EU concerns over downstream liability erasure (with Article 13) increase; Congress could give Trump power to appoint copyright czar; my allergy to identarianism

Cory Doctorow ends the month of November with a more detailed discussion on how the EU #Article13 indirectly requires filters, which Voss and the Parliament deny. 

 He also re-explains the concept of downstream liability protection, which is in the US is well known from DMCA safe harbor and Section 230 (for different problems).

  

And EFF sent an email (with no URL yet) advising on an outstanding proposal that would take copyright management away from the Library of Congress and give it to the president, subject to political influence from big media (think what is happening in Europe, just above). QZ has an old post from March 2017 here.  I’ll follow up on this.  Is this a danger during the lame duck session of Congress before the Democrats take over the House on Jan. 3? 

  

I wanted to note that I get a lot of requests to review books, movies, interview people, and so on.  I have guidelines posted in Wordpress.  Yesterday I rather impulsively responded to one of these about some obviously very Leftist material that I don’t do “identarian” materials, or those that promote dealing with problems just on claims of group oppression.  I didn’t realize that “identarian” and “identitarian” are different concepts (with the extra syllable it refers to an extreme right-wing movement).  I do welcome individualized stories about people who overcame something as long as the narrative isn’t simply based on overcoming discrimination only on a perceived group membership.

"SmartNews" for mobile devices aims to help reduce polarization in user news feeds

OK, here’s my own little contribution to stopping polarization and echo chambers.

I downloaded the SmartNews app on my iPhone.  I had to gumshoe my own notes to find my Apple account password because I don’t use it that much.  There is also a product for Android. 

  

It doesn’t seem to work on a PC (not sure about a MacBook).  There are five rainbow banners: Top (red), Entertainment (orange), lifestyle (green), U.S. (Facebook-blue) and Politics (purple, of course). Where is yellow? 

  

The news stories they cite tend to come from larger, well-known newspapers and sites. Many but not all are sites with their own paywalls.  Some stories are reformatted. Both conservative (Fox) and more left-leaning (CNN) sites are referenced.

This idea could comport with my suggestion of developing a business for consolidated paywalls to be run from social media sites like Facebook (Oct. 24).

The trend toward delivery content in apps (at least to mobile devices) rather than in browsers still needs to be noted.  It could be looking forward to a day when, without network neutrality, some telecoms could throttle some content, even if they haven’t done this (very much) so far.

Incels, "camgirls", and whistleblowing; are FOSTA and maybe Chris Hansen in the background waiting?

I hadn’t reported this story because it sounded so silly.

But “right wing incels” have been encouraged to report sex workers (as “whistleblowers”) to the IRS under the hashtag “#ThotAudit, which started on more than one social media platform.  It may have started on Facebook with David Wu.  

Newsweek has a typical story with many tweets. 

In the video above, gamer Ft. Sargon of Akkad discusses the problem with Tim Pool. Toward the end of the video, Pool and Sargon get into discussing the relative social value of women v. men -- Pool sounds like George Gilder from "Men and Marriage" (1986) here. Women have high social value early in adulthood, and men are supposed to labor from a low station in life to provide for them. As men get older, the men who succeed in the competition tend to take on more social value than women, which hurts women who didn't "settle down" during childbearing years -- and having kids really does affect women's station in life more than men (obviously) once women got to work.  I've covered these ideas in my books (esp. DADT I, Chapters 1, 3, and 5) a lot and said pretty much the same things. "Economic Invincibility" has said similar things when talking about MGTOWS (also this). 

   

Curiously none of the stories mention the passage of FOSTA last spring, which may expose the sex workers to more penalties and in some cases (because of weakening of Section 230) the platforms that had hosted them.  But of course there would be questions as to whether trading photos (by “camgirls”) is “sex work”.

  

Trading photos could invite police decoys trying to entrap people who want to contact minors (Chris Hansen’s series.)

Sudden ban by Twitter of Jesse Kelly without due process raises questions about real political intent of social media companies? (Is the Civil War suddenly unmentionable?)

The Internet world is perplexed by the sudden banning from Twitter of conservative pundit (Marine Veteran and former GOP senatorial candidate from Arizona, and Federalist contributor) Jesse Kelly Sunday night, Nov. 25.  “Heavy” gives a factual account and shows the sudden final notice he got from Twitter.  This all happened shortly after Twitter had banned another high-profile user (Meghan Murphy) over violating some rules intended to protect transgender people.

Although Twitter rules say it normally explains violations that result in suspensions (temporary and permanent) so far it has not explained this one.  When I checked further, it seemed as though the Facebook page did not work either. And a “vote for Kelly” website had been hacked and overlaid with a page from a Japanese home builder.

There has been some speculation that some of Kelly’s tweets or other writings were viewed as urging for a second Civil War, but from what I see or can find out that sounds like a real stretch.  (This reported tweet is literally true and does not imply in any way that the slavery in the South had been morally justifiable -- just read Margaret Mitchell's "Gone with the Wind".) Very recently, Mediate pointed to a hard-hitting Federalist piece from last June where Kelly wrote that “America is going down”.  Maybe this piece could be viewed as hostile to native Americans, but I think the post is just interpreting history with some relatively normal hyperbole.

The Washington Examiner argues that Twitter is behaving like a publisher and risks its Section 230 protection as it seems to cross the line into banning some political ideas it doesn’t like.  But remember that Washington Post columnist David Ignatius already has proposed abolishing Section 230, at least for large social networks ("My four-word wish for Thanksgiving"). 

  

If monopolistic platforms like Facebook and Twitter could de-platform controversial political candidates, these platforms could possibly heavily influence the results of national elections to an unprecedented extent.  This would seem to bring back the campaign finance reforms I’ve discussed here before (like July 27, 2007, an incident that happened when I worked as a substitute teacher).

  

The political Left wants to ban neo-Nazism and white supremacy as legitimate “political subject matter” because accepting that idea would theoretically mean that the return of segregation or possibly even slavery must always be guarded against (politically) – even though there are constitutional amendments to the contrary (especially 13 and 14). On the other hand, since blacks were always a minority, BLM and even Antifa cannot constitute a comparable equivalent political threat. But imagine is such an idea were extended, say, to defend gender fluidity.

  

However the ContraPoints video that I embedded Nov. 24 also may shed some light – the “alt-right” can “masquerade” as making legitimate arguments, when a group like Antifa could not.  All of this also comports with a particularly combative tribal-centered political strategy that has evolved quickly (with both the far Left and alt-right) since 2016, where the group matters much more than the individual (as was the thinking toward the end of the Vietnam war). 

  

That sort of thinking is one reason for the demands to take down Confederate statues.  If a blogger makes pictures of the statues on Monument Ave in Richmond, is he/she guilty of indirect hate speech?  This is getting ridiculous. (What about Lee’s mansion above Arlington Cemetery?)
  

By the way, a substantial number of residents in Richmond want the statues removed (story). Why not, instead, erect some more statues of prominent African Americans today and from the past and add them to the avenue?

  

There is always difficulty in predicting what sorts of situations or images some will consider threatening.  Why a lot of the symbolic  battles (as over monuments, or over pronouns) sound ridiculous to me, I have sometimes pulled the plug on some situations that I considered particularly threatening. (For example, in 2003 I quit a telemarketing job after someone I called threatened to have callers arrested.)  The bar of what some people view as a threat or harassment can be quite variable indeed.

Update: Nov. 27

Ed Morrissey discusses the banning of Kelly on Hot Air, and suggests people go back to using their own websites -- but hosting companies have deplatformed extremists already, and there is some reason to think domain ownership should require more accounting transparency in the future than it ever has so far. 

TheWrap has a story about the banning of Laura Loomer after she criticized a Muslim elected to the House from Minnesota, somewhat tasteslessly.

 Update: Nov 28. 
  
 Jesse Kelly has been reinstated -- a story in National Review by Mairead McCardle here. 

ContraPoints makes important video on the dangers of debating normally with the "alt-right"

Here is a particularly disturbing but important video from “ContraPoints” (whose videos I have sometimes presented on my Movie Reviews blog). It is “Decrypting the Alt-Right”.

A transgender woman Roxanne narrates with illustration.  One point is that fascism, as described here, does aim for a (white) ethno-state or “homeland”.  This is an idea that has never had any particular meaning for me, but which we see all around the world (like Israel and Palestine).

What Roxanne points out is that “centrists” can be fooled by alt-right code euphemistic words (and gaslighting) and downplaying.  Seemingly moderate and sensible immigration policies might be a step toward fascism, she argues.  Speech with dangerous ultimate intentions can be hidden with socially acceptable metaphors. That could make normal debate on issues by amateurs impossible.

This makes centrist criticism of the far Left or social justice warriors more problematic.

Some of her comments to seem extreme. I would not have considered Lee Atwater a pre-fascist (he collapsed giving a speech in 1989 and died of a brain tumor after a period of penitence forced by the illness). 

Her discussion of the adoption of new memes is disturbing.

  

She is very determined that the alt-right not be allowed to have platforms and seems to be pointing to the particular problems for continued open free speech online, as covered here with the stories about purges and de-platformings.  Her video seems hyperbolic, and suggests that normally acceptable individual content could be subversion from foreign agents or hidden right wing extremism and white supremacy.

A Facebook court? That just nicks the surface of the "due process" problem for social media and even web hosts

So how will due process for users of social media companies develop?

  

Major media sources have overlooked a major case, Manhattan Community Access v. Halleck, No. 17-702, concerning the question as to whether a public access cable television network is indirectly a “state actor”.  If so, legal experts say, this could open social media companies to more “First Amendment” litigation when they remove content or users (probably not when they refuse to monetize). The Supreme Court accepted the case Oct. 12.  The CNBC story by Tucker Higgins is here. 

I do wonder, however, how the reasoning really connects, that this could somehow make Facebook a “state actor”.

  

But heading in a different direction, on Black Friday the Washington Post offered an editorial on “What Facebook’s High Court Should Look Like”. 

The obvious question in my mind is, should a social media court exist just for Facebook?  Should all the companies form some sort of consortium so the same body could handle appeals from all of them?  That seems to make more sense. Consider a recent paper, "The Santa Clara Principles", circulated by EFF, on content moderation. 

But this leads to another issue – such a body would be international and handle cases from all “western” countries.  That leads to the next question – how to handle appeals regarding copyright infringement (or even trademark or patent), as well as objectionable content. And, you guessed it, that slams right into the controversy over Articles 11 and 13 in Europe, which will probably come to a head, in a way that affects both social media companies and web hosting, later in 2019. It is likely that standards would be much more internationalized and depend less on US law.  Already, companies are wondering if they could have to set up a separate Web for the EU, or deny EU users to content from outside their borders that didn’t go through their filters, which could affect Americans when traveling to the EU, to say the least. (Cory Doctorow's latest paper on Article 13 came out Nov. 21, here.) 

And in considering these questions we need to remember that social media companies and web hosting (along with domain registration) operate very differently. But web hosts have come under pressure especially since Charlottesville (really it may have started with Paris in 2015), and the calls for regulation from the far Left get more strident.

In libertarian circles, there are other concerns:  independent media (often run by sole owners) could face shutdowns if they don’t show enough financial self-sufficiency or “popularity”, largely out of new “straw man” fears over security and the idea that sole owners could be foreign agents (an idea that seems to have filtered West from Putin himself). 

  

So case before SCOTUS about an obscure public access channel, or a Washington Post editorial about Facebook court, hardly covers the discussion.  Mark Zuckerberg, however, comes as close as any person to “ruling the world” with his digital state.

Over-use of "protected groups" can seriously damage free discussion of ideas and backfire against the Left; another threat to 230?

Here’s one problem with going overboard with intersectionality, defining more groups merely based on the experience of competitive personal disadvantage.

It gives, particularly, the radical Left more leverage against tech companies in trying to get them to remove more “hate speech” or even remove more “enemies” from platforms.

There is not much to argue with about race and religion being the basis of groups (look at the shocking underbelly of anti-Semitism, as well as pockets of white supremacy as documented in the recent PBS Frontline series, “Documenting Hate”, discussed yesterday on my “cf” blog.

The status of various LGBTQ groups under federal civil rights law is more uncertain under the Trump administration, especially for transgender.  There may be no objection to singling out medically legitimate transgender persons for civil rights protection, and these are relatively less common (than cis gay people). There is a problem, however, in trying to frame discussion in terms of every conceivable insult to sense of self as regard to gender, fluidity, and sexuality.  This has gotten to the point of demanding new pronouns and even denying the structure of correct English grammar.

My own narratives talk a lot about the ability of a young male to live up to social expectations, especially in the past, as in my own history, dealing with a college expulsion and later the draft and deferments. There is also sometimes discussion (as in my books) in my exclusive attraction only to certain cis males.  This has sometimes resulted in objection.  More radical members of the Left claim that my bringing up these matters keeps them in circulation and invites more “oppression”, especially since my speech, much about earlier generations and history, seems “gratuitous”.  For example, embedding a Prager University video that says “Be a Man, get married” could be interpreted as oppressive.  One of the points of past social gender conservatism (as I experienced it) was that people who did not perform according to their biological genders were leaving more of the risk taking (like being drafted for war) to others in the community.

But it is true, as long as making more demands on some people, to take seriously what society expects of them, remains viewed as an acceptable position in public debate, some non conforming people will have a harder time.

There is a piece that resembles David Brooks, but is actually by David Yudkin, the Psychology of Political Polarization, offered by Better Angels, in the New York Times, link. I am in the middle of most of these measures, but they deserve a close look. 

   

I have an important piece today on Bill’s News Commentary today on new calls to possibly abolish Section 230, based on recent op-eds by David Ignatius (Washington Post) and Justin Kosslyn (Voce Motherboard).

EU not making progress in trimming Article 13; Facebook's responsibilities become even murkier

Cory Doctorow has a new piece on Electronic Frontier Foundation, dated Nov. 16, showing little progress in narrowing the language of Article 13 especially in the EU trilogue. In fact, the idea that a filter need not be mandatory seems to be taken out. 
      

Cory has a similar article on Medium (see International Issues, Tuesday, Nov. 13).  In theory, if the EU proposals were adopted today in all 28 countries, hosting platforms would have to set up a separate Internet for the EU (as for China) or not allow EU users, to avoid having the rules apply in the US.

The Washington Post has an alarming editorial today on Facebook   in which the Post notes that FB shows possible bad faith in hiring a public relations firm, but also notes that tech regulation of speech (especially the “variable” hate speech issue) and of fake news begs for the government to regulate such speech, which would contradict the First Amendment (well, not completely, as “distribution” of speech is not necessarily protected the way content of speech is – a point that becomes clear if you realize that user generated content, for the most part, became possible in the 1990s).

  

  

Then Alex Stamos (Facebook chief security officer until August and professor at Stanford) writes an op-ed  today about Facebook, and his last paragraph, about the responsibilities of citizens, is the most important. 

What we have is a commons ecosystem problem.  An individual liberty (speech distribution, or self-defense – or in the 1980s, sex) that seems sacrosanct at a personal level becomes problematic when many people in a community engage in it and many are not literate or skilled or mentally stable enough to avoid harming others.  Are we looking at “licenses” for Internet use the way we do for driving cars?

   

In the near future, I hope to cover another growing problem: the dangerous intersection of “gratuitous speech” that others perceive as targeting “protected classes”. 

Who gets to organize? What makes assembly unlawful? When are platforms likely to boot people belonging to these groups?

Part of the big picture of how an individual should behave concerns, does he (she, etc) act on his own, or join a group, or movement? 

When I say, “act”, I generally mean “speak” – and I know Nassim Nicholas Taleb disapproves.

In the past two years, with Trump and his non-denial of white supremacy, we’ve gotten into discussion who gets to have a group?  Does the First Amendment guarantee that any group can organize?

Well, not for an illegal purpose, to commit violence, or overthrow “the government”.

There are claims that white supremacists should not be allowed to even assemble as a group.  Let alone that they get booted from mainstream social media and hosting platforms (leaving them with places like Gab). That’s because racial minorities (POC) and religious are protected classes.  That’s less clear with groups formed on gender and sexuality issues (especially after some of the Trump administration’s recent announcements on “erasing” non-binary biological genders).  But it’s clear (as with a recent NBCNews story on my LGBT blog today) that hate groups targeting LGBTQ are still around.

On the other hand, can Antifa or similar groups on the far radical group be stopped from organizing?  It would seem that as long as they don’t state violence as their purpose, the answer is no.  White males are not a protected class that can be extinguished (despite alt-right claims).

I can remember, however, that in the 1950s and early 1960s it was almost impossible for Communists (with a capital C) to organize legally, presumably because at the time Communism by definition subsumed the use of violence or revolution to achieve its political and social goals.

On the other hand, if it is permissible for white supremacists to organize, then POC groups, in theory, have to remain wary that all their gains of past decades (even centuries) have to carefully guard themselves from future political reversal.  There is no settled law (which is what a lot of the fear over Kavanaugh was about). Theoretically, not only segregation but slavery could return.  That always has to be stopped politically (although you hope the more recent amendments, especially the 13th and 14^th  , are a sufficient political firewall).  Similar lines of thought occur with systemic anti-Semitism (and, of course, radical Islam, which we seem to be quickly forgetting about). This line of thinking gets really murky on gender issues.

Also, this gets to be elaborated (a favorite phrase of therapists) into group think, that individualized speech should be suppressed unless the speaker has earned the privilege of the floor, and that people need to be organized, and accept leadership that speaks for them. There seems to be some naïve group think on the Left (like the long series of daily moral lectures by Umair Haque on Eudaimonia), with critiques of capitalism as predatory in nature, without any guidance as to how individuals are to behave in order to provide themselves a living.  Presumably consciousness is to become more communitarian (the “New Man” stuff) but it is not so clear what the “community” comprises, but that gets off topic now.

I wanted to link to  a perspective by Ramsay Taplin, who sold his “Blogtyrant” business last June, and gives a perspective on why he sold it.

Well, I don’t like selling things either – but, given the influence of “skin in the game” thinking, the idea is going around that sites need to pay their own way (even if owned by people with significant assets from other places) with, in some sense, transactions from users (they might be upvotes converted to digital currency, but they need to be something that can be measured by an accountant). Otherwise, they seem gratuitous, which means they, through asymmetries (a favorite concept of Taleb) attract needless security burdens and create targets – at least for Russian bots.   It’s rather shocking how quickly this style of thinking has evolved since 2016, although there were warning signs before.

  

And I think we may see an elaboration of the idea that what matters is not only content itself, but the identity of and circumstances of the speaker, and the contextual social implications from the derivation of the speech from that particular speaker  – the union of which constitutes “implicit content”.   Indeed, we may seeing a bit of cultural Marxism (Frankfurt School, perhaps) in the way some people even in the tech industry now think about it. We may well see more emphasis in the next two years. Already, it seems social media and platform companies trade lists of forbidden people (or groups they are members of).

NYTimes story discusses trafficking by shady landlords but doesn't mention FOSTA, which could be used to prosecute them

Alan Feuer, Ashley Southalt, and Ali Winston offer a detailed story on p. A23 of the New York Times Thursday, November 13, 2018, “Landlords’ key role in the new brothels”.

The online title is more telling: “The new brothels:how shady landlords play a key role in the sex trade”.

One of the operations was discovered by a musician living in one of the buildings.

Landlords, paid by the city to house the homeless but without much incentive to keep buildings up, often knowingly house prostitution operations.

This was also common in the 1970s (when I lived in NYC) but toned down during Giuliani’s law and order. 

It has gotten “worse” as gentrification drives the sex trade indoors.

In one case, a man was kidnapped so that his wife could be taken into sex trade.

What I thought was odd about the story is that it did not mention the recent FOSTA ("Backpage") law, which has been controversial because it can potentially undermine all user generated content online.  Maybe the buildings aren’t online, but if they were, federal prosecutors would have new ways to get at them. Put another way, the story shows that FOSTA is not likely to add to a deterrence to sex trafficking. The prosecutors had plenty of tools for the online portions of these crimes even before FOSTA. 

   

Some properties with sex trade exist in counties to the north, also, according to the story. 

Are more users quitting social media, either for a break, or permanently?; also, another "problem" with Gab (which is back up)

On a day when the New York Times reported in gross detail on the further sims of Facebook (to be covered later), the Washington Post reports on more people quitting or suspending social media, as in this story by Elizabeth Dowskin, link .

   

The user, Bailey, had worked for Instagram at one time and reportedly had helped create the world of user generated content.  But she told people this was her last post.   

She felt that social media had let to people being driven for a need for celebrity, not real interactions with others (which Facebook has been trying to goad recently.

But many adults don’t live with the up-front intimacy that earlier generations did.

Personally, I’ve never experienced the “viciousness” or angry echo chambers you hear about.

But it’s true, the gratuitous of a lot of speech substitutes for a lot of up front interaction and exacerbates a economic climate where many people fall further behind and where there is less social capital, except in well-integrated faith or intentional communities.  Otherwise, you have no community where you “belong”.  This even drives a lot of the angry politics, especially from the Left.

  

Emma Brown et al described the radicalization that has, in practice, led to Gab (which is back up), here. 

I suppose if you join, you probably would need permission to follow someone to see how "radical" he was.

I’ve only had one Twitter user block me that I know of (at the end of 2015, under bizarre circumstances). But others have sometimes disappeared for no reason. 

Haidt and Peterson look at the psychological, religious, and sanctomonious roots of conservatism v. liberalism

Jonathan Haidt and Jordan Peterson have some interesting discussions from December 2017 about the moral and psychological differences between conservatives and liberals.

The conservative brain is wired somewhat to fear, to staying closer to mama cat when going to hunt. 

The liberal mind is more open to new stuff, which is necessary for a society to adapt to change.

But in time humans of either bent get caught in the idea of tribal purity and sanctity.  He doesn’t say this, but the upward affiliation common in the psychology of cis male homosexuality (which doesn’ t welcome fluidity unless associated with eroticism of physical shame) provides the appropriate paradox.

The liberal wants the freedom to try new stuff (like the doctor in the 1982 film “Making Love”) yet relishes in the sanctity of the tribe.  Hence you get the walling off of campuses and the speech codes, and the banning of Charles Murray and Milo Yiannopoulos.

  

The conservative today simply then wants to return to the old, privileged patriarchal order because it worked for him before (as Umair Haque keeps pointing out).

Jim Acosta's lawsuit against Trump -- it may be questionable, but it begs more questions about press credentials

Jim Acosta and CNN are suing President Trump and apparently the White House (not sure of the exact legal entity) to get his press pass back after it was revoked around Nov 7 (the day after the election) when Acosta persisted in interrupting Trump in the East Room briefing and (perhaps accidentally) touched the arm of a female White House intern. Here is CNN's own account, written by Brian Stelter. 

  

  

Tim Pool interviews a lawyer, who, while a Trump supporter, gives a reasonable assessment of the suit. Trump cannot deny him access because of the content of his questions (as long as otherwise lawful). The White House had apparently not set up any procedures for removal of press passes, so a court might require Trump to set up such processes and provide an appeal process.  But Acosta’s conduct might well get him banned anyway.

  

Pool feels that Acosta has been rude in meetings before and acts like he is auditioning for his own commentary show.  (One of my own DADT screenplay drafts starts with a hidden “audition” so the concept is interesting.)

  

The incident is important for another reason.  Press credentials are important to be admitted to some events. I don’t have them and have not really needed them.  But having them establishes your formal legitimacy as a journalist (or “notability” as Wikipedia calls it).  These days of polarized ideas about free speech and perhaps disapproval of gratuitous speech (the “skin in the game” idea) credentials could become more important.

Update: Nov. 16

A federal judge, a Trump appointee, has ordered the White House to restore Acosta's press.  But the WH could set up a procedure to take the pass away (ex post facto). 

Radical Left attacks on free speech (and even pressure on tech industry) reflects cultural Marxism

Sameul Kronen (“professional human”) has numerous articles on Medium that might answer Umair Haque, but I wanted to focus on “What Is Cultural Marxism: A Liberal’s Critique of the Radical Left.”

Kronen focuses particularly on the investment in membership in the group as part of “identity”, and this gets to be elaborated to the idea that all accumulated wealth is theft that is to be expropriated from the oppressors.  He also explains the ideology of “intersectionality” as self-generating, and predicts Tim Pool’s recent distinction between equality and equity.

I see this in my own posts.  I get criticized for “cherry picking” people in social situations that offer a common communitarianism (like the Ninth Street Center in the 1970s) that provides pervasive influence on the impressionable in a way comparable to the global Internet.  But is praising David Hogg for his accomplishments a descent in to “able-ism”, or is my recent review of “Boy Erased” the same because the cis male gay hero (Lucas Hedges) is presented as “better” than almost all other men and only thereby able to show conversion therapy as a scam?  Focusing on them seems to be viewed as an indirect attack on the gender fluid  or PWD’s (or even POC’s) now.  Is a blog post that discusses MGTOW’s or the need for marriage oppressive if it embeds a Prager U video with the banner “Be a man”? 

   

I speak for myself online and work alone (but manage to influence others in my own choir) precisely because I fare poorly in competitive social situations – so my speech outflanks people and reduces solidarity potential.  I can imagine the impulse to expect me to be willing to extend a hand to the less than cis-perfect very publicly before speaking again.

California passes open-access law for scholarly research; Open-con meets

I don’t seem to have posted this news yet, but AB 2192 is the “law of the land” in California, as Governor Jerry Brown signed the Open Access act.  All peer-reviewed academic publication must be made available to the public within one year.

Elliot Harmon reports on Electronic Frontier Foundation, Oct. 18, 2018 article.  

  

Jack Andraka said to me on Twitter that he always works with Open-con on the open access issue. OpenCon had a conference in early November (around Boston). The conferences seem to be held in different locations around the world. The code of conduct is interesting in as much as it deals with unwanted physical attention in person, as well as campus speech code issues (like microaggressions).  

Australia's draconian copyright regime; more details on why EU politicians are so dense on Article 13

A disturbing article on Copybuzz by Glyn Moody “Of Hypocrisy and Democracy” explains why European politicians turned a blind eye to opposition from the public to Articles 11 and 13 of the Copyright Directive, only slightly abated in the trilogue discussions.  

  

 There is even a suggestion that established European businesses sense a bit of inherited privilege, and they also interpreted many of the emails and tweets as spam sent from bots – and they even got confused by the US network neutrality debate. 

  

In Australia, there has already been an extreme copyright enforcement regime for at least three years, as Cory Doctorow explains.  It is even possible for copyright owners to get sites de-platformed.  Another part of the argument is copyright owners objecting to posting videos on YouTube and marking them as private, a common but not particularly recommended practice.  Sometimes people post YouTube videos as private and embed them in their own websites to be viewed only that way (if you know the URL on YouTube and go to it, you will get a warning from YouTube that you are “hacking”, possibly illegally.)  There is also discussion of how Australian’s are having to use VPN’s to watch material even legally. 

Electronic Frontier Foundation has shared a New York Times story (by Ariel Bogle and Livia Albeck-Ripka) of a game developer (Christopher Anderson) in Australia who had his home raided and assets seized after developing a "cheat" in the Grand Theft Auto game, in legal action filed by Rockstar Games.  

  

You get the feeling that the entertainment industry really is spooked by the fact that people spend time watching independent low-cost material and no longer buy as much of their guild and union supported product.

Facebook seems determined to stop monetization of independent news; also a misunderstanding of how the First Amendment would protect independent speakers

The concerns over the future of independent media continue.  Facebook, at least, seems to be setting up a Catch-22.

Early this morning, I saw a twitter thread by Ford Fischer from News2Share that his @N2SReports page on Facebook is denied monetization.  The page has 44K likes.

As one can see from the thread, it is impossible to say how News2Share was violating Facebook’s rules for monetization.  But if we go back and consider the recent history, with Facebook’s “Purge 3.0” on Oct. 11, and also with the endless circle that I got caught in when I tried to boost my page on the power grid, it certainly appears that Facebook is concerned with more than just gaming its algorithms (which could be a legitimate issue). It appears that Facebook is concerned with the issue of how potentially polarizing political content, in the context of today’s political climate, could incite further violent incidents.  I admit that many small media outlets will wonder if this development is more about "protectionism" for legacy media, since small outlets have low expenses or are self-funded (will take that up soon) and usually don't need paywalls. 

News2Share often presents in-person filmed video of demonstrations, events, and rallies, and at some of them (including Charlottesville in 2017 – see my cf blog Aug. 25, and Sept 2) violence has occurred.  This is essentially combat and breaking news reporting.  There is no question that combat journalists (Bob Woodruff) in the traditional legacy business have taken risks (“skin in the game”) and paid their dues. And legacy media (whatever the controversy over liberal v. conservative bias) generally has well-established practices as to now controversy and violence should be shown and how sponsors and advertisers pay for it. I worked for NBC myself in the 1970s and have some familiarity with this.

With independent media, things are not so clear. It is true, independent media often witnesses important breaking events that mainstream outlets miss.  Furthermore, columnists and bloggers often add commentary that connect ideas and events in usual ways to provide nuance to the political debate. I have done this for twenty years.

But it is apparent that many in the legacy world, in government (not so much Trump himself – actually, more the Democrat establishment) and now in big tech, are suspicious that independent (“amateur”) content is perceived differently by the public (and easily imitated now by foreign actors and bots, to boot).  Facebook seems to fear that it among most of its “real world” user base it provokes polarizing emotion, not the thought that the filmmakers or commentators want. Users feel that speakers are “showing off” when the speakers could be joining them in some sort of solidarity instead.

There is obviously an ethical question about whether reporting (especially with film or images) violent or graphic content should be rewarded with ad money.  It’s easier for legacy media to rationalize its income than it is for independent media. There is also a fear that some bad actors, if they know that people will come to film them, may feel emboldened to show more public outrage until they finally get arrested by law enforcement.  There really is a “cognitive distance” or “space separation” between many independent media providers and “average” users.  This again reflects the concern over “implicit content” and the concern over the “purpose” that visitors deduce from the content being presented to them by a particular speaker and the speaker’s own life circumstances. That is, the identity and reputation of the speaker matters and is part of the content.

We should remember that the capability of individuals, without formal training or licensure, to become influential speakers and commentators and “citizen journalists” appeared rather suddenly, after Congress passed the Telecommunications Act of 1996 and included Section 230. AOL suddenly turned loose this capability with Hometown AOL in October 1996, and by 1997 it was pretty easy for anyone to have a domain and FTP-upload political commentary; by 1998 search engines were doing a pretty good job of finding you. For a very long time, this was seen as enhancing debate. Fortunately, the Supreme Court struck down the “Communications Decency” provision in 1997 and courts also eliminated a similar law, COPA, finally by 2007 (I was part of the litigation).  

Other developments, especially P2P, took a lot of heat, such as with copyright infringement (Napster).  On the web, however, copyright infringement downstream liability could be managed with DMCA Safe Harbor (conceptually parallel to Section 230). In fact, some sort of P2P had existed back to 1985, which had given a small minority of activists ways to organize.  P2P will be important now for blockchain (other posts).

Big social media changed the game by aggregating content based on user data, making search engines less important for many people. But during all this time, as a whole generation of young people were raised on the Internet, there was a naïve assumption that the “right” to speak to a global audience without gatekeepers was part of the First Amendment.

I don’t think that is correct.  Until the mid or late 1990s, as desktop publishing and then the Internet (especially Amazon) and later POD would make self-publishing of books another way to reach an audience, trade publishers (with their literary agents), newspapers, corporate-owned magazines, and broadcast and cable media companies controlled what could be disseminated to the world, because until 1992 the technology to put this capability in the hands of “you and I” had not yet been enabled.  Similarly, major studios controlled movies.  In books and movies, small press and indie companies could slowly make inroads.  Most interpretations of the First Amendment have developed in a world where gatekeepers (usually private companies) could limit the content, largely to want could pay for itself with revenue.

  

That is, the publishing and broadcast industries could control who could be heard as well as what was said.  Today, the big social media companies and now to some extent web hosts and domain registrars (reacting to activist pressures) are in a position to exercise the same kind of control.  Think how the pre-Y2K dot-com  boom and bust settled out to a few large tech companies ruling the world.
     

No, the First Amendment alone does not protect who can have the floor or even have a megaphone.  It does protect speech (already uttered from someone allowed the megaphone) from content-restrictions outside of what is specifically unlawful (obscenity, child pornography, now trafficking (FOSTA), and direct incitement to violence, but not hate speech as normally understood (as was disproportionately found on Gab).

The Fourteenth Amendment may provide some protection, as would interpretations of federal civil rights laws as to protected classes (from wanton behavior by tech companies),  which, by the way, makes the Trump administration’s “erasure” of trans protections sound particularly chilling.

One way to limit political speech that is more likely to incite violence is to require speech to provide its own financial accounting (rather than being funded by assets earned elsewhere, as in my case).  It has been suggested that low-volume sites (as shown by sitestats or other measures) could expose speakers and others to hidden vulnerabilities (“long tail” as Taleb says) that are not justified by these sites’ traffic or revenues.  But shutting down such sites could simply increase the incentive for clickbait, which Facebook is often mention as a primal sin. Indeed, Facebook (as are many other web-related industries) are much more comfortable working with content providers who actually do have legitimate consumer goods to sell in large transactional volume, and it becomes hard to see news as a legitimately “sellable” consumer product unless it comes from a large legacy source.  I see the same problem in the POD book industry, where authors are constantly quizzed as to why their books as physical copies don’t sell in actual stores – as if authors owe legacy businesses some kind of protectionism.

I don’t think you can reasonably expect to add wording to the First Amendment, and it sounds to me that a president could, by XO, order accounts from certain kinds of users closed for national security (under the Taleb “long tail” theory  - fortunately, Trump seems much more obsessed with legacy media than individual speakers, however).  The idea that it is Trump himself who incites things rather than speakers will be proposed, but the same can be said of the far Left (the baseball practice shooting in 2017); this seems to be more a matter of progressive polarization and the cognitive inability for large numbers of people to grasp the content they see in proper context (propaganda – a favorite word of Putin – matter).

  

Congress could, however, consider regulating company closure of accounts based on the ideological reputation of users, or even based on their financial size.  If Facebook is limiting the eligibility of controversial small news sites to monetize, it is limiting their ability to “pay their own way”.