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.

Making News: Speaking at a D.C. Conference Today on Antitrust and Trade Policy

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antitrust, competition, free trade, globalization, Im-Politic, monopolies, monopoly, The American Conservative, The American Prospect, Trade

I’m pleased to announce that I’m scheduled to speak this morning at a conference in Washington, D.C. on the increasingly weird relationship between American trade policy and American antitrust policy.

The overall event focuses on the troubling rise of monopolies and oligopolies in general in the U.S. economy in recent decades, and is co-sponsored by The American Conservative and The American Prospect – two magazines pretty far apart on the political spectrum.  My own presentation will draw on my article earlier this year on the subject in the summer issue of American Affairs.  (Yes, yet another political publication!).

If you live in the D.C. area, the event will be taking place at the National Press Club downtown starting at 11 AM.  If not, I haven’t yet found anywhere where the conference can be seen live on-line.  But if I do before I actually mount the rostrum, I’ll try to send it out.  And of course, once a link to any video is posted, I’ll let you know ASAP.

In the meantime, wish me luck, and keep checking in with RealityChek for news of upcoming media appearances and other developments.

Making News: Major New Trade & Antitrust Article Now On-Line…& 3 Podcasts!

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American Affairs, antitrust, Breitbart News Tonight, China, competition, i24News, Making News, monopoly, tariffs, The John Batchelor Show, Trade, trade war

I’m pleased to announce the publication of a major freelance article tying together two so-far generally separate areas of American economic policy.  Featured in the Summer issue of American Affairs, it makes the case for using trade policy to reduce the levels of foreign competition faced by U.S. businesses and workers, and using more vigorous antitrust policy to replace them with higher levels of domestic competition.  Here’s the link.

In addition, the podcast of three China trade war broadcast media interviews from last Tuesday night are now on-line.  Click here for the link to the relevant segment on John Batchelor’s nationally syndicated radio show; here for the link to my interview on Breitbart News Tonight (you need to scroll pretty far down before seeing my name); and here for my appearance on Israel’s i24News television network.

For the latter, two more steps are necessary – click on “Download” to receive an mp4 file that you can then open up.

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

(What’s Left of) Our Economy: New Reasons to Ignore Those Manufacturing Surveys

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consolidation, emerging markets, Federal Reserve, industrial production index, Industry Week, innovation, Institute for Supply Management, investment, ISM, manufacturing, Markit.com, mergers and acquisitions, Michael Collins, monopoly, offshoring, oligopoly, survivorship bias, Trade, {What's Left of) Our Economy

The newest editions of the two big private sector American manufacturing gauges – from Markit.com and the Institute for Supply Management (ISM) came out this morning, which should be a complete non-event given all the data I’ve presented on what a terrible job the ISM in particular does at tracking industry’s real health. (I haven’t closely analyzed Markit’s results, but since they roughly match the ISM’s, they seem about as bad.)

Of course, the Markit and ISM releases are in fact big deals to policy-makers, economists, and investors, so let’s try to turn a sow’s ear into a silk purse and show how the big structural weakness of these surveys can be used as a window into a big reason for domestic manufacturing’s ongoing collective troubles. That weakness, as loyal RealityChek readers know, is survivorship bias. And recently, an important new explanation for this bias, for its resulting distortions, and for manufacturing’s continuing struggles despite all the renaissance claims, has come to light.  

A quick refresher on survivorship bias: Unlike the Federal Reserve’s index of industrial production, the Markit and ISM surveys don’t try to measure how the American manufacturing sector as a whole has grown or shrunk. (Both companies look at other measures of manufacturing performance, too, and this discussion applies to them as well.) Instead, they choose a sample of manufacturing companies and ask key executives to assess their firms’ circumstances. If Markit and ISM asked these businessmen for their actual growth or other figures, for example, this wouldn’t be a big problem. But since they ask instead whether they’ve been growing (or contracting) at all, it’s a huge problem.

With the former methodology, it would be at least reasonable to extrapolate the sample data and draw conclusions about the entire domestic manufacturing complex. But the technique used by these two companies simply tells us how that sample (which is also much smaller than the Fed’s) has been faring in its own judgment. And because so many U.S.-based manufacturing firms have fallen by the wayside in recent decades, the Markit and ISM surveys wind up reporting only on the remaining companies – the survivors.

Individual companies, of course, can often prosper even as their overall sector isn’t (grabbing a larger share of stagnant or even shrinking pies). But that’s exactly why the Markit and ISM results have lost whatever ability they may have once had to describe domestic manufacturing’s overall health when overall industry was much larger.

At the same time, it shouldn’t be forgotten that because of greater efficiencies, a national manufacturing sector with fewer companies can still keep generating more production and employment. That’s why I’m always hesitant to use as evidence of U.S.-based industry’s troubles data on the (significantly) declining number of American manufacturing “establishments” over time. There’s no doubt that these figures reflect many company failures, and resulting factory shutdowns. But there’s also no doubt that they reflect lots of that aforementioned efficiency-enhancing consolidation – and these statistics don’t contain any breakdowns.

Recently, though, some new data have emerged that reveal another angle of the survivorship bias issue – the surge of mergers and acquisitions in manufacturing. These transactions are fundamentally different from the two forms of consolidation described above. Rather than stemming from individual companies deciding that they can do better with, say, one factory rather than two, or from individual companies prospering because rivals have gone bust, this form of consolidation stems from companies acquiring one another.

An important June post from IndustryWeek makes clear how dramatic this increase has been, especially since the early 1980s. As a result, in 200 manufacturing sectors monitored by the Census Bureau, 16 percent were characterized by their four largest companies accounting for at least half the value of shipments. By 2007 (the latest statistics available), this share had jumped to 37 percent.

The post’s author, consultant Michael Collins, notes that “Under [such] oligopoly and monopoly conditions, investment slows down. Because competition is weaker, corporations are better able to raise prices and profits without investing in new technologies and products—and declining investment can lead to declining innovation and economic stagnation.”

He doesn’t say this explicitly, but it shouldn’t be overly difficult to see how such consolidation can undermine production as well. This could be especially important given the huge share of domestic manufacturing that’s engaged in the production of parts, components, and other industrial inputs. They’re the source of considerable innovation in industry, and if manufacturers overall become less interested in better products and processes, then demand for their output is bound to suffer.

Collins also hints at another way that consolidation could depress output – by using oligopoly and monopoly power to reduce wages and increase prices for American consumers. In recent decades, the argument could reasonably be made that new demand in emerging market countries like China, Mexico, and Brazil would compensate – and then some – for lower consumer and industrial purchases in the United States.

But nowadays it should be obvious that this promise has not been realized and remains a distant prospect. Three big reasons: Emerging market growth has slowed dramatically and even shifted into reverse in some instances; the incomes of their consumers have remained so low; and they have made dramatic progress in supplying their own industrial innovation needs themselves. And largely because these emerging markets (enabled by offshoring-friendly investments and trade policies) sapped the growth potential of high income countries like the United States without adequately replacing it, the world has been stuck in low-growth mode ever since recovery from the last recession began – six long years ago.

It’s completely unreasonable to expect Markit or ISM to shed much light on these wide-ranging developments in their monthly reports. But by the same token, it should be clearer than ever that what they don’t show about domestic manufacturing is far more important than what they claim to reveal.