Posts about regulation

News Publishers Go To War With the Internet — and We All Lose

Around the world, news industry trade associations are corruptly cashing in their political capital — which they have because their members are newspapers, and politicians are scared of them — in desperate acts of protectionism to attack platform companies. The result is a raft of legislation that will damage the internet and in the end hurt everyone, including journalists and especially citizens.

As I was sitting in the airport leaving Newsgeist Europe, a convening for journalists and publishers [disclosure: Google pays for the venue, food, and considerable drink; participants pay their own travel], my Twitter feed lit up like the Macy’s fireworks as The New York Times reported — or rather, all but photocopied — a press release from the News Media Alliance (née Newspaper Association of America) contending that Google makes $4.7 billion a year from news, at the expense of news publishers.

Bullshit.

The Times story itself is appalling as it swallowed the News Media Alliance’s PR whole, quoting people from the association and not including comment from Google until hours later. Many on Twitter were aghast at the poor journalism. I contacted Google PR, who said The Times did not reach out to the person who normally speaks on these matters or anyone in the company’s Washington office. Google sent me their statement:

These back of the envelope calculations are inaccurate as a number of experts are pointing out. The overwhelming number of news queries do not show ads. The study ignores the value Google provides. Every month Google News and Google Search drives over 10 billion clicks to publishers’ websites, which drive subscriptions and significant ad revenue. We’ve worked very hard to be a collaborative and supportive technology and advertising partner to news publishers worldwide.

The “study” upon which The Times (and others) relied is, to say the least, specious. No, it’s humiliating. I want to dispatch with its fallacies quickly — to get to my larger point, about the danger legacy news publishers are posing to the future of news and the internet — and that won’t be hard. The study collapses in its second paragraph:

Google has emerged as a major gateway for consumers to access news. In 2011, Google Search combined with Google News accounted for the majority (approximately 75%) of referral traffic to top news sites. Since January 2017, traffic from Google Search to news publisher sites has risen by more than 25% to approximately 1.6 billion visits per week in January 2018. Corresponding with consumers’ shift towards Google for news consumption, news is becoming increasingly important to Google, as demonstrated by an increase in Google searches about news.

And that, ladies and gentlemen, is great news for news. For as anyone under the age of 99 understands, Google sends readers to sites based on links from search and other products. That Google is emphasizing news and currency more is good for publishers, as that sends them readers. (That 10-billion-click number Google cited above is eight years old and so I have little doubt it is much higher now thanks to all its efforts around news.)

The problem has long been that publishers aren’t competent at exploiting the full value of these clicks by creating meaningful and valuable ongoing relationships with the people sent their way. So what does Google do? It tries to help publishers by, for example, starting a subscription service that drives more readers to easily subscribe — and join and contribute — to news sites directly from Google pages. The NMA study cites that subscription service as an example of Google emphasizing news and by implication exploiting publishers. It is the opposite. Google started the subscription service because publishers begged for it — I was in the room when they did — and Google listened. The same goes for most every product change the study lists in which Google emphasizes news more. That helps publishers. The study then uses ridiculously limited data (including, crucially, an offhand and often disputed remark 10 years ago by a then-exec at Google about the conceptual value of news) to make leaps over logic to argue that news is important on its services and thus Google owes news publishers a cut of its revenue (which Google gains by offering publishers’ former customers, advertisers, a better deal; it’s called competition). By this logic, Instagram should be buying cat food for every kitty in the land and Reddit owes a fortune to conspiracy theorists.

The real problem here is news publishers’ dogged refusal to understand how the internet has changed their world, throwing the paradigm they understood into the grinder. In the US and Europe, they still contend that Google is taking their “content,” as if quoting and linking to their sites is like a camera stealing their soul. They cannot grok that value on the internet is concentrated not in a product or property called content — articles, headlines, snippets, thumbnails, words — but instead in relationships. Journalism is no longer a factory valued by how many widgets and words it produces but instead by how much it accomplishes for people in their lives. I have tried here and here and in many a meeting in newsrooms and journalism conferences to offer this advice to news publishers — with tangible ideas about how to build a new journalistic business around relationships — but most prove incapable of shifting mindset and strategy beyond valuing content for content’s sake. Editors who do understand are often stymied by their short-sighted publishers and KPIs and soon quit.

Most legacy publishers have come up with no sustainable business strategy for a changing world. So they try to stop the world from changing by unleashing their trade associations [read: lobbyists] on capitals from Brussels to Berlin to London to Melbourne to Washington (see: the NMA’s effort to get an antitrust exemption to go after the platforms for antitrust; its study was prepared to hand to Congress in time for its hearings this week). These trade associations attack the platforms without ever acknowledging the fault of their own members in our current polarization in society. (Yes, I’m talking about, for example, Fox News and other Murdoch properties, dues-paying members of many a trade association. By our silence in journalism and its trade associations in not criticizing their worst, we endorse it.)

The efforts of lobbyists for my industry are causing irreparable harm to the internet. No, Google, Facebook, and Twitter are not the internet, but what is done to them is done to the net. And what’s been done includes horrendous new copyright legislation in the EU that tries to force Google et al to have to negotiate to pay for quoting snippets of content to which they link. Google won’t; it would be a fool to. So I worry that platforms will link to news less and less resulting in self-inflicted harm for the news industry and journalists, but more important hurting the public conversation at exactly the wrong moment. Thanks, publishers. At Newsgeist Europe, I sat in a room filled with journalists terribly worried about the impact of the EU’s copyright directive on their work and their business but I have to say they have no one but their own publishers and lobbyists to blame.

I am tempted to say that I am ashamed of my own industry. But I won’t for two reasons: First, I want to believe that the industry’s lobbyists do not speak for journalists themselves — but I damned well better start hearing the protests of journalists to what their companies are doing. (That includes journalists on the NMA board.) Second, I am coming to see that I’m not part of the media industry but instead that we are all part of something larger, which we now see as the internet. (I’ll be writing more about this idea later.) That means we have a responsibility to criticize and help improve both technology and news companies. What I see instead is too many journalists stirring up moral panic about the internet and its current (by no means permanent) platforms, serving — inadvertently or not — the protectionist strategies of their own bosses, without examining media’s culpability in many of the sins they attribute to technology. (I wish I could discuss this with The New York Times’ ombudsman or any ombudsman in our field, but we know what happened to them.)

My point: We’re in this together. That is why I go to events put on by both the technology and news industries, why I try to help both, why I criticize both, why I try to help build bridges between them. It’s why I am devoting time and effort to my least favorite subject: internet regulation. It is why I am so exasperated at leaders in my own industry for their failure to recognize, adapt to, and exploit the change they try to deny. It’s why I’m disappointed in my own industry for not criticizing itself. Getting politicians who are almost all painfully ignorant about technology to try to define, limit, and regulate that technology and what we can do with it is the last thing we should do. It is irresponsible and dangerous of my industry to try.

Regulating the net is regulating us

Here are three intertwined posts in one: a report from inside a workshop on Facebook’s Oversight Board; a follow-up on the working group on net regulation I’m part of; and a brief book report on Jeff Kosseff’s new and very good biography of Section 230, The Twenty-Six Words That Created the Internet.

Facebook’s Oversight Board

Last week, I was invited — with about 40 others from law, media, civil society, and the academe — to one of a half-dozen workshops Facebook is holding globally to grapple with the thicket of thorny questions associated with the external oversight board Mark Zuckerberg promised.

(Disclosures: I raised money for my school from Facebook. We are independent and I receive no compensation personally from any platform. The workshop was held under Chatham House rule. I declined to sign an NDA and none was then required, but details about to real case studies were off the record.)

You may judge the oversight board as you like: as an earnest attempt to bring order and due process to Facebook’s moderation; as an effort by Facebook to slough off its responsibility onto outsiders; as a PR stunt. Through the two-day workshop, the group kept trying to find an analog for Facebook’s vision of this: Is it an appeals court, a small-claims court, a policy-setting legislature, an advisory council? Facebook said the board will have final say on content moderation appeals regarding Facebook and Instagram and will advise on policy. It’s two mints in one.

The devil is the details. Who is appointed to the board and how? How diverse and by what definitions of diversity are the members of the board selected? Who brings cases to the board (Facebook? people whose content was taken down? people who complained about content? board members?)? How does the board decide what cases to hear? Does the board enforce Facebook policyor can it countermand it? How much access to data about cases and usage will the board have? How much authority will the board have to bring in experts and researchers and what access to data will they have? How does the board scale its decision-making when Facebook receives 3 million reports against content a day? How is consistency found among the decisions of three-member panels in the 40ish-member board? How can a single board in a single global company be consistent across a universe of cultural differences and sensitive to them? As is Facebook’s habit, the event was tightly scheduled with presentations and case studies and so — at least before I had to leave in day two — there was less open debate of these fascinating questions than I’d have liked.

Facebook starts with its 40 pages of community standards, updated about every two weeks, which are in essence its statutes. I recommend you look through them. They are thoughtful and detailed. For example:

A hate organization is defined as: Any association of three or more people that is organized under a name, sign or symbol and that has an ideology, statements or physical actions that attack individuals based on characteristics, including race, religious affiliation, nationality, ethnicity, gender, sex, sexual orientation, serious disease or disability.

At the workshop, we heard how a policy team sets these rules, how product teams create the tools around them, and how operations — with people in 20 offices around the world, working 24/7, in 50 languages — are trained to enforce them.

But rules — no matter how detailed — are proving insufficient to douse the fires around Facebook. Witness the case, only days after the workshop, of the manipulated Nancy Pelosi video and subsequent cries for Facebook to take it down. I was amazed that so many smart people thought it was an easy matter for Facebook to take down the video because it was false, without acknowledging the precedent that would set requiring Facebook henceforth to rule on the truth of everything everyone says on its platform — something no one should want. Facebook VP for Product Policy and Counterterrorism Monika Bickert (FYI: I interviewed her at a Facebook safety event the week before) said the company demoted the video in News Feed and added a warning to the video. But that wasn’t enough for those out for Facebook’s hide. Here’s a member of the UK Parliament (who was responsible for the Commons report on the net I criticized here):

So by Collins’ standard, if UK politicians in his own party claim as a matter of malicious political disinformation that the country pays £350m per week to the EU that would be freed up for the National Health Service with Brexit and that’s certified by journalists to be “willful distortion,” should Facebook be required to take that statement down? Just asking. It’s not hard to see where this notion of banning falsity goes off the rails and has a deleterious impact on freedom of expression and political discussion.

But politicians want to take bites out of Facebook’s butt. They want to blame Facebook for the ill-informed state of political debate. They want to ignore their own culpability. They want to blame technology and technology companies for what people — citizens — are doing.

Ditto media. Here’s Kara Swisher tearing off her bit of Facebook flesh regarding the Pelosi video: “Would a broadcast network air this? Never. Would a newspaper publish it? Not without serious repercussions. Would a marketing campaign like this ever pass muster? False advertising.”

Sigh. The internet is not media. Facebook is not news (only 4% of what appears there is). What you see there is not content. It is conversation. The internet and Facebook are means for the vast majority of citizenry forever locked out of media and of politics to discuss whatever they want, whether you like it or not. Those who want to control that conversation are the privileged and powerful who resent competition from new voices.

By the way, media people: Beware what you wish for when you declare that platforms are media and that they must do this or that, for your wishes could blow back on you and open the door for governments and others to demand that media also erase that which someone declares to be false.

Facebook’s oversight board is trying to mollify its critics — and forestall regulation of it — by meeting their demands to regulate content. Therein lies its weakness, I think: regulating content.

Regulating Actors, Behaviors, or Content

A week before the Facebook workshop, I attended a second meeting of a Transatlantic High Level Working Group on Content Moderation and Freedom of Expression (read: regulation), which I wrote about earlier. At the first meeting, we looked at separating treatment of undesirable content (dealt with under community standards such as Facebook’s) from illegal content (which should be the purview of government and of an internet court; details on that proposal here.)

At this second meeting, one of the brilliant members of the group (held under Chatham House, so I can’t say who) proposed a fundamental shift in how to look at efforts to regulate the internet, proposing an ABC rule separating actors from behaviors from content. (Here’s another take on the latest meeting from a participant.)

It took me time to understand this, but it became clear in our discussion that regulating content is a dangerous path. First, making content illegal is making speech illegal. As long as we have a First Amendment and a Section 230 (more on that below) in the United States, that is a fraught notion. In the UK, a Commons committee recently released an Online Harms White Paper that demonstrates just how dangerous the idea of regulating content can be. The white paper wants to require — under pain of huge financial penalty for companies and executives — that platforms exercise a duty of care to take down “threats to our way of life” that include not only illegal and harmful content (child porn, terrorism) but also legal and harmful content (including trolling [please define] and disinformation [see above]). Can’t they see that government requiring the takedown of legal content makes it illegal? Can’t they see that by not defining harmful content, they put a chill on all speech? For an excellent takedown of the report, see this post by Graham Smith, who says that what the Commons committee is impossibly vague. He writes:

‘Harm’ as such has no identifiable boundaries, at least none that would pass a legislative certainty test.

This is particularly evident in the White Paper’s discussion of Disinformation. In the context of anti-vaccination the White Paper notes that “Inaccurate information, regardless of intent, can be harmful”.

Having equated inaccuracy with harm, the White Paper contradictorily claims that the regulator and its online intermediary proxies can protect users from harm without policing truth or accuracy…

See: This is the problem when you try to identify, regulate, and eliminate bad content. Smith concludes: “This is a mechanism for control of individual speech such as would not be contemplated offline and is fundamentally unsuited to what individuals do and say online.” Nevermind the common analogy to regulation of broadcast. Would we ever suffer such talk about regulating the contents of bookstores or newspapers or — more to the point — conversations in the corner bar?

What becomes clear is that these regulatory methods — private (at Facebook) and public (in the UK and across Europe) — are aimed not at content but ultimately at behavior, only they don’t say so. It is nearly impossible to judge content in isolation. For example, my liberal world is screaming about the slow-Pelosi video. But then what about this video from three years ago?

What makes one abhorrent and one funny? The eye of the beholder? The intent of the creator? Both. Thus content can’t be judged on its own. Context matters. Motive matters. But who is to judge intent and impact and how?

The problem is that politicians and media do not like certain behavior by certain citizens. They cannot figure out how to regulate it at scale (and would prefer not to make the often unpopular decisions required), so they assign the task to intermediaries — platforms. Pols also cannot figure out how to define the bad behavior they want to forbid, so they decide instead to turn an act into a thing — content — and outlaw that under vague rules they expect intermediaries to enforce … or else.

The intermediaries, in turn, cannot figure out how to take this task on at scale and without risk. In an excellent Harvard Law Review paper called The New Governors: The People, Rules, and Processes Governing Online Speech, legal scholar Kate Klonick explains that the platforms began by setting standards. Facebook’s early content moderation guide was a page long, “so it was things like Hitler and naked people,” says early Facebook community exec Dave Willner. Charlotte Willner, who worked in customer service then (they’re now married), said moderators were told “if it makes you feel bad in your gut, then go ahead and take it down.” But standards — or statements of values— don’t scale as they are “often vague and open ended” and can be “subject to arbitrary and/or prejudiced enforcement.” And algos don’t grok values. So the platforms had to shift from standards to rules. “Rules are comparatively cheap and easy to enforce,” says Klonick, “but they can be over- and underinclusive and, thus, can lead to unfair results. Rules permit little discretion and in this sense limit the whims of decisionmakers, but they also can contain gaps and conflicts, creating complexity and litigation.” That’s where we are today. Thus Facebook’s systems, algorithmic and human, followed its rules when they came across the historic photo of a child in a napalm attack. Child? Check. Naked? Check. At risk? Check. Take it down. The rules and the systems of enforcement could not cope with the idea that what was indecent in that photo was the napalm.

Thus the platforms found their rule-led moderators and especially their algorithms needed nuance. Thus the proposal for Facebook’s Oversight Board. Thus the proposal for internet courts. These are attempts to bring human judgment back into the process. They attempt to bring back the context that standards provide over rules. As they do their work, I predict these boards and courts will inevitably shift from debating the acceptability of speech to trying to discern the intent of speakers and the impact on listeners. They won’t be regulating a thing: content. They will be regulating the behavior of actors: us.

There are additional weaknesses to the rules-based, content-based approach. One is that community standards are rarely set by the communities themselves; they are imposed on communities by companies. How could it be otherwise? I remember long ago that Zuckerberg proposed creating a crowdsourced constitution for Facebook but that quickly proved unwieldy. I still wonder whether there are creative ways to get intentional and explicit judgments from communities as to what is and isn’t acceptable for them — if not in a global service, then user-by-user or community-by-community. A second weakness of the community standards approach is that these rules bind users but not platforms. I argued in a prior post that platforms should create two-way covenants with their communities, making assurances of what the company will deliver so it can be held accountable.

Earlier this month, the French government proposed an admirably sensible scheme for regulation that tries to address a few of those issues. French authorities spent months embedded in Facebook in a role-playing exercise to understand how they could regulate the platform. I met a regulator in charge of this effort and was impressed with his nuanced, sensible, smart, and calm sense of the task. The proposal does not want to regulate content directly — as the Germans do with their hate speech law, called NetzDG, and as the Brits propose to do going after online harms.

Instead, the French want to hold the platforms accountable for enforcing the standards and promises they set: say what you do, do what you say. That enables each platform and community to have its own appropriate standards (Reddit ain’t Facebook). It motivates platforms to work with their users to set standards. It enables government and civil society to consult on how standards are set. It requires platforms to provide data about their performance and impact to regulators as well as researchers. And it holds companies accountable for whether they do what they say they will do. It enables the platforms to still self-regulate and brings credibility through transparency to those efforts. Though simpler than other schemes, this is still complex, as the world’s most complicated PowerPoint slide illustrates:

I disagree with some of what the French argue. They call the platforms media (see my argument above). They also want to regulate only the three to five largest social platforms — Facebook, YouTube, Twitter— because they have greater impact (and because that’s easier for the regulators). Except as soon as certain groups are shooed out of those big platforms, they will dig into small platforms, feeling marginalized and perhaps radicalized, and do their damage from there. The French think some of those sites are toxic and can’t be regulated.

All of these efforts — Facebook’s oversight board, the French regulator, any proposed internet court — need to be undertaken with a clear understanding of the complexity, size, and speed of the task. I do not buy cynical arguments that social platforms want terrorism and hate speech kept up because they make money on it; bull. In Facebook’s workshop and in discussions with people at various of the platforms, I’ve gained respect for the difficulty of their work and the sincerity of their efforts. I recommend Klonick’s paper as she attempts to start with an understanding of what these companies do, arguing that

platforms have created a voluntary system of self-regulation because they are economically motivated to create a hospitable environment for their users in order to incentivize engagement. This regulation involves both reflecting the norms of their users around speech as well as keeping as much speech as possible. Online platforms also self-regulate for reasons of social and corporate responsibility, which in turn reflect free speech norms.

She quotes Lawrence Lessig predicting that a “code of cyberspace, defining the freedoms and controls of cyberspace, will be built. About that there can be no doubt. But by whom, and with what values? That is the only choice we have left to make.”

And we’re not done making it. I think we will end up with a many-tiered approach, including:

  1. Community standards that govern matters of acceptable and unacceptable behavior. I hope they are made with more community input.
  2. Platform covenants that make warranties to users, the public, and government about what they will endeavor to deliver in a safe and hospitable environment, protecting users’ human rights.
  3. Algorithmic means of identifying potentially violating behavior at scale.
  4. Human appeals that operate like small claims courts.
  5. High-level oversight boards that rule and advise on policy.
  6. Regulators that hold companies accountable for the guarantees they make.
  7. National internet courts that rule on questions of legality in takedowns in public, with due process. Companies should not be forced to judge legality.
  8. Legacy courts to deal with matters of illegal behavior. Note that platforms often judge a complaint first against their terms of service and issue a takedown before reaching questions about illegality, meaning that the miscreants who engage in that illegal behavior are not reported to authorities. I expect that governments will complain platforms aren’t doing enough of their policing — and that platforms will complain that’s government’s job.

Numbers 1–5 occur on the private, company side; the rest must be the work of government. Klonick calls the platforms “the New Governors,” explaining that

online speech platforms sit between the state and speakers and publishers. They have the role of empowering both individual speakers and publishers … and their transnational private infrastructure tempers the power of the state to censor. These New Governors have profoundly equalized access to speech publication, centralized decentralized communities, opened vast new resources of communal knowledge, and created infinite ways to spread culture. Digital speech has created a global democratic culture, and the New Governors are the architects of the governance structure that runs it.

What we are seeking is a structure of checks and balances. We need to protect the human rights of citizens to speak and to be shielded from such behaviors as harassment, threat, and malign manipulation (whether by political or economic actors). We need to govern the power of the New Governors. We also need to protect the platforms from government censorship and legal harassment. That’s why we in America have Section 230.

Section 230 and ‘The Twenty-Six Words that Created the Internet’

We are having this debate at all because we have the “online speech platforms,” as Klonick calls them — and we have those platforms thanks to the protection given to technology companies as well as others (including old-fashioned publishers that go online) by Section 230, a law written by Oregon Sen. Ron Wyden (D) and former California Rep. Chris Cox (R) and passed in 1996 telecommunications reform. Jeff Kosseff wrote an excellent biography of the law that pays tribute to these 26 words in it:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Those words give online companies safe harbor from legal liability for what other people say on their sites and services. Without that protection, online site operators would have been motivated to cut off discussion and creativity by the public. Without 230, I doubt we would have Facebook, Twitter, Wikipedia, YouTube, Reddit, news comment sections, blog platforms, even blog comments. “The internet,” Kosseff writes, “would be little more than an electronic version of a traditional newspaper or TV station, with all the words, pictures, and videos provided by a company and little interaction among users.” Media might wish for that. I don’t.

In Wyden’s view, the 26 words give online companies not only this shield but also a sword: the power and freedom to moderate conversation on their sites and platforms. Before Section 230, a Prodigy case held that if an online proprietor moderated conversation and failed to catch something bad, the operator would be more liable than if it had not moderated at all. Section 230 reversed that so that online companies would be free to moderate without moderating perfectly — a necessity to encourage moderation at scale. Lately, Wyden has pushed the platforms to use their sword more.

In the debate on 230 on the House floor, Cox said his law “will establish as the policy of the United States that we do not wish to have content regulation by the Federal Government of what is on the internet, that we do not wish to have a Federal Computer Commission with an army of bureaucrats regulating the internet….”

In his book, Kosseff takes us through the prehistory of 230 and why it was necessary, then the case law of how 230 has been tested again and again and, so far, survived.

But Section 230 is at risk from many quarters. From the far right, we hear Trump and his cultists whine that they are being discriminated against because their hateful disinformation (see: Infowars) is being taken down. From the left, we see liberals and media gang up on the platforms in a fit of what I see as moral panic to blame them for every ill in the public conversation (ignoring politicians’ and media’s fault). Thus they call for regulating and breaking up technology companies. In Europe, countries are holding the platforms — and their executives and potentially even their technologists — liable for what the public does through their technology. In other nations — China, Iran, Russia — governments are directly controlling the public conversation.

So Section 230 stands alone. It has suffered one slice in the form of the FOSTA/SESTA ban on online sex trafficking. In a visit to the Senate with the regulation working group I wrote about above, I heard a staffer warn that there could be further carve-outs regarding opioids, bullying, political extremism, and more. Meanwhile, the platforms themselves didn’t have the guts to testify in defense of 230 and against FOSTA/SESTA (who wants to seem to be on the other side of banning sex trafficking?). If these companies will not defend the internet, who will? No, Facebook and Google are not the internet. But what you do to them, you do to the net.

I worry for the future of the net and thus of the public conversation it enables. That is why I take so seriously the issues I outline above. If Section 230 is crippled; if the UK succeeds in demanding that Facebook ban undefined harmful but legal content; if Europe’s right to be forgotten expands; if France and Singapore lead to the spread of “fake news” laws that require platforms to adjudicate truth; if the authoritarian net of China and Iran continues to spread to Russia, Turkey, Hungary, the Philippines, and beyond; if …

If protections of the public conversation on the net are killed, then the public conversation will suffer and voices who could never be heard in big, old media and in big, old, top-down institutions like politics will be silenced again, which is precisely what those who used to control the conversation want. We’re in early days, friends. After five centuries of the Gutenberg era, society is just starting to relearn how to hold a conversation with itself. We need time, through fits and starts, good times and bad, to figure that out. We need our freedom protected.

Without online speech platforms and their protection and freedom, I do not think we would have had #metoo or #blacklivesmatter or #livingwhileblack. Just to see one example of what hashtags as platforms have enabled, please watch this brilliant talk by Baratunde Thurston and worry about what we could be missing.

None of this is simple and so I distrust all the politicians and columnists who think they have simple solutions: Just make Facebook kill this or Twitter that or make them pay or break them up. That’s simplistic, naive, dangerous, and destructive. This is hard. Democracy is hard.

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…

Leave our net alone*

The internet’s not broken.

So then why are there so many attempts to regulate it? Under the guises of piracy, privacy, pornography, predators, indecency, and security, not to mention censorship, tyranny, and civilization, governments from the U.S. to France to Germany to China to Iran to Canada — as well as the European Union and the United Nations — are trying to exert control over the internet.

Why? Is it not working? Is it presenting some new danger to society? Is it fundamentally operating any differently today than it was five or ten years ago? No, no, and no.

So why are governments so eager to claim authority over it? Why would legacy corporations, industries, and institutions egg them on? Because the net is working better than ever. Because they finally recognize how powerful it is and how disruptive it is to their power.

And that is precisely why we must fight against their attempts to regulate it, to change it, to throttle it, to oversee it, to insert controls into it, to grant them sovereignty over it. We also must resist the temptation to compromise, to accept the lesser of evils. Last week, Federal Communications Commissioner Robert McDowell warned of the danger of the U.N. asserting governance over the net, but then he turned around and argued that “merely saying ‘no’ to any changes to the current structure of Internet governance is likely to be a losing proposition.”

Why? I repeat: It’s not broken. This is why I urged French President Nicolas Sarkozy to take a Hippocratic oath for the net. This is why I have come to side with Sen. Al Franken on at least this: Net neutrality is not regulation; it is protecting the net from companies trying to change it. This is why the Reddit community is writing the Free Internet Act.

This is why I argued in Public Parts that we must have a discussion of the principles of an open society and the tools of publicness that enable it. This is why I wrote Public Parts. And that is why I’m posting the last chapter of the book, which argues that governments and companies are not protectors of the net and that we must be.

It’s not broken. Don’t fix it. Leave our net alone.

*Sung to the tune of….

We don’t need no regulation.
We dont need no thought control
No dark sarcasm in the network
Government: Leave our net alone
Hey! Government! Leave our net alone!
All in all it’s just another brick in the wall.
All in all you’re just another brick in the wall.

Readers are our regulators

Here’s a post I put up on the Guardian’s Comment is Free (comment there).

Please resist the temptation to impose government regulation on journalism in the aftermath of phone-hacking. Oh, I know, it would be sweet justice for Murdoch pere et fils to be the cause of expanding government authority. But danger lies there. Regulation requires teeth and teeth carry power.

Let me begin by posing four questions:

What activities are to be regulated? Activities that are already criminal, like News Corp.’s, should be prosecuted as crimes. Then does speech itself become the target? In the United States, we grapple with this question in the one exception to our First Amendment, which is about to be tested in the Supreme Court. That loophole to the Bill of Rights gives the Federal Communications Commission authority to regulate and fine mere words on TV and radio. I have argued in the pages of the Guardian that “bullshit” is political speech but we are forbidden to speak it on our air — even about this regulation itself — under threat of a regulator’s chill and penalty. What we need today is more speech, not less.

What should a regulator do in the case of violations? Fine the offender into submission? Close the publication? Does that not give your government the same weapon used by dictators elsewhere against journalists? Doesn’t this return the UK to a regime of licensing the press? Remember that he who grants licenses may also not grant them or revoke them.

Who is the proper regulator? Clearly, it is not the industry. The Press Complaints Commission has proven to be nothing more than a diaphanous gown for the devil. But government? Is government the proper body to supervise the press, to set and oversee its standards? How could it be? The watched become the watchers’ watchers. Certainly government has shown itself to be incompetent and mightily conflicted in this case, as alleged overseers of the crimes at hand end up in high places and the police themselves are reported to be beneficiaries of corruption.

Finally, who is to be regulated? In other words, who is the press? That’s the key question raised here. Alan Rusbridger posed it in his forceful soliloquy on this amazing week: Is Huffington Post the press? Guido Fawkes? By extension, is any blogging citizen? Any YouTube commentator or Twitter witness-cum-reporter? Yes, we wrangle with this same question in the United States, but in the context of who should receive the rights and protections of the press — namely, shield laws — rather than who should be under the thumb of a government agency.

The goal must not be to further solidify the hegemony of the media-government complex but instead to bust it open. We have the tools at hand to do that: journalists, the public they serve, and their new tool of publicness, the internet.

As Rusbridger also said in that video, this was a week marked by the worst of journalism and the best of journalism. Reporting is wot did the bastards in. Nick Davies is the Woodward and Bernstein of the age though it’s a pity that his Nixon built his nearly absolute power — and nearly inevitable corruption — in our profession. The first and most important protection we will have against the likes of him is a business model for the Guardian to sustain Davies and support future generations like him. The second most important thing the Guardian can do is set an example for other journalists.

I was talking with Craig Newmark, founder of craigslist, just yesterday about his cause and favorite obsession: fact-checking. There are scattered organizations that endeavor to check politicians’ and journalists mistakes and lies. But no organization can do it all. How do we scale fact-checking? My thought is that we should see every news organization place a box next to all its reports inviting fact-checking: readers flagging dubious assertions and journalists and readers picking up the challenge to investigate. The Washington Post and the Torrington (Connecticut) Register Citizen have them.

That small addition raises the standards and expectations for journalists’ work and, more importantly, opens the process of journalism to the public, inviting them to act as both watchers and collaborators.

I also think we must increase our diligence to all but eliminate the scourge of the anonymous source. Note that I left an opening for whistleblowers and victims and the too-rare true investigators like Davies. But if we had as an expectation that the News of the World should have told us where and how it learned what it learned about its 4,000 victims, it would have been less able to perpetrate its crimes of hacking and bribery.

The Guardian is making openness its hallmark and this is what it must mean: Rather than closing down journalism to some legislative definition of who may practice the craft, we must open its functions to all. Rather than enabling government and media to become even more entwined, we must explode their bonds and open up the business of both for all to see. Regulators, bureaucrats, politicians, and titans of a dying industry are not the ones to do that.

In researching my next book, Public Parts, I dared to read Jürgen Habermas and his theory of the public sphere. Habermas says the public sphere first emerged as a counterweight to the power of government in the rational, critical debate of the coffeehouses and salons of the 18th century. But almost as soon as this public sphere formed, Habermas laments, it was corrupted and overtaken by mass media. Now, at last, is our opportunity to reverse that flow and to recapture our public sphere.

There’s where this tale’s sweet irony lies: It’s Murdoch & Co. who set the charges to blow apart the very institutional power and cozy relationships they built.

: LATER: I’m disturbed by a fundamentally undemocratic theme I see in the comments here and at the Guardian: Some blame the public for the excesses of Murdoch, Inc. That’s essentially cynical and condescending toward the public. Some don’t trust the public to regulate media. If you distrust the public that much, then you might as well throw in the towel on democracy and freemarkets, not to mention journalism and education (why inform the public if they’re a mass of boobs?). But these folks — just like institutional media — better get used to the public having a greater voice and regulating their behavior, for that’s where we’re headed: back to the coffee house.