Facing the Revenge of the Nerds

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

Let’s face it. The nerds of Silicon Valley have pulled off an historic swindle. Through high-tech legerdemain and Internet hype, they have done what no printer, broadcaster or publisher in Anglo-American history has been allowed to do, at least for long. They have let or even helped our enemies, criminals, agents provocateurs, and countless useful idiots subvert our government and our democratic culture with lies and “fake news” made up out of whole cloth.

Yet so far the nerds have managed to evade even a smidgeon of legal responsibility for the social, political and cultural chaos that they let loose.

The principal villains here are Facebook and its absolute master, Mark Zuckerberg. But Twitter has also played a pivotal role. Our Congress, courts and regulatory authorities have largely been supine, pinned down by diffidence about their online expertise and a peculiarly American myth that the Internet can do no wrong.

And then there’s Trump. Never in human history has an actual or putative emperor had such a facile means as Twitter for promulgating impromptu edicts and lies. Roman emperors had scribes to handwrite their edicts on parchment, or laboriously to engrave them in stone. When they wanted to tar a previous emperor’s legacy, they had skilled stone-workers chisel away the names on their predecessors’ statutes and substitute their own.

Not Trump. He can wake from a Fox-inspired fever dream at 3:00 am to fire honest and competent civil servants on a whim, to defame President Obama and his administration, or to set the world aflame with a couple of minutes sleepy work on a Tweet. What modern efficiency for disseminating edicts and falsehoods!

Jack Dorsey, Twitter’s CEO, may have disabled many lies by refusing to accept more paid political advertising. But what about the hordes of domestic trolls and foreign intelligence operatives who do it all for free?

And what about Trump, who’s converted deliberate, thoughtful and careful government by experts into a dopamine rush of early-morning Tweets? Nero and Caligula never had it so good.

Our forebears in England and America understood both the power and the responsibility of those who make a career and a business of “speaking” to the masses. Their action to protect democracy and rational public discourse evolved slowly over centuries.

So we have laws and regulations against libel and slander (collectively, “defamation”), trade libel (bashing a competitor falsely), and false advertising. All of them can apply to politics and public discourse. All of them have at their core an effort to curtail wide propagation of falsehoods.

In law as in life, there’s a relentless struggle between truth and falsehood. For fear of empires just like the one Trump is now building, our First Amendment prohibits government from deciding what’s true or false. Yet it doesn’t prevent private publishers from deciding what’s worth publishing. Therein perhaps lies our salvation, as long as we can induce our Internet publishers to step up to the plate.

To keep government from “chilling” free political speech, we have an especially high standard for suing publishers and broadcasters for slandering pols and other public figures. Not only must a slander be proven false; the offending publisher must also have propagated it with “malice,” i.e., more than mere negligence, amounting to reckless disregard for the truth. Our Supreme Court established this rule judicially, in the seminal case of New York Times v. Sullivan.

Despite the constraints of American First Amendment, our recent forebears found ways to manage political lies far more effectively than we do now. Once we had a “Fairness Doctrine” for broadcast political speech. A pol attacked in a broadcast program or ad had a legal right, for free, to broadcast a reply over the same station(s) that had aired the attack. This doctrine tended to even the score of attack ads. Better yet, it restrained broadcasters from airing the worst political lies, for fear of having to give away too much free air time.

Ronald Reagan, the patron saint of modern so-called “conservatives,” did away with the Fairness Doctrine by presidential edict. In so doing, he left our public sphere with only weak and slow defenses against deliberate and calculated falsehood. He left us open to the same type of political propaganda (from private, not governmental, sources) that the Soviet Union once had made famous in its so-called “newspapers” Izvestia (“news”) and Pravda (“the truth”).

That was the state of affairs in our country when the Internet became an open communications medium in 1996. With nothing in law or policy to tamp them down, the Internet became, in a single generation, a playground for falsehood and political fiction. A generation of highly paid “professional” liars, aka PR folk and political “operatives,” grew up to fill the perceived need for experts in misleading the public.

Historically, we Americans have always been optimists. We believe that the principal cure for lies and other bad speech is more speech, not “censorship.” This theory undergirds our legal interpretation of our First Amendment. Pols and scholars have repeated endlessly that the “truth” will emerge, as if by some beneficent magic, out of the cacophony of nearly random speech of a nation of 320 million individuals all authorized and encouraged to speak at once.

As Sarah Palin might say, “how’s that theory workin’ out for us now?”

When you think about it, the theory of self-corrective speech resembles the now-discredited economic theory that free markets always self-correct. Both theories assert that human institutions, if left to their own devices, will always self-correct in their own way and their own time, as long as complete freedom prevails. Both theories are first cousins to what the aristocrats who lost their heads in the French Revolution believed: that we all live in the “best of all possible worlds.”

The economic self-correction theory failed badly in—and in fact helped cause—the Crash of 2008. Its principal apostle, then Fed Chief Alan Greenspan, formally recanted the theory in testimony before Congress.

So far, no one of the same stature has yet recanted the similarly pollyanna-ish theory that more speech always cures lies. But its failure is self-evident in the state of our public discourse and politics today, not to mention a the rise of a whole class of well-paid PR mavens and political operatives whose work, stripped of euphemisms, is lying without getting called out. What’s more, the pernicious influence of Russia’s and China’s intelligence services, not to mention millions of private trolls, is clear and acknowledged by every one of our own intelligence services.

The optimistic “more speech cures all” theory may have had some rational basis when Americans got their news from three television networks, all pledged to a code of journalistic professionalism exemplified by Walter Cronkite. It has no rational basis in a world where 2.2 billion Facebook users can lie, mislead and cook up fake news all they want, even anonymously, and face no effective sanctions whatsoever.

Can you imagine anyone—even a big multinational corporation—having the time, money and sheer patience to sue a million trolls for libel? when each can churn out dozens, if not hundreds, of different bits of fake news a day? when those with resources and programming skills can even automate their torrents of lies?

No, the Internet is a different animal. It’s a medium through which, in theory, every human being on this planet can “speak” with any other. It’s a medium in which Facebook has already come close to achieving that reach in fact, having recruited nearly one-third of the human race as regular users.

The Internet is a “many-to-many” communications system, the like of which has never existed before in human history. It’s been around for barely more than a generation, since Bill Clinton, on Al Gore’s recommendation, released it for general, free-of-charge public use in 1996. And it’s taken most of a generation to reach the apex of its power to distort reality for millions.

Already it has given us our sole president with zero years of political experience—and the morals of an alley cat. It has set our people against each other, as never since the War in Vietnam and our own Civil War, anomalously in a time of peace and relative prosperity at home. And now it threatens to destroy the checks and balances that our Founders hoped to give us for the ages, by depriving the House of Representatives of the power to subpoena witnesses in an impeachment investigation that our Constitution specifically authorizes.

Can anyone who faces these facts squarely maintain that our theory of truth emerging from the cacophony works in practice today? when every one of our federal agencies charged with facing facts (even secret ones) believes the contrary? when our civil society is dissolving in the acid bath of opposing conceptions of reality, based largely on falsehoods and fake news, transmitted with precise targeting to susceptible minds over the Internet?

For those accustomed to facing facts, however unpleasant they may be, the question is not “is all this really happening?” It most definitely is. The question is what to do about it.

It should be self-evident that the “truth will out” theory no longer works, if it ever did. It should likewise be self-evident that other remedies don’t and won’t work. You can’t impose legal responsibility on millions of anonymous trolls worldwide, or on thousands of foreign intelligence agents now deliberately subverting our society and government. You can’t do so without starting a war because the foreign trolls and foreign agents are beyond our legal jurisdiction.

The only practical solution is to impose legal responsibility on the choke points: the many-to-many media themselves. That means Facebook, Twitter and their respective managers, as well as other similarly situated social media.

As a matter of practical possibility, that’s all we as a society can do. If we don’t do it, we can expect our society’s decay to accelerate rapidly, pushing us into the dustbin of history far faster than Rome’s decline after its Pompeian Civil Wars.

Imposing that responsibility is not without poetic justice. The promoters of so-called “innocent platforms” have become super-rich. In less than a generation, they’ve vaulted from complete obscurity into membership in our oligarchy, with exalted reputations and social and political power to match. Even Congress (improperly) treats them with something approaching awe.

By virtue of their reputations as business geniuses, the digital oligarchs have managed, so far, to avoid all the traditional controls set up to keep publishers and broadcasters from subverting our society with falsehoods. Zuckerberg, in particular, has sent primitive algorithms to do responsible humans’ jobs, likely in order to avoid diverting human and programming resources from his vast river of easy advertising money.

While honestly admitting that his algorithms are not working, Zuckerberg disclaims knowledge of any more effective expedient. Yet there is an expedient that’s always worked before: holding his and his likes’ feet to the fire with stiff legal responsibility. That will focus their minds and incentivize real action.

From those to whom much is given, much is expected. That’s a key difference between a democracy, on the one hand, and a monarchy, empire, aristocracy or oligarchy on the other. Zuckerberg, Dorsey and their ilk have failed miserably to curtail a clear and present danger, which they helped create, to our society, our Republic and our way of life. So the law must “incentivize” them to do so, and quickly, or, in the worst case, shut their platforms down.

That means, at a minimum, repealing or drastically revising the blanket immunity from all liability for falsehood in Section 230 of the Communications Decency Act. There is nothing “decent” about letting profit-making publishers promulgate falsehoods and propaganda indiscriminately—enough to subvert our culture and our democracy—and make mountains of money from facilitating our societal decline.

Nor should lawmakers succumb to the nerds’ routine technological condescension. True, lawmakers may not understand all the nuances of the software, how it’s used, and the way the algorithms sent in (in lieu of human intelligence) to protect us ought to work but do not. But they understand in their souls, or ought to, how these platforms are destroying our public discourse, perverting our politics, dividing us from each other, and subverting our governance and civil society. They understand that much of this chaos is deliberately sown by foreign intelligence agents and anonymous trolls, foreign and domestic. They also understand full well that nothing the nerds have proposed or tried yet, as a mere momentary diversion from their raking in the cash, has been enough. That’s all the understanding they need.

That said, imposing real and substantial responsibility should be neither vengeful nor punitive. The goal is not to punish the digital oligarchs, but to let what we all love about our United States of America survive and grow. If the nerds can figure out ways to do so that are more efficient and less costly than legal liability, let them try. But impose the liability in the interim to give them an incentive.

Of course the same law that imposes liability for doing next to nothing ought also to exclude liability doing something, i.e. for taking down things thought to be lies or fake news, even if erroneously. That is, the law should be generous in reducing liability for good-faith and effective removal of falsehoods from the stream of social-media traffic. A proposed redrafting of Section 230(c) to accomplish these ends appears below.

But the ultimate responsibility must lie on the social-media oligarchs, as people not as programmers. They created this mess, for profit, and they may be the only ones able to clean it up without shutting the whole enterprise down.

Lest you think shutting it all down is also impossible, recall that that’s exactly what China has done and what Russia and Iran are now in the process of doing. As painful as these authoritarian societies may be to people living in them, they prefer social stability to the elusive promise of “progress” at the risk of chaos. And chaos is exactly what forcing ordinary people to swim in a sea of lies forebodes.

Our current president and his administration are proof positive of that. If the torrent of Internet-spread falsehoods continues unabated, Trump will be a pale harbinger of what’s to come.

Endnote: Drafting a Better Law

It’s not hard to turn the existing Section 230 into something that might work. Section 230(c) is the heart of today’s law. It gives Internet platform providers a blanket exemption from the same responsibility that publishers and broadcasters have had for centuries. Here’s how it could be revised to level the playing field between print and Internet and stem the tide of lies (The section’s current language appears in regular type; additions are in italics.):

47 U.S.C. Section 230(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service who satisfies the standard of care of paragraph (3) shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability

No provider or user of an interactive computer service who satisfies the standard of care of paragraph (3) shall be held liable on account of—

(A)any action voluntarily taken in good faith, in accordance with the standard of paragraph (3), to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, materially false, slanderous, libelous, defamatory, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B)any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

(3) Standard of care

In publishing or republishing information under paragraph (1), and in restricting access to information under paragraph (2), the standard of care shall be as follows:

(A) With respect to information about an identified or identifiable individual public figure, living or dead, avoiding reckless disregard for truth or falsity; and

(B) With respect to all other information, including information about political parties, causes, and allegedly factual events and occurrences not involving an identified or identifiable public figure, avoiding simple negligence.

In either case, failure to check surprising, unexpected or intrinsically implausible information against two sources independent of the other information content provider, or against three such sources if the other information provider is anonymous or unknown, shall be prima facie evidence of failing to meet the standard.

(4) Legal action

Any person, institution, corporation, association or other organization injured by publication or republication of information not exempted from liability under paragraphs (1) and (3) shall have standing to sue for damages and declaratory and injunctive relief. Any person, institution, corporation, association or other organization injured by action or restriction not exempted from liability under paragraphs (2) and (3) shall have standing to sue for declaratory and injunctive relief only. Actions relating to paragraph (1) shall be brought within six months of the publication or republication complained of, and the defendant shall have the burden of proving satisfaction of the standard of care of paragraph (3). Actions relating to paragraph (2) shall be brought within three months of the action or restriction complained of, and the plaintiff shall have the burden of proving failure to satisfy the standard of care of paragraph (3). Actions under this section shall take priority over all other actions in the district courts and shall be expedited on appeal. In actions under this subsection, the pleadings, trial record, depositions, and all written decisions shall be made public as soon as filed, except to the extent that the presiding judge determines national security requires otherwise, in a written, reasoned decision filed under seal.

[Note: the provisions for legal actions for publication and for refusal to publish are purposely asymmetrical, in order to encourage platforms to take down suspected falsehoods. Nothing in the First Amendment requires private parties, as distinguished from branches of government, to republish information believed in good faith to be false or defamatory. In any event, foreign intelligence operatives and political trolls (whether hired or voluntary) are far less likely to sue than persons or organizations injured by Internet-propagated falsehoods.]

Permalink to this post