Do security companies overstate privacy risks on social media, maybe for political motives?

Every time I go into Twitter or Facebook on my new laptop, I get a lecture from Trend Micro on my lenient privacy settings.

Particularly I get warned that the Public can see my Facebook posts and Twitter messages, that others can tag me in photos, and that others can see personal information.  On the last point, only “business address and phone” information ever gets posted online, anywhere.  In fact, I normally don’t have circles of security clearances among who can see what information about me online.  It’s all or nothing.

Some of my curiosity about this was motivated by the video in the previous post, where the speaker (a television station reporter)  said that allowing anyone but approved “Friends” (Faceook) or approved “followers” (Twitter) would create gratuitous security risks that insurance companies would find unacceptable behavior on the part of consumers.

Facebook has different concepts, like Friends, Pages, and Groups.  Many people have Pages with followers.  They cannot be made private (you can block comments from specific people).  You can make a Group by invitation only, which is closer to the concept Trend seems to be encouraging.  The conventional wisdom has been that you allow only Friends to see your posts on your Friends page.  But Facebook allows up to 5000 friends.  It is common for people to have over a thousand.  Many, perhaps most, Facebook users don’t carefully screen who gets approved as a friend.  I do allow friends from overseas (including Arabic names).  I generally disapprove of minors only.  (Posts made by others on your timeline in public mode can normally be seen by “friends of friends”).

Some people, after being friends, do behave in an unwelcome way.  Some send greetings or messages and expect to be answered back.  A couple have made pleas for “personal” help with matters I can do nothing about (at least lawfully).  One female kept making silly posts on my Timeline claiming to tag me in sexual pictures when the individual was not me.  I did unfriend her and the posts stopped.

I also had one occasion where someone created a fake copy of my account with no posts.  A legitimate friend (the person who copyedited my books) caught it and reported it to Facebook and the entry was removed before I knew about it.

Tagging has crept up as a problem, for users who allow it.  I’ve noticed that some people are more sensitive about being photographed in bars or discos than they used to be, say, before 2010.  A few social establishments have started prohibiting photography inside their facilities.

In Twitter, it is possible to set up your account so that all followers have to be approved.  Relatively few users do this, but they will block followers who seem stalky or who don’t follow supposed etiquette (by replying to too many tweets when not being co-followed), although etiquette standards are changing again rapidly.

As a practical matter, limiting visibility of posts to “Friends” or approved followers probably doesn’t increase security very much, because it is so easy to be approved and because, to be successful and have an outreach, people need friends and followers.  Indeed, it wouldn’t stop “catfishing” (as in Nev Schulman’s 2010 film “Catflish” for Rogue pictures, as with a recent incident from a fake female catfisher in Manitoba).

On Facebook, I notice that some Friends (even with privacy set to “Friends only”) will “check in” with that red dot that lets others track their movements;  I don’t think this is a good idea myself.  But part of this is that I don’t want anyone to “take me for granted”, beyond security.  Likewise, I don’t announce (even to Friends) what events I will attend, even if I report on the events after the fact on blogs.  Maybe that isn’t playing ball.  I think back to the days of my upbringing in the 50s;  my parents probably “shared” their lives with about ten other families, as with Thanksgiving and Christmas gift sharing that I remember so well (and with the Ocean City beach trips with one family I remember, too). As for services like Snapchat:  I feel that if I need a conversation that doesn’t go anywhere, I just have it by smart phone or in person.  I don’t like the idea of sharing video or photo that disappears.  (Kathy Griffin should know.)

 

All of this is interesting because Zuckerberg invented Facebook at the time that Myspace had become popular (to the extent that Dr. Phil had programs about misbehavior on Myspace), and, despite winning out over several competing ideas (the movie “The Social Network”; the books “The Accidental Billionaires” by Ben Mezrich, or “The Facebook Effect” by David Kirkpatrick).  Zuckerberg originally intended to set up Facebook for campus environments.  It wasn’t fully public until about 2007 and it didn’t get into its controversial news feed aggregation (so plagued by the fake news that is said to have helped elect Donald Trump) until maybe about 2010 (when Time Magazine honored Zuckerberg as person of the year, the “Connector”).

What such a practice would do, however, is try to discourage online self-publishing with free content.  Social media was built on the premise that known lists of people see your content, more or less like email listservers (or restricted membership sites) that were popular before modern social media.  When people are popular and have lots of “fans”, the practical effect is that social media account is public anyway. It is true that actual friends or followers are more likely to see posts even on public accounts. Blogs can also have “followers” and, with Blogger, can be made “private” (as can YouTube videos), but the normal result is that few people would see them.  Blog following has become less popular since Facebook took off, although YouTube channel subscription is still somewhat popular.

The relevant point seems to be that when you publish a hardcopy (or Kindle or Nook) book, you don’t have the “right” to know who bought it.  That’s the traditional idea or model of “open publication”.  Self-instantiation by open self-publication, with leaving a lot of content free, seems to be a morally suspect or gratuitous practice (even if it purports to offer alternative viewpoints and critical thinking as I think mine do) in the minds of some people:  if it doesn’t pay its own way, it competes unfairly with writers who do need to make a living at it;  it discourages professionalism and facilitates fake news, it can attract cultural enemies (to others as well as the self), leading to the insurance concerns, and (probably most of all) it breaks up political solidarity for those (on both the (alt) right and left) who want to recruit loyal volunteers and who want to control the (often polarized and tribally-centered) message.  “Belonging” to some group seems to be imperative.  The election and  relentlessly tribal and boorish behavior of Donald Trump seems to have brought this point home.

In fact, in the eyes of intellectual property law, this isn’t quite right.  “Publication” in defamation law is communicating the false defamatory claim to even one person who understands the message (which can be one approved friend or follower, or just one email recipient).

I opined before, back in 2000, that “open” self-publication can become an unethical practice for people in some positions (like those with direct workplace reports, when there is a concern over possible workplace results).  Now it’s a possible security issue, especially in asymmetric warfare where civilians can attract enemies who view civilians as combatants.  Yet it’s odd that security company like Trend Micro gets to define what that means, for everybody.

Some observers (like Ramsay Taplan, “Blogtyrant” of Australia) urge an inside-out approach to blogging, focusing on consumer niches that are inherently profitable, the narrower the better.  Then, he says, become aggressive in building email lists from actual customers who need you wand welcome hearing from you, which confounds the conventional wisdom today about spam.  But this practice refers to writing that supports an inherently commercial product or service, not self-expression online for its own sake or even for promoting critical thinking on political or social controversies.

(Posted: Saturday, June 3, 2017 at 11:15 AM EDT)

California case from early 2016 on “right of publicity” could endanger practical use of Section 230 with user generated content; so can Backpage

There is a dangerous controversy brewing in a case, Jason Cross aka Mikel Knight v. Facebook, complaint. (Jason Cross is the stage name for Mikel Knight.)

Cross filed what seems to be a SLAPP suit against Facebook, after a variety users made criticisms of the rap singer’s operations on Facebook.  A trial court in California state court dismissed most of the claims (rather like “tortious interference” in Michael Mann’s 1999 film  “The Insider” about the tobacco industry) in May 2016 under Section 230 and California SLAPP, but allowed a claim that Facebook may have violated Cross’s “right of publicity” to stand (May 2016 ruling )  outside of Section 230 intermediary safeguards.  The actual trial has not yet taken place, and Facebook has appealed the case to a California court of appeals.

The application of right of publicity in this context seems bizarre.  The complaint is not against the user, but against Facebook itself for placing ads, which might be chosen in a manner related to the user’s content, on the page (or mobile display) next to the postings.  The theory is that the advertiser somehow benefits from the fame of the artist.

A much more common use of the right of publicity tort has to do with using the likeness of a famous person directly for commercial purposes, as in your own ad.  There would seem to some theoretical scenarios where some user content (as on a blog or hosted site) from an “amateur” draws more attention because the likeness of the public figure is on the page.  This would be more problematic if the blogger somehow implied that the public figure had endorsed the use of the public figure in the user’s content.  An amateur user, who had not “competed” or “paid his dues” in the usual sense, could leverage his own chance for become better known for his own work by first drawing on the famous person as someone to be compared to.  Possibly, providing multiple reviews of the work of the famous person could get viewed this way.  On the other hand, generally amateurs have a “right” to review all the works of any particular celebrity or better known person separately.

On it’s face, however, this very posting, because it shows the real person in the explanatory YouTube video below next to an ad, could be viewed as a “right of publicity” violation of that person, it taken very literally.  Theoretically, I sift off some undeserved ad revenue from that person’s being more deserving of fame than me.  I think even Milo (Breitbart) would think this is a ridiculous argument.

The biggest concern in the legal community is that the lower court’s preliminary ruling seems to gut the use of Section 230, allowing litigation (at least in California) whenever the substantial mention of a real-life celebrity (or conceivably any living person or even estate) in physical proximity to ads (for example, as served by Google Adsense) could prove tortious, even if the ads were not directly related to the user content.  There are multiple discussions of this case,  one by Paul Alan Levy from June 2016 here and a more detailed one today by Daniel Nazer at Electronic Frontier Foundation, “EFF to Court: Don’t Let the Right of Publicity Eat the Internet” with the amicus brief here.

It will take a long time for this case to work its way up.  Note that Facebook users are not named as defendants.  EFF makes arguments about whether “right of publicity” is really about intellectual property or about (ironically) “privacy” (or perhaps unwanted attention), or even false advertising.

Donald Trump seems hostile to amateur content, even though he uses Twitter himself.  He acts like the thinks that the winners have to keep the losers or “the Proles” in line.

Update: January 12, 2017

Electronic Frontier Foundation has a sobering article about Backpage today. One of the points is that Section 230 protects service providers as long as they don’t create or modify the illegal content (which Backpage may be doing, get back to that in a moment). Cope had already discussed the SAVE Act in January 2015 (article). Nicholas Kristof touched on sex-trafficking, Backpage (and ad modification) in an op-ed in the New York Times January 12.

Backpage closed down its adult section (reportedly) under pressure of Senate hearings very recently (Techdirt story with “censored” graphic). It looks like they took the 5th in Senate hearings (USA  Today story). I wrote a “Twitter storm” about this early 1/13 (and also a big Facebook post). ABC Nightline aired a scathing report early 1/13 here.  The Los Angeles Times offers an instructive comparison to how Backpage and Airbnb invoke Section 230 here.  According to news sources, Section 230 was also used to drop criminal charges against the CEO after an arrest (story).  Daily Beast has a (libertarian) perspective on why “banning Backpage” would actually endanger more women.

We have a new president who is not sympathetic (“no computer is safe”) to the spontaneity of they way many users express themselves with UGC (user-generate content), not only in social media but blogs and personal sites;  he sees these as not “local” or not “real life” or evasive of competing like adults with real responsibilities for dependent families. That’s one reason why the coincidence of two problems (publicity and trafficking) occurring at the same time in the media (on the same blog post by me, at least)  seems really ready to push Section 230 down a slippery slope, and with it the whole business model for much of today’s Internet (most of all social media). And it’s only one week until the inauguration as I write this.

However, it should be possible to question whether ads could be handled differently by the law than non-commercial user posts.  It would also seen that the reported behavior of modifying ads could nullify Section 230 protection even as current law stands.

I note on YouTube that since credit card companies have voluntarily given Backpage official shunning, users are fleeing to bitcoin to use the site.

I do agree with Ashton Kutcher (“A+K”) that “real men don’t buy girls” (or boys).  I wish Kutcher were president right now instead of Trump.

(Posted: Tuesday, January 10, 2017, at 11 PM EST)

Could “Trump” (or his “values” in Congress) stop citizen journalism?

img28852

Three years ago, Malcolm Gladwell wrote a piece maintaining that enjoying college football (and presumably pro football too) as a fan is “morally problematic” because the sport is inherently dangerous, exposing young men to a not completely controllable concussion risk.  (Is it OK for actor Richard Harmon to tweet about the Fighting irish?)  I’ll leave the link to my coverage of it on a legacy blog.  I’ll leave this particular point about conditional morality out in view for a while, as I return to my own situation.

My own situation is that I do get criticism and questions about the way I manage my web presence and books, particularly questions about the fact that I don’t seem to be trying hard to sell them to make money, as if I had to make a living from them.  I don’t.  I covered this matter pretty well here with a blog posting July 8.   Likewise, I get questions about the point of my blogs and websites.  The normal free market would say that it would be very difficult for most bloggers to make a living from advertising revenue from their sites, but some niche bloggers (like “dooce ”, the famous mommy blog by Heather Armstrong) have done well.  Australian blogging guru Ramsay Taplan  (Blogtyrant ) has written lots of tutorials on how to make niche blogging work, but you have to be very serious about the business aspects and become aggressive. Adsense support forums on Google indicate that a number of bloggers, especially overseas, do try to make ends meet even on Blogger.

It’s important, for the moment, to retrace how I got into what I would now call “citizen journalism” (or “citizen commentary” would be more apt)   It all started with my incentive to write my first “Do Ask, Do Tell” book, which I first totally self-published with my own print run in 1997.  I was originally motivated by the debate over gays in the military.  My own life narrative, even up to that point, had displayed an unusual irony (much of that having to do with the Vietnam era military draft)    But my arguments moved into many “civilian” areas, including workplace discrimination, “family values”, public health, and law.  I proposed some constitutional amendments, which I thought fit the temper of the mid 1990s.  Some of what I proposed (I was very cautious on the marriage issue) has become outmoded by the progress of history since then.

It had become possible to publish text essays on Hometown AOL in the early fall of 1996.  I got my own domain (called “hppub.com” then, for “High Productivity Publishing”) in the summer of 1997 at the same time as the book publication.  Originally my intention was to maintain footnotes from the book as more events regarding the various issues unfolded.  By the summer of 1998, I decided to post the html text of the book online for viewing.  Copies of the book did sell fairly well the first two years, and by 1999, volume of hits on the site was quite significant (even from places like Saudi Arabia).

I would go on to accumulate a large amount of material about various issues regarding personal liberty, organized in a concentric fashion. Soon I would add movie-tv, book, and stage event (including music) reviews, with an emphasis on how major issues were addressed in books (including fiction) movies (both conventionally acted and documentary).  The tone of my material, in the personal liberty area, took a somewhat alarming turn after 9/11 in 2001, but that resulted in more attention to my coverage of some issues (for example, after 9/11 there was talk about renewing military conscription).  Eventually I would migrate to placing most of my new content on Blogger starting in 2006, and then gradually started a migration to hosted WordPress at the start of 2014 (as I published my third DADT book, POD).

During most of this time, I was a litigant (through Electronic Frontier Foundation) against COPA, the Child Online Protection Act of 1998, which would finally be overturned in 2007 (after a complicated history including two trips to the Supreme Court).

I think my “value” to the world  — and what gave me a sense of “identity” for the second half of my life (since the mid 1990s, and especially after my official “retirement” at the end of 2001) is that I keep all the arguments about a “network” of liberty-related issues on the floor, available at all times.  Even with a modest number of unique visitors (who don’t know me), there is an influence on policy way beyond my own numerosity of 1.  I could say I’m “keeping them honest”.  I’ve had very good up time reliability over all the years, and in the earlier years, the simple organization of my sites with simple html caused many articles to rank high in search engines (above those of established companies and organizations), with no optimization, even without attention to metatags.

So, you can imagine my annoyance at appeals for donations from sites that purport to speak for me as a member of one group or another.  And also my annoyance of the slogans and baby talk of most political campaign ads.  In fact, I don’t donate to candidates.  Here we get more into my head.  Ironically I perceive needing to have a “strongman” protect me from would be a sign of my own status as a “loser” (and how does that come across as “Trump-talk”?)

Likewise, I have some inner disdain for the idea of being a “marketeer” (something touted by some ads on my sties even).  I remember a job interview onetime in 2002 where the “sales” person (for a financial service) said “We give you the words.”  I don’t need anyone to do that for me.  That sounds like something to appeal to someone not “smart” enough to do anything other than hucksterizing.  I don’t like to manipulate others, and I don’t get manipulated (just like I don’t join mass movements as in Eric Hoffer’s “The True Believer“).   But I know this sounds like posturing from a position of “unearned privilege”.  The tone of numerous solicitations I got after “retirement” seemed to be that I was mooching and should grovel for customers like everyone else (indeed, even if that meant manipulating people to get subprime mortgages), so that the selling playing field was fairer to “them”.  “Always be closing”, indeed!

OK, I can think back, and remember even Mark Cuban said the other day, he had a knack for selling door-to-door, as his first job selling sneakers at 12 (story).  Today, when I think of door-to-door I wonder about home invasions;  and with telemarketing, I wonder about robocalls and scams.  You can see how false pride and insularity, as it becomes more common,, only adds more divisions in our culture and makes it harder for a lot of people to earn a living at all.  Make America Great Again, indeed!

This biggest “objection” from some quarters seems to be that a presence like this that doesn’t pay its own way (in terms of the way a business other than a proprietorship would have to report) represents a possible public risk (getting back to the Gladwell reference on football that I started out with).  It requires a permissive legal culture for me to be able to post anything I want under my own “publicity right” with no gate keepers.  One of the mechanisms that makes this possible, as I have explained elsewhere on legacy blogs, is limits on downstream liability for service providers (Section 230 for defamation or privacy issues;  DMCA safe harbor for copyright).  Without these protections, user-generated content as we know it now (and “citizen journalism”) would not be possible.  Only content that made money on its own could get published (which was pretty much how things were until the 1990s), and “getting published” meant something.

The implicit security problems, of course, are abuse, particularly recruiting of young people for criminal or enemy activity (as by ISIS), and the issue of cyberbullying, as mentioned by Melania Trump recently. It’s all too easy for me to imagine Donald Trump saying in a speech shortly after winning (if he won) that there is no legitimate reason the country should tolerate these risks, given the peril.  Web sites, he could argue, should carry their own freight, and be able to pay employees and support families if they stay up. Remember how he measured teams simply by “money” on “The Apprentice”?  He could indeed become “The Accountant” in a very narrow sense.

That is to say, the permissiveness that benefits me, allows danger to others, especially less advantaged parents raising kids.  (Well-off kids with educated parents don’t usually have as many problems with this, and generally well-off kids learn to “make it” in the real world.  This is definitely related to economic class and even race.)

As for the national security and ISIS risk, one could probably counter that most of the recruiting material is actually accessed from the Dark Web anyway, off shore, in encrypted and untraceable fashion;  and most of this illicit activity involes P2P, BitTorrent,. TOR, and other “clandestine practices” like digital currency.  All of these things have morally legitimate uses (especially in other countries with authoritarian leadership) and their own followings and adherents. (A lot of people have invested their hearts into bitcoin just as I have done with my own versuon of “citizen journalism”.)

Still, Trump, late in 2015, made some vague proposals for “shutting down” much of the Internet, and some in Congress (like Joe Barton, Nov. 5 posting) have wanted to shut down much of social media (the companies already say they shut down accounts that facilitate terrorism, but it’s impossible to stop new ones from growing like mushrooms).  I can imagine the hit on Wall Street if Facebook and Twitter were forced to close.  One could imagine another model, however, where social networks on line mean exactly that: they are much smaller, and only accessed in white-listed, private mode.   I, for example, use Facebook and Twitter as publication adjuncts;  I really don’t use them to flirt or find “companionship”.  So I have little use for a service like Snapchat, because I don’t need a lot of day-to-day interaction with lots of people. I don’t announce where I am going or what events I will attend on Facebook – for security reasons.  So I don’t “play ball” with friends whose life model is to organize others.

Would the Supreme Court continue to protect speakers from this kind of development (as it seems to have done with COPA and the earlier CDA)?  One problem, it seems to me, is that conceptually, distribution of speech (which used to require gatekeepers, based on profitability) is somewhat a distinct potential “right” from the mere utterance itself.

I do wonder about the business models of many Internet service facilitators (and even POS companes), if they can sustain themselves indefinitely with content that consumers don’t pay for.

It seems that to “sell”, you have to offer something more focused that people want.  Citizen journalism and commentary is not something that you would normally expect to “sell”.  Of course, some socially “questionable” things (porn) do sell “easily”.  So do focused “special interests” (and that bemuses Trump’s message as he often delivers it). But one way to improve “popularity” (and actual sales potential) is meeting special needs.  For temperamental reasons (as I covered yesterday) that isn’t something that I want to identify me as something to be known for.  Meeting need is one thing, but “pimping” need is another.  As I said yesterday, this whole area of “indulgence” drags me down the rabbithole of being identified by other people’s causes, not the ones I chose.  But I can see how it fits the idea of “right-sizing”.

For me, the future of “citizen journalism” comes very much into question, especially if Trump wins.  I understand the questions about the legitimacy of the practice ( well laid out in Wikipedia ) but that journalism is often mixed with original analysis (sometimes from unusual life narrative perspectives, like mine, as well as from professional surveys and studies) and commentary.  The New York Times has an interesting perspective today, “Journalism’s next challenge: Overcoming the threat of fake news”, in the New York Times, by Jim Rutenberg.  Timothy B. Lee of Vox has a relevant piece Nov. 6 “Facebook is harming our democracy...“, with its user-mediated newsfeeds, which has the effect of diluting “real” journalism with amateurism (let alone “clickbaiting”).  On CNN, Ted Koppel (“Lights Out“) told Chris Cuomo  that the public doesn’t trust professional journalism any more.  (On Nov. 11, New York Magazine’s Max Read claimed “Donald Trump won because of Facebook“. My own role is not to replace traditional establishment media but to keep it honest by supplementing it with material that confounds reporting and organizing according to traditional identity politics — but some people just stop reading traditional media altogether and see only what they want to hear from amateurs, reinforcing their “UFO” beliefs.)

I’ve approached these problems before, from the viewpoint of “conflict of interest” (Aug. 7, or here ).  We saw this first back around 2001 (before 9/11) with talk of the need for “employer blogging policies”, especially for associates who have direct reports or make decisions about others.  (That’s what drove Heather Armstrong to go solo and then to invent the word “dooce”).

While Gladwell’s idea of unaccounted “moral hazard” subsumed by others (as well as authoritarian ideas about “right-sizing” individual speech as with Russia and China) ( could cause Trump and some in Congress to want to crimp user generated content, it’s indeed (fortunately) hard to see any straightforward way he could do it.  But (to make “A Modest Proposal”) one way would be to prevent  (“nuisance”) domains from being owned by (or even renewed) by entities that don’t offer full public accounting of their funding, even self-funded proprietorships like mine.  Accounts could have to “pay their own way” with their own revenues (that sounds like Trump’s style of thinking, valuing everything in terms of money).  But, then again, Trump has a lot of trouble disclosing his own good fortune in life very publicly.  But so does Hillary.  This kind of problem could intersect with the Network Neutrality debate, if Trump guts neutrality and allows ISP’s to charge businesses for access to their networks (which wasn’t a problem in practice before 2015, however — and some say that this could be a problem “only” for high-volume “porn” sites).

If my “accomplishment” were taken away from me, from public sight, what be left?   My own model is horizontal, using prior content to build more content (for example, for eventually getting my music performed), but that content must remain public, even if it doesn’t pull in short term revenue, to remain strategically effective. Pimping victimhood or group loyalty?  I’d love to get on with a real news outlet reporting critical things that the media just hasn’t covered well (like electric power grid security, as with Koppel’s book).  Or should I just “merge” with Wikipedia?  Actually, there’s no article on me there yet.

(Posted: Monday, Nov. 7, 2016 at 4 PM EST)

 

So, why do I always “write it up”? Hint: Hustle and Flow; and I may need “Identity politics” someday

IMG30382

I recall back in fifth grade, probably in the spring of 1954, we were shown a black-and-white film about the Mexican Revolution.  The only match I can find is the pre-code “Viva Villa!” (Jack Conway), 1934.  I’m not sure why it was shown; maybe it was cleaned up.  (When I worked as a substitute teacher, the 1932 film “The Most Dangerous Game” was shown in ninth grade after the class had read Richard Connell’s short story – then to do a comparison of story to film, and also an essay on the relative virtues of “brains” v. “brawn’. Back in fifth grade, after we had watched the film for about an hour and a half, the teacher, a Miss Craft, ordered us to “write it up.”

So that’s what I do now on my blogs with most of the media I see.  It’s fair to ask “why”.  What do I accomplish?

I know the verse 1 Corinthians 13:11, and can wonder about childish things.  Indeed, there’s been a lot of fantasy in my life.  Isn’t model railroading a fantasy creation?  Isn’t writing fiction novels?  I remember as one summer in Kipton, Ohio started, maybe around 1954, we started to build a “play city” of blocks and toys on the outside sidewalk leading to the old potty (past a maze of grape vines).  Mother didn’t like out continuing “baby play”. But we just changed to fantasy baseball.  Back in 1955, I set up a whole fantasy baseball season with cardboard stadiums, whiffleball, and softball engineered to fit into back yards (sometimes over the fence was out).  This seems healthier (with outdoor play with real sports objects) that fantasy leagues on websites in casino style today.  (I won’t get too much into the libertarian arguments that the government should leave fantasy sports and onlne gambling alone – but I think it should, as would Gary Johnson.)   One day, I “gave it up” and threw away the paper records of the fantasy league.  I wish I still had them; they’d make for good antiques and history of life in the 50s.

In the summer of 1954 my cousin and I also made film strips (my best one was “The Land of the Bible” but there was also “Squish” (horror) and “Pie Face”.  Some of these had been real movies.

I finally settled into tournament chess, which still can become addictive.  Oh, it’s too much a game of skill for Las Vegas (unlike poker).  But on any given day, anyone can beat anyone else (almost), just like in MLB or the NFL.

All this goes against what my late mother used to call “real life”.

So what’s the point of all my blogging and writing in retirement.  I’m “lucky” enough that it doesn’t need to make much money, but that leads to another moral discussion later.

It started with the books, now in POD, and all of this was originally generated by the “gays in the military” issue, as I wrote here May 28.

IMG30345

There was a backdrop of libertarianism – the idea that government should stay out of your pocketbook and out of the bedroom – a concept most Americans really prefer (but that neither major party can endorse because of historical entanglements).  The military issue was colored by the idea that military personnel, in practice, still have personal lives to be respected.  On the other hand, the idea that we need to have people to serve in the military (even with the draft “suspended”) means that there can be tension among what individual people – especially outliers like me, some standard deviations away from the social norms —  do and broader group (“societal”) needs driven by external factors, including enemies – which tends to make some of us dependent on the unseen sacrifices of others.  The military problems of “privacy” and “unit cohesion” seemed to have  parallels in many other areas of life.

So even in writing the books, I dealt with a lot of other concentric issues, like tension among different kinds of families (including singles and childless people v. traditional families), which could branch out into sustainability issues like climate change, national security, an aging population, and most of all, “ungated” user-generated speech.’

I believe, in writing the books and then in maintaining the material online (mostly in an “It’s free, It’s free” mode), I am playing history teacher.  We need to understand the pressures on people (our own families or “ancestors”) in the past.  I know I get flack for bringing up “external threats” or issues why acting as gawker or alien anthropologist, when I could reasonably “join in”.  (Remember how in the movie “Rebirth” the commune has a rule, “No spectators!“) Of course, I grew up in a culture that “expected” or even demanded that men become “protectors and providers” (if “I” didn’t do it, someone else had to risk the “sacrifice”), and that women become mothers. That doesn’t fly today, but it seems like a lot of people today don’t realize that is how it used to be (maybe out of necessity), and how it is in much of the rest of the world (the “authoritarian” and “religious” parts).  I realize you have to jump in sometimes and learn to have one another’s backs — but it’s important to hear independent voices on what the external world is doing.  Sometimes there is more you can do about it (outside of political correctness) than you think.

In time, I found I could attract visitors by maintaining my material online, first in footnote files connected to the books, then in a variety of essays and “editorials”, and finally blogs, and even more finally, modern social media.

Yet, I could take advantage of accumulated savings (from having less debt than most people because of childlessness)  and later inheritance.  That gets into a “reactive” moral discussion that I leave largely for later.  I didn’t need to make money from the postings, so I could afford some amateurism.  That’s where the whole “fantasy world” model comes back into play.

Nevertheless, I think that by covering a number of topics not ordinarily covered adequately by the normal media, I, as the “5th estate”, help “keep them honest” – merely by the fact that I always stay online, to be found by search engines, playing devil’s advocate for everything.  Some of these issues include matters like power grid security, downstream liability, Internet business model sustainability, and downstream liability exposures.   The bigger op-eds go on the commentary blogs; the smaller news items (about matters that could have surprising effects on things that matter to a lot of us) stay on the legacy blogs (and get circulated through social media news posts).

There are those who say it is harmful for “devil’s advocate” messages to come from the wrong person.  Very combative people, instead of ignoring unwelcome viewpoints, might target speakers or others connected to them.  Recently, I was criticized on Facebook for a posting that recognized the idea that civilians are being regarded as combatants by terrorists and foreign enemies, as if an “amateur’s” evening mentioning the idea makes it more likely that actual enemies will act on it.  But, this isn’t about ideology, it is about observing reality.  The same kind of thinking goes into legitimate arguments supporting capability for self-defense.

I don’t have much personal use for participating in “identity politics”, although at a certain intellectual level I recognize there is some necessity in it – if you belong to a group, then “all lives matter” to you in the group, something that is really not possible with total globalization of personal attention.

IMG_1175

I would indeed have to come off a “Dr. Phil” high horse to become more focused on specific people – to prove that helping them meant something beyond upward affiliation.  I can imagine a thought experiment (a favorite term of Andrew Sullivan, as I recall), where I do a “reset” (like in the movie “Jackrabbit”, July 27, where it’s forced on the world, making it dystopian) where all my online content is erased — something that was contemplated at one time to pursue a “real” second career selling stuff or teaching, to get around “conflict of interest” problems — a bit like throwing into a sanitary landfill the records of 1955 fantasy (“baby play”) baseball.  In churches (especially in Texas), indeed, I’ve heard people raise their hands and scream “I’ve given up everything, Lord, now I’m yours.”  How can I help others personally without an anchor in my own expressive identity, even made very public, first?

IMG_2895

I won’t get much further into this compulsive thinking too much now, other than to point to a comment made by a user on a friend’s website (that’s Vox technology and policy analyst Timothy B. Lee, who helped arranged on of my book talks when I was living in Minneapolis, when he was a student at the University of Minnesota.)   A male teacher writes here in the comments on June 4, 2016,  “Please, spend more time working with poor people disabled people, people in hospice, abuse victims, and explain to all of them what is your idea of a living wage.”  And my gut reaction would be, there’s no honor in becoming a victim, I just have to be strong enough to prevent it.  That sounds like Donald Trump, without the “takings sides” and baiting. The speaker would say, You have to get over that to be heard.  After all, the subtitle of my third book is, “Being Listened to Is a Privilege” (with this reaction).  Indeed, “It’s hard out here for a pimp.”

(Published: Sunday, August 7, 2016 at 11:50 PM EDT)

Non-disparagement clauses can endanger consumers with sudden litigation for speaking out online, and there’s more

IMG29055

So, what to make of the problem of contractors and other small businesses suing customers for bad reviews, mostly on Angie’s List and particularly Yelp!

Apartment complexes have, at least sporadically, joined the fray, too, with non-disparagement clauses on leases.  In one particularly outrageous case in Utah (details, with supporting links ), an apartment complex tried to force residents to give it Facebook “likes”, but later rescinded (and in doing so, it would be violating Facebook’s own TOS). I wonder of condo boards will, too.

The issue is more complicated than libel, where truth (in the U.S., but not always in Britain or Europe) is an absolute defense.  Here, merely speaking about the issue is a breach of contract.  So far, lawyers are all over the map on whether the clauses are enforceable, but in states without SLAPP laws (mostly “red” states), or maybe in fact in all states except California, they could be.

There are some interesting videos on the problem.  NBC has a basic story about what is called “bullying” by businesses.

A technology guy who says he “talks for a living” (“chatterboxes”) explains that non-disparagement clauses can be a sign of a company hiding bad service or that is combative and litigious. He indirectly hints that review site operators are protected by Section 230, but consumers are not; he also notes some risks with quick social media posts.

Health care and nursing homes can present their own unusual issues, as here.

Businesses do have a point.  In a real world, even one particularly pernicious review could make a lot of future customers hesitant.  It is a serious problem for small contractor business owners (often families) that have to make a living doing real jobs (involving handiness and sometimes some risk, as Sebastian Junger has written about), facing a permissive culture of self-broadcast that doesn’t offer a lot of accountability.  (I should temper this comment by noting that many “family” businesses set up franchise trademarks and still become rather medium-sized, often with several offices in a large metro area, or in several cities.)  But the practical threat for a speaker is the expense defending a lawsuit, even if the legal and ethical grounds for litigation by the contractor seem dubious and even if the customer’s statement is factually true.  Consumer groups say that consumers need other “weapons” besides having the expense of starting litigation themselves.  Countering this idea is the fact that many attorneys for consumers will take cases on contingency. I had this experience myself with liability claim for a convenience store injury in Minneapolis back in 1998.  (I recovered completely.)  But with some contracting situations, a consumer is unlikely to win in court even with litigation if the contractor performed the job to even a minimum standard.

IMG28785

I don’t write on “review sites” (other than some reviews of books and movies on Amazon or imdb) because I don’t want to complicate my own self-publishing “environment”.  I do have a couple of other little disputes but I have not gone to review sites or even mentioned the parties by name online anywhere.  Yet I get emails from Angie’s List asking if I have anything to review (I am a “member”), and I get ads from approved sellers.  I don’t quite understand this mechanism, because you can’t “pay” for reviews on these sites (legally, at least).

There is more risk to consumers, it seems, from review site postings than from other social media postings or blogs.  I’ve actually been concerned, in the past, that the practice of “gratuitous” speech online could drive away other parties from working with someone.  For example, an employer who finds that an applicant has blogged about a previous employer, even from the distant past, could fear hiring the employer because the applicant will eventually write about the new employer, too, at least critically.  I’ve wondered if property and auto insurance companies could get concerned about this, partly because ill-conceived comingling or unrelated perils (maybe accidentally encouraging anti-selection) on umbrella policies.

A ”non-disparagement” clause is limited in its practical effect as far as a person’s other speech; it might be viewed in comparison to concepts like confidentiality agreements or conflict of interest.  A much grimmer idea would be refusing to hire or do business with someone who practice an “gratuitous”, non-whitelisted speech that didn’t pay its own way.  I haven’t really seen this happen much (although it might have caused me not go get media perils insurance renewed through NWU back in 2001, that’s another narrative).

The web has indeed democratized speech, and big social media sites (Facebook) are probably giving “amateurs” some practical cover from resistance from legacy businesses that feel threatened by the prospect of unregulated self-broadcast from consumers and employees.  But there are two sides to this, and real people have to make real livings supporting real families, in real life.  I would become very concerned indeed if this practice spread to big boys, like telecommunications providers (invoking the network neutrality debate, possibly) and insurers.

It is important to consider (at a later time) in some detail how user reviews affect the “sharing economy”, with services like Airbnb, Uber and Lyft (it goes both ways — consumers get rated, too), as was covered on Fareed Zakaria’s GPS on June 6, 2006 in an interview with the Airbnb CEO.

(Published: Saturday, June 4, 2016 at 1:45 PM EDT)

The “Fifth Estate” could have to fight harder in the future, especially if Trump is elected; an overview

IMG29121

This new commentary blog is intended to look outward to the world, not just focus on pingbacks to my own narrative. But my own experience with self-publication, most of all online (as detailed in Chapter 10 of my second DADT book) provides a gamer’s road map to all the major issues.

When I self-pubbed my first DADT book with my own printing in 1997 centered around my own narrative encircling the military gay ban, I expected word-of-mouth to sell copies, and indeed that happened, especially in the first eighteen months or so.  A couple speaking engagements in the Twin Cities (at Hamline University and then the University of Minnesota, as well as a Unitarian fellowship) helped.  I also networked a lot with the Libertarian Party of Minnesota, another topic that I’ll come back to soon (given the national party’s convention in Orlando, just finished, and how it could affect the 2015 race).

In the summer of 1998, I did put the entire text of the book online for viewing and lookup. In time, I was heavily indexed in Google and many other search engines, without having to do much work with metatags to attract them.  I was clearly attracting a non-paying audience (judging from email response of the times) with free search engine exposure.  I was entering a new paradigm, “Fame” (like the movie) and the asymmetric ability to affect a political debate without money.  Indeed, this was the predictor of Reid Ewing’s sequence of videos in 2012, “It’s Free”.

My practice would become controversial. It’s also uninsurable (see the book) as the risk is unknown, byt I have yet to be served (knock on wood).  Yes, I do get chased to pimp copies of my books (overpriced).I don’t need to make money from the publishing since I am “retired” (and previously had accumulated “rentier” assets in the stock market) but some people think my practice undermines their ability to make a living.  I’ve heard that from LP friends (I am the new “threat”), and even Mark Cuban told me in an email that this was probably a bigger issue for big publishers and Hollywood than actual piracy.

My strategy, with flat sites of simple html, as extremely effective until well after 9/11.  Gradually, social media eventually stole the thunder of a lot of what I had done.  Not so much Myspace, but indeed Facebook and Twitter (and Instagram).  But now I use social media platforms myself.  They actually solved one problem for me somewhat (“conflict of interest”, as I had seen it, as explained here  and here , note also the 2000 white paper on employee COI ), while creating new ones.  Blogging gradually replaced flat sites, and I started using Blogger in early 2006.

I’m getting ahead of myself, but I did want to outline the major strategic “threats” to my ability to continue this activity, which has indeed comprised my Second Life.  One was the possibility of being forced (by threat of prosecution) into self-censorship, as represented by the Communications Decency Act of 1996 and later COPA, the Child Online Protection Act of 1998.  The other major concern would center around the major possible intellectual property torts, like copyright infringement, trademark, and then harm areas like defamation, invasion of privacy, insofar as these are possible perils that I, the speaker, could encounter.  More serious is depending on a permissive climate that facilitates cyberbullying and recruiting of terrorists online. That’s maybe some “bad karma”.  This leads to a discussion of downstream liability of service providers and publishing platforms.

The original CDA could have been  quite draconian, but the censorship portions were struck down by the Supreme Court in 1997.  I actually attended the oral arguments in March 1997. In 1998, just as my online stuff was starting to get found a lot, Congress passed COPA.   I give a summary of my involvement with COPA on my “do ask do tell notes” blog here.  This was a major element of my online life from 1998 until 2007. The Supreme Court had weighed in twice before the final district court ruling (and I went to the oral arguments the second time).  I have more details on my legacy site here.

The irony of the CDA is that it was part of a bigger Telecommunications Act of 1996, one provision of which, Section 230, gives service providers immunity from downstream liability for torts committed by users in generating “amateur” content.  Electronic Frontier Foundation as a major primer on the topic here.  Section 230 shields intermediaries from liability from secondary liability for various torts, the most likely of which is defamation (with “online reputation” issues compounded for others), but which would also include invasion of privacy, and probably the results of cyberbullying and terror recruitment, for example.

The defamation issues crop up repeatedly with “review sites” like Yelp!, where some contractors and medical or dental providers try to force customers to sign controversial (and morally objectionable) no-disparagement clauses.  Privacy has come up in the notorious Gawker case, which also raises the question as to whether big business interests should subsidize combative litigation of others.  Defamation suits are less common on ordinary blogs and older sites.  However, a major problem, somewhat connected to review sites, has been SLAPP, or strategic lawsuits against public participation, somewhat problematic in states with weaker consumer protection laws.  There is still no federal anti-SLAPP law.

US law is more protective of providers than most other countries, and Section 230 has its critics.  There have been proposals, for example, that Section 230 become overridable by state laws.  Others, especially on the Left, say that, since big tech companies are so profitable (the biggest companies that survived the Dot-com bubble), they should share in the responsibility for the horrific outcomes of cyberbullying and terror recruitment.  Major tech companies do remove objectionable content (as TOS violations) that is brought to their attention, and have some ability to filter some material (like ISIS propaganda).  Recently, the companies have promised the EU to “step right up” and remove flagged content within 24 hours.

Ethically connected to the issue of privacy invasion is the idea of a “right to be forgotten”, which is being enforced in Europe and causing quite a bit of expense and headache for search engine companies in removing old results of true but damaging information (like petty convictions or old debts or foreclosures), material that in the old world would have taken a lot of trouble to look up manually at physical county courthouses in “public records”.   Site content itself is not removed, just search results.  But in maybe three unusual cases, I have been asked to remove information involving specific parties from my own sites.

The other big pillar of legal risk would, of course, be copyright.  I had to ponder this when writing my first book in the 1990s.  There was a whole cottage industry for securing permission for “quotes”.  I wound up simply keeping my quotes shorter than I had originally wanted.  The analogue of Section 230 is the “Safe harbor clause” of the Digital Millennium Copyright Act if 1998, which shields providers from secondary library for copyright infringement if they take down infringing material immediately. The major objection is that large media companies bully individuals, and that YouTube and others sometimes take down material without due process on frivolous claims, although there is an appeal process.  There is little practical incentive not to file these claims.  And in 2011, especially, we fought the battles to stop PIPA and SOPA which would have effectively given major media companies unprecedented power to have sites removed from the web for the infringement of just one user.  This has happened anyway (as with the MegaUpload case).  Likewise, some bloggers have had to fend of copyright trolls (like Righhaven) for copying news stories and photos from some smaller newspapers which joined in the litigation. I don’t do this myself.  Frivolous trademark claims against domain names have sometimes been a problem, when they involve common words or come from unrelated business areas (in contradiction to actual trademark law in the US). YouTube (Google) does have some pre-screening automation that copyright owners can join and use, called Content-ID, and this seems to be an evolving product creating some controversy on its own.

Coming back to my “It’s free” paradigm, there is also the issue of what I would call amateurism and “gratuitous speech”, which is soap-box activity (like mine) outside the area of more usual narrow-issue speech from political pressure groups, and from established media.  YouTube used to encourage this process with the slogan “Broadcast yourself!”  I argue, that as a member of the “Fifth Estate” moving toward the “Fourth” (rather like Clive Barker’s “Dominions”)   I claim that the value of my gratuitous speech is that it “connects the dots”.  But companies could find it much less profitable in the future to provide the platforms for free stuff, as people put up “do not track” and ad blockers.

IMG29215

I could also reinforce the concerns about insurance in the future.  If health insurance is mandatory, I can imagine pseudo-progressive arguments that media perils ought to be required too (because user-generated content comes with some collective risk, given all the benefits on keeping the powers that be –and the Fourth Estate — honest).  Auto and home casualty insurance companies should be very careful about packaging coverage for Internet use (including identity theft as well as liability) with protection from losses due to conventional accidents, crimes, and tornadoes or hurricanes.  The actuarial risk (especially of frivolous, SLAPP or troll-sourced litigation) is not possible to calculate, and yet auto companies already bundle all of this in high-end umbrella coverage, which could cause unintended consequences (and anti-selection, and then cancellations) down the road.

Indeed, gratuitous “self-broadcast” could come under fire, if looked at differently for “secondary risks”, as I fear could happen if Donald Trump is elected.  Remember, Trump last fall suggested shutting down parts of the Internet (related to user generated content) if companies couldn’t get a handle on the terror recruiting, which he can argue is an existential threat that doesn’t need gratuitous invitation.  (Trump has wanted to lower the bar to allow public figures to sue media companies and presumably bloggers with lower standards of malice.) Possibly, I could attract enemies and indirectly put others in danger of targeting, which I could imagine could even be an issue for future landlords, for example.   It’s part of a style of tribal thinking that I have had to pay more heed to in recent years.   But any activity that interacts with the public has its own risks (like, say, selling life insurance or tax planning, something I have fielded unsolicited appeals to do instead).  There are philosophical questions, about helping others directly and getting meaning in doing so.  But I can’t let others use my own life as a bargaining chip.

(Published Monday, May 30, 2016 at 1 PM EDT)