Bringing the Rule of Law to The Internet

The Internet and social media are lawless, and that's creating market failures - because where there are no rules, there is no game.

Courtesy The Trichordist: July 15 2015 Screen capture from YouTube video by hate rock band Kill Baby Kill which depicts skinheads killing and burning non-white immigrants.  These channels and playlists are at this very moment being used by violent groups to recruit new members. 

As bitterly divisive political and military conflicts spill out onto the streets around the world, there is a sense that the temperature has been rising on increasing radicalization around the world.

Some of the theories and ideas are truly alarming - and deep into conspiracy theory territory.

Where have all these people been hiding? Where did they learn all this stuff? Sites like 4chan, which has been known for generating cruel trolling campaigns for more than a decade, may get the blame as being an incubator. Changes to Twitter under Elon Musk have raised panic about hate and disinformation there, but the the web’s biggest companies, like Youtube - which is owned by Google - actually profit from spreading hate as well and have for a long time.

Once upon a time, no advertiser would have contemplated having their ad run next to content depicts actual beheadings, torture, atrocities or hardcore pornography.

It was also the case that being associated with paying for the promotion of crimes and against women, or hate speech would have been considered morally questionable.

Yet this is exactly what happens on Youtube, and Google, where an ad for toothbrushes or a local car dealership will be served up next to Holocaust denial - and ads for Aveeno and Bud Light ran before an ISIL/ISIS video.

Reddit, which is mostly owned by the parent company of Condé Nast, became renowned as an unfiltered gathering place for communities to talk about and share whatever they want, including depictions of racist murders or advocating genocide. It’s cleaned up its act, as other sited have spawned. It still has effective self-moderation.

The sprawling nature of websites that try to accomodate everyone means they have little to no hands on moderation - Google, Facebook, Youtube, Twitter. They have a policy of, “post first, ask questions later” that require users to submit a complaint.

There are actually people around the world - often poorly paid - who have to look at images and video of the most disgusting crimes you can possibly imagine, as people from all over the world submit complaints. It is pretty shocking and horrific work, and it leaves people with mental scars.

Because of the universal access to social media - if you have access to a device, you are are part of the network. People can argue that what’s happening on social media is just a reflection of society.

We are suddenly privy to the conservations and opinions of people we would never have been aware of before. And there are a lot of misunderstandings that escalate explosively and are amplified because the software interacts with human users to amplify certain kinds of emotions, and news that triggered them.

Human beings are tuned to being wary of risk. So we have highly tuned “fear meters” that go off pretty easily. That can range from anxiety and fear, about a situation, to anger and hate. And people routinely express hate about people in their own communities, quite openly when it comes to political affiliation.

The reality is that some people take pleasure in witnessing and causing misery for others, and that people can be united in hate. The internet offers instantaneous global transmission of information, but the information that travels best on social media is anger, disgust and outrage. This has led to an online feedback loop of mutual radicalization everywhere. 

Early Internet evangelists saw this lowering of barriers as democratizing, because everyone could be their own publisher. 

This starry-eyed optimism ignored humans’ baser instincts - one of them being that whenever a new technology comes along, someone will always ask, “how can I turn this tool into a weapon?”.

The question we should always ask of new and emerging technologies: “How can this be weaponized?”

That’s the question worth asking about AI - which is already being used to generate fake videos of public figures, including CBC and NBC reporters, and an AI version of Elon Musk to induce people into buying in to a get-rich-quick scheme. It’s running as a paid ad on Meta’s Instagram and Google’s Youtube.

This one - captured from my own Instagram feed features an artificial CBC Anchor Andrew Nichol, working for the CBS /CBCNN network singing the praises of a scheme announced by an artificial Elon Musk.

It also includes CBC’s David Cochrane of Power and Politics, and an AI Elon Musk who claims that Canadian business James Pattison and Canadian multi-billionare David Thomson are investors.

We can all be sure that is not a claim we should accept at face value.

This is just one example of how AI is already being used to con people. These ads embody everything that is wrong with what has been enabled by tech.

Meta (the company that runs Facebook, Instagram and Threads) is currently refusing to share actual Canadian media news stories. Google is also refusing to run those news stories.

Should you have the misfortune of clicking on one of these ads, the algorithm will serve you a barrage variations on the ad, from different accounts.

If you search for the company - “Quantum AI Scam” (don’t do it, please) it will turn up many pages that direct you to their site.

What’s more, the problem has been happening for months. Reuters reported the same company was running false video featuring Elon Musk and Tucker Carlson.

Meta and Google are making money promote these fraudulent videos, presenting false images of news anchors from the U.S. and Canada, including Gayle King, David Cochrane of CBC.

This is already a huge problem that will only get worse - because it is possible for AI chatbots with personalities and voices to be weaponized for scams, persuasion, and manipulation.

A broken market

Traditional media have struggled in this new universe, even as they know their stories have greater reach than they ever did, because there is no payment for their work.

Facts are more expensive than opinion, and our news media have plenty of paid interpreters - columnists, commentators, spin-doctors and spokespeople, but less reporting. Journalism that is accountable, and accurate, takes more work than rumour or opinion.

For all that people complain about the “mainstream media” it is more expensive, since it involves fact-checking, salaries people can live on, benefits, and so on. All those things that are supposed to make certain journalists and publications more credible.

As the former journalist David Simon, who created “The Wire” warned that the collapse of journalism - especially coverage of government at all levels - would usher in a golden age of corruption.

Of course, there is a balance here, between “responsible reporting” and ensuring you get the story right and powerful interests being able to suppress those stories.

The issue here is speaking truth to power - and it still has to be the truth - about what really happened, and who was responsible.

What we’re losing is a sense of shared reality, because we’re losing a sense of what is happening in our own communities, because the media does not have the resources to cover it.

It’s been suggested that support for Donald Trump is higher in “news deserts” - where local newspapers, radio and TV have all gone dark. Critics have said that media shouldn’t pat themselves on the back for the idea that, had there been reporting that was different on the ground in those areas, that Trump would have had less support.

What may be happening is something else.

For something to be “in the media” it has to represent something important - and by closing up shop, the media no longer considers these communities as relevant or important. People in these areas have no media where they see themselves and their own community reflected. Instead, they see media reports about cities.

This is where other forms of information - highly partisan news - fills a gap, and further exploits a cultural divide - one that has always existed.

But this goes back to the crisis we are facing in our ability to obtain, share, and agree on some very basic information about shared reality in our communities.

It’s happening for many reasons - and one of the biggest problems is a complete lack of standards around the information shared online.

What do we do if we don’t want to share a platform with extremists?

There is another factor that “traditional media” and public figures faced back in the day.

It used to be that if a media ran hate speech, images of explicit rape or murder, or terrorist acts, or explicit adult materials, no one would advertise them.

It also used to be that when you choose to speak on a platform, that if you found out that your were going to be featured next to an extremist or a holocaust denier, you could refuse to participate on the basis of principle.

Now, we have no choice.

As The Trichordist website (run by composer, musician and artists’ rights advocate David C Lowery) pointed out that while while Reddit’s critics argues it couldn’t succeed until it cleaned up its act - no one holds Youtube, which is owned by Google, to the same standard.

Disney had decided to break off with a Youtube star “pewdiepie” - who had 53-million followers on Youtube - for making anti-semitic jokes. The videos were all still available for a premium subscription on Youtube.

In fact, as the Trichordist points out, Youtube had videos of beheadings, entire playlists devoted to videos of violence against women, hundreds of videos dedicated to Neo-Nazi and “hate rock” bands, and videos offering fentanyl for sale - a drug responsible for countless overdose deaths in North America.

This was years before Elon Musk bought Twitter.

The Trichordist is largely dedicated to the issue of artists’ rights - and the issue is that creators of valuable content are getting ripped off, while the biggest and richest companies in the the world make huge amounts of money from it.

Google, Youtube, Facebook and streaming sites all make money by exploiting a loophole in internet law that allows them to sell advertising against uploaded content they are paying little or nothing for, or which may be pirated.

Lowery has continually pointed out major brands use Google advertising that ends up on sites dedicated to pirated content. But the issue also applies to governments, who are spending less, or nothing on traditional media and more on digital advertising.

Facebook is arguably the world’s largest publisher, and Google provides access to the entire internet, but both sidestep any accountability for this role.

It’s not just “fake news” but junk science, junk nutrition, fly-by-night scams, snake-oil salesmen, life-destroying defamation and public shaming.

This week, (the last week of October beginning of November 2023) Youtube is running ads from a BC Cannabis dispensary here in Manitoba. That is not supposed to happen - dispensaries are provincially regulated.

In fact, legal dispensaries are not allowed to advertise. How is it that this one can?

Big Tech Can’t be Lawless

There are a couple of legal issues here.

One is the capacity of the Government of Canada and provincial governments to legislate and regulate companies like Facebook, Google. The fact is, these companies should have to obey the same laws and regulations that everyone else does.

There are clear differences in constitutional rights in the United States and in Canada, both in our Charter of Rights and Freedoms as well as court rulings in both countries.

In Canada, we have freedom of expression, and the U.S. has freedom of speech. Canada does have a different legal tradition when it comes to freedom of speech compared to the U.S.

In Canada our laws are similar to the UK, where there are libel and defamation laws that apply to everyone. Criminal libel still exists as well, though it should be repealed. Canada has also had hate speech provisions in human rights codes, and so on.

The U.S. First Amendment U.S. protects free speech, including hate speech. In the U.S. when the person is a public figure, there is a greater degree of latitude and criticism, including parody.

This has created multiple challenges, in creating a balance of freedom for individuals, since the rules by which Americans evaluate their freedom are not the same as other countries. The EU is more protective of individual privacy, and in Germany, denying the Holocaust is illegal.

The balance for individual freedoms as well as media freedoms is pushing back against and exposing the abuses of people in power, while also guarding against the injustices that can occur due to wrongful accusations.

When people complain about being censored when they are removed by Google, Reddit, Twitter or Youtube, and say that their rights are being violated, they are making a basic mistake - those are private companies, and you don’t have a right to use them. You are a customer, and the customer is not always right.

As private companies, they don’t have to follow the first amendment and let you say whatever you want using their resources. The same applies in other countries - or should.

It’s been said than an unmoderated forum can’t be distinguished from the graffiti in a public toilet.

And what’s missing - on the part of these platforms, is that as publishers, they can show editorial judgment, the way other media have to do. Because they aren’t making it. but they are selling it. That’s the user experience - it’s all created by someone else, not the platform.

Even years ago, Twitter routinely ignored complaints about death threats. Requiring moderation to prevent abuse would cost money.

Governments don’t have to crack down on hate speech, but they are certainly under no obligation to spend public money on digital platforms that publish it. They should show some moral leadership and spend their advertising budgets in traditional media instead.

The other is that these platforms need to be responsible corporate citizens, because they are not - and they are legally allowed to be.

End the Special Treatment for Big Tech: Level the liability playing field

There is a loophole in that needs to be closed - a legal loophole that applies only to internet companies, and has created much of this problem.

“Web 2.0” - google, blogs, social media, YouTube - were all made possible by a loophole in the Digital Millennium Copyright Act, which limits these companies’ liability in ways that no other corporations enjoy.

If you, as an individual, a journalist, or as an employee working for a company of any kind - especially a newspaper, radio station or television network - make statements that are libellous, defamatory, you and your company can be sued, and held liable for damages.

This happened in the aftermath of the 2020 US election, where Fox News and various spokespeople repeated false claims about Dominion Voting Systems, which resulted in serious financial losses for that company. Dominion responded by suing, and winning a $787-million judgment against Fox.

However, companies like Facebook, Google, Youtube, Reddit, X.com (formerly twitter) as well as all other companies that share user content - “Web 2.0” companies have a special protection under U.S. law, the Digital Millenium Copyright Act, or DMCA.

It shields companies for liability or responsibility for what users post on their sites. This is why the companies describe themselves as “platforms” and not as “publishers”.

The idea behind the DMCA is that it makes for greater freedom, innovation, sharing and greater free speech. But it also shields Facebook, Google, Youtube and other tech companies from having to pay for intellectual property they serve to their users, while charging advertisers for them.

On the Internet, if you are getting something for free, the product is you. And often, when you’re being paid, the product is you, too.

Most arguments about intellectual property online are still stuck in 1999, when record and movie companies were the “big bad guys” against upstarts like Napster. Now, Google, Facebook and other tech companies are the biggest companies in the world, and their owners are among the wealthiest people on the planet.

Today, those companies are running “old businesses” into the ground, not just because Tech has innovated something fast, and convenient - but because they have few employees, share other’s content without paying for it while producing little or none of their own in comparison, and are notorious for avoiding taxes.

The challenge of getting people to pay for intellectual property that is easily reproduced is not new. Songwriters, playwrights, and authors have been fighting against piracy for over a century.

There is a saying that “artwork is work” - and the same is true of other creative, information based industries.

What is happening to creative industries - including journalism - is a classic example of market failure.

A Gresham’s Law in News : When Fake News Drives out Facts

The idea of “Gresham’s law” is an old form of market failure - that “bad money drives out good”. As economic laws go, it is simple and brief, but bears revisiting.

There’s a real argument to be made that that is exactly what is happening with the news, but it’s easy enough to describe.

Fact-checked journalism is usually stuck behind some kind of paywall. Its reach is limited, because it has to be paid for, and there is no mechanism to do so. However, information that isn’t fact checked can be shared freely. This creates a dual market in news - a paid market where editorial judgment is applied and facts are checked, and another one where anything goes.

It is a failure of the market - “Gresham’s law” “Bad money chases out good” and “the Lemon problem.” Seeing other examples explains the problem in news.

Robert Mundell runs through a whole series of examples dating back thousands of years, including mentions by Aristophanes in The Frogs. There was an example from ancient Sparta, when silver supplies to mint coins ran short, during a military venture in which slaves employed in silver mining were set free. The shortage of silver that resulted drove authorities to mint coins being from other metals instead. Instead of helping the economy by restoring the flow of money, it made the situation worse: the only coins that circulated were lower-quality, while the high-quality coins were hoarded - hence the expression, bad money driving out good.

“The tendency for good coins to disappear would become pronounced if the government introduced debased or lightweight coins. The "cheap" money would drive out the dear money. As we shall see later, this is exactly what happened when Athens introduced debased coins during the Peloponnesian War.”

The “lemon problem” discussed by George Akerlof in 1970 is similar. Akerlof asked why it was that the used car market was dominated by “lemons”. The answer was, that it is a market failure created by asymmetrical information: because it was not easy for buyers to tell which of two superficially identical cars had mechanical problems, it would elevate the price of “lemons” on the market while depressing the market for quality used cars. Of course, people are much more likely to want to get rid of sell a new car that has mechanical problems, and hold on to one that doesn’t.

Gresham’s Law and the Lemon problem are both considered market failures due to asymmetrical information. The assymetry of that information is that initially, there are two items that appear superficially similar, but which in their substance are not. Some cars are lemons, some are not, some coins are debased, some are not.

The consequence of market failure due to assymmetical information is that the market becomes dominated by low-quality goods, which are the only kind that circulate, while “high quality” goods or items are hoarded and withdrawn from circulation.

What is happening with journalism - as well as for other creators - is that there has been a failure on the part of governments and courts to enforce property rights - in this case, intellectual property.

In economics, when property rights aren’t being enforced, it is a recognized kind of “market failure”. There is no business model that can succeed as long as the rules are not being enforced, any more than you could succesfully run a store in a city where laws against shoplifting, and hold-ups were not enforced.

The degree to which people are not being paid is astonishing. By one estimate, $50-billion in revenues has shifted from creators to the owners of big tech companies. Streaming companies may pay ten-thousanths of one penny per play, iTunes takes a greater share of song royalties than an old brick and mortar store, and the “mechanical royalty” on songs has been stuck at 2 cents for over a century.

All of these lessons apply to journalism and media. The difference is that while copyright associated with books, music and movies are generally seen as entertainment - and therefore frivoulous - strong, independent and free press is a threat to our democracy and living in an open society.

It has always been easier and cheaper to make a copy of something that is already a success than to some up with something new. That is why we have intellectual property laws like patent and copyright: to make sure that innovators, risk-takers and workers can reap their just reward. They are out of date.

When people say that the CBC, or CTV or newspapers just have to adapt to be more like Netflix, or iTunes, or Vice News, we also need to understand the difference between being a creator and being a near-monopoly distributor.

Actual fact-checked journalism takes a lot of work, and it means being willing to take risks and bear losses. Taking on powerful interests, in politics, business or any other arena, means that companies and journalists may have to risk getting sued.

Quality journalism - especially investigative journalism - costs money. Opinions are cheap, and facts are expensive. Blogs, social media and wire stories are no replacement for reporters.

PBS’ Frontline is one of the world’s best investigative journalism programs. It loses money. Vice News doesn’t make any money: it is subsidized by the marketing side of Vice.

No business model will work until the market failure is addressed: governments and courts need to enforce property rights.

Law-Based Solutions to Address the Market Failure in Online News

We need modernized intellectual property laws that defend creators and responsible, fact-checked journalism that can be held to account.

These are not comprehensive solutions, and they require nuance and balance.

That being said, these are basic measures - which really amount to ending the special protected status these corporations are being granted under the Millennium Copyright Act and other similar acts.

Bring Big Tech within the Rule of Law

These companies need to be treated as publishers and be liable for what they publish, and no longer have a carve-out that exempts them from laws and regulations that apply to every one else.

This is not overreach: it is ending an era of corporate impunity that is not required for innovation.

Fix the Market by creating a royalty structure that compensates creators and journalists fairly

One option is to use the royalty model, and have Facebook, Google and others pay media outlets for using their intellectual property.

This is what the Canadian Government is trying to do right now, and Facebook, Google are resisting the law.

There are challenges around structuring these royalties in order to avoid unintended negative consequences, including exercises of freedom of speech.

Freedom of speech is not, and has never been, freedom to mislead, conspire, lie, or make false and damaging accusations.

The royalty model requires thought, because it is easy to get bogged down in questions like “what is journalism” or arguments about censorship.

This is about improving accountability, all around.

However, these elements should be considered when considering who gets royalties as far as sharing media stories is concerned.

The key element is rewarding accountability and transparency, and ensuring newsrooms are resourced.

• Public Disclosure of the beneficial owner(s), and other funding.

• Brick-and-mortar Canadian address

• A named publisher who is liable for the publication

• Editorial oversight

• Original reporting

We want to fix the problem of the market failure in online news, not make it worse.

One of the most important is simply that reporters and journalists must have the resources to do

• Local news

• Investigations where reporters can afford to take risks and the time that investigations in the public interest require.

Separately, there need to be recognition and payment for intellectual property. If we are going to have a functioning information economy, it cannot be based on free labour or theft. We need appropriate royalties for creators. And again, to be clear - this is about fixing a broken market by respecting property rights - in this case, intellectual property rights.

And sharing someone else’s intellectual property - and not having to pay for it - is the entire basis for making these social media and search companies the biggest companies in the world . Because the DMCA means they never have to pay for their mistakes.

These are political and legal hurdles. They are not technical ones.

These are all companies whose entire existence is premised on being the world’s best databases and having the greatest algorithms for sorting and searching information. The idea that they can’t figure out exactly how to pay royalties, or that they are only benefiting sharing a link is disingenuous. People go to social media to catch up on what is going on, and that includes news and entertainment.

The idea that these companies should not pay royalties is indefensible.

Mandatory Verification for Online Publishers

Given the explosion in bots, AI, and the already existing capacity of companies around the world to game the system, we need to address what is the Internet’s mass identity fraud problem, which is epic.

Here too, there is a balance to be struck, but one of the aspects required is mandatory verification of people and entities that are uploading content.

This is balancing act, because often people want to operate anonymously on the web to protect themselves from predators. This is legitimate. It shouldn’t be a surprise that in an age of universal surveillance, that people come to value anonymity - not just privacy, but anonymity, and given the brutality of political regimes and criminal organizations around the world - and, the growth of real-life mobs and attacks there is legitimate concern of oppression or threats. Being “doxxed” - revealing someone’s online identity - is usually associated with opening them up to harrassment and abuse.

Expressions of hostility on the internet often start off at the lower end of unhinged, whether the target deserves it or not.

However, it’s also the case that people use the cloak of anonymity to be complete monsters and to act in ways that unconstrained by the way that a society that had some basic decency would constrain them. Like their loved ones being ashamed of them and angry with them. Is that still a thing that happens?

For the reason that people would immediately call you out for atrocious behaviour, because it’s a horrible way to treat other human beings.

The other side of this is that the internet and social media have made it possible for old fashioned political “dirty tricks” as well as more sophisticated and targeted manipulation to be that much easier.

You can hire companies that will provide you with thousands of followers. The accounts may be run by actual human beings, who may work overseas, or they may just be a bot - an automated user. They are designed to share propaganda.

After the 2016 election in the U.S., there is no question that organizations attached to U.S. political campaigns deliberately created fake news outlets - completely false web pages. As dirty political tricks go, planting fake news stories is probably as old as politics. It’s just that the internet and the targeted marketing capacity of social media means that you can create entire fake news outlets, with incredible ease.

This also applies for “astroturf” organizations - fake grassroots organizations or groups purporting to be an independent third party, when they are really basically a propaganda outlet. Their statistics are reliable, but the “tell” is that they are reliably one-sided in their praise and condemnation.

That’s the case whether they are operating on behalf of an ideologue with deep pockets, a political party, private corporations, faith groups or, organized labour.

They all have not-quite arm’s length organizations with a different brand that are in the public relations business, not the news business. They exist to try to shape public opinion to the benefit of another organization they claim they’re independent from.

The problem is when they’re not transparent about their ties. These days, that can be to another country.

That transparency and disclosure it about basic accountability, and holding everyone to account for their actions. That’s the job of the law.

There are lots of other changes that can be made - but at the end of the day, if you care about and believe in the rule of law, it has to apply to these companies.

These are the biggest companies in the world. That doesn’t mean they get to be outlaws. And maybe that’s the root of the problem.

And remember, when these policies are proposed, tech companies often react by talking about government overreach - when, in terms of surveillance, Google and Facebook and these other companies have huge amounts of personal information on you that the government does not have. Like all of your private conversations.

For many years, people talked about how awful and toxic social media could get. It’s now the way people act in real life to each other - and worse.

And maybe that’s what’s the worst of all social media - which is the sense of mob justice, which was abandoned as inhumane. The sense of righteous triumph in going for a villain can be very exciting, but there’s not much thought to the other people wrapper up in in - or someone who is falsely accused. In the thrill of the hunt, we don’t pause to think what it’s like to be torn to shreds in public like a foxhound being tracked and ripped apart by a pack of thousands and thousands of dos.

That’s the horror of mob justice. It is being driven and amplified by social media where people are tormenting each other by continually violating each other’s taboos.

As D. H. Lawrence wrote,

“The result of taboo is insanity. And insanity, especially mob insanity, is the fearful danger that threatens our civilization. There are certain persons with a sort of rabies, who live only to infect the mass.

If the young do not watch out, they will find themselves, before so very many years are past, engulfed in a howling manifestation of mob-insanity, truly terrifying to think of…

We shall have to fight the mob, in order to keep sane, and to keep society sane.”

That’s where the law comes in, because that is what the law is for. Bringing about order.