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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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)