Cato Institute covers many First Amendment topics in day long forum; what about downstream liability concerns?

Last Thursday, September 28, 2017, I attended a day-long event at the Cato Institute in Washington DC, “The Future of the First Amendment”.  I could call it aka “the future of free speech” in the U.S.

Cato has a link for the event and has now uploaded all the presentations, which you can view here. The videos include embeds of the slides and of the audience members asking questions as professionally filmed, better than I can do on my own at an event.

The “table of contents” in the link shows the topics covered as well as identifying the credentialing the many invited speakers, and indeed the presentation was segmented and topical and tended to focus on many narrow, separate issues.  I’ll come back at the end of this piece as to what I would like to have seen covered more explicitly.

The earliest morning session focuses particularly on partisan political speech related to elections (the “Citizen’s United” problem) and on commercial speech, including whether companies or commercial entities are separate persons.  One concept that stuck out was that listeners or receivers of messages are entitled to First Amendment protections. I would wonder how that concept would play out given more recent reports of Russian attempts not only to influence the 2016 elections but also to spur social instability and resentment in American society, based particularly on the idea of relative collective deprivation (which is not the same idea as “systematic oppression”).  There are understandable concerns over wanting to regulate paid political ads (especially if supplied by foreign agents), but we should remember back around 2005 when there were concerns based on a particular court interpretation of the McCain-Feingold Campaign Finance Reform Act that even free blogs (written without compensation and without ads) could be construed as “political contribution” if they expressed political viewpoints.  The discussion of commercial speech recognizes that advertisements sometimes do express points of view going beyond immediate ad content, and that valuable speech, such as well-made studio Hollywood movies about major historical events, made with good faith, can express political viewpoints while being funded through the open securities markets available to publicly traded companies.  But one auxiliary idea not explicitly mentioned was something I encounter: that speech available to the public should pay its own way.

The second segment dealt with “religious liberty in the post-Obama era”.  Here we have the dubious idea that an employee of a business open to the public is engaging in religiously-connected “speech” when she sells certain products or services to a person of a different faith or who engages in certain intimate personal relationships as now recognized by law (especially same-sex marriage).  One speaker in particular (Robin Fretwell Wilson) suggested that states should carve out laws that require public accommodations to serve all customers but allow individual employees (even in government agencies, such as with Kim Davis in Kentucky) to turn over the duties to someone else.  While I would support such a solution, if can mean an unequal workplace (such as the catse when some employees observe Sabbath’s explicitly and others cover them without getting any compensation in return, which I have done – an extreme extension of this idea is the “conscientious objector” problem with the past military draft).  It’s also true that sometimes “religious speech” can serve as a mask for personal moral ideas that in fact are not really founded in recognized interpretations of scripture, for example, political aversion to working with inherited wealth.

The keynote speaker for the second floor luncheon(well catered with deli sandwiches) was Eugene Volokh, of UCLA Law School and the Volokh conspiracy blog.  Volokh gave a spirited presentation on how the Internet has accelerated the application of libel law (well before Donald Trump noticed) because the Internet allows speakers with no deep pockets and little formal publishing law experience to be heard, and also because the “online reputation” damage from defamation, as propagated by search engines, is permanent, as opposed to newspaper defamation in the past.  Volokh made the interesting point that sometimes cases are settled with court injunctions that could prohibit a blogger from mentioning a particular person online again anywhere.  (That could matter to bloggers who review films or music performances, for example). At 41:07 on this tape, I ask a question about Backpage and Section 230. Volokh’s answer was thorough and more reassuring that it might have been, as he indicated that “knowingly” standard could be included in service provider downstream liability exposures. (He also explained the distinctions among utility transmission, distribution, and publication.) He also got into the question as to whether fake news could be libel.  Usually, because it largely involves politicians, in the U.S. it does not. But it might when applied to celebrities and companies.

The afternoon session featured a presentation by Emily Ekins on the 2017 Free Speech National Survey. A number of startling conclusions were presented, showing partisan divides on what is viewed as hate speech, and also a lack of understanding that most hate speech is constitutionally protected. There is a tendency among many voters and especially many college students to view words as weapons, and to view speakers as morally accountable for the actions of the recipients of their speech, even when there is no direct incitement for rioting or lawless action. Many respondents showed a shocking dislike of journalists as “watchers” who don’t have their own skin in the game.  A majority seemed to take the pseudo-populist position that a heckler’s veto on speakers was morally OK, and a shocking substantial minority thought that government should heavily sponsor speech to protect special groups.  A shocking minority accepted the idea that hate speech should sometimes be met with political violence.

The final session talked about censorship and surveillance.  The speakers included Flemming Rose (“The Tyranny of Silence” and the cartoon controversy).  Rose mentioned, in an answer to an audience question, that in some countries speakers were arrested for “qualification of terrorism” in public statements.  All the speakers noted a desire from the EU to force tech companies to export their rules to the US, especially the supposed “right to be forgotten”.  Daniel Keats Citron from the University of Maryland Law School mentioned the Section 230 controversy in an answer, as she talked about  distinguishing “good Samaritans” from “bad Samaritans”

At the reception afterward, a speaker from Cloudflare noted that Hollywood has been lobbying heavily on Congress to force service providers to prescreen content, as motivated by the Backpage controversy. Hollywood, he said, has been pressuring agents and Wilshire Blvd law firms to join in the effort. He mentioned the DMCA Safe Harbor, which has a similar downstream liability concept but applies to copyright, not to libel or privacy.  The tone of his remarks suggested that this goes way beyond piracy;  Hollywood does not like dealing with the low cost competition of very independent film that is much less capital intensive, and taking up much larger audience share than in the past..  Even Mark Cuban admitted that to me once in an email.  Cloudflare also said that the law, unchanged, would today handle sex trafficking the way it handles child pornography, with a “knowingly” standard, which seems adequate already.

All of this brings me back to what might not have been hit hard enough in the conference, the idea, as I said indicated in the title of my third book, of “a privilege of being listened to” (my 2005 essay), which sounds a little scary to consider and seems to lie beneath authoritarian control of speech.

I insist on managing my own speech, much of which is posted as “free content”.  I get pestered that I don’t sell more physical copies of my books than I do and don’t try to be “popular” or manipulative in order to sell. (That helps other people have jobs,  I guess.)   I get told that my own skin should be in the game.  I get sent into further deployments of the subjunctive mood (“could’a, should’a, would’a”), like in high school French class. – I should have children, or special needs dependents, or be in the trenches myself before I get heard from.  (This could affect how I handle the estate that I inherited, which can get to be a Milo-Dangerous topic.)   Content should pay its own way (which, ironically, might encourage porn.)  Individual speakers weaken advocacy groups by competing with them and not participating.  Before I get heard from myself, I should join somebody else’s cause against “systematic oppression” and not be above walking and shouting in their demonstrations. I should run fundraisers for other people on my webpage. I should support other publications’ fund raisers who claim (on both the right and left) to be my voice, as if I were incompetent to speak for myself.  Or, as if that capacity will be taken away from me by force.  Even the world of writers. I get confrontational ideas, that “real writers” get hired to portray other people’s narratives other than their own. (Okay, I might really have had a chance once go “ghost-write” so-to-speak one of the other “don’t ask don’t tell” soldier’s stories.)

One of the most serious underreported controversies is indeed the idea that speakers should be held responsible for what their readers might do, particularly because “you” are the speaker and not someone else.  This is related to the notion of “implicit content” (Sept. 10). This concept was behind my own experience in October 2005 when working as a substitute teacher, see July 19, 2016 pingback hyperlink).  That certainly comports with the idea that Section 230 should not exist, and that people should not speak out on their own until they have a lot of accountability to a peer group (family or not).  This is far from what the First Amendment says but seems to be what a lot of people have been brought up to believe in their own home and community environments. It goes along with ideas of personal right-sizing, fitting in to the group, and a certain truce on social justice.  In the past two or three decades (compared to when I was in high school and college), there has been a weakened presentation of the First Amendment (and Bill of Rights in general) in the way it is taught in high schools and to undergraduates.  I could even say based on my own substitute teaching experience from 2004-2007 that even public school staff (including administration) is poorly informed on the actual law today, so you would not expect students to be getting the proper learning on these matters.

Individuals have natural rights, just as individuals;  but people don’t have to belong to oppressed groups or claim “relative deprivation” to claim their natural rights.

(Posted: Tuesday, October 3, 2017 at 12 noon)

After the Equifax breach, we need a policy solution for identity theft

While CNN Money has a pretty mainstream article of advice on the Equifax hack here, a supplementary article by David Goldman lays it on the line, “What’s the worst that can happen?”

The absolute worst might be being framed for a crime, like sex trafficking or child pornography.  In most circumstances that a novelist can imagine, it would still be pretty easy to prove that physically the culprit couldn’t have been “you”.  There are a variety of other outcomes, including job loss or denial or a mortage or lease. For millennials, the risk can extend for decades.  For seniors, it’s probably very minimal.

One comment that gets made by social conservatives particularly (and some libertarians) is that you are ultimately responsible for your own reputation, no matter what, because you live in a society that offers you the benefits of civilization.  I can remember an employer warning us about this in the late 1980s when we suddenly had to pass credit checks to keep our jobs.   I can remember that ten years ago there were prosecutors who looked at finding child pornography on a personal computer as an “strict  liability offense”, although since they they have accepted the idea that malware can put it there. This seems to be a very disturbing philosophy that transcends the plain meaning idea of the law normally, and that most of us cannot live with (especially those on the margins).

Maybe maintaining credit freezes would protect everyone, but it sounds pretty impractical in the long run.

So I think that in the identity theft idea, we need a new policy solution.  I had outlined an idea back in 2006 using “National Change of Address” at USPS, which I had worked on in Minneapolis on my own career back in 1998.

Now I would say, the credit reporting companies should develop the idea of a secondary social security number verifier, which a user can add to her file, and which could not have been hacked yet because it does not yet exist.   I would not be so comfortable with letting the Social Security administration run it. Get some security companies (not Kaspersky, in Russia) to help develop it.  It could be put into two-step verification required to pull a credit report, although it so it would need to be tied to sim cards and not just to phone numbers, which can also be stolen.

(Posted: Sunday, September 17, 2017 at 9:15 AM)

Will user-generated public content be around forever? The sex-trafficking issue and Section 230 are just the latest problem

It used to be very difficult to “get published”.  Generally, a third party would have to be convinced that consumers would really pay to buy the content you had produced.  For most people that usually consisted of periodical articles and sometimes books.  It was a long-shot to make a living as a best-selling author, as there was only “room at the top” for so many celebrities.  Subsidy “vanity” book publishing was possible, but usually ridiculously expensive with older technologies.

That started to change particularly in the mid 1990s as desktop publishing became cheaper, as did book manufacturing, to be followed soon by POD, print on demand, by about 2000.  I certainly took advantage of these developments with my first “Do Ask Do Tell” book in 1997.

Furthermore, by the late 1990s, it had become very cheap to have one’s own domain and put up writings for the rest of the world to find with web browsers.  And the way search engine technology worked by say 1998, amateur sites with detailed and original content had a good chance of being found passively and attracting a wide audience.  In addition to owned domains, some platforms, such as Hometown AOL at first, made it very easy to FTP content for unlimited distribution.  At the same time, Amazon and other online mass retail sites made it convenient for consumers to find self-published books, music, and other content.

Social media, first with Myspace and later with the much more successful Facebook, was at first predicated on the idea of sharing content with a known whitelisted audience of “friends” or “followers”.  In some cases (Snapchat), there was an implicit understanding that the content was not to be permanent. But over time, many social media platforms (most of all, Facebook, Twitter, and Instagram) were often used to publish brief commentaries and links to provocative news stories on the Web, as well as videos and images of personal experiences.  Sometimes they could be streamed Live.  Even though friends and followers were most likely to see it (curated by feed algorithms somewhat based on popularity in the case of Facebook) many of them were public for all to see,  Therefore, an introverted person like me who does not like “social combat” or hierarchy or does not like to be someone else’s voice (or to need someone else’s voice) could become effective in influencing debate.   It’s also important that modern social media were supplemented by blogging platforms, like Blogger, WordPress and Tumblr, which, although they did use the concept of “follower”,  were more obviously intended generally for public availability. The same was usually true of a lot of video content on YouTube and Vimeo.

The overall climate regarding self-distribution of one’s own speech to a possibly worldwide audience seemed permissive, in western countries and especially the U.S.   In authoritarian countries, political leaders would resist.  It might seem like an admission of weakness that an amateur journalist could threaten a regime, but we saw what happened, for example, with the Arab Spring.  A permissive environment regarding distribution of speech seemed to undercut the hierarchy and social command that some politicians claimed they needed to protect “their own people.”

Gradually, challenges to self-distribution evolved.   There was an obvious concern that children could find legitimate (often sexually oriented) content aimed for cognitive adults.  The first big problem was the Communications Decency Act of 1996.  The censorship portion of this would be overturned by the Supreme Court in 1997 (I had attended the oral arguments).  Censorship would be attempted again with the Child Online Protection Act, or COPA, for which I was a sublitigant under the Electronic Frontier Foundation.  It would be overturned in 2007 after a complicated legal battle, in the Supreme Court twice.  But the 1996 Communications Decency Act, or more properly known as the Telecommunications Act, also contained a desirable provision, that service providers (ranging from Blogging or video-sharing platforms to telecommunications companies and shared hosting companies) would be shielded from downstream liability for user content for most legal problems (especially defamation). That is because it was not possible for a hosting company or service platform to prescreen every posting for possible legal problems (which is what book publishers do, and yet require author indemnification!)  Web hosting and service companies were required to report known (as reported by users) child pornography and sometimes terrorism promotion.

At the same time, in the copyright infringement area, a similar provision developed, the Safe Harbor provision of the Digital Millennium Copyright Act of 1998, which shielded service providers from secondary liability for copyright infringement as long as they took down offending content from copyright owners when notified.  Various threats have developed to the mechanism, most of all SOPA, which got shot down by user protests in early 2012 (Aaron Swartz was a major and tragic figure).

The erosion of downstream liability protections would logically become the biggest threat to whether companies can continue to offer users the ability to put up free content without gatekeepers and participate in political and social discussions on their own, without proxies to speak for them, and without throwing money at lobbyists.  (Donald Trump told supporters in 2016, “I am your voice!”  Indeed.  Well, I don’t need one as long as I have Safe Harbor and Section 230.)

So recently we have seen bills introduced in the House (ASVFOSTA, “Allow States and Victims to Fight Online Trafficking Act”) in April (my post), and SESTA, Stop Enabling of Sex Traffickers Act” on Aug. 1 in the Senate (my post). These bills, supporters say, are specifically aimed at sex advertising sites, most of all Backpage..  Under current law, plaintiffs (young women or their parents) have lost suits because Backpage can claim immunity under 230.  There have been other controversies over the way some platforms use 230, especially Airbnb.  The companies maintain that they are not liable for what their users do.

Taken rather literally, the bills (especially the House bill) might be construed as meaning that any blogging platform or hosting provider runs a liability risk if a user posts a sex trafficking ad or promotion on the user’s site.  There would be no reasonable way Google or Blue Host or Godaddy or any similar party could anticipate that a particular user will do this.  Maybe some automated tools could be developed, but generally most hosting companies depend on users to report illegal content.  (It’s possible to screen images for water marks for known child pornography, and it’s possible to screen some videos and music files for possible copyright, and Google and other companies do some of this.)

Bob Portman, a sponsor of the Senate bill, told CNN and other reporters that normal service and hosting companies are not affected, only sites knowing that they host sex ads.  So he thinks he can target sites like Backpage, as if they were different.  In a sense, they are:  Backpage is a personal commerce-facilitation site, not a hosting company or hosting service (which by definition has almost no predictive knowledge of what subject matter any particular user is likely to post, and whether that content may include advertising or may execute potential commercial transactions, although use of “https everywhere” could become relevant).  Maybe the language of the bills could be tweaked to make this clearer. It is true that some services, especially Facebook, have become pro-active in removing or hiding content that flagrantly violates community norms, like hate speech (and that itself gets controversial).

Eric Goldman, a law professor at Santa Clara, offered analysis suggesting that states might be emboldened to try to pass laws requiring pre-screening of everything, for other problems like fake news.  The Senate bill particularly seems to encourage states to pass their own add-on laws. They could try to require pre-secreening.  It’s not possible for an ISP to know whether any one of the millions of postings made by customers could contain sex-trafficking before the fact, but a forum moderator or blogger monitoring comments probably could.  Off hand, it would seem that allowing a comment with unchecked links (which I often don’t navigate because of malware fears) could run legal risks (if the link was to a trafficking site under the table).  Again, a major issue should be whether the facilitator “knows”.  Backpage is much more likely to “know” than a hosting provider.  A smaller forum host might “know” (but Reddit would not).

From a moral perspective, we have something like the middle school problem of detention for everybody for the sins of a few.  I won’t elaborate here on the moral dimensions of the idea that some of us don’t have our own skin in the game in raising kids or in having dependents, as I’ve covered that elsewhere.  But you can see that people will perceive a moral tradeoff, that user-generated content on the web, the way the “average Joe” uses it, has more nuisance value (with risk of cyberbullying, revenge porn, etc) than genuine value in debate, which tends to come from people like me with fewer immediate personal responsibilities for others.

So, is the world of user-generated content “in trouble”?  Maybe.  It would sound like it could come down to a business model problem.  It’s true that shared hosting providers charge annual fees for hosting domains, but they are fairly low (except for some security services).  But free content service platforms (including Blogger, WordPress, YouTube, and Facebook and Twitter) do say “It’s free” now – they make their money on advertising connected to user content.   A world where people use ad blockers and “do not track” would seem grim for this business model in the future.  Furthermore, a  lot of people have “moral” objections to this model – saying that only authors should get the advertising revenue – but that would destroy the social media and UGC (user-generated content) world as we know it.  Consider the POD book publishing world. POD publishers actually do perform “content evaluation” for hate speech and legal problems, and do collect hefty fees for initial publication.  But lately they have become more aggressive with authors about books sales, a sign that they wonder about their own sustainability.

There are other challengers for those whose “second careers” like mine are based on permissive UGC.  One is the weakening of network neutrality rules, as I have covered here before.  The second comment period ends Aug. 17.  The telecom industry, through its association, has said there is no reason for ordinary web sites to be treated any differently than they have been, but some observers fear that some day new websites could have to pay to be connected to certain providers (beyond what you pay for a domain name and hosting now).

There have also been some fears in the past, which have vanished with time.  One flare-up started in 2004-2005 when some observers that political blogs could violate federal election laws by being construed as indirect “contributions”.   A more practically relevant problem is simply online reputation and the workplace, especially in a job where one has direct reports, underwriting authority, or the ability to affect a firm to get business with “partisanship”.  One point that gets forgotten often is that, indeed, social media sites can be set up with full privacy settings so that they’re not searchable.  Although that doesn’t prevent all mishaps (just as handwritten memos or telephone calls can get you in trouble at work in the physical world) it could prevent certain kinds of workplace conflicts.  Public access to amateur content could also be a security concern, in a situation where an otherwise obscure individual is able to become “famous” online, he could make others besides himself into targets.

Another personal flareup occurred in 2001 when I tried to buy media perils insurance and was turned down for renewal because of the lack of a third-party gatekeeper. This issue flared into debate in 2008 briefly but subsided.  But it’s conceivable that requirements could develop that sites (at least through associated businesses) pay for themselves and carry media liability insurance, as a way of helping account for the community hygiene issue of potential bad actors.

All of this said, the biggest threat to online free expression could still turn out to be national security, as in some of my recent posts.  While the mainstream media have talked about hackers and cybersecurity (most of all with elections), physical security for the power grid and for digital data could become a much bigger problem than we thought if we attract nuclear or EMP attacks, either from asymmetric terrorism or from rogue states like North Korea.  Have tech companies really provided for the physical security of their clouds and data given a threat like this?

Note the petition and suggested Congressional content format suggested by Electronic Frontier Foundation for bills like SESTA. It would be useful to know how British Commonwealth and European countries handle the downstream liability issues, as a comparison point. It’s also important to remember that a weakened statutory downstream liability protection for a service provider does not automatically create that liability.

(Posted: Thursday, Aug. 3, 2017 at 10:30 PM EDT)

Uber attracts controversy over people with disabilities; Airbnb wants hosts to provide hotel-like reliability

Here’s an interesting story. If a company’s services or products are based on the sharing, grass-roots economy, does it still have to bend over backwards to accommodate all possible customers, especially people with disabilities.

The Washington Post has a Metro section front page story in the Washington Post today by Faiz Siddiqui, “Groups sue Uber for excluding wheelchair users from its basic door-to-door service“.

The fact pattern may seem a little muddy. In Washington DC, Uber’s biggest offense seems to be that it would not allow a driver whose car allowed non-fold-up wheel chairs to be loaded – that means, a rather large vehicle. It is hard to understand why the company would do this, unless it doesn’t want the complications of dealing with special-needs customers. But the company does route such customers to a somewhat inconvenient and alternate taxi service. The company does not require drivers to be so equipped (the logical converse of what it actually did).

Now, I do have some reservations about using the sharing economy a lot. For one thing, I don’t personally want an “online reputation” as a consumer. I have to admit, Uber reliability has been very good. It saved me with a prepaid movie ticket one day when Metro broke down. I haven’t used Airbnb, and I’ve read about pressures from Airbnb on its hosts to behave more like “hotels” so that consumers know they have a clean and equipped room when they need it, with no questions asked. I’ve also read about issues of discrimination by hosts.

I understand that the sharing economy is controversial. It can encourage people to consumer less, which sounds good for sustainability. But it can also undermine the autonomy and privacy a lot of adults are used to. It can involve taking more personal risks than many providers (drivers or hosts) and possibly consumers could be accustomed to. For example, in previous posts I’ve covered (sometimes personal) risks associated with providing Internet router access.

And when people provide services as independent contractors with their own cars or homes, they may often expect more personal say in whom they serve or how they do it. That cuts across ideas we have in “public accommodations” law regarding discrimination against certain customers. In some specialized small businesses (like the wedding cake business), we see similar expectations by some small business owners, to be left alone, when dealing with consumers whom they perceive as presenting them with personal or religious challenges.

I sometimes have to ponder this in my own book authoring “business”, especially as I contemplate putting out a novel (finally) within the next year. I get pressure from my POD publishers to buy volumes of printed books at deep discounts and set up my own retailing (which I do have a formal shell for) rather than depend on the passive (but reasonably effective) system of Amazon, Barnes and Noble, search engines, and word of mouth (and social media really is effective on that point). Imagine if I was viewed as a public accommodation (albeit a small business) and had to provide braille, large print, and audio as well   I don’t have the commercial scale for that, even though I seem to have some political visibility in the policy areas (as I did with the DADT repeal), even today with (for better or worse) the Trump administration.   I may be getting beyond the scope of this post, but my mission is to encourage critical thinking and connect the dots, not to placate understandably needful consumers in various identity groups (who could possible provide volume sales for those writers who will sell to their specific needs) . I’m fortunate enough to be able to afford to do this, but I watch the political and legal climate carefully.

(Posted: Thursday, June 29, 2017 at 3 PM EDT)

How an article on the workplace and automation leads us back to network neutrality and other potential issues for Internet user-generated content

A guest post by 30-year-old Australian blogging (and physical fitness) guru Ramsay Taplin (aka “Blogtyrant“), in “Goins, Writer” about how to deal with the invasion of robots and artificial intelligence in the workplace (when these innovations threaten to replace you) rather accidentally re-ignites the debate over the future of the Internet and ordinary speech on it in the United States.  (Before I go further, I’ve love to meet the huge cat on Ramsay’s Twitter page.)

Ramsay’s post seems to be a bit in the tradition of libertarian George Mason University Professor Tyler Cowen’s book “Average Is Over,” outlining how middling people need to deal with the changing modern workplace.  At a crucial point in his essay, Ramsay, after suggesting that employed people consider starting small businesses on their own time, recommends most business owners (as well as professionals like lawyers, financial planners, agents, and even book authors) stake out their property in “modern real estate” with a professionally hosted blog site.  But then he dismissively adds the caveat, “unless the Internet changes dramatically through removing net neutrality…”

Later, he writes “make sure everything you do on the Internet helps someone,” a very important base concept that I’ll come back to. He gives a link to a compelling essay on personal and workplace ethics in a site called “Dear Design Student”, about how you can’t lead a double life and be believed forever.  You can see my conversation with him in the comments.

Whoa, there.  OK, Ramsay works (“from his couch”) in Australia, part of the British Commonwealth, and, like most western-style democratic countries, the Aussie World maintains statutory network neutrality regulations on its own turf (I presume).  But, as we know, under the new Trump administration and new FCC chair Ajit Pai, the Obama era’s network neutrality protections, largely set in place (in 2015) by maintaining that self-declared “neutral conduit” telecommunications companies are common carriers, will almost certainly be disbanded late this summer in the U.S. after the formal comment period is over.  Pro-neutrality advocates (including most tech companies) plan a “Day of Action” July 12, which Breitbart characterized in rather hyperbolic farce.

That situation puts American companies at odds with the rest of the capitalist democratic world (definitely not including Russia and China).  There are plenty of political advocacy pressure groups with “Chicken Little” “Sky Is Falling” warnings (along with aggressive popups for donations) about how exposed small companies and individual speakers online may be intentionally silenced (as I had outlined here on May 11).  Right away, I rebut by noting that not only is there to be (according to Pai) “voluntary compliance”, but also every major general-purpose telecom company in the US seems to say it has no intention to throttle ordinary sites.  In fact, most consumers, when they sign up for Internet, want full access to everything out there on the indexed web, so doing so would make no business sense.

Even so, some comparison of the world now to what it was a few decades ago, when I came of age, is in order.  Telephone companies were monopolistic but were regulated, so they couldn’t refuse service to consumers they didn’t like.  None of this changed as ATT break-up into the Bell’s happened (something I watched in the 80s-job market for I.T.)  But until the WWW came along in the mid-90s, the regulations only protected consumers getting content (phone calls), not wanting to upload it with no gatekeepers for pre-approval.  Back then, in a somewhat regulated environment, companies did make technological innovations for big paying customers (like DOD).  Pai would seem to be wrong in asserting that all regulation will stop innovation.

It’s also noteworthy that the FCC regulated broadcast networks, especially the number of television stations they could own (I remember this while working for NBC in the 1970s).  Likewise, movie studios were not allowed to own theater chains (that has somewhat changed more recently).

But by analogy, it doesn’t seem logical that reasonable rules preventing ordinary content throttling would stymie innovation where there are real benefits to consumers (like higher speeds for high definition movies, or for emergency medical services, and the like), or, for that matter, better service in rural areas.

There are also claims that new telecom technologies could enter the market, and that Obama-like net neutrality rules would stifle newcomer telecom companies.  Maybe this could bear on super-high-speed FIOS, for example, that Google has tried in a few cities.

Then, some of the punditry get speculative.  For example, a faith-based ISP might want to set up a very restricted service for religious families. It sounds rather improbable, but maybe that needs to be OK.  Or maybe a Comcast or Verizon wants to offer a low-end Internet service that doesn’t offer all websites, just an approved whitelist.  Maybe that appeals to locally socialized families with little interest in “globalism”.  That sounds a little more serious in its possible impact on other small businesses trying to reach them.

Another idea that cannot be dismissed out of hand, is that telecom companies could be prodded to deny connection access to illegal content, such as terror promotion or child pornography, or even sex trafficking (as with the Backpage controversy).

If we did have an environment where websites had to pay every telecom company to be hooked up to them, it’s likely that hosting companies like Bluehost would have to build this into their fees to take care of it.  I actually have four separate hosted WordPress blog domains.  It’s significant that Bluehost (and probably other companies) allow a user just one hosting account with a primary domain name.  Add-on domains are internally made subdomains of the primary and converted internally.  So, the user would probably only he “charged” for one hookup, regardless of the number of blogs.  (It’s also possible to put separate blogs in separate installations of WordPress in separate directories, I believe, but I see no reason now to try it.)   But one mystery to me is, that if Bluehost does have a “primary domain” concept with subdomains, why can’t it make the entire network https (SSL) instead of just one “real” domain?  I expect this will change.  SSL is still pretty expensive for small businesses to offer (they can generally outsource their credit card operations and consumer security, but there is more pressure, from groups like Electronic Frontier Foundation, to implement “https everywhere” for all content).

It’s also worthy of note that “free blogs” on services like Blogger and WordPress use a subdomain concept, so there is only one domain name hookup per user to any ISP.  That’s why Blogger can offer https to its own hosted blogs but not to blogs that default to user-owned domain names.

We can note that search engines like Google and Bing aren’t held to a “neutrality” policy and in fact often change their algorithms to prevent unfair (“link farming”) practices by some sites.

So, here we are, having examined net neutrality and its supposed importance to small site owners (nobody really worried about this until around 2008 it seems).  But there are a lot of other issues that could threaten the Internet as we know it.  Many of the proposals revolve around the issue of “downstream liability”:  web hosting companies and social media companies don’t have to review user posts before self-publication for legal problems;  if they had to, users simply could not be allowed to self-publish.  (That’s how things were until the mid 1990s.)  But, as I’ve noted, there are proposals to water down “Section 230” provisions in the US because of issues like terrorism recruiting (especially by ISIS), cyberbulling, revenge porn, and especially sex trafficking (the Backpage scandal).  Hosts and social media companies do have to remove (and report) child pornography now when they find it or when it is flagged by users, but even that content cannot be screened before the fact.  And Facebook and Twitter are getting better at detecting terror recruiting, gratuitous violence, fake news, and trafficking.  But widescale abuse by combative and relatively less educated users starts to raise the ethical question about whether user-generated content needs to pay its own way, rather than become a gratuitous privilege for those who really don’t like to interact with others whom they want to criticize.

In Europe and British Commonwealth countries there is apparently less protection from downstream liability allowed service providers than in the U.S., which would be the reverse of the legal climate when compared to the network neutrality issue.  And Europe has a “right to be forgotten” concept. Yet, user-generated content still seems to flourish in western countries besides the U.S.

I mentioned earlier the idea that a small business or even personal website should help the reader in a real-world sense.  Now Ramsay’s ideas on Blogtyrant seem most applicable to niche marketing.  That is, a business meeting a narrow and specific consumer need will tend to attract followers (hence Blogtyrant’s recommendations for e-mail lists that go beyond the fear of spam and malware).  It’s noteworthy that most niche markets probably would require only one blog site (despite my discussion above of how hosting and service providers handle multiple blogs from one user.) It’s pretty easy to imagine what niche blogs would be like:  those of lawyers (advising clients), financial planners, real estate agents, insurance agents, tax preparers, beauty products, fashion, and games and sports (especially chess).  It would seem that gaming would create its own niche areas.  And there are the famous mommy blogs (“dooce” by Heather Armstrong, who added a new verb to English – note her site has https –, although many later “mommy” imitations have not done nearly so well).  I can imagine how a well-selling fiction author could set up a niche blog, to discuss fiction writing (but not give away her own novels).

Another area would be political activism, where my own sense of ethics makes some of this problematical, although Ii won’t get into that here.

In fact, my whole history has been the opposite, to play “Devil’s advocate” and provide “objective commentary” and “connect the dots” among almost everything, although how I got into this is a topic for another day (it had started with gays in the military and “don’t ask don’t tell” in the US in the 1990s, and everything else grew around it).   One could say that my entering the debate this way meant I could never become anyone else’s mouth piece for “professional activism” or conventional salesmanship (“Always Be Closing”).  I guess that at age 54 I traded queens into my own (chess) endgame early, and am getting to the king-and-pawn stage, looking for “the opposition”.

There’s a good question about what “helps people”.  “The Asylumist” is a good example; it is written by an immigration lawyer Jason Dzubow specifically to help asylum seekers.  Jason doesn’t debate the wisdom of immigration policy as an intellectual exercise, although he has a practical problem of communicating what asylum seekers can expect during the age of Trump – and some of it is unpredictable. On this (my) blog, I’ve tried to explore what other civilians who consider helping asylum seekers (especially housing them personally) could expect.  Is that “helping people” when what I publish is so analytical, tracing the paths of speculation?  I certainly have warned a lot of people about things that could get people into trouble, for example, allowing someone else (even an Airbnb renter!) to use your home Internet router connection, for which you could be personally liable (sorry, no personalized Section 230).  Is the end result (of my own blog postings) to make people hesitant to offer a helping hand to immigrants out of social capital (and play into Donald Trump’s hands)?  I think I’m making certain problems a matter of record so policy makers consider them, and I have some ample evidence that they do.  But does that “help people” the way a normal small business does?

Getting back to how a blog helps a small business, the underlying concept (which does not work with my operation) is that the business pays for itself, by meeting real needs that consumers pay for (let’s hope they’re legitimate, not porn).  Legitimate business use of the Internet should come from “liking people.”  If blogging were undermined by a combination of policy changes in the US under Trump, it might not affect people everywhere else (although Theresa May wants it to), and it would be especially bad for me with my free-content model based on wealth accumulated elsewhere (some of it inherited but by no means all of it); but legitimate for-profit businesses will always have some basic way to reach their customers.

There has been talk of threats to blogging before.  One of the most serious perils occurred around 2005, in connection with campaign finance reform in the U.S., which I had explained here.

(Posted: Monday, June 12, 2017 at 12 noon EDT USA)

Behind Trump’s weakening of Obama’s Internet privacy protections, a lot of chaos on what privacy means (esp. to insurance companies)

The Washington Post recently documented “how Congress dismantled federal Internet privacy rules” in a piece by Kimbery Kindy on May 30.

The writer notes a collusion between telecommunications provider companies (that is, Internet ISP’s, like Comcast, Verizon and ATT)) and social media and content servicing providers (like Facebook, Google Twitter, Amazon, Apple) in Silicon Valley. Politics emits strange bedfellows (so libertarians say), and the common interest between the backbone technology interests and the content servicing interests on the ad opportunity inherent in relaxing privacy rules is logical, but in contradiction to the general nature of the disagreement between these big industrial sectors over network neutrality. That disparity seems remarkable to me. Particularly remarkable was the donation of money so quickly as Trump took office to roll back Obama’s end-of-term work. I don’t play K-street Monopoly myself.

But there’s not much question that users do benefit from the existence of ads, which pay for all the free user-generated content platforms. The ethical question at the individual level comes down to the old dilemma of spectators vs. actual players. We can’t flourish just as a society of watchers. People need to be willing to see ads, even those selected algorithmically for them, and sometimes people need to be willing to engage them. Both clicks (Adsense) and actual product purchases (Amazon) do help some people make a living by publishing on the Internet.   Freedom implies (somewhat ironically) a need to some new openness to sharing on terms other than one’s own (as in the film “The Circle“).

Where there is a problem, though, can be with security, and, to some extent, online reputation. Users are sometimes reckless on the web. To the extent that users apply privacy settings and they work, that’s not too bad; but often users place gratuitous material online which could attract harm to them and to others connected to them. That has to become a concern for the insurance industry, for example (yesterday).

In fact, there’s a sliding continuum, in most people’s minds, between privacy and reputation. People post legitimate (not porn) interesting stuff because it makes them appear cool, knowledgeable, or desirable in some way for others, or just politically and socially influential. Sometimes you can do this and maintain a certain amount of privacy (wait until you’re back home or near the end of the vacation before posting public images and videos of your good time at P-town or Disney’s new Pandora). I say this noting that some Facebook friends let Facebook post all of their movements on their timeline to friends on geographical maps. (That makes them feel important.)

Employers have been concerned about watching associate (and especially job applicant) personal social media for about a decade now (giving rise to the whole Reputation industry). They have legitimate concerns, for example, about managers inadvertently creating a legally hostile workplace by expressing their views online even in their own personal accounts. That’s especially true now that in the world of Trump, society seems to be getting more polarized into worlds of identity politics. Businesses may not even want some polarizing people as customers (as Richard Spencer found out from Sport and Health recently).

This problem can spill over into insurance, where we know that insurance companies (both health and property) sometimes scan consumer social media accounts or other blog or content posts for possible claims fraud. They could also get a sense of increased consumer loss risk from some social media content (obviously health risks like STD’s, smoking, drugs, and the like, or risky hobbies like skydiving; imagination goes wild on this.)   Here are a couple of discussions about the problem: Huffington, and Insurance Quotes.  This problem can quickly connect itself to social justice and identity issues.

In fact, the end of the Denver TV station video envisions a world where insurance companies don’t want users to post any vacation details in public mode at all. I haven’t heard that said so bluntly before, but since I dug into it, I have to report it. One immediately problem with this idea is that pages (as opposed to friending accounts) are, almost by definition, public. And there are “friends” and there are “pseudo-friends”. Not everyone expects a personal conversation or relationship with each “friend” as “trusted:. The idea seems not very well thought through.

(Posted: Wednesday, May 31, 2017 at 3:45 PM EDT)

Blogging: niche or general, sales-oriented or amateur; under Trump it seems to be thriving better than I had expected

I’ve become somewhat a fan of “BlogTyrant” (Ramsay Taplan, in Australia) even if I can hardly follow his advice.  My own online presence evolved over time, starting back in 1996, before I self-published my first “Do Ask Do Tell” book, so I’ve used the blogs and platforms to support my content rather than as an income-generating tool per se.  What started with a focus on one issue (gays in the U.S. military back in the 1990s and “don’t ask don’t tell”) enlarged concentrically to covering most public issues from a libertarian perspective.

One of his more interesting posts recently was “One Multi-Topic Blog vs. Multiple Blogs (each) with a Single Topic” (link).

I have twenty blogs right now, sixteen on Blogger and four on WordPress (chart).  I won’t go into detail right here over how these evolved (the first of these was set up in January 2006) from flat sites, but they are “journalistic” in intent — commentary, but not “sales oriented”.  I can say from a practical viewpoint, it’s easier to get some focus on a critical issue if the blog it is on is smaller and gets updated maybe about twice a week with new posts (that seems about right for getting immediate hits).

What I do agree with Ramsay on is that most “small business” or “individual” or “amateur” blogs that actually make money are single-topic or niche-oriented. (His own original niche was physical fitness.)

It would sound hard to make a living just blogging alone – although, judging from the Adsense and Blogger support forums, many people say that they do (especially overseas).  In fact, one problem that would happen on Blogger in the past (especially around 2008) would that people’s blogs would suddenly get removed as spam blogs (wrongfully).  This sounds less likely for blogs that are equated to purchased domain names (although you can’t get https yet on custom Blogger domains, largely because of the way SSL technology is tied to domain names).

It’s well to note also that Blogger and WordPress work differently in one main area.  With WordPress, you can purchase a shared hosting plan from one of many provides (Utah-based Bluehost in particularly “specialized” in working with Automattic, which owns WordPress), where copies of WordPress and various plugins are installed on your site.  That isn’t possible with Blogger (or other packages like Tumblr) as far as I know.  WordPress is a “higher end” product with more capabilities and tends to load slower and sometimes have some security vulnerabilities and instabilities (which are being worked on vigorously in recent releases).   Blogger is “simpler” and faster to use, but has less support (only the forums) – but it has been amazingly stable over the years, with only one day-long outage in May 2011. I say simpler – the dreaded “bx” codes aren’t very transparent (but in practice a lot of them just result from bad Internet connections).

WordPress hosts are working on providing “https everywhere.”  The general idea is that all accounts need to be subdomains of one account.

Let’s move back to the subject – niche blogging.  It works best for someone who already has a business that would be successful in the “real world” (of Shark Tank, so to speak).  Most successful small businesses (outside of branded retail franchises) meet relatively specific and narrow needs and interests, so Ramsay’s ideas of email lists will work (and will get around consumer squeamishness about spam and malware).  These are businesses and supporting blogs that are “for” some base of consumers or clients or stakeholders with narrow, specific needs or concerns.  In a sense, they are “partisan”, and they may need to admit to some hucksterism, or at least overt salesmanship.

I can think of a good niche not far from me.  I do play in USCF-rated chess tournaments.  If I were better at it, let’s say, playing at the International Master level (by FIDE) I could easily envision setting up a blog with opening analysis and endgames.  It would draw a large hits and make advertising money  easily. World Champion  Magnus Carlsen has a news site (here) and is quite likeable, but I don’t see an openings analysis blog.  (Actually, his playing style is to use unbooked openings like an early d3 in the Ruy Lopez and simply outplay his opponent – I guess if he had an openings blog, he could give away his competitive plans for future battles!  But he could still do a blog on endgames.)

But I can imagine, for example, a blog where the chess player refutes a line in a published opening book (which is static).  Here’s an example of what such a post could be like.

Of course, artists and authors can have their own blogs (that is, like I have 20, and “give too much away).  Libertarian author Mary Ruwart (the “Healing Our World” series) has a nice blog here.  But generally authors need to build up some reputation just for “selling books” (at least on Kindle, and preferably in the physical world) before their blogs are likely to have a lot of visitors.

But one area that musicians and authors can explore is education – bringing music and literature into the classroom for underprivileged kids.  Music education goes along well with improving mathematics skills.

It’s well to note how successful some mommy blogs have been — most of all, Heather Armstrong’s, which she launched in 2002 after she was “dooced” (fired) for what she had said online about her job. (Heather has trademarked her wordmark, for what has become an accepted English language verb.  Subsequent “imitation” mommy blogs by others have come under criticism for being “made up” to please readers and get easier ad revenue.)  In the 2000-2006 period, you heard a lot about the potential of employers needing “blogging policies”, which morphed into a whole industry protecting online reputation.  One subtle problem was that in the early days, search engines tended to index simpler sites (like mine), meaning that someone like me could develop a reputation as dangerous to be associated with, because he could talk about you later out of “journalistic” (or “alien anthropologist” motives) — hence we get to an evolution of the idea of “no spectators” (like in the film “Rebirth“).  Everyone must belong somewhere.

I wanted to note well my previous concern for “citizen journalism” under Donald Trump (Nov. 7). Donald Trump, as we know, continues his Twitter storms (his latest tweet was about noon Monday, today), quite inconsistent with his threats in December 2015 to “shut down” frivolous parts of the Internet.  He seems to trust amateur bloggers (or the “Fifth Estate”), including me, much more than he accepts the established press.  This is not the same as what happens in Russia and China, where “amateur” dissidents are pursued as if by chemotherapy.

(Posted: Monday, March 13, 2017 at 3:15 PM EDT)

Firing of transgender journalist over his personal posting about “objectivity” raises questions about personal online reputation in the media

Media columnist Margaret Sullivan reports a disturbing story in the Style Section of the Washington Post today, “How one reporter’s rejection of objectivity got him fired.”

The journalist is 32-year-old female-to-male transgender Lewis Wallace, who was fired ten days into the Trump presidency from Marketplace in Los Angeles.

Wallace was fired after a personal blog post “Objectivity is dead and I’m okay with it.”  He gives a further follow-up on his firing here.   The posts are on a site called “Medium”.  But a similar result would have happened were the platform WordPress, Blogger, Tumblr, or even a Facebook page.

Poytner (which offers courses in media and law and has worked with the media perils insurance issue in the past) weighs in on the larger problem with “Should journalists protest in Trump’s America?”  Poytner comes up with some scenarios, like a Muslim journalist is separated from his family by Trump’s sudden ban.  It’s pretty obvious how this can come up with LGBTQ people, as Wallace points out.

Sullivan, in her article, notes that “mainstream” media organizations generally forbid their employees from marching or carrying signs in demonstrations.  Some media companies, like the gay media (like the Washington Blade) would adjust their policies for their targeted readership and advertisers.

Now my own circumstances bear comment, and it’s best to work this problem inside out.  I am “retired”, and run my own media operations myself.  So, in a way, I can “do what I want.”  But I certain face criticism from many parties, as I have covered here before.  Some people wonder why my book and movie reviews aren’t more partial to their own struggles or previous hardships, and people do say that my tone is usually surprisingly “neutral”, even pedantic, as if I had no personal stake in their issues, when obviously (given my own past narrative) I do have such exposure.   So, people say, I actually should offer to keep my own “skin in the game” for being flayed or burned, as part of solidarity.  Sometimes this can degenerate into expecting people to take each other’s bullets.  One can say, my activity doesn’t carry its own weight.  It could be undermined in the future by Trump’s security concerns about social media in general, or if Section 230 is gutted or appealed.   I get criticized that I don’t help other people get and keep their jobs as much as I would have to if I really had to “sell”.  Then I could not afford the “pretense” of objectivity and would have to please a specific audience, and “help” real people.

For those who don’t know me, I consider myself tending toward the libertarian side of conservatism, supporting equality on social issues. but careful look at why people have the attitudes they do, strong on defense (pretty much a McCain-like Republican), and sensibly conservative on fiscal issues (like, the US must pay its bills and keep its promises). While I understand what is behind much of the anti-immigrant sentiment, were I in charge I would be much more cautious about consequences than the current president about how my policies actually would work out.

I do go to demonstrations and photograph them and film them.  But I generally don’t carry signs (although I did earlier in my life, in the 1970s, after “coming out”; I remember many late June gay pride marches).  Particularly from the radical Left, I am vulnerable to the flak, “What makes you too good to march with us?”  It’s very dangerous to pretend you are better than other people and don’t have to walk in their shoes sometimes (maybe permanently).

So, I can understand why some people (like Trump and Bannon) don’t like journalists.  Remember the little Netflix movie “Rebirth”?  We are the spectators, the kibitzers, who don’t play, who can criticize others but who don’t have to live with the consequences.  We are the Monday morning quarterbacks.  (But then, again, because we can’t pitch no-hitters, we don’t have hundred-million dollar contracts.)   We even may be the slightly Asperger-like or Spock-like “alien anthropologists” who set up social networking sites and do news aggregation to rule the world and claim this third planet from the Sun for ourselves.  (Is Mark Zuckerberg the most powerful man in the world anyway?)

To be fair, there is pure journalism (on-site news reporting) and there is commentary.  Usually they’re not supposed to mix too much, but on stations like CNN they do, where news analysts opine all the time.  The mainstream and liberal networks properly question the current president’s recklessness (which might be deliberate strategy to see what he can get away with), whereas Fox I guess is supportive.  But original reporting does have to pay heed to objectivity.  Remember how journalists like Brian Williams have gotten into trouble.

I actually would be interested in working with organizations ranging from Vox to OAN, but I would have to separate my coverage from my own personal narrative, which works because right now I control my own operation myself.

In a posting, here May 20, 2016, I had already linked to a long narrative of my own issue with “conflict of interest”, as is covered in Chapter 3 of my own DADT-III book, sections 2 and 3 here (PDF).   In the early 1990s, I was working for a life insurance company that specialized in sales to military officers.  Given my personal history and the political climate at the time (over Bill Clinton’s settling into “Don’t Ask, Don’t Tell”) I felt that my plans to write a book on the military ban and bring in a personal narrative could present its own kind of “conflict of interest”.  That became a major theme in my life in the 1990s, which continued in the 2000s when I worked as a substitute teacher, leading to another incident in 2005 documented in section 06 of the book excerpt.

I do believe that there are facts.  There can be alternative interpretation of fact, but “alternative fact” is an oxymoron.  Journalists do need to report all the facts (as the Cato Institute showed up with the statistics on crime committed by refugees in the U.S)

I think the problem comes in the slant or interpretation of facts.  Do we report on others as if they were free-standing individuals, or as if they were members of groups and inherit all kinds of advantages and disadvantages (including marginalization) based on their belonging to these groups?  And how do we deal with people in our own lives?  It does get personal.

(Posted: Thursday, February 2, 2017 at 5:15 PM EST)

Social media has unpredictable effects on politics; old organizing methods much less effective; and the fake news crackdown

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Facebook, especially, among social media companies is getting a lot of scrutiny now for the way its news feeds skew reader perception of the news, sometimes with “fake” or “baited” stories, with the latest piece by the New York Times Nov. 12 by Mike Isaac.

I had covered this toward the end of my piece on the possible threat to citizen journalism on Nov. 7, one day before the election.  Some commentators say that Facebook’s algorithm for feeding news to users gave Trump an unusual advantage in the election, something comparable to a deep Knight post in a chess game.

The “problem” is that users get feeds based on their previous likes and other behaviors, among “friends” and pages that they “follow”.  People tend to follow and befriend others with similar worldviews.

The same people are less likely to get establishment-sourced news from newspapers or television.

We can think about the way people get news all the way back to the 1950s, when most movie theaters started shows with news reels (I especially remember those from the Korean War) which could give the government and large companies a platform for politically loyal propaganda.  Then television gradually took over.

Indeed, I remember looking forward to seeing the morning Washington Post on the sidewalk (finding out how the Senators did in a Midwest night road game – the old “A’s Hop on Pascual,, Too. 6-1” thing), and another paper, the Evening Star, before dinner.  It was from the Star that I first learned about Sputnik in 1957.

And in 1959-1960 we had a history teacher who gave pop quizzes on current events.  We had to read JFK’s “Profiles in Courage” before JFK was elected.

My own Facebook news feed is pretty balanced – a lot of hysteria from both sides.  I’m inundated by Survival Mom and the doomsday prepper crowd, because I’ve posted a few links to stories about EMP and solar storms and to possible efforts by Peter Thiel and Taylor Wilson to prepare long term solutions to power grid security problems (I surmise that Donald Trump is interested in this now but hasn’t said so publicly).  I also see alarmingly strident posts from normally “upscale” gay white men about Trump’s election.  I see a lot of identity politics.  I see a lot of everything, because my “following” market basket is indeed pretty balanced.  So I do see a lot of valuable “early warning” news stories on Facebook from smaller publications and pressure groups.

One result of social media is that people don’t feel that they need to be “organized” or to get out an organize others.  I don’t like to be recruited, or to recruit other converts or to chase people (1998 piece by me in the Minnesota Libertarian )  Conventional political operations as a career field seems threatened.  In earlier times, where only “gated” news sources had wide leadership, grass roots political organizing (the kind Barack Obama was good at in Chicago) was much more necessary.  But the unintended result in this past election might be that certain minorities (who are much less literate and savvy in their use of social media) simply didn’t feel prompted to get out and vote.

But social media (as I noted in the previous post) also perturbed how the “online reputation” problem, already growing and affecting the workplace by the mid 2000s, could be managed.  It would be much harder for governments or employers to silence people online when people had such powerful social media companies behind their backs. (That’s a good thing about the way the “dot com bust” was followed by consolidation of Internet service companies.)

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Facebook could do the public a service by offering an “optional” newsfeed, not influenced by personal “Likeonomics”, based on an “opposing viewpoints” concept as I outlined on a legacy blog.  Facebook could find 5-10 non-profits to provide peer review of the feed.  Maybe Facebook should set it up as a separate site.

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Update: Nov. 15

Both Google and Facebook are catching the “fake news” debate. Google can face criticism both over its ad network and its search engine algorithms.  There was a snow flurry when apparently search engines showed that Trump had won the popular vote (which is not true).

Google has announced a policy preventing the display of Adsense on deceptive sites, which presumably includes fake news sites, as explained in this Wall Street Journal article Monday.  The policy will prohibit the placement of ads on sites that “on pages that misrepresent, misstate, or conceal information about the publisher, the publisher’s content, or the primary purpose”.  I don’t see the policy yet on the Adsense page (as of Tuesday night at 9 PM EST) but it presumably can appear at any time. It would not seem to be directed at “amateur” sites per se.

Facebook’s stance seems more double-edged and is still evolving. I find different viewpoints online as of right now as to how serious it is about baiting readers with fake stuff.

Edward Snowden has discussed Facebook’s slow response to its click-baiting news feeds here.

Olivia Solon has a story on the Guardian that questions whether Facebook is serious about ending the click-baiting and exaggerations, here.  It also presents a “Trust project” to help users flag fake news indicators and suggests companies treat fake news the way they do spam blogs.  It’s not the same as defamation, but that’s another discussion. We’ll have to come back to this.

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Update: Nov. 16

Vanity Fair has an important story by Jeff Zucker, “The Real Culprit Behind’s Trump’s Rise“, about blending entertainment and real journalism.

Twitter seems to be taking action against “alt-right” accounts, although when I checked Milo was still there (USA Today story).

(Posted: Sunday, Nov. 13, 2016 at 11:30 PM EST)

 

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

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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.

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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)