the telecom industry could treat websites as cable channels. It sounds like cheap, basic plans could offer families (especially consumers not particularly interested in the Web, or those wanting to shield small children) only a few sites favored by the ISP. More expensive plans could offer everything, as we know it today, with the Cadillac plans offering super high speeds in some areas. A small business owner could have to consider whether to pay for hookup so that lower-income or less wired people could find the business online. It might not be worth it. This could be a serious hindrance for some kinds of small businesses, especially tech innovations. But I’ve seen elements of this debate before, as with COPA a few years ago (as to how to screen objectionable content from minors).

This kind of development might not affect a blogger (with my “do ask do tell” model) like me much, because, frankly, I probably interact mostly with the choir, with people who want to be wired all the time anyway. Not to be offensive, but I doubt very many “blue collar” families in “Trump country” find me anyway.

This sort of a development sounds like a bigger threat to artists and musicians who often sell directly through their own domains (which POD publishers today try to goad authors into doing with volume discounts, bypassing Amazon laziness).

That’s one reasons there are some “collective” sites like Bandcamp (musicians) and Hubspace (writers) which probably offer some supervision and could offer bargaining power in a no-net envurinment. Bandcamp is interesting, as I know a number of composers and performers (especially in the classical music area) in New York, Los Angeles, and overseas. The classical music industry has a commissioning business model for new works, which can create certain ethical tensions. Some artists are starting to rely on Bandcamp more, and even want to train consumers to learn to buy from it, and get used to PayPal, rather than the laziness of the rich-man’s Amazon. Bandcamp was also developed as a way to encourage consumers to pay reasonably for content rather than use illegal downloads or get lazy with Youtube; it tries to balance out the “Its free” problem (previous posting).

Until now, it’s been considered more “professional” for artists and writers to develop their own WordPress sites under their own domain names. “No-net-neutrality” could change this, encouraging collectives and also throwing people back to free platforms like Blogger and free WordPress – but can we count on the business models for these platforms to last forever, given the resistance of the public to (including me) to engage ads (partly out of valid security and privacy concerns)? In the past few years, I’ve generally come to agree with pundits (like Blogger’s Nitecruz) that you shouldn’t depend on someone else’s free service.

I’ve also noted that hosting companies like Blue Host could help assuage the problem with subdomain and add-on structures that they have already set up. I recently had an informal chat with Site Lock on how all this works.

I note the debate over whether bloggers need specific attention to SEO, and whether that would change as net neutrality in the U.S. dissolves. I think it’s particularly important for people who depend on selling to others from a small business and whose website really can bring in sales.  That’s not true of all small businesses, and it’s not true of “provocateur” (yes, Milo!!) blogs like mine.  For these, the content text itself seems to carry in visitors.  “Blogtyrant’s” idea of email subscription mailing lists (in these days when people fight off spam as a security threat) seems to make the most sense to narrow niche businesses with customers who have specific needs that the business owner serves, including with its online activity. Remember the listservers (pre-social media) of the 1990s.

Still, the long range fallout from a “no net neutrality” position in the US could be pressure on small, neighborhood businesses. I think about my favorite gay disco, Town DC, which will close because of pressure big corporate real estate in another year. My favorite Westover Market and Beer Garden in Arlington could face similar pressures eventually, after all it has put into the business. I think of the independent book stores (that used to include Lambda Rising) which my POD publisher pesters me to cater to. I think of independent authors who sell books in higher volumes from their own sites than I do. Some local businesses are truly “local” and may not be affected as much by national web policies as they already depend on foot traffic. But the overall trend from loss of net neutrality could even be more pressure on small businesses to disappear or be bought out by large corporations.

In a recent op-ed, David Brooks noted that conservative philosophy, properly applied, emphasizes local activity, people helping one another, and local ownership of enterprise, and initiative.  That accompanies personal freedom at individualized levels, as Andrew Sullivan argued so well in the 1990s. What worries me is that the Trump administration seems to view conservatism as Putin-style oligarchy, where everyone is “rightsized” into some role of national purpose.

I’m not much into joining collective demonstrations simply against the “rich” or those “better off” than I am, as I am likewise more privileged than some people. I like to target my activity where I can make a real difference in how a policy turns out (I did this pretty well with “gays in the military” some years ago) by encouraging critical thinking. As a general matter, telecom, like any industry (most of all, banking), needs some regulation in the public interest once there are too few companies for genuine competition. (That’s partly what anti-trust is all about.) But you could say an individual like me, who doesn’t have a stake in life with specific dependents, ought to be reined in when my operations don’t pay their own way. Fairness looks both ways. When seeking regulation (just as with health care) be careful what you ask for.

(Posted: Friday, June 30, 2017 at 1:45 PM EDT)

Update: July 12

Report on my visit to a demonstration at the Capitol, here.

What if individual blogs and social media accounts had to pay their own way (to the speaker, not the providing company)?

This Monday morning (like the 60s song), I waited in line at the US Post Office to buy stamps behind people with much more complicated transactions. I asked the manager why the machines were no longer around, and she said that the particular branch doesn’t make enough revenue.  I squawked about customer service.  (Yes, it’s faster at UPS or FedEx, totally private companies.) When I finally bought my stamps on a debit card, it did not have the security chip.  Was that because that branch didn’t do enough business?

Now I turn to the seemingly unrelated topic of user-generated content on the Web, especially those belonging to individuals, ranging from sites (usually embedding blogs), to free-standing free blogs (Blogger, WordPress, Tumblr, etc), to  “true social media” to Facebook, Twitter, Instagram,  and similar (Myspace?)

Niche blogs, as I noted in the previous post, will go right off the hook here.  Generally they support small businesses selling very specific products (which may be authored books or music) or services to customers wanting to pay for them.  I know, porn can be profitable and can skew the remaining discussion.

My content, however, presents a more troubling scenario.  It doesn’t pay for itself.  Yes, I have the money to afford it.  Some of it is inherited, which raises its own moral questions for another day. But even before my “retirement” in 2001, I had saved pretty well and had a decent nest egg from my own career. My first book (1997), however self-published, was easily paid for by gains in Bill Clinton’s stock market with profits of real companies.  Why should there be anything wrong with this? Isn’t that just supporting free speech with the normal mechanics of democratic capitalism?

Yes, I get pestered as to why I don’t go on tours trying to sell books, or run by own retail businesses.  Or why I don’t play ball and try to make the advertising opportunities profitable on their own.

No, I seem to be a Professional Spectator (the bane of the Netflix film “Rebirth”).  Call me a low-level provocateur, a more socially acceptable Milo.   I commit the sin of “criticizing” the proposals of others to solve social justice and national security problems without having to put my own skin in the game.  So you can see how some people could see me as messing with them, trying to deny them the safety net they might otherwise have (or maybe even indirect claims on my own estate).

What I’m trying to do is account for everything that can affect any political debate than can affect “me”.  So I have a repository of playing “devil’s advocate”.  I want to make sure that policy makers really do consider everything.  And there is plenty of evidence that my “free content” has often reached “people who matter”, even though I seem to be “preaching to the choir”, especially given the way today’s news get aggregated by social media according to the visitor’s previously tracked behaviors.

I am very concerned about the future of user-generated content, as I have written several times before on this blog (especially with my post on citizen journalism on Nov. 7, the day before the Election). While some of us feel personally proud of our own knowledge dissemination, the majority of users seem relatively frivolous at best, vulnerable to manipulation by outside powers (the fake news problem), or, at worst, hostile or criminal, engaging in cyberbulling or revenge porn, sex-trafficking or stalking, or criminal hacking (big with overseas users from some parts of the world), or recruiting for terrorism and radicalism.  The degree or volume of “mal-use” has become shocking on the past few years, especially since Syria fell apart (and maybe we can blame Obama if we want to).  As I’ve noted before, both Trump and Hillary Clinton had hinted at wanting some sort of Internet kill switch to stop gratuitous activity on the Web if justified by asymmetric warfare threats (statements back in December 2015).  Both seemed naïve about how much of the recruiting takes place on the Dark Web or under high encryption, a long way from ordinary social media.

The biggest legislative threat may be the gutting of Section 230, for which there is already some legislation floating in Congress related to the Backpage scandal.  We’d need to know how service providers operate profitably in Europe where downstream liability protections are weaker than in the U.S.  But the basic premise remains:  a social media company, or even a web hosting company, cannot continue to offer its service (even if paid for by user subscription) if it is required to pre-screen every post before it goes public.

I can think of another threat, at least on paper, related to my USPS analogy.  (Yes, “The Postman Always Rings Twice” and “Body Heat”: I’ve seen the classic films).  Imagine if every user had to make his or her own content pay for itself.  In the POD book world, that would mean that books that don’t sell get taken down and off Amazon and BN.  In the blogging world, the content would have to show it was connected to products or services that earn their own way by normal accounting.  OK, this is Jonathan Swift’s “A Modest Proposal”.  I hope so.

The way this would happen would be (ironically) the extension of Obamacare to Internet liability activity. No one would be able to justify the insurance if the activity did not make money on its own.  Schemes like his were attempted in 2001 (with the National Writers Union) and later 2008 but don’t seem to have been particularly successful (obviously, anti-selection and the subjectivity of the underwriting is a problem;  combining this with umbrella policies reflects a superficial idea of the problem).

The ”moral” justification, or legal one in First Amendment terms, starts with recognizing that a speaker may have the right to say what she wants (outside of “fire in a crowded theater” stuff) to people who are available because of her own direct contacts in “normal life” (the narrowest legal concept of “publication” in my previous post here).  She has the right to assembly and petition.  She has the right to participate in organizing into larger groups that can speak for her.  These can include political PACS on the one hand or media companies with the scale to be profitable (freedom of the press).  Religious speech (or “the church” or synagogue or mosque, etc) may have more protection.  But what’s not so clear (especially now with a conservative majority again in the Supreme Court) is that global ungated self-distribution, which has become within the reach of the average person since the mid 1990s through the Internet and WWW, is by itself a “Fundamental Right”.  Previously, people could normally be published only by third parties who believed they could sell, satisfy consumers and actually make money, whatever the objective cultural value of the content. There was a small, clumsy, expensive subsidy publishing industry which did not have a good reputation.

Of course, there are counter-arguments.  Some of the language in the COPA opinion in 2007 (and perhaps the Supreme Court rulings in 2002 and 2004), as well as the way the Supreme Court handled the original Communications Decency Act in 1997 (I went to the oral arguments), might be construed as supporting a “right to distribute” as embedded indirectly into the First Amendment.  Again, the law sometimes doesn’t like to conflate “manufacture” with “distribution”;  look at how this could play out if applied to the network neutrality debate (not the way we want).

You would wind up with a world where only “established” businesses and organizations would be able to generate their own speech (that would still include authors who actually make money on their books)  Everyone else would have to belong to and remain loyal to and in solidarity with organizations claiming to give them a voice.  Intellectual honesty would disappear.  (Think how Trump played to his base, but think again how the Left often does the same thing.)   Some non-profit or activist groups would love it, because they would be able to control the message.  Solidarity would become an essential virtue again, in a world where no one was allowed to claim credit for much all by himself.  People would have to accept other people’s goals and make personal compromises that in an individualistic world would seem to undermine personal integrity.  All of this seems to aim toward a controlled world of personal “right-sizing” favored by states like Russia and particularly China (and authoritarian leaders like Putin and Xi Jingping), where discipline of individual expression is seen as essential to a populist version of stability and protection of “the people” from marginalization by “the elites” and “know-it-alls”.

And. of course, it sounds like such a policy, if ever enacted by Congress, would destroy social media companies and maybe even hosting companies if ever enacted – including all their asset values.  So I hope it just can’t happen (despite the December 2015 threats).  The British Prime Minister Theresa May sounds to be on a real warpath.  She wants the whole world to control itself to recognize the grievous security problems especially in Britain and Europe.  Ironically, this makes Donald Trump’s “America First”, even his Paris accord pullout, sound a little reassuring.

One can imagine other ideas. For example, an Internet “driver’s license”.  You could apply this thinking style to the world a century ago when who should have a personal car and be allowed to drive could construct a similar controversy.

One aspect of the “asymmetry” of the modern world is indeed very hard to manage, especially given the axiomatic nihilism of one particular enemy.  That is to say, it is nearly impossible to decide whether some speech could be read as an indirect threat to be taken down (which is a problem Theresa May will run into right away).  This gets back to the “implicit content” problem or what I call my “West Potomac High School Problem of 2005”.  I could be seen as the Milo Yiannopoulos Problem, too;  is his speech simply designed to goad people into overreaction because the speaker knows “weaker” people will react violently? In an asymmetric world, anyone is a combatant, and the normal idea of well-separate personal responsibility starts to disintegrate.

All of this is quite troubling to me.  I pride myself in finding the flaws or weaknesses of almost any proposed policy and of rehearsing the mistakes of the past (especially as shown by my own narratives).  But often allies of mine – conventional activists – don’t want all the library-archived but forgotten facts mentioned again or reviewed because showing past “dirty laundry” will simply give the “other side” ammunition to continue “oppressing” weaker members of their constituent groups.  (A good example of this would be the “chain letter” argument regarding gay men and HIV, a weapon of the religious right in the 1980s but largely forgotten now;  another example might be bringing up the possibility of conscription.)

I have another personal side of this.  It’s true, I’m not willing to become someone else’s mouthpiece, but I also don’t seem to find much “meaning” just in meeting the real needs of someone that claims to be oppressed or “powerless”.  I have a real problem with trying to sell (or “pimp”) victimhood or even trying to remedy it personally, unless I caused it – but we’re finding that what we are as a community means a lot more than what I used to experience.

(Posted: Monday, June 5, 2017 at 10:30 PM EDT)

 

Why the “mandatory coverages” in Obamacare set a bad stage for future Internet law; Trump is actually on to something

Let’s think a moment about how mandatory insurance can work, in different areas, like health, auto, property.

Generally, you have to have auto insurance to have a driver’s license (how it’s required varies by state) you need property insurance for a mortgage, and with Obamacare (and previously Romneycare in Massachusetts) health insurance.  And Medicare and single payer in most other countries can be viewed as mandatory health insurance, paid for by much higher taxes.

Obamacare (the Affordable Care Act) is partly driven by requirement that “healthy” young people will buy coverages they as individuals are almost certainly not going to need, to support otherwise much higher premiums for people who do need them.  I’ve said here that we probably need publicly funded props (subsidies — not just tax cuts — and reinsurance, to help pay for health care for the sickest people), which would affect the deficit and maybe require cuts elsewhere (maybe in Social Security, for example, slowly increasing age eligibility) to control spending.  I may be OK with some of the aspects of “community rating” – that is, men have to buy pregnancy coverage because it takes two to tango – and we want, as a policy matter, some sort of gender equality. (It wouldn’t hurt me some day if PrEP were covered, although at my age it’s not real likely.)

But requiring people to buy add-on coverages for other people’s risks (“moral hazard”) is generally a dangerous idea, that can set up a bad precedent for other misuse.  That’s one reason why I am somewhat behind “TrumpCare” or “RyanCare” or “PriceCare,” if you really get serious about covering everybody somehow.  The Republicans want the states to take more responsibility for this area.  Under a federal system (compared to a unitary system like China’s) that seems appropriate.  We no longer trust the states to manage their own ideas of “equal protection” (from the 14th Amendment all the way to the Civil Rights Movement of the 1960s, ending with Stonewall) but we generally allow states a lot of leeway in just how they want their residents to pay for services or how much to privatize some services.  States vary on whether or not they have their own income taxes, and to what extent they want to charge user fees or tolls.  As California found out in the late 1970s, they can have their own battles on using property taxes to fund public education.  So, yes, the OMB is appropriate concerned about how the reddest states will handle a block grant approach to health care. But our Constitution and federalism limit just how much coercion the federal government can use, even for worthwhile policy goals.

In the past twenty years, auto and property companies have been combining normal property or physical liability (and damage loss, from accidents and storms) with cyber liability from Internet use.  The latter liabilities can include the cost of defending frivolous defamation suits (as with review sites) and copyright or even incidental trademark or patent infringement (from trolls), but they can also include losses due to identity theft or cybercrime (recently, ransomware).  In some cases, the higher limit auto policies are available only in umbrella policies that have all these other coverages (which have nothing to do with the likelihood of causing an auto accident or of being hit by a tornado).  In fact, as we know from the attempts around 2001 or so by the National Writers Union to buy media perils coverage for its members (and another push for this in 2008, shortly before the financial crisis), the risk for an individual consumer of being sued for Internet behavior is extremely hard to underwrite and predict, compared to the risks in the physical world.

I can imagine (especially from the “Left”) pushes to make cyber insurance mandatory components of property policies, and I hope the GOP would apply the same skepticism to this idea it has to health insurance mandatory coverages.  You can imagine the pressures:  because I have an unusual last name, I’m not as prone to identity theft as someone with an Anglicized name, but should I have to subsidize the premiums of someone more likely to experience it?  Because of the “gratuitous” nature of my self-publication (it doesn’t pay its own way) activity “in retirement” (maybe that’s like “in relief” in a baseball game’s bullpen), I don’t face the same risks as other people who actually need to support families with their writing, but I face my own unusual perils (mostly related to “implicit content” as I found out with a bizarre incident in 2005 when I was working as a substitute teacher – the concept has to do with attracting politically or socially motivated targeted risk to others connected to “you”). The main prevention is to know what I am doing.  (I do;  for example, I know how to recognize scams.)

But the permissive legal environment that has allowed user generated content to flourish does raise serious questions for me, involving some personal matters (how I place value on interactions with others who have more intrinsic need, and how I am willing, with volunteerism, to fit in and belong to a group and speak for its needs – accept “partisanship”).  The legal props include Section 230 and DMCA Safe Harbor, all of which makes me wonder how the Web still works in Europe, where these kinds of protections are weaker and where there is even an enforced “right to be forgotten” (and where, as Trump points out, defendants have to prove they told the truth in libel cases).  The permissiveness seems to have led to an world where there is a lot of recklessness and abuse, ranging from cuberbullying or stalking or revenge porn, to outright terror recruiting — largely because writers with sincerely put arguments wind up preaching to their own choirs, created by news aggregation.  Again, I could be silenced if I had to be insured, because my speech is not “popular” enough to pay its own way, especially in a mandatory insurance world.

(Posted: Wednesday, May 30, 2017 at 6 PM EDT)

Families of victims of Orlando Pulse attack sue Twitter, Google, and Facebook in federal court in Michigan, outflanking Section 230

Three families of victims in the June 12, 2016 attack on Pulse, a gay nightclub in Orlando, FL (about one mile south of downtown) have filed a federal lawsuit against three major tech companies (Twitter, Google, and Facebook) in the Eastern District of Michigan (apparently not in Florida). The complaint against Google seems to involve its wholly owned YouTube video posting service, and possibly Adsense or other similar ad network products, but probably not the search engine itself or the popular Blogger platform.

The PDF of the complaint is here.

The “Prayer for Relief” at the end of the document mentions civil liability under United States Code 2333(a), and 2339(a) and 2339(b).  The statutes are at 2333  Civil remedies  2339  “Harboring or concealing terrorists”   https://www.law.cornell.edu/uscode/text/18/2339    I don’t see an amount specified, and I do see a trial by jury requested (apparently chosen in Michigan).

I have previously described the preliminary news about the litigation on one of my legacy blogs, here.

Points 148 and 149 in the Complaint try to establish that perpetrator Mateen was likely radicalized on these social media sites. But compared to other biographical information about Mateen now well known, it seems to many observers that social media influence on his intentions was probably small compared to many other factors in his life.

The most novel aspect of the argument seems to be the way the plaintiffs try to get around Section 230 of the 1996 Telecommunications Act (also known as the “Communications Decency Act”), test  Section c-1 says that no provider or user of an interactive computer service shall be treated as a publisher…

The plaintiffs claim that the aggregation of user content (as written by a terrorist recruiter), including any text, still images, and video, is regarded in the context of the user himself or herself, and also in the context of an ads generated and shown on the web page, either a computer or mobile device.  This new context or “intersection data” (to borrow from IBM’s old database terminology from the 1980s) is regarded as new content created by the social media company.

It should be noted that all the companies do have algorithms to prevent advertiser’s content from being delivered to offensive content.  For example, Google adsense will not deliver ads on pages when Google automated bots detect offensive content according to certain criteria which Google necessarily maintains as a trade secret. This would sound like a preliminary defense to this notion.

Also, as a user, I don’t particularly view the delivery of an ad to a webpage as “content” related to the page.  Since I don’t turn on “do not track”, I often see ads based on my own searches on my own pages. I am generally not influenced by the appearance of ads on web pages.

The plaintiffs give many details as to how foreign enemies (particularly connected to ISIS (“The Islamic State of Iraq and the Levant”) used their accounts on these platforms, and how, supposedly, attempts by the three companies to close accounts when they were discovered were insufficient.  A quick reading of the complaint does not show convincingly how potential enemies could reliably be prevented from establishing new accounts, but some failures (like related user names) do seem detectable. It would sound possible (to me, at least, as colored by my own military service in the distant past) that the idea that specific foreign enemies treat US civilians at home as combatants could become legally relevant.

User generated content, as we know it today, would not be possible if every item had to be approved by a “gate keeper” which was generally the model in print publishing before the Internet (outside of self-published books).  Even in traditional publishing, authors usually have to indemnify publishers against unexpected liabilities.

Nevertheless, there are some functional differences between what telecommunications providers (like Comcast or Verizon), hosting companies (like Verio, Godaddy, or Bluehost), and self-publishing platforms (like Blogger and WordPress, the latter of which is usually provided by a hosting company but doesn’t have to be), self-publishing companies for print-on-demand books (and e-books), and social media companies (which were originally envisioned as meetup tools but have tended to become personal news aggregation platforms) – provide for end-users. Add to this mix entities like chat rooms and discussion forums (like Reddit).   A loss by the defendants in this case (at least after appeals) could affect other kinds of providers.

Companies do have a responsibility for removing and reporting patently illegal content when they find it or when users report it (like child pornography).  But they don’t have a responsibility to pre-screen.  Nevertheless, companies do have some prescreening tools to apply to images and videos using watermarks to compare to databases for possible copyright infringement, and for child pornography (as maintained by the Center for Missing and Exploited Children).  Google in particular has a lot of expertise in this area.  But it is hard to imagine if this technology could screen for terror-promoting content.

Downstream liability for publishers has been assessed or at least conceded in the past, after crimes have been committed based on published material.  For example, consider the history of Paladin Press with the book “Hit Man” (Wikipedia account )

This case sounds very uncertain at this time.  More details will be provided here (in comments or future postings) as they become known. .

There have been a few other downstream liability suits against social media companies in relation to the Paris attacks in 2015. Brian Fung has a story in the Washington Post, “Tech companies ‘profit from ISIS’ allege families of Orlando shooting victims in federal lawsuit“, and notes that under Trump a GOP Congress is likely to weaken Section 230 when foreign enemy manipulation is at issue.

The pictures are from my visit to Detroit (Aug. 2012), and downtown Orlando festival and then the Pulse (July 2015).

(Posted: Wednesday, Dec. 21, 2016 at 11:45 PM EST)