Posts about Internet

Statement to the Judiciary Subcommittee on Antitrust

I was called about possibly testifying to a hearing of the House Judiciary Subcommittee on Antitrust regarding technology companies. That’s not happening but I decided to submit a statement to the committee. Here, minus my bio, is what I have to say:

Statement to the Subcommittee:

I write to the committee to express my concern about often well-intentioned but ill-conceived internet regulation, which could have deleterious effects on freedom of expression; which tends to protect incumbent media and technology companies at the expense of innovation and competition; and whose unintended consequence is frequently to grant internet platforms yet greater power. It is worthwhile to examine the effects of internet regulation elsewhere as it is debated here.

Consider, for example, Australia’s media code. The net result, according to the news site Crikey, is that the country’s existing media duopoly of News Corp. and the Nine Network will receive 90 percent of the money being paid by Google and Facebook, both of which are now in the position to decide which news organizations should receive support. Small news startups that might compete with the powerful incumbents receive no protection or support in the law. The Australian code amounts to a link tax — for those companies that link to news are required to pay for news — and Sir Tim Berners-Lee, inventor of the web, testified to Australian legislators that such a precedent would “make the web unworkable around the world.” It would break the internet. I regret that in the end, Google and Facebook succumbed to what I see as corporate and political blackmail.

In Europe, various changes to copyright law — Germany’s Leistungsschutzrecht, Spain’s link tax, the EU’s Articles 15 and 17 of the its Directive on Copyright — amount to regulatory capture, for the large internet companies can afford compliance but I have spoken with smaller competitors for whom the expense and effort are crippling. Germany’s NetzDG hate-speech law requires Facebook to decide — in a private company rather than an open courtroom — what speech is manifestly illegal. Europe’s Right to be Forgotten court decision puts Google in the position of deciding what speech should be remembered or forgotten. The UK is considering regulation that would require platforms to take down “legal but harmful speech.”

Online speech is imperiled in many quarters. In Italy, Facebook was forced to reinstate a site for a neo-fascist group. Poland has announced a new law that would require platforms to carry all legal speech, a nightmare that would protect the worst of the net. I would remind us that compelled speech is not free speech. In addition, Singapore instituted a fake-news law, which puts internet companies in the unwanted position of being arbiters of truth. Similarly, India is enacting regulation that would require platforms to take down speech that is false or threatens national unity.

In the United States, Google’s recent announcement that it will forego ad targeting on the web based on third-party data was applauded by privacy advocates who have demonized web cookies as so-called “surveillance capitalism.” But this again amounts to regulatory capture as Google itself has plentiful first-party data about consumer behavior as well as the resources and technical means to innovate in advertising. Incumbent publishers, on the other hand, are stuck without their own first-party data or innovation. I know this because in my university center, I spent years trying to convince publishers to change their product and business strategies to prepare for this day. They generally insisted on relying on their dying print businesses and on third-party ad networks online, and now they are retreating behind paywalls. As a result, just when we need it most, reliable news is becoming a product for the privileged few who can afford it. According to Oxford’s Reuters Institute, only 20 percent of Americans pay for online news and it is a winner-take-all market with most people paying for only one subscription for news — almost two thirds of subscriptions go to just three publishers: The New York Times, The Washington Post, and Rupert Murdoch’s News Corp.

Note well that most local newspaper companies in the United States are now controlled by hedge funds, which are not inclined to invest in innovation and which, by their nature, tend to sell assets and draw cash out of these enterprises. If there ever were an attempt to enact an Australia-like law here — if it could overcome clear First Amendment objections — any money resulting from it would end up in the balance sheets of hedge-fund owners and would benefit neither journalism nor innovation at legacy, local news companies.

Thus to grant newspaper owners an exemption from antitrust, as has been discussed, would be profoundly anti-competitive, for it would — as in Australia — entrench the interests of the largest companies on both sides of the table, media and technology.

Similarly, I argue that breaking up major technology companies is an emotional response to the discussion of technology and power. It would not meet the test of rectifying consumer harm, for users benefit tremendously from free, open, and inexpensive services. Also, there is considerable competition; note Microsoft’s role in this debate.

Instead, in both industries — technology and media — the best cure for concerns about size is to encourage and support entrepreneurship and new competition. In my university, I started a first-of-its-kind program in entrepreneurial journalism to teach journalists to do just that. I hope next to turn my attention to internet studies, to foster the design and creation of a next generation of the net: one built not just to speak but to listen, one designed to build bridges rather than battlements, one that protects the benefits of today’s historically unprecedented opportunity to hear voices too long not heard in mass media. There is much work to be done and much opportunity to create competitors to the present proprietors of the net and media. This is where we should focus our attention in policy.

The net is yet young. We don’t fully know what it is and may not for generations, even centuries. Note that the first newspaper was not published until a century and a half after Gutenberg introduced movable type. In my research for a book on the end of the Gutenberg age, I have learned much about the reaction to the introduction of printing. After initial and brief utopian glee at its prospects, authorities worried greatly about print’s power to spread the fake news of the day, to cause unrest (the Reformation and the Thirty Years’ War), and to disrupt institutions. I have also learned that governments’ attempts to control printing and thus speech largely failed. In a prescient 1998 paper for the RAND Corporation, “The Information Age and the Printing Press: Looking Backward to See Ahead,” James Dewar argued persuasively for “a) keeping the Internet unregulated, and b) taking a much more experimental approach to information policy. Societies who regulated the printing press suffered and continue to suffer today in comparison with those who didn’t.”

In what I have said here, it might sound as if I oppose all internet regulation. I do not. I worked for more than a year with a Transatlantic High-Level Working Group on Content Moderation Online and Freedom of Expression, convened by former FCC Commissioner Susan Ness under the auspices of the Universities of Pennsylvania and Amsterdam. The group included many experts and luminaries, such as former Secretary of Homeland Security Michael Chertoff, former Ambassador Eileen Donahoe, former Estonian President Toomas Ilves, and former members of the European Parliament Marietje Schaake and Erika Mann. Our report recommended a flexible framework for internet regulation based on transparency as the basis of accountability as well as the establishment of e-courts to rule on matters of legality where that should occur, in public and in court.

To put this in my terms, I have long argued that both technology and media companies should make covenants of mutual obligation with their users and the public — not just rules for users but promises from the companies for what we may expect of them in building useful, respectful, and productive services and environments. In the model of the Federal Trade Commission, I would favor requiring them to provide data about their implementation and impact so as to hold them accountable to their promises. I also hope for a multistakeholder forum — of technologists, lawmakers, regulators, civil society, academics, and users — to grapple with new and unforeseeable problems, such as pandemics, and to exploit new opportunities.

Internet regulation should not be about punishing power or success but instead about creating the means to work together for a better internet, a better society, a better future.

In league with Murdoch

(Here is an opinion piece I wrote in Australia’s Crikey. I had offered it to The GuardianHere is a related piece from Crikey editor-in-chief Peter Fray.)

I love The Guardian. It has long been my most trusted news source worldwide. I have been honoured to write for and work with this grand institution. So I am sorely disappointed that The Guardian is dancing with the devil, Rupert Murdoch, in backing his legislation, Australia’s News Media Bargaining Code, for it would ruin the web for the rest of us.

The Code is built on a series of fallacies. First is the idea that Google and Facebook should owe publishers so much as a farthing for linking to their content, sending them audience, giving them marketing. In any rational market, publishers would owe platforms for this free marketing, except that Google at its founding decided not to sell links outside of advertisements. The headlines and snippets the platforms quote are necessary to link to them, and if the publishers don’t want to be included, it is easy for them to opt out.

Second, the major media companies of Australia — Murdoch’s News Corp., Fairfax’s Nine Entertainment and, yes, The Guardian — are not beggars in Oliver Twist’s poor house, as they would have us believe. They will survive.

Third, let us be clear that no matter what happens in this political drama, Rupert Murdoch — as ever — wins. Either Murdoch gets paid by Google and Facebook, or as threatened, Facebook bans news from its news feed and Google pulls out of Australia. Since Murdoch and Fairfax own almost all the media brands in the nation, they’ll be fine. Any media startup that dreams of competing with Australia’s media oligopoly will be unable to find a hold in the market. Small companies in many sectors will suffer. Users will suffer. I predict that the politicians who made this happen at Murdoch’s behest will suffer once citizens realize what they must do without. But Murdoch won’t.

What worries me most is what the Code would do to the internet, worldwide. As The Guardian reported, Sir Tim Berners-Lee himself, the man who invented the web, said the Code would break the web. The precedent of having to pay for the privilege of linking to someone is antithetical to the core ethic of the web: that the edges finally win over the power at the centre.

In the United States, where I work, it is only because of the web and its architecture of the link — as well as social media and its hashtags — that we have finally heard the stories of #BlackLivesMatter and #LivingWhileBlack and #MeToo from voices too long excluded from mass media, run by old, white men (who look like me). Finally, the net challenges the old mens’ hegemony.

No wonder Murdoch does everything he can to cripple the internet and its proprietors, cashing in his political capital — conflict of interest be damned — to buy protectionist legislation to favour his companies against his competitors in hopes of winning in Parliament or blackmailing publishers into paying to stop this political process. That is precisely what both Google and Facebook are doing in beginning to pay publishers for their articles, and I’m unhappy with them, too, for setting a precedent I consider dangerous for the future of the net.

You may ask why I am so vitriolic about your native son, Australia. [In disclosure, I once worked for Murdoch as TV critic for America’s TV Guide. Also, the school where I teach has raised funds from Facebook and Google but I receive nothing from them.] My animus toward Murdoch comes from seeing his media company damage my family and my nation. Fox News brainwashed parents across the country. Donald Trump was the Frankenstein’s monster of Murdoch’s network. The 6 January riot at the U.S. Capitol might as well have been Murdoch’s garden party. Rupert Murdoch is the single most malign influence in democracy across the English-speaking world (and his influence spreads even wider now, as even formerly sensible Canada and the European Union are considering following Australia’s lead in killing the web with their carbon copies of the Code).

If Murdoch is the devil, The Guardian was the guardian angel come to battle him. That is why I am so disappointed to see The Guardian operate in league with Murdoch and Fairfax to favor the Code. I am equally concerned that The Guardian, as well as most news media lately, have turned dystopian in their coverage of the internet and technology. I am old enough to remember when they were optimistic, even utopian. But that is a discussion for another day, another beer.

I say this at the risk of my relationship with The Guardian, an affection that goes back many years. But as much as I love The Guardian, I love the internet even more.

Speechless: An allegory for our time

They had warned me about the silence of the City. Living in the woods these last few years, alone with my pod-family, my mind’s ear had grown accustomed to nature’s carols of birds, crickets, and wind. From the City, I expected the cacophonies of my memory. But now, there was not a word.

When researchers agreed that this latest virus, MO’VID-29, was spread most effectively via talking or shouting — not to mention coughing and sneezing or, God forbid, singing — it did not take long for masks and silence to become the norm and then the law. In the last pandemic, too many millions of lives and insurance dollars were lost in the insane War of the Masks and its long-haul aftermath — so many that sense and science finally had to prevail, at least in this case. This time, with no vaccine in sight, the mandate to stick a sock in it finally did pass.

The irony of our next pandemic striking now, just as the last embers of online speech are dying out, is too obvious to be ironic. But that’s America. We never did irony well.

In this trip, on the subway, no one made eye contact — which was always true here, but all the truer now that the experts keep reminding us that a straight line is the shortest path to infection. Look down; breathe down. With our new muffling masks hiding every expression, with no glance into an eye, with no talk and no opportunity to eavesdrop, it was impossible to imagine what anyone was thinking; impossible to connect. An elevator ride had always been an antisocial experience, but in the morning as I left the hotel, I was not prepared for the sight of four people each facing a corner and an exhaust fan. On the street, people moved as if they were magnets projecting opposite poles.

The night before, when I’d arrived, I was hungry, and since I could not imagine how expensive the room service would be in my awfully expensive little hotel, I decided to try the New Automat I’d seen in constant commercials; we don’t have them out in the country yet. Back when I used to travel, I never minded eating out and alone; I loved reading books over dinner and wine. But this was too eerie: all the diners alone in their own plexiboxes, not unlike the Zoomboxes we use to enclose us so we may talk on calls. Instead of a person on the screen in front of me there was a menu and below it, a slot that would open when the conveyor delivered my meal. To complete the effect, I wondered why they didn’t add steel bars and name the chain Solitary.

I was in the City to see my editor, not that there was much point in coming in as we’d have to converse in our individual, sealed Zoomboxes anyway. But at least we could look at each other through the plexi rather than screens. I’m old enough to remember when authors and editors had lunch at tables with tablecloths and wine. I’m old enough to remember authors. Anyway, being an old fart, for auld lang syne, I decided to take the risk and come in for my final negotiations. Oh, how I wish it were like the old days, when we’d be arguing over the title of my book or my defense of the Oxford comma or my predilection — which I readily confess — for dashes. Now we had to hash out my fee: how much I would be paying to my fact-checker, to my risk actuary, for licenses of snippets of quoted and referenced material, and for my speech insurance.

Amazing how, since the death of Section 230, everything in my humble trade has been flipped on its side. That poor little law, just twenty-six words, never stood a chance, as the right and the left attacked it in an ideological pincer movement: the left demanding that too-big platforms take down hate speech and lies or lose their protections, the right protesting that the hate speech and lies the platforms took down was theirs and so they threatened to go after the companies for “canceling” them. Media poked the coals fueling moral panic, gleefully demonizing technology companies and ultimately the internet itself. They created the conflict they covered. But they never acknowledged the conflict of interest inherent in attacking companies that competed with them for users’ attention and advertisers’ dollars. They never saw that in going after this law they undermined the protection of their own free press. Never mind all that; it made a good story.

After 230’s end, any company carrying anyone else’s speech — words, sounds, pictures, video, memes, shares, links, creativity, and conversation of any sort — became liable for the content of that speech. Gawker suits sprouted like mushrooms in a dark, industrial pig barn. The by-now-broken-up platforms’ first instinct was to make everything ephemeral: all speech disappeared in the wind after twenty-four hours, then twenty-four minutes. That didn’t much matter, for entrepreneurial cryptodicks made trollish enterprises that scraped every word and thought from the baby nets as it occurred, stored it all offshore in their undersea data farms, and filed or merely threatened suits with evidence in hand. These bros became our evil librarians, for they held the only repository of our online life and culture in text and image and we who made it couldn’t get at it, but for a price.

Enter the insurance industry. Their bottom lines were slaughtered in the slaughter of citizens to the Trump virus — trillions of dollars gone in life insurance and medical payments and bankruptcies, with record losses even after government bailout upon bailout. Now the companies saw a new business opportunity in insuring speech after such a policy was pioneered by the British startup, the Stationers’ Company.

For a price, you can get your book or blog post published, but you must indemnify the platform or publisher that carries it. Contemporary nonfiction is nearly an impossibility; the risk is too high and so then is the price. Fiction retains its defense for the author and carrier of not being true, but now absence of truth must be certified. To get a policy and license to publish, you have to subject your work to the scrutiny of fact-checkers, who certify the fictional nature of the writing by finding and excising every fact and replacing it with an alternative fact. We used to call the process being Conwayed, until she sued for trademark violation.

As a result, most everything is fiction, all is allegory. We learned much from our Chinese internet cousins, who for years before us had honed the skill of replacing people with animals, ideas with memes. But woe be to whoever translates the alternative to the real. Lawyers await. When I complained to my agent, she said, “If Kafka could do it…” Yes, but he had metaphor and irony. We work amid the literal-minded Puritanism of the right-wing fundamentalists, who will label that which they don’t understand dangerous, so we must make everything in their sight obvious and anodyne. The third-person effect is now the rule of the land, its enforcers arguing that they alone are not vulnerable to hate, porn, disinformation, or heresy — but everyone else is. So they protect us from us. “This,” I shouted back to my agent from the safety of our Zoomboxes, “is rule not by Big Brother but by Barney.”

The only other loophole in the law that replaced 230 is the exemption for political and government speech: anything said by a politician or government official, including local pols and police, is safe from threat of suit. Was what followed an unintended or intended consequence? Candidates for public office got nuttier and nuttier and so the only free speech — theirs — was little else than conspiracies and lies. The few newspapers left — one or two bankrolled by billionaires, the others by nutters themselves, the rest abandoned by the hedge funds that controlled them because of the high cost of speech insurance — carried official words because they were official. And so, in the self-fulfilling prophecy that has always been political news, media assured election of extremes.

This is not to say that there are not still some people who speak their minds, if they indeed had them. The same people who bring and bankroll suits against us still spout their hate, bile, and flame because they have more lawyers than you do. These are the people who cried “cancel!”, though, of course, they were not the ones being silenced. By claiming “cancel culture,” they attacked the speech of those who dared criticize them. And they won. They owned the libs after all.

While in the City, I came upon a demonstration over the police killing of a man whose spoken cry of innocence became a capital crime. With cops all around ready to arrest anyone at the first sound, there were no shouts, chants, or songs. Instead, on the left, I saw a forest of brandished middle fingers: human emoji. On the right, a herd of angry white men in their uniform “STFU” gimme hats brandished their Trump thumbs. This scene seemed to me the perfect culmination of our culture wars: all emotion, no substance.

The public conversation simply does not exist. I don’t mean to say that the end of 230 was the sole cause of that; there were other conditions leading here. In the Petri dish of the last decade, the techlash created the perfect medium for the cloning of laws and regulations from around the world. Practically every nation passed a carbon copy of Germany’s NetzDG hate-speech law, which in practicality forced the baby platforms — each smaller and less able to afford defense of itself and the internet — to take down anything that might be taken as hate by anyone. Countless nations followed little England’s lead and deputized regulatory agencies to enforce a duty of care against online harm. To this day, no legislature or court has adequately defined harm or hate, so anything that might possibly offend, though legal, is vaporized. This is what they call neutrality.

Europe’s Right to be Forgotten is de jure universal as now any nation may demand that any platform take down anything worldwide: privacy über alles, Datenschutz for all, we have reached the lowest common denominator of freedom. This has made for a fascinating legal quandary: Who is to say who owns a conversation or a transaction? If you and I correspond and I don’t want you to remember or repeat what was said, I can claim ownership of “my” data and force you to erase your memory of it. Code being law, this question has been translated into not only the ephemeral eradication of most any uninsured public content but also private conversation. That is, my Zoombox will not let me record us and my Gmail will not let me keep or print our emails unless you sign my terms and conditions, and because of our speech liability policies, we all got ’em.

Seeing its opportunity to pounce, the old content industry — Hollywood and remaining newspaper moguls — managed to exploit this highly restrictive environment by expanding the content controls they had been dreaming of. Europe’s and America’s copyright extensions spread around the globe such that it is now nigh unto impossible to quote anyone or share anything anyone else has said without getting — that is, paying for — permission. That’s another hurdle my book will have to go through: Plagiarism.AI, which will ferret out any line, character, or idea that might have been said anywhere in almost a century — that is, the time covered by copyright — which could make me, my publisher, and my insurance company liable. A hit sets red lights and red pencils into action, unless I’m willing to pay Disney for the privilege of calling all this “Mickey Mouse.”

I blame the politicians for passing their cynical laws. I blame the nutters and the uneducated, angry cultists who voted them into office. I blame media for their latter-day Luddite crusade against technology, their negligence to tell the truth about the insanity gripping Earth, and their failure of vision on the internet. I blame the technology companies for their hubris, greed, secrecy, awful decision-making, and refusal, in the end, to defend our internet because they thought it was theirs. But I also blame my fellow academics and writers. For I remember my horror when I first saw a paper that asked — just asked, mind you — whether the First Amendment was outmoded, obsolete. I remember how appalled I was when I read another professor’s blog post arguing that we have “too much speech.” I shouted into the air, when we still could: “Who is to say whose speech is too much?” It was this letting down of the guard around freedom of expression for all that led us to the uncomfortable silence we endure today.

The net that I hoped would let anyone and everyone speak freely past the gatekeepers and censors, the net that would introduce us to each other and make strangers less strange, the net that eventually would spark creativity yet unimagined (perhaps a century and a half hence, for that is how long after Gutenberg it took for new forms of media and literature to flourish) — that net is dead.

Or is it?

This is a tale of privilege and power to which the privileged and powerful are willfully blind. It is ever thus. Whenever a new means of speech is created, enabling voices previously unheard to speak, the incumbents in charge of the old mechanisms try to control it. They have since Gutenberg. Scribes objected to printing, newspapers to radio, print to television, media to the net — at each stage in cahoots with other threatened institutions of power: princes, popes, parliaments, legislators, regulators, industries, elites. They have used many tools of control: censorship, banning and burning (of books and their authors), criminalization, the granting of monopolies, licensing, copyright and the protection of exclusionary business models, moral condemnation, and critical belittling. The net finally allowed anyone connected to it to speak to anyone else, everywhere. That is what made it more threatening to the privileged and powerful than each technology before: the scale of its freedoms. That is why they so overreacted. Every time before, speech would out. I am yet optimistic that it will again — that, for example, #BlackLivesMatter’s Reformation will rise like Luther’s. But it will take too long and I am too old to wait.

You might wonder why I dare write these facts and accusations, undisguised. Well, I left my editor’s office that day with a bottom line: I would pay more in insurance and fees than the publisher would pay me for my work. We’d both lose money on it. I realized that today, we no longer pay to read; we have to pay to write. Speech is not free. I can tell you its price to the penny.

I decided to speak out nonetheless. I would like to think this was a decision on principle: to tell the truth. But the truth is, I’m cowardly. I write this not in the City or from my country pod but instead from one of the last two sane nations on Earth. I chose Iceland thanks to a very nice politician there, whose lovely old dog I used to watch on the late, lamented Twitter as they strolled the streets of their Reykjavik neighborhood. She became a friend from afar only thanks to the internet and social media back in the day, when that was still possible. She worked to grant me writer’s asylum and entry into the creators’ refuge camp on her island, which — like the other island of sanity in our world, New Zealand — has managed to stay disease-free. Here I treasure my little room, my thick sweaters, my keyboard, and my voice.

In this crisis, God bless the net

Imagine, just try to imagine what it would be like to weather this very real-world crisis without the internet. Then imagine all the ways it can help even more. And stop, please stop claiming the net is broken and makes the world worse. It doesn’t. In this moment, be grateful for it.

What we need most right now is expertise. Thanks to the net, it’s not at all hard to find. I spent a few hours putting together a COVID Twitter list of more than 200 experts: doctors, epidemiologists, academics, policymakers, and journalists. It is already invaluable to me, giving me and anyone who cares to follow it news, facts, data, education, context, answers. Between social and search, good information is easy to find — and disinformation easy to deflate and ignore.

Through that list and elsewhere on the net, I am heartened to see how generously and quickly experts are sharing information with each other: asking for data on presenting symptoms, or emergency room experience in Italy and China, or information on how long the virus stays active on various surfaces. The net will help them do their jobs more effectively and that will benefit us all.

On social media, I have watched citizens connect, gather, and mobilize to press authorities and companies to act responsibly (well, except the ones who are never responsible). CUNY students used hashtags and petitions to hold a virtual protest or march — or very nearly riot — to insist that our classes go online. It worked.

Online, we can thus see the shaping of public policy occur in public, with the public, in full view, and with complete accountability. On social media, we the people get to lobby for what matters most urgently to us in this crisis: availability of free testing, help for workers over companies, paid sick leave. I am confident that without the collective voice of the concerned public online, the powerful would have been much slower to act.

In the coming weeks — months?— of social distancing, we will feel isolated, anxious, bored, stir-crazy; we will need to reach out to the people we cannot touch. The net — yes, Facebook and Twitter — will enable us to socialize, to connect with friends and family, to find and offer help, to stay connected with each other, to stay sane. How invaluable is that! Imagine having only the telephone. Imagine a crisis without the relief of humor, without silly social memes.*

Of course, it is the net and all its tools that empower us to work at home, to keep the economy moving in spite of shutting the physical presences of most every business, to keep many — if too few — people employed. Imagine the value of the economy during a pandemic without the net.

It is the net that also allows us to buy from Amazon — even if we go overboard with everything good and use this power to hoard toilet paper.

The internet is doing just what it should do: connect people with information, people with people, information with information. It enables us to speak, listen, assemble, and act from anywhere. It is just what we need today.

I have been upset lately with some people claiming that the net is broken. This often comes from technologists who helped build the net we have, who go through some sort of Damascene conversion, who then claim that the net is breaking society, and who ultimately argue that they are the ones to fix it — fix what they helped break in the first place. What boundless, self-serving, privileged hubris.

I was going to write a screed about the damage these dystopians can do to the freedoms the net brings us, and I probably still will. But then news overtook my attention and I decided instead that this is the moment to remind us of the gift the net is, how much we depend upon it, and how grateful we should be for it. So much attention in media and government lately goes to what is wrong on and about the net, blaming it for our human shortcomings. But I repeat: It is wonderfully easy to find good information from experts in this moment and it is easy to ignore the idiots. What’s been wrong is that we have been paying too much attention to those idiots. Hell, we elected one president. No, I don’t blame the net for that. I blame old, mass media: Fox News and talk radio. You want to hold someone responsible for the mess we are in? Start there.

So now let us turn our attention to how to improve — not fix — the net and, more to the point, how we use it. We need more mechanisms to find and listen to expertise and authority. We need better means to listen to communities in need and communities too long ignored by Gutenberg’s old, mass media. We need to develop models for supporting sharing of reliable information and continually educating people. There is much work to do.

Is the net perfect? Of course, it is not. I’ll remind you that when movable type was introduced, it was used to print lies and hate, to bring the corruption of indulgences to scale, to seed nationalism, and to fuel peasant uprisings and massacres, the Thirty Years War, and perhaps every Western war since. Did print break society? No, it let society be what society would be. Did we ever perfect print? Of course not. Could we imagine life without it? No.

Martin Luther called printing “the ultimate gift of God and the greatest one.” Well, I’d say God outdid herself with her next act.


* Favorite meme so far:

Europe Against the Net

I’ve spent a worrisome weekend reading three documents from Europe about regulating the net:

In all this, I see danger for the net and its freedoms posed by corporate protectionism and a rising moral panic about technology. One at a time:

Articles 11 & 13: Protectionism gone mad

Article 11 is the so-called link tax, the bastard son of the German Leistungsschutzrechtor ancillary copyright that publishers tried to use to force Google to pay for snippets. They failed. They’re trying again. Reda, a member of the European Parliament, details the dangers:

Reproducing more than “single words or very short extracts” of news stories will require a licence. That will likely cover many of the snippets commonly shown alongside links today in order to give you an idea of what they lead to….

No exceptionsare made even for services run by individuals, small companies or non-profits, which probably includes any monetised blogs or websites.

European journalists protest that this will serve media corporations, not journalists. Absolutely.

But the danger to free speech, to the public conversation, and to facts and evidence are greater. Journalism and the academe have long depended on the ability to quote — at length — source material to then challenge or expand upon or explain it. This legislation begins to make versions of that act illegal. You’d have to pay a license to a news property to quote it. Nevermind that 99.9 percent of journalism quotes others. The results: Links become blind alleys sending you to god-knows-what dark holes exploited by spammers and conspiracy theories. News sites lose audience and impact (witness how a link tax forced Google News out of Spain). Even bloggers like me could be restricted from quoting others as I did above, killing the web’s magnificent ability to foster conversation with substance.

Why do this? Because publishers think they can use their clout to get legislators to bully the platforms into paying them for their “content,” refusing to come to grips with the fact that the real value now is in the audience the platforms send to the publishers. It is corporate protectionism born of political capital. It is corrupt and corrupting of the net. It is a crime.

Article 13 is roughly Europe’s version of the SOPA/PIPA fight in the U.S.: protectionism on behalf of entertainment media companies. It requires sites where users might post material —isn’t that every interactive site on the net ?— to “preemptively buy licenses for anything that users may possibly upload,” in Reda’s explanation. They will also have to deploy upload filters — which are expensive to operate and notoriously full of false positives — to detect anything that is not licensed. The net: Sites will not allow anyone to post any media that could possibly come from anywhere.

So we won’t be able to quote or adapt. Death to the meme. Yes, there are exceptions for criticism, but as Lawrence Lessig famously said “fair use is the right to hire a lawyer.” This legislation attempts to kill what the net finally brought to society: diverse and open conversation.

Cairncross Review: Protecting journalism as it was

The UK dispatched Dame Frances Cairncross, a former journalist and economist, to review the imperiled state of news and she returned with a long and well-intentioned but out-of-date document. A number of observations:

  • She fails — along with many others — to define quality journalism. “Ultimately, ‘high quality journalism’ is a subjective concept that depends neither solely on the audience nor the news provider. It must be truthful and comprehensive and should ideally — but not necessarily — be edited. You know it when you see it….” (Just like porn, but porn’s easier.) Thus she cannot define the very thing her report strives to defend. A related frustration: She doesn’t very much criticize the state of journalism or the reasons why trust in it is foundering, only noting its fall.
  • I worry greatly about her conclusion that “intervention may be needed to determine what, and how, news is presented online.” So you can’t define quality but you’re going to regulate how platforms present it? Oh, the platforms are trying to understand quality in news. (Disclosure: I’m working on just such a project, funded by but independent of Facebook.) But the solutions are not obvious. Cairncross wants the platforms to have an obligation “to nudge people towards reading news of high quality” and even to impose quotas for quality news on the platforms. Doesn’t that make the platforms the editors? Is that what editors really want? Elsewhere in the report, she argues that “this task is too important to leave entirely to the judgment of commercial entities.” But BBC aside, that is where the task of news lies today: in commercial entities. Bottom line: I worry about *any* government intervention in speech and especially in journalism.
  • She rightly focuses less on national publications and more on the loss of what she calls “public interest news,” which really means local reporting on government. Agreed. She also glances by the paradox that public-interest news “is often of limited interest to the public.” Well, then, I wish she had looked at the problem and opportunity from the perspective of what the net makes possible. Why not start with new standards to require radical transparency of government, making every piece of legislation, every report, every budget public? There have been pioneering projects in the UK to do just that. That would make the task of any journalist more efficient and it would enable collaborative effort by the community: citizens, librarians, teachers, classes…. She wants a government fund to pay for innovations in this arena. Fine, then be truly innovative. She further calls for the creation of an Institute for Public Interest News. Do we need another such organization? Journalism has so many.
  • She explores a VAT tax break for subscriptions to online publications. Sounds OK, but I worry that this would motivate more publications to put up paywalls, which will further redline quality journalism for those who can afford it.
  • She often talked about “the unbalanced relationship between publishers and online platforms.” This assumes that there is some natural balance, some stasis that can be reestablished, as if history should be our only guide. No, life changed with the internet.
  • She recommends that the platforms be required to set out codes of conduct that would be overseen by a regulator “with powers to insist on compliance.” She wants the platforms to commit “not to index more than a certain amount of a publisher’s content without an explicit agreement.” First, robots.txt and such already put that in publishers’ control. Second, Cairncross acknowledges that links from platforms are beneficial. She worries about — but does not define — too much linking. I see a slippery slope to Article 11 (above) and, really, so does Cairncross: “There are grounds for worrying that the implementation of Article 11 in the EU may backfire and restrict access to news.” In her code of conduct, platforms should not impose their ad platforms on publishers — but if publishers want revenue from the platforms they pretty much have to. She wants platforms to give early warnings of changes in algorithms but that will be spammed. She wants transparency of advertising terms (what other industries negotiate in public?).
  • Cairncross complains that “most newspapers have lacked the skills and resources to make good use of data on their readers” and she wants the platforms to share user data with publishers. I agree heartily. This is why I worry that another European regulatory regime — GDPR — makes that nigh unto impossible.
  • She wants a study of the competitive landscape around advertising. Yes, fine. Note, thought, that advertising is becoming less of a force in publishers’ business plans by the day.
  • Good news: She rejects direct state support for journalism because “the effect may be to undermine trust in the press still further, at a time when it needs rebuilding.” She won’t endorse throttling the BBC’s digital efforts just because commercial publishers resent the competition. She sees danger in giving the publishing industry an antitrust exception to negotiate with the platforms (as is also being proposed in the U.S.) because that likely could lead to higher prices. And she thinks government should help publishers adapt by “encouraging the development and distribution of new technologies and business models.” OK, but what publishers and which technologies and models? If we knew which ones would work, we’d already be using them.
  • Finally, I note a subtle paternalism in the report. “The stories people want to read may not always be the ones they ought to read in order to ensure that a democracy can hold its public servants properly to account.” Or the news people need in their lives might not be the news that news organizations are reporting. Also: Poor people — who would be cut off by paywalls — “are not just more likely to have lower levels of literacy than the better-off; their digital skills also tend to be lower.” Class distinctions never end.

It’s not a bad report. It is cautious. But it’s also not visionary, not daring to imagine a new journalism for a new society. That is what is really needed.

The Commons report: Finding fault

The Digital, Culture, Media and Sport Committee is famously the body Mark Zuckerberg refused to testify before. And, boy, are they pissed. Most of this report is an indictment of Facebook on many sins, most notably Cambridge Analytica. For the purposes of this post, about possible regulation, I won’t indulge in further prosecuting or defending the case against Facebook (see my broader critique of the company’s culture here). What interests me in this case is the set of committee recommendations that could have an impact on the net, including our net outside of the UK.

The committee frets — properly — over malicious impact of Brexit. And where did much of the disinformation that led to that disaster come from? From politicians: Nigel Farage, Boris Johnson, et al. This committee, headed by a conservative, makes no mention of colleagues. As with the Cairncross report, why not start at home and ask what government needs to do to improve the state of its contribution to the information ecosystem? A few more notes:

  • Just as Cairncross has trouble defining quality journalism, the Commons committee has trouble defining the harm it sees everywhere on the internet. It puts off that critical and specific task to an upcoming Online Harms white paper from the government. (Will there also be an Online Benefits white paper?) The committee calls for holding social media companies — “which is not necessarily either a ‘platform’ or a ‘publisher’,” the report cryptically says — liable for “content identified as harmful after it has been posted by users.” The committee then goes much farther, threatening not just tech companies but technologists. My emphasis: “If tech companies (including technological engineers involved in creating the software for the companies) are found to have failed to meet their obligations under such a Code [of Ethics], and not acted against the distribution of harmful and illegal content, the independent regulator should have the ability to launch legal proceedings against them, with the prospect of large fines being administered….” Them’s fightin’ words, demonizing not just the technology and the technology company but the technologist.
  • Again and again in reading the committee’s report, I wrote in the margin “China” or “Iran,” wondering how the precedents and tools wished for here could be used by authoritarian regimes to control speech on the net. For example: “There is now an urgent need to establish independent regulation. We believe that a compulsory Code of Ethics should be established, overseen by an independent regulator, setting out what constitutes harmful content.” How — except in the details — does that differ from China deciding what is harmful to the minds of the masses? Do we really believe that a piece of “harmful content” can change the behavior of a citizen for the worse without many other underlying causes? Who knows best for those citizens? The state? Editors? Technologists? Or citizens themselves? The committee notes — with apparent approval — a new French law that “allows judges to order the immediate removal of online articles that they decide constitute disinformation.” All this sounds authoritarian to me and antithetical to the respect and freedom the net gives people.
  • The committee expands the definition of personal data — which, under GDPR, is already ludicrously broad, to include, for example, your IP address. It wants to include “inferred data.” I hate to think what that could do to the discipline of machine learning and artificial intelligence — to the patterns and inferences that will compose patterns discerned and knowledge produced by machines.
  • The committee wants to impose a 2% “digital services tax on UK revenues of big technology companies.” On what basis, besides vendetta against big (American) companies?
  • The Information Commissioner told the committee that “Facebook needs to significantly change its business model and its practices to maintain trust.” How often does government get into the nitty-gritty of companies’ business models? And let’s be clear: The problem with Facebook’s business model — click-based, volume-based, attention-based advertising — is precisely what drove media into the abyss of mistrust. So should the government tell media to change its business model? They wouldn’t dare.
  • The report worries about the “pernicious nature of micro-targeted political adverts” and quotes the Coalition for Reform in Political Advertising recommending that “all factual claims used in political ads be pre-cleared; an existing or new body should have the power to regulate political advertising content.” So government in power would clear the content of ads of challengers? What could possibly go wrong? And micro-targeting of one sort or another is also what enables small communities with specific interests to find each other and organize. Give up your presumptions of the mass.
  • The report argues “there needs to be absolute transparency of online political campaigning.” I agree. Facebook, under pressure, created a searchable database of political ads. I think Facebook should do more and make targeting data public. And I think every — every — other sector of media should match Facebook. Having said that, I still think we need to be careful about setting precedents that might not work so well in countries like, say, Hungry or Turkey, where complete transparency in political advertising and activism could lead to danger for opponents of authoritarian regimes.
  • The committee, like Cairncross, expresses affection for eliminating VAT taxes on digital subscriptions. “This would eliminate the false incentive for news companies against developing more paid-for digital services.” Who said what is the true or false business model? I repeat my concern that government meddling in subscription models could have a deleterious impact on news for the public at large, especially the poor. It would also put more news behind paywalls, with less audience, resulting in less impact from it. (A hidden agenda, perhaps?)
  • “The Government should put pressure on social media companies to publicize any instances of disinformation,” the committee urges. OK. But define “disinformation.” You’ll find it just as challenging as defining “quality news” and “harm.”
  • The committee, like Cairncross, salutes the flag of media literacy. I remain dubious.
  • And the committee, like Cairncross, sometimes reveals its condescension. “Some believe that friction should be reintroduced into the online experience, by both tech companies and by individual users themselves, in order to recognize the need to pause and think before generating or consuming content.” They go so far as to propose that this friction could include “the ability to share a post or a comment, only if the sharer writes about the post; the option to share a post only when it has been read in its entirety.” Oh, for God’s sake: How about politicians pausing and thinking before they speak, creating the hell that is Brexit or Trump?

In the end, I fear all this is hubris: to think that we know what the internet is and what its impact will be before we dare to define and limit the opportunities it presents. I fear the paternalistic unto authoritarian worldview that those with power know better than those without. I fear the unintended — and intended — consequences of all this regulation and protectionism. I trust the public to figure it out eventually. We figured out printing and steam power and the telegraph and radio and television. We will figure out the internet if given half a chance.

And I didn’t even begin to examine what they’re up to in Australia…