“This guy basically started out making a ‘hot or not’ website for his college and now America is counting on him to protect the integrity of its elections. That’s an insane world to be in. It’s like if an asteroid were heading to earth and for some reason we turned to the guy who invented Tinder.
— ‘ I mean ‘Tinder guy, we need you to save us.’
—‘Has anyone tried swiping left?’”
Table of Contents
2018: The year of Backlash
No one can say for sure, but it’s looking like 2018 will go down as an inflection point when a backlash started in earnest against the unchecked powers of big technology companies. Part of what’s driving public anger is the fallout from last year’s presidential election, with increased awareness of how much fake news spread on Facebook and how political consultants hired by Trump campaign mined Facebook users’ data to develop and target pitches. Other big platforms have also come under fire for a variety of errors of commission or omission. Google is dealing with controversies over tax avoidance, alleged antitrust violations and censorship. Twitter is coping with criticism after an exhaustive study provided empirical proof to something that was long suspected: phony stories and rumors get much more traction on Twitter than the truth does. Even smaller names in the tech universe have been caught up in controversies like Grindr, the dating app aimed at the gay community, was found to be sharing users’ HIV status with third parties.
“Maybe it Costs Someone a Life”
More than carelessness with private data, what really galls many people is the underlying arrogance displayed by young and fabulously rich tech entrepreneurs—who also seem to be fabulously out of touch. A leaked memo from a senior Facebook executive named Andrew Bosworth was shockingly cavalier about the collateral damage coming from social media.
“So we connect more people,” the memo said. “That can be bad if they make it negative. Maybe it costs someone a life by exposing someone to bullies. Maybe someone dies in a terrorist attack coordinated on our tools.”
It’s no coincidence, I suppose, that we recently saw the first legislation to roll back some of the formidable legal protections that internet companies have enjoyed for what they put online. In an unusual display of bipartisan support, an overwhelming majority in the House and Senate ignored opposition from Silicon Valley and passed a bill in March that makes it easier to prosecute sites that promote sex trafficking.
“It’s a wake-up call,” said Senator John Thune of South Dakota, chairman of the Senate Commerce Committee, which convened hearings on sex trafficking. “This is clearly illegal activity. It was happening online. But I think in the future, tech companies have to understand that it’s not the wild West, and they have to exercise responsibility.”
I know from experience with my clients that it’s very hard for most folks to understand why big technology and social websites cannot be held legally accountable for what seems like passive participation in the publication of content than can seriously damage people’s lives. In such cases, it’s hard to know what your legal rights are and who is responsible for the harm that is caused. Guiding people through this complicated morass is what I do for a living.
Data privacy questions arise as an ancillary issue in my practice. I can help when breaches occur, whether it’s a breach of trust by an employee releasing sensitive business information or a breach of faith by a former friend or lover putting intimate personal content online. When information that shouldn’t be released is put online, I can help get it removed.
Regarding the broader philosophical question of what to do about Facebook and other Big Tech companies, I think it’s a big question mark on how far we should go in regulating them. I love the internet. And from my perspective there is no hard and fast rules per se. I mean even when you draw bright lines with sex trafficking, human life, terrorism, the problem is that you are always going to have someone who just wants something removed for their own purposes or just wants to shake down a website or has less than great reasons to pursue litigation. It inevitably leads to unwanted censorship at some point by the government. I love the Internet just like everyone else. I don’t want it to change. But there are limits. There are just clearly things that are not right.
With Power Comes Responsibility
For me it comes down to the fact that these websites and ISPs have been given extraordinary protection and immunity and they need to use that immunity for good, not for evil, and not to do nothing, bury their head in the sand to terrible senseless, or intentionally and knowingly disregard clear and present dangers of the real harm caused by the Internet from defamation, cyber-bulling, sex-trafficking, terrorism, etc. and completely abuse the powers they’ve been given for corporate, financial gain, and to legal extort consumers (a la Ripoff Report and mugshot sites).
I’m not saying they need to be perfect. There will be close calls and sometimes some mistakes will be made. But things like that Facebook’s memo are chilling in that these random companies and people get to play god. They literally know people will die and they get the power of how they unleash technology and whether to remove content or implement safeguards that may or may not prevent terrible things from happening. Whether proper protocols and procedures are in place are completely left to their discretion. It’s scary stuff that Mr. Hot or Not and the owners of Tinder get to make these decisions with immunity.
I think that as long as website intentionally act in bad faith and abuse their powers congress should continue to act to chip away at their powers. I.e. it’s up to them, not us, what regulations are in place. They either need to clean up there own cesspool or they will have to pay the cost of being regulated and forced to do so. I.e. there must be accountability. So we need to focus on the worst offenders and s and they need to clean up there act or they are going to screw things up for everyone.
Washington and Silicon Valley on Collision Course?
Of course, it’s possible it’s already too late. Mark Zuckerberg has been getting grilled by a Congressional committee this week on Facebook’s problems. And Tyler Cowen, a George Mason University economist says that Washington and Silicon Valley, the two greatest power centers in American life, now seem to be set on an unavoidable collision course.
He writes that, “The law-making and regulatory state will expand to cover more of tech, and tech has scaled so effectively that its products — such as autonomous cars or the possible ability to influence elections — are running into more legal and political issues.
Cowen goes on: “Ideally, we’d like a synthesis of the strengths of tech and the legal-based reasoning that dominates the federal government. But the Bay Area and the D.C. area are built on such different principles, and they don’t understand each other very well. It’s more likely that we see a rude awakening, as the U.S. realizes its two most influential centers have been pulling the country in opposite directions.”
It’s not just politicians who seem to be in conflict with Big Tech. There’s a frustration that’s bubbling up from below from millions of tech users. A dramatic example of that was the clearly disturbed YouTube user who barged into the company’s headquarters last week and shot three people before turning the gun on herself.
The father of the woman, whose name was Nasim Aghdam, said she was angry at YouTube for censoring some of her videos and preventing her from earning ad revenue from them. “There is no free speech in real world and you will be suppressed for telling the truth that is not supported by the system,” she had written on a website, not long before the shooting. “There is no equal growth opportunity on YOUTUBE or any other video sharing site, your channel will grow if they want to!”
Josh Marshall, editor of the political website Talking Points Memo, said that while the shooter was clearly a troubled person, the tragedy fit squarely in the context of the larger conflicts Big Tech is unleashing in society. He wrote, “while this is an individual tragedy by someone who was angry, unhinged and had access to a weapon — like all the other mass shootings — it is also at almost every turn connected to all the trends and collisions and turbulences roiling America’s (and the world’s) love affair with social media platforms that suddenly look all-powerful and are struggling to find a balance between being private companies and having power (and one imagines responsibility) that is more like a government. When you have large groups of embittered people — even more so when they are creative people or crazies who spend countless hours producing videos for YouTube — one of them is going to connect that bitterness to their own unhingedness and do something terrible.
For the moment most of the focus has been on a series of gaffes at Facebook. The company is involved in so many controversies–including revelations that it scans images sent on Messenger and retains videos deleted by Facebook users–that you almost need a scorecard to keep up with them. In an article headlined, “We’re Keeping Track of All of Facebook’s Scandals So You Don’t Have To,” Fortune Magazine helpfully provided one.
Even that exhaustive list of Facebook’s problems omits the growing body of psychological and medical research suggesting Facebook is simply not good for us. Despite Facebook’s idealistic-sounding goal to “bring us closer together,” studies show that Facebook in reality makes many users depressed, as they compare themselves unfavorably to the idealized images their online friends post and squander endless hours online that could be dedicated to more rewarding direct human interactions. “Our results showed that overall, the use of Facebook was negatively associated with well-being,” concluded a study by Holly B. Shakya, of the Division of Public Health at the University of California San Diego School of Madison and Nicholas A. Christakis at the Yale Institute of Network Science.
Damage Control Failure
Facebook has struggled without success to get a handle on the continuing flow of bad news. Zuckerberg was originally dismissive of the idea of fake news influencing the presidential election. “Personally I think the idea that fake news on Facebook–of which it’s a very small amount of the content–influenced the election in any way is a pretty crazy idea,” he said shortly after the shock U.S. election Facebook was also slow to come to grips with the magnitude of the data breach by Cambridge Analytica, the political consultancy firm that had been hired by the Trump campaign. Originally, Facebook said it thought 50 million people were affected. A few days ago, Facebook revised that number to upwards of 87 million.
Facebook has taken steps to overhaul its terms of service and to restrict the data obtainable by apps from third parties like Cambridge Analytica. It is hiring hundreds of human moderators in an effort to weed out inappropriate or false content. After originally throwing cold water on the idea, Facebook recently said it will apply more rigorous European Union standards of privacy globally.
The question is whether it’s too little too late. For some people, cosmetic policy changes won’t suffice to offset the corporate arrogance reflected in the Bosworth memo. After the memo was released, Bosworth went on Twitter to disavow his own words, saying he was merely conducting a thought exercise that wasn’t meant to be taken seriously. “I don’t agree with the post today and I didn’t agree with it even when I wrote it,” he said. “The purpose of this post, like many others I have written internally, was to bring to the surface issues I felt deserved more discussion with the broader company.
But that effort to brush aside the issue only made it worse for some people. ““Facebook has destroyed the trust of its users,” wrote Justin Bariso, in Inc. Magazine. He added, “Bosworth’s defense of the old memo is the latest in a long line of trust-breakers from Facebook.”
The bad taste left by the various scandals could lead to more legislation that erodes protections big tech companies enjoy under Section 230 of Communications Decency Act. Section 230 has treated giants like Facebook and Google as platforms for material rather than publishers. Thus, the tech giants haven’t been held accountable for the content that users put out on them, the way newspapers or magazines can be sued for what they publish. Paul Gallant, an analyst at Cowen, told the New York Times that the sex trafficking bill would not directly hurt big internet companies. But he said it was “cracking the door open to broader platform liability for other types of content.”
“Today, it’s sex trafficking,” he added. “And down the road, it’s content from foreign governments.”
Risks of Online Censorship
Free speech and open internet activists don’t like the direction of the debate is headed in. In an article titled, “Section 230 Isn’t About Facebook, It’s About You,” writer Cathy Gellis laid out the case about why everyone has something to lose if the Feds crack down on Big Tech.
” (T)hink about what it would mean for Internet service providers if all those laws that punish bad ways people use the Internet could be directed at them. Even for big companies like Facebook it would be impossibly expensive to have to defend themselves every time someone used their services in these unfortunate ways. Section 230 means that they don’t have to, and that they can remain focused on providing Internet services for all the hundreds, thousands, millions, if not billions of people – including people like you – who use their services in good ways.”
She went on: “If, however, Section 230 stops effectively protecting these service providers, then they will have to start limiting how people can use their services because it will be too expensive to risk letting anyone use their services in potentially wrongful ways. …
“This inevitable censorship should matter to you even if you are not a Facebook user, because it won’t just be Facebook that will be forced to censor how you use the Internet. Ever bought or sold something on line? Rented an apartment? Posted or watched a video? Found anything useful through a search engine? Your ability to speak, learn, buy, sell, complain, organize, or do anything else online depends on Internet services being able to depend on Section 230 to let you.”
Politicians are already eyeing further intervention, specifically looking at the role Big Tech may play as an accomplice to drug trafficking. Five senators wrote a letters to Google, Yahoo and Microsoft urging new policies to prevent search engines from helping people obtain illegal drugs, including purchasing prescription drugs without a valid subscription.
Competition Not Regulation
Columbia University law professor Tim Wu says the answer to the Facebook fiascos isn’t greater regulation but rather more competition.
“When a company fails, as Facebook has, it is natural for the government to demand that it fix itself or face regulation. But competition can also create pressure to do better. If today’s privacy scandals lead us merely to install Facebook as a regulated monopolist, insulated from competition, we will have failed completely. The world does not need an established church of social media.”
Action of some kind needs to be taken, Wu argues, because it’s not realistic to expect Facebook to solve its own problems.
“In Facebook’s case, we are not speaking of a few missteps here and there, the misbehavior of a few aberrant employees. The problems are central and structural, the predicted consequences of its business model. From the day it first sought revenue, Facebook prioritized growth over any other possible goal, maximizing the harvest of data and human attention. Its promises to investors have demanded an ever-improving ability to spy on and manipulate large populations of people. Facebook, at its core, is a surveillance machine, and to expect that to change is misplaced optimism.”
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