Im-Politic: A Solution to the Big Tech Misinformation/Censorship Quandary

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algorithmic amplification, antitrust, Big Tech, censorship, competition, Constitution, Facebook, free expression, free speech, Im-Politic, internet, journalism, Mainstream Media, misinformation, monopoly, news media, Section 230, social media, tech, Twitter

Don’t look now (a heckuva way to begin a piece of writing!), but I may have come up with one solution to the incredibly complex and just as important national dilemma over regulating how gargantuan social media platforms like Facebook and Twitter handle Americans’ speech rights.

First, let me stipulate that I’m anything but an expert on the Constitution, law and regulation of any kind (except maybe in the international trade field), or technology of any kind. But maybe I know enough to have produced a plan that’s outside-the-box enough to break the various legal and political and philosophical logjams that have left the nation with a status quo that seems to satsify no one, but that’s anchored in reality.

In addition, the thoughts below were prompted by a very stimulating panel discussion involving genuine experts in all these fields that took place this past weekend at a wide-ranging policy conference held by the Intercollegiate Studies Institute. (I spoke on a separate panel on China.) So my ideas aren’t coming from completely out of the blue.

The nub of the problem is that Americans across the political spectrum are furious with the platforms’ speech policies, but for radically different reasons. Those to the left of center blast them for posting what they view as misinformation. Their conservative counterparts claim that right-of-center views are too often censored – typically because they’re bogusly accused of spreading misinformation.

All sides seem to agree that the platforms’ practices matter greatly because, due largely to their algorithmic amplification powers, they have such power to turn material viral that they’ve achieved the massive scale needed to become a leading  – and often the leading – way in which Americans receive news, opinion, and other forms of information that affect politics and public policy. But towering obstacles stand in the way of pretty much every proposal for reform advanced so far.

For example, their status as private companies would appear to block any move to empower government to influence their speech practices. Antitrust specialists disagree strongly as to whether they’re now monopolistic or oligopolistic enough under current or even proposed legal standards to warrant breaking up. The companies themselves of course deny any such allegations, and contend that if they needed to downsize, they wouldn’t be able to compete effectively around the world with foreign counterparts – especially those from China. Some have proposed turning them into public utilities, but opponents call that a great way to stifle any further innovation.

So here’s my idea: Turn the platforms into a new type of entity that would be subject to a new body of regulation reflecting both the distinctive importance of free expression in American life and the distinctive (and indeed predominant) role that the platforms now play in enabling individuals and organizations both to disseminate material, and (stemming from an aspect of free expression rights that’s often overlooked, but that’s now unquestionably vulnerable due to the main platforms’ sheer scale and reach) to reach their potential audiences. One possible name: Electronic Speech Companies (ESCs).

As history demonstrates, there’s nothing unusual about the federal government organizing private business into different categories for tax purposes, and there’s nothing unusual about government at any level regulating such businesses with an unusually heavy hand because of their outsized role in providing vital goods and services. That should be clear from the long-established policy of creating utilities. So I don’t see any Constitutional problems with my idea.

I agree that government’s price-setting authority over utilities can stymie innovation. But ensuring that these entities don’t curb free expression any more than (legally) necessary (see below) wouldn’t require creating such authority. I’d permit these ESCs to charge whatever they want for their services and to make money however they like (including selling users’ personal information – which does raise problems of its own, but which are unrelated to the speech issue). As currently required by the controversial Section 230 provision of the Communication Decency Act of 1996, they wouldn’t be able to disseminate any content that’s already illegal under federal criminal law, intellectual property law, electronic communications privacy law, or (most recently) criminal and civil sex trafficking law.

I’d also make them subject to current libel law – which means that plaintiffs would need to prove that false and defamatory information had been spread maliciously and knowingly. Could this rule mean that now-incredibly clogged U.S. courts would become more incredibly clogged? Sure. So let’s also set up a separate court system to handle such cases. Since a dedicated tax court system already exists, why not?

Frivolous suits could be reduced with “loser pays” requirements for court costs. The Big Tech defendants would doubtless still hold a huge advantage by being able to hire the very best legal minds and driving those costs up by dragging out proceedings. But a number of legal non-profits have emerged over the years to help the little guys and gals in these situations, so maybe at least the potentially most important and promising suits wouldn’t be deterred by financial considerations.

What the ESCs wouldn’t be permitted to do is bar or delete or modify any content, or any users, on misinformation grounds. Advocates of continuing to permit and even further encourage or require such practices argue that the platforms’ vast scale requires greater discretionary and often required authority along these lines in the name of any number of good causes – election integrity, public safety, national security, etc. (See, e.g., here.)

But three counter-arguments are more persuasive to me. First, I can’t imagine developing any legal definition of misinformation (as opposed to libel or other well-established Constitutional speech curbs) that would be genuinely neutral substantively and that therefore wouldn’t be easy to abuse massively – and to the great detriment of our democracy’s health, due to the platforms’ scale.

Second, that’s no doubt why such regulations have absolutely no precedent in U.S. history, despite past periods and instances of intolerance dating from the passage of the Alien and Sedition Acts of 1798.

Third, if the ESCs are going to be held liable for disseminating etc misinformation, what excuse will there be to maintain protection for the rest of the news media? I’ve spent much of my multi-decade career in policy analysis finding instances that would unmistakably qualify. Not that ongoing and arguably worsening conventional media irresponsibility is any cause for complacency. But would a government remedy for such an intrinsically nebulous offense really result in a net improvement?

Individual victims of ESC censorship would, however, need remedies for these forms of cancellation, and as with libel and slander, a special court system could handle accusations, using the aforementioned provisions aimed at leveling the legal costs playing field. The Justice Department could file its own suits, too, and some seem likely if only because its own inevitable political sympathies are bound to shift as power in Washington changes hands over time. This prospect, moreover, should help keep the ESCs on their best behavior.

The big danger of my proposal, of course, is that misinformation would keep appearing and metastasizing online, and spreading like wildfire offline due to the ESCs’ extraordinary reach. That can’t be a healthy development. But it’s surely an unavoidable development for anyone valuing any meaningful version of free expression and its crucial corollary – the marketplace of ideas. For empowering a handful of immense ESCs to restrict misinformation threatens to narrow greatly and even fatally the competitive essence of this marketplace.

Throughout U.S. history, Americans have relied on these dynamics, and the common sense of the public, to crown as winners the best ideas and the benefits they bring, and declare as losers those that have either caused or threatened serious dangers. Is anyone out there prepared to deny seriously that the results, though imperfect, have been historically excellent, that the potential for improvement remains just as impressive, or that any alternative yet proposed looks superior? If not, then I hope you’ll consider this ESC plan at least a promising framework for ensuring that these digital giants don’t become the ultimate arbiters.

Im-Politic: A Pandemic of Coverups?

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Anthony S. Fauci, CCP Virus, censorship, coronavirus, COVID 19, EcoHealth Alliance, Facebook, Fauci, Fauci emails, Google, Im-Politic, lab leak, Mark Zuckerberg, National Institutes of Health, NationalPulse.com, natural origin, NIH, Peter Daszak, social media, The New York Times, Wuhan Institute of Virology, Wuhan lab, Wuhan University, Wuhan virus, Zeynep Tufekci

What a June it’s been so far for anyone who’s always been skeptical of claims that anyone linking the CCP Virus’ emergence to virology facilities in Wuhan was trafficking in fringe-y conspiracy theories. Many crucial pieces of the puzzle are still missing. But June’s developments should make it harder than ever to dismiss not only the possibility that a natural or engineered version of the virus escaped from the lab, but that U.S. public health authorities ignored official prohibitions on funding so-called gain-of-function work at the Wuhan Institute of Virology, and that they and other powerful American institutions even acted to suppress news of their Wuhan connections.

After all, it’s already been a month in which no less than Anthony S. Fauci appeared to emphasize that the virus featured characteristics not normally found in the wild. The longtime head of the U.S. National Institute of Allergy and Infectious Diseases and President Biden’s chief science advisor told a New York Times interviewer that

“This is an unusual virus because about a third to 40 percent of the people get no symptoms at all. Yet it’s capable of killing 600,000 Americans. We’ve never had a situation like that where a virus that would be benign or almost half the people or 40 percent of the people and yet kill so many people.”

And this after declaring that

“I’m not an evolutionary virologist, but those who are look at the virus, and they say it’s absolutely totally compatible with something that evolved from bat viruses because of the closeness to. But we don’t have that extra link that’s come in, but there’s nothing they see in there that makes you think it was something that came from a lab.”

Clear as mud, right?

It was also a week in which another New York Times contributor made an observation indicating that even if the the Wuhan Institute of Virology whose research Fauci and the National Institutes of Health (NIH) overall helped finance wasn’t engaged in federally prohibited gain-of-function experiments, it still might have created the pathogen in question where none existed before. According to Zeynep Tufekci,

“Just trying to culture bat viruses in the lab can create risks that the scientists may not even be aware of. While trying and failing to cultivate one strain, they might inadvertently culture another one they don’t even know about. It’s even possible, [Stanford University neurobiologist and bioengineer Michael Lin] told me, that viruses can coexist in a single sample and quietly recombine, giving rise to something novel but undetected.”

In other words, creating the specific SARS-CoV-2 virus that has swept over the world might not have been the goal of the Chinese scientists in question. But this virus might have resulted from their efforts to simulate natural processes. If you or loved ones have suffered from the virus medically, or from the economic and other public health damage it’s caused, this is likely to look like a distinction without a difference. It’s also likely to raise further questions about why U.S. public health agencies funded clearly risky research in a facility they’ve acknowledged they couldn’t monitor adequately.

It’s also been a month in which, thanks in part to that New York Times Fauci interview, more reasons emerged to wonder whether Fauci and social media giants Facebook and Google conspired (yes, the word would be justified in these instances) to suppress reporting on the lab leak theory – in Google’s case because it, too, had helped pay for the Wuhan lab’s work at various times recently.

In January, 2020 – when the CCP Virus was declared a public health emergency by the World Health Organization (WHO) – Facebook began a campaign to “keep harmful misinformation about COVID-19 from spreading on our apps” and direct customers “to resources from the WHO and other health authorities through our COVID-19 Information Center and pop-ups on Facebook and Instagram with over 350 million people clicking through to learn more.” Throughout the pandemic period, WHO of course has been a major actor trying to debunk any version of the lab leak theory.

Given Fauci’s own clear interest in drawing public attention away from the possibility that his agency helped create the virus, it’s more than a little interesting that in March of that year, Facebook founder and CEO Mark Zuckerberg sent Fauci an email that the recipient told Times interviewer Kara Swisher, who covers Big Tech, “hey, is there anything that we can do to help out to get the messages out, the right public health messages? I have a very important medium here in Facebook. Can I help? And as a matter of fact, if you guys don’t have enough resources and money to do some of the things you want, just let us know.”

Fauci took Zuckerberg up on his offer but nothing is known about the details of this arrangement because although this email exchange has been made public (with redactions that are odd to say the least since it’s hard to imagine any national security secrets changed hands), the content of follow-up communications (which surely included not only emails but phone conversations) remain under wraps.

Can we all agree that all of this material should be released ASAP, so that we won’t have to accept Fauci’s word that “any thought” that his dealings with Zuckerberg had to do with censoring inconvenient virus-related truths “is total conspiracy theory and total flight of fantasy”? Especially since Facebook didn’t announce until May 26 of this year that “we will no longer remove the claim that COVID-19 is man-made or manufactured from our apps.” (The company has said nothing about the possibility that the virus escaped a Chinese lab in natural form.)

As for Google, news of its own dodgy CCP Virus-related practices came out on June 9. Shortly thereafter, the company’s own virus and China connection was revealed. A website called TheNationalpulse.com produced proof that Google “funded research conducted by Peter Daszak’s EcoHealth Alliance – a controversial group which has openly collaborated with the Wuhan Institute of Virology” on that controversial bat virus research.

Google insists that “The one-off philanthropic grants referenced are years old and had nothing to do with COVID,” and that ‘We have engaged precisely zero times with this organization on any work related to COVID or the Wuhan lab.” But as the National Pulse post showed, one of the studies co-sponsored by Google – from 2018 – described itself “conducted in Guangdong Province, China, to characterize behaviors and perceptions associated with transmission of pathogens with pandemic potential in highly exposed human populations at the animal-human interface….” So it’s easy to conclude that Google also wanted to draw attention away from and discredit the idea that the Institute had anything to do with the pandemic’s outbreak.

Finally, June has been a month when the news came out that in June, 2020, a group of Wuhan University scientists asked the NIH to delete from a key medical genomics database data CCP Virus genome sequences they gathered from patients in that city in January and February.

The scientists claimed their reasons for the request were technical, and no evidence of deceitful intent has appeared. For its part, the NIH says that it receives such requests all the time, and typically complies. Fair enough. But given the importance of such very early pandemic stage information in determining the virus’ origins, and given China’s extensive efforts to keep data from this crucial early pandemic period secret, why on earth didn’t the NIH at least report the request and its response right away? Could it be because of its own funding of virus research in Wuhan?

As I said above, many major pieces of these puzzles remain missing.  But many are now in place also, and if ever there was a subject that screamed out for a comprehensive official investigation of the relevant actions and relationships at least of the U.S. players, with broad subpoena power, you’d think a pandemic that’s killed more than 600,000 Americans and sickened and disrupted or flat-out ruined the lives of tens of millions more amply fits the bill.  

 

Im-Politic: How Social Media Could Really Fight Misinformation

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censorship, Facebook, Fox News, Im-Politic, journalism, Mainstream Media, media bias, misinformation, NBC News, social media, The New York Times, The Washington Post, Twitter

During the last three weeks alone, major national news organizations have issued important corrections admitting that they’ve gotten two front-page stories completely wrong, and another has been caught red-handed in a comparably important misstep.

Contrary to two New York Times reports, the Biden administration has confirmed that there was never any credible intelligence indicating that Russia was paying Taliban-linked militants in Afghanistan bounties for killing American soldiers – and therefore no good reason for former President Trump to raise the issue with Russian officials. Contrary to claims in the Times, the Washington Post, and NBC News, the FBI never warned former New York City Mayor and Trump personal lawyer Rudy Giuliani that he was being “targeted” (i.e., “used”) in a Russian misinformation campaign. And contrary to Fox News, the Biden administration has no plans to require Americans to reduce their consumption of red meat sharply.

And it’s not like these are the only badly dropped balls by such news organizations in recent years – or even close. Moreover, since there are no evident penalties for such incompetence or bias (or both), there’s no reason to suppose that the media’s performance will impove significantly. Indeed, it’s clear that the most troubling kinds of “Who guards the guardians?” questions are being raised by these incidents, since it’s the news organizations themselves who – sensibly – are supposed to serve as our democracy’s watchdogs over its other main instit utions. Unless you want any government agencies, at any level, stepping in to play this role?

But perhaps not all hope is lost – at least in principle. For there are powerful actors in America who have tried to stop the spread of misinformation: Facebook and Twitter. As widely known, they’ve taken it on themselves to identify cases of misinformation, label them for users, and on a regular basis punish the perps by limiting their access to their enormous and influential platforms. Why can’t they apply the same policies and practices to journalists and even entire news organizations that admit major mistakes, or whose mistakes have been admitted by politicians or others who have made or benefited from consequent allegations?

Any number of criticisms can be made about how these social media giants currently go about fighting misinformation, ranging from their questionable expertise on subjects they rule on, to the biases they bring to these exercises, to the broader matter of whether most of the transgressions they’ve spotlighted are misinformation at all – as opposed to expressions of opinion or interpretations or analyses of events or data that are completely legitimate.

But when it comes to journalistic retractions or corrections, none of these problems should arise – because the error has already been acknowledged. Similarly, it should be easy for such technologically advanced companies to track and tag repeat offenders, whether individuals or entire organizations, with contemporary versions of (truly deserved) Scarlet Letters.

Equally easy should be justifying suspending them or kicking them off for good if they don’t mend their ways. Indeed, it would be a valuable service to the reading, viewing, and listening public, and because the use of social media is so crucial to news organizations’ business models, would create powerful incentives for journalists to use anonymous sources in particular much more responsibly.

Ideally, in a free market system, quality news would eventually and consistently prevail over the alternative by customers rewarding the good performers with bigger audiences that fattened their bottom lines, and penalizing the bad performers by tuning them out. But for whatever reason or combination of reasons (like growing partisanship or more general political polarization, and the resulting tendency of news consumers to follow only ideologically congenial news outlets), it’s not happening. And when news organizations do report on their industry critically, they rarely shine the spotlight on themselves – and wind up in “Coke versus Pepsi”-like dogfights, or thinly disguised ideological vendettas.

Since in theory, anyway (yes, I keep using this kind of qualification), the social media companies aren’t competing directly with either legacy or on-line news organizations, their misinformation monitoring needn’t be so self-interested. And if they stuck to calling out admitted corrections and retractions or other unmistakably debunked scoops, they’d steer clear of any genuine controversy.

Maybe just as important: If Facebook and Twitter won’t reorient their content policing to focus on or even simply add this relatively simple task, everyone will be entitled to wonder whether their main concern all along has been fighting misinformation, or simply the kinds they don’t like.

Making News: On National (Laura Ingraham) Radio This Morning – & More!

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Asia, Associated Press, Chris Rugaber, Facebook, Jerome Powell, Laura Ingraham, Lifezette.com, Making News, North Korea, Princeton University, The Laura Ingraham Show, Trump

I’m pleased to announce that I am scheduled to appear this morning on Laura Ingraham’s nationally syndicated radio show to talk about President Trump’s trip to Asia.  Listen live at 10:35 AM EST at this link. And of course if you can’t tune in, I’ll post the podcast as soon as it’s available.

The segment will deal with many of the issues raised in my new column for Laura’s Lifezette.com news site. Click here to read this call for a thorough (and Trump-ian) overhaul of America’s strategy toward the Asia-Pacific region in general and the North Korea crisis in particular.

And this November 3 Associated Press profile of Jerome Powell, Mr. Trump’s new appointee to chair the Federal Reserve, contains a funny anecdote from the days when “Jay” and I were Princeton University undergraduates.

Just FYI, AP reporter Chris Rugaber figured out the connection (which is pretty casual) through a fine bit of journalistic sleuthing. As soon as he heard about the Powell appointment, he scoured his Facebook page and discovered we had friended each other. So he called me on Halloween afternoon to see if I had any insights to offer.

And keep checking back with RealityChek for news of media appearances and other developments.