The Internet’s greatest blessing — its general openness to all speech and speakers — is also sometimes its biggest curse. That is, you cannot expect to have the most widely accessible, unrestricted communications platform the world has ever known and not also have some imbeciles who use it to spew insulting, vile, and hateful comments.

It is important to put things in perspective, however. Hate speech is not the norm online. The louts who spew hatred represent a small minority of all online speakers. The vast majority of online speech is of a socially acceptable — even beneficial — nature.

Still, the problem of hate speech remains very real and a diverse array of strategies are needed to deal with it. The sensible path forward in this regard is charted by Abraham H. Foxman and Christopher Wolf in their new book, Viral Hate: Containing Its Spread on the Internet. Their book explains why the best approach to online hate is a combination of education, digital literacy, user empowerment, industry best practices and self-regulation, increased watchdog / press oversight, social pressure and, most importantly, counter-speech. Foxman and Wolf also explain why — no matter how well-intentioned — legal solutions aimed at eradicating online hate will not work and would raise serious unintended consequences if imposed.

In striking this sensible balance, Foxman and Wolf have penned the definitive book on how to constructively combat viral hate in an age of ubiquitous information flows.

Definitional Challenges & Free Speech Concerns

Defining “hate speech” is a classic eye-of-the-beholder problem: At what point does heated speech become hate speech and who should be in charge of drawing the line between the two? “The notion of a single definition of hate speech that everyone can agree on is probably illusory,” Foxman and Wolf note, especially because of “the continually evolving and morphing nature of online hate.” (p. 52, 103)  “Like every other form of human communication, bigoted or hateful speech is always evolving, changing its vocabulary and style, adjusting to social and demographic trends, and reaching out in new ways to potentially receptive new audiences.” (p. 92)

Many free speech advocates (including me) argue that the government should not be in the business of ensuring that people never have their feelings hurt. Censorial solutions are particularly problematic here in the United States since they would likely run afoul of the protections secured by the First Amendment of the U.S. Constitution.

The clear trajectory of the Supreme Court’s free speech jurisprudence over the past half-century has been in the direction of constantly expanding protection for freedom of expression, even of the most repugnant, hateful varieties. Most recently, in Snyder v. Phelps, for example, the Court ruled that the Westboro Baptist Church could engage in hateful protests near the funerals of soldiers. “[T]his Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled,” ruled Chief Justice John Roberts for the Court’s 8-1 majority. The Court has also recently held that the First Amendment protects lying about military honors (United States v. Alvarez, 2012), animal cruelty videos (United States v. Stevens, 2010), computer-generated depictions of child pornography (Ashcroft v. Free Speech Coalition, 2002), and the sale of violent video games to minors (Brown v. EMA, 2011). This comes on top of over 15 years of Internet-related jurisprudence in which courts have struck down every effort to regulate online expression.

Some will celebrate this jurisprudential revolution; others with lament it. Regardless, it is likely to remain the constitutional standard here in the U.S. As a result, there is almost no chance that courts here would allow restrictions on hate speech to stand. That means alternative approaches will continue to be relied upon to address it.

Foxman and Wolf acknowledge these constitutional hurdles but also point out that there are other reasons why “laws attempting to prohibit hate speech are probably one of the weakest tools we can use against bigotry.” (p. 171) Most notably, there is the scope and volume problem: “the sheer vastness of the challenge” (p. 103) which means “it’s simply impossible to monitor and police the vast proliferation of bigoted content being distributed through Web 2.0 technologies.” (p. 81) “The borderless nature of the Internet means that, like chasing cockroaches, squashing on offending website, page, or service provider does not solve the problem; there are many more waiting behind the walls — or across the border.” (p. 82) That’s exactly right and it also explains why solutions of a more technical nature aren’t likely to work very well either.

Foxman and Wolf also point out how hate speech laws could backfire and have profound unintended consequences. Beyond targeted laws that address true threats, harassment, and direct incitements to violence, Foxman and Wolf argue that “broader regulation of hate speech may send an ‘educational message’ that actually weakens rather than strengthens our system of democratic values.” (p. 171) That’s because such censorial laws and regulations undermine the very essence of deliberative democracy — robust exchange of potential controversial views — and leads to potential untrammeled majoritarianism. Worse yet, legalistic attempts to shut down hate speech can end up creating martyrs for fringe movements and, paradoxically, end up fueling conspiracy theories. (p. 80)

The Essential Role of Counter-speech & Education

Yet, “the challenge of defining hate speech shouldn’t lead us to give up on solving the problem,” argue Foxman and Woff. (p. 53) We must, they argue, refocus our efforts around “education as a bulwark of freedom.” (p. 170)  Digital literacy — teaching citizens respectful online behavior — is the key to those education efforts.

A vital part of digital literacy efforts is the encouragement of counter-speech solutions to online hate. “[T]he best anecdote to hate speech is counter-speech – exposing hate speech for its deceitful and false content, setting the record straight, and promoting the values of respect and diversity,” note Foxman and Wolf. (p. 129)  Or, as the old saying goes, the best response to bad speech is better speech. This principle has infused countless Supreme Court free speech decisions over the past century and it continues to make good sense. But we could do more through education and digital literacy efforts to encourage more and better forms of counter-speech going forward.

“Counter-speech isn’t only or even primarily about debating hate-mongers,” they note. “It’s about helping to create a climate of tolerance and openness for people of all kinds, not just on the Internet but in every aspect of local, community, and national life.” (p. 146) This is how digital literacy becomes digital citizenship. It’s about forming smart norms and personal best practices regarding beneficial online interactions.

Intermediary Policing

What more can be done beyond education and counter-speech efforts? Foxman and Wolf envision a broad and growing role for intermediaries to help to police viral hate. “We are convinced that if much of the time and energy spent advocating legal action against hate speech was used in collaborating and uniting with the online industry to fight the scourge of online hate, we would be making more gains in this fight,” they say. (p. 121) Among the steps they would like to see online operators take:

• Establishing clear hate speech policies in their Terms of Service and mechanisms for enforcing them;
• Making it easier for users to flag hate speech and to speak out against it;
• Facilitating industry-wide education and best practices via multi-stakeholder approaches; and
• Limiting anonymity and moving to “real-name” policies to identify speakers.

De-anonymization / Real-name policies

Most of these are imminently sensible solutions that should serve as best practices for online service providers and social media platform operators. But their last suggestion for sites to consider limiting anonymous speech will be controversial, especially at a time when many feel that privacy is already at serious risk online and when some critics argue that intermediaries already “censor” too much content as it is. (See, for example, this Jeff Rosen essay on “The Delete Squad: Google, Twitter, Facebook and the New Global Battle over the Future of Free Speech” and this Evgeny Morozov editorial, “You Can’t Say That on the Internet”).

Anonymous online speech certainly facilitates plenty of nasty online comments. There’s plenty of evidence — both scholarly and anecdotal — that “deindividuation” occurs when people can post anonymously.  As Foxman and Wolf explain it: “People who are able to post anonymously (or pseudonymously) are far more likely to say awful things, sometimes with awful effects. Speaking from behind a blank wall that shields a person from responsibility encourages recklessness – it’s far easier to hit the ‘send’ button without a second thought under those circumstances.” (p. 114)

On the other hand, there needs to be a sense of balance here. We protect anonymous speech for the same reason we protect all other forms of speech, no matter how odious: With the bad comes a lot of good. Forcing all users to identify themselves to get at handful of troublemakers is overkill and it would result in the chilling of a huge amount of legitimate speech.

Nonetheless, many governments across the globe are pushing for restrictions on anonymous speech. As Cole Stryker noted in his recent book, Hacking the Future: Privacy, Identity, and Anonymity on the Web, “we are seeing is an all-out war on anonymity, and thus free speech, waged by a variety of armies with widely diverse motivations, often for compelling reasons.” (p. 229). Stryker is right. In fact, less than two weeks ago, a French court ordered Twitter to produce the names of the people behind anti-Semitic tweets that appeared on the site last year.  Meanwhile, plenty of academics, including many here in the U.S., have stepped up their efforts to ban or limit online anonymity. If you don’t believe me, I suggest you read a few of the chapters of The Offensive Internet: Speech, Privacy, and Reputation (Saul Levmore & Martha C. Nussbaum, eds.). It’s a veritable fusillade against anonymity as well as Section 230, the U.S. law that limits liability for intermediaries who post materials by others.

In Viral Hate, Foxman and Wolf stop short of suggesting legal restrictions on anonymity, preferring to stick with experimentation among private intermediaries. One of the book’s authors (Wolf) penned an essay in The New York Times last November (“Anonymity and Incivility on the Internet”) suggesting that while “this is not a matter for government… it is time for Internet intermediaries voluntarily to consider requiring either the use of real names (or registration with the online service) in circumstances, such as the comments section for news articles, where the benefits of anonymous posting are outweighed by the need for greater online civility.” Specifically, Wolf wants the rest of the Net to follow Facebook’s lead: “It is time to consider Facebook’s real-name policy as an Internet norm because online identification demonstrably leads to accountability and promotes civility.”

These proposals prompted strong responses from some academics and average readers who decried the implications of such a move for both privacy and free speech. But, again, it is worth reiterating that Foxman and Wolf do not call for government mandates to achieve this. “[T]his notion of promulgating a new standard of accountability online is not a matter for government intervention, given the strictures of the First Amendment,” they argue. (p. 117)

However, Foxman and Wolf do suggest one innovative alternative that merits attention: premium placement for registered commenters. The New York Times and some other major content providers have experimented with premium placement, whereby those registered on the site have their comments pushed up in the queue while other comments appear down below them. On the other hand, I don’t like the idea of having to register for every news or content site I visit, so I would hope such approaches are used selectively. Another useful approach involves letting users of various social media sites and content services to determine whether they wish to allow comments on their user-generated content at all. Of course, many sites and services (such as YouTube, Facebook, and most blogging services) already allow that.

Conclusion

There are times in the book when Foxman and Wolf push their cause with a bit too much rhetorical flair, as when they claim that “Hitler and the Nazis could never have dreamed of such an engine of hate (as the Internet”). (p. 10)  Perhaps there is something to that, but it is also true that Hitler and the Nazis could have never of dreamed of a platform for individual empowerment, transparency, and counter-speech such as the Internet. It was precisely because they were able to control the very limited media and communications platforms of their age that the Nazis were about to exert total control over the information systems and create a propaganda hate machine that had no serious challenge from the public or other nations. Just ask Arab dictators which age they’d prefer to rule in! It is certainly much harder for today’s totalitarian thugs to keep secrets bottled up and it is equally hard for them to spread lies and hateful propaganda without being met with a forceful response from the general citizenry as well as those in other nations. So the “Hitler-would-have-loved-the-Net” talk is unwarranted.

I’m also a bit skeptical of some of the metrics used to measure this problem. While there is clearly plenty of online hate to be found across the Net today, efforts to quantify it inevitably run right back into the same subjective definition problems that Foxman and Wolf do such a nice job explaining throughout the text. So, if we have such a profound ‘eye-of-the-beholder’ problem at work here, how is it that we can be sure that quantitative counts are accurate?  That doesn’t mean I’m opposed to efforts to quantify online hate, rather, we just need to take such measures with a grain of salt.

Finally, I wish the authors would have developed more detailed case studies of how companies outside the mainstream are dealing with these issues today. Foxman and Wolf focus on big players like Google, Facebook, and Twitter for obvious reasons, but plenty of other online providers and social media operators have policies and procedures in place today to deal with online hate speech. A more thorough survey of those differing approaches might have helped us gain a better understanding of which policies make the most sense going forward.

Despite those small nitpicks, Foxman and Wolf have done a great service here by offering us a penetrating examination of the problem of online hate speech while simultaneously explaining the practical solutions necessary to combat it. Some will be dissatisfied with their pragmatic approach to the issue, feeling on one hand that the authors have not gone far enough in bringing in the law to solve these problems, while others will desire a more forceful call for freedom of speech and just growing a thicker skin in response to viral hate.  But I believe Foxman and Wolf have struck exactly the right balance here and given us a constructive blueprint for addressing these vexing issues going forward.

I posted a rant here over the weekend about those who were engaging in what I believed was excessive whining about Apple’s moves to restrict pornographic content in the Apple Apps Store. (see: “Apple’s App Store, Porn & ‘Censorship‘”) It received a surprising number of comments and featured a back and forth between me and our old TLF blogging colleague Tim Lee. Tim has continued the discussion over on his personal blog and argued that:

[T]he key thing to focus on isn’t the abstract question of whether porn on iPhones is good or bad. The key thing to recognize is how fundamentally broken the process itself is. “Overtly sexual content” is a concept that seems clear in the abstract but gets leaky once you have to actually classify tens of thousands of applications. Apple is going to make mistakes, and when they do hapless developers are going to find their apps blocked, often with little explanation or recourse. Also, Apple is going to change its mind periodically, and when they do the affected developers are going to find their hard-earned apps rendered worthless overnight. This is no way to run a technology platform. It’s unfair to developers and it doesn’t scale. And this is precisely why it would be better for everyone if Apple could come up with an application distribution scheme that didn’t require so much central planning.

I followed up with a comment over there, but just thought I would repost it here, in which I argue that Tim is underestimating how difficult this task of defining acceptable content is and that he is also downplaying Apple’s legitimate editorial discretion to establish standards for the community platform they provide. I’m also uncomfortable with Tim’s constant use of “central planning” rhetoric to describe almost any private, proprietary model of institutional governance or platform development he doesn’t seem to agree with, but I have not elaborated on that point here. Anyway, here’s how I responded over on his blog:

So, when you say “Apple could come up with an application distribution scheme that didn’t require so much central planning,” what exactly does that mean? Apple already has Terms of Service, but there are ALWAYS going to be things in ANY terms of service that are fuzzy. “Security,” “stability,” “safety,” etc.. these are not exercises in exact science. So what would you have Apple do in this case?

How about this: “Penetration-based sexual images, videos, and applications shall not be allowed in the Apple Apps Store.” That seems like a pretty easy rule and fairly unambiguous. But everything after hard-core porn gets more and more difficult to define. What about an app that is just completely naked women pole-dancing? It’s not hard-core porn, but I bet Apple would want to keep it off their platform. Writing a rule that covers that but not a Sports Illustrated Swimsuit Edition app might be challenging.

The point here is that (a) crafting terms of service for acceptable content/conduct on media/communications platforms is always difficult, but (b) Apple and others should have the editorial discretion to do so. If customers don’t like it, they can (and do) complain vociferously. And sometimes companies change their editorial approach in response to such complaints. Other times, however, they will be under just as much pressure from other forces to to the exact opposite.

So, when you say: “The key thing to recognize is how fundamentally broken the process itself is,” you seem to fail to appreciate how this process is pretty damn challenging for any platform developer. The only way this becomes “easy” is if the platform owner just takes any and all content people throw at them. Libertarian-minded people like the two of us probably wouldn’t mind that. But the community of interests that Apple serves is broad and diverse. They are in the same boat as a traditional newspaper editor or broadcaster who was trying to juggle a lot of interests at once and inevitably making some folks unhappy in the process. But that doesn’t mean the process is “broken”; it just means it is difficult.

Apple should be more transparent about what they do and do not allow in the Apps Store and strive for brighter line rules. But even as they do, some folks will still complain. And, luckily, there’s always another place to go for service.

I really appreciate the venture capitalists (VCs) in Silicon Valley subsidizing my soapbox at Twitter.  Seriously, it is an absolutely awesome platform for getting a message out to the masses.  But at some point I worry that the gravy train will come to an end and that users will have to start picking up part of the tab.  After all, will those VCs continue to subsidize Twitter if it never turns a profit?  According to the Wikipedia entry about Twitter:

In total, Twitter has raised over US$57 million from venture capitalists. The exact amounts of funding have not been publicly released. Twitter’s first round of funding was for an undisclosed amount that is rumored to have been between $1 million and $5 million. Its B round of funding in 2008 was for $22 million and its C round of funding in 2009 was for $35 million from Institutional Venture Partners and Benchmark Capital along with an undisclosed amount from other investors including Union Square Ventures and Spark Capital^. Twitter is backed by Union Square Ventures, Digital Garage, Spark Capital, and Bezos Expeditions.

Again, thank you VCs!  But, like them, I do wonder when and how Twitter will bring in some cash.  Is there a “freemium” model that could work?  Perhaps.  “Pro” or corporate accounts have been rumored to be in the works.  Getting someone else to pick up the tab that way might bring in enough cash for Twitter to allow the free ride to continue for the rest of us.  But what about advertising?  It’s been the “mother’s milk” of most online media and platforms for some time now, and Twitter seems perfectly suited to insert a few banner ads or contextual ads here and there.  It could be happening sooner than you think. Austin Modine of The Register notes in a new piece, “Twitter ‘Leaves Door Open’ for Targeted Ads,” that:

Twitter has always been reluctant to commit to serving advertisements as a revenue model – the way most web start-ups today stay afloat. In the past, the website has expressed more interest in developing add-on tools and services for companies and professionals. Yet [Twitter cofounder Biz Stone] … has never ruled out the possibility.

Modine reports that Twitter recently changed its Terms of Service in such a way that makes this more likely.  Here is what the new Terms of Service say:

The Services may include advertisements, which may be targeted to the Content or information on the Services, queries made through the Services, or other information. The types and extent of advertising by Twitter on the Services are subject to change. In consideration for Twitter granting you access to and use of the Services, you agree that Twitter and its third party providers and partners may place such advertising on the Services or in connection with the display of Content or information from the Services whether submitted by you or others.

As Tony Bradley of PC World argues:

Why not? Advertising is the grease that keeps the Internet revenue engine running smoothly. Its tried and true. Internet entities like Google have grown from the embryo stage to technology behemoth primarily by feasting on a steady diet of ad revenue.

Absolutely correct.  Of course, that probably won’t stop some people — especially the privacy zealots — from whining about commercial exploitation, mind manipulation, and so on — especially if Twitter really does make their ads highly targeted.  But that’s the natural evolution of things for Twitter and similar sites, and it’s very pro-consumer because it supports the continued provision of service at no charge to the vast majority of users. That’s especially important for a communications platform like Twitter, which carries a massive amount of non-commercial speech, as Berin Szoka and I pointed out in our papers, “Online Advertising & User Privacy: Principles to Guide the Debate,” and “Targeted Online Advertising: What’s the Harm & Where Are We Heading?  It’s essential that policymakers not interfere with the evolution of business models that could support speech-enhancing platforms like Twitter going forward.  This is why we always point out the relationship between economic regulation and speech regulation. Burdensome regulation could stifle the “technologies of freedom” like Twitter and diminish our speech opportunities in the process.

Well, here we go again. Harvard’s Jonathan Zittrain has penned another gloomy essay about how “freedom is at risk in the cloud” and the future of the Internet is in peril because nefarious digital schemers like Apple, Facebook, and Google are supposedly out to lock you into their services and take away your digital rights.  And so, as I have done here many times before (see 1, 2, 3, 4, 5 + video!), I will offer a response arguing that Jonathan’s cyber-Chicken Little-ism is largely unwarranted.

Zittrain’s latest piece is entitled “Lost in the Cloud” and it appears in today’s New York Times.  It closely tracks the arguments he has set forth in his book The Future of the Internet–And How to Stop It, which I named the most important technology policy book of 2008, but not because I agreed with its central thesis.  Zittrain’s book and his new NYT essay are the ultimate exposition of Lessigite technological pessimism.  I don’t know what they put in the water up at the Berkman Center to make these guys so remarkably cranky and despondent about the future of of the Internet, but starting with Lawrence Lessig’s Code in 1999 and running through to Zittrain’s Future of the Internet we have been forced to endure endless Tales of the Coming Techno-Apocalypse from these guys.  Back in the late 90s, Prof. Lessig warned us that AOL and some other companies would soon take over the new digital frontier since “Left to itself, cyberspace will become a perfect tool of control.”  Ah yes, how was it that we threw off the chains of our techno-oppressors and freed ourselves from that wicked walled garden hell?  Oh yeah, we clicked our mouses and left! And that was pretty much the end of AOL’s “perfect control” fantasies. [See my recent debate with Prof. Lessig over at Cato Unbound for more about this “illusion of perfect control,” as I have labeled it.]

But Zittrain is the equivalent of the St. Peter upon which the Church of Lessigism has been built and, like any good disciple, he’s still vociferously preaching to the unconverted and using fire and brimstone sermons to warn of our impending digital damnation. In fact, he’s taken it to all new extremes. In Future of the Internet, Jonathan argues that we run the risk of seeing the glorious days of the generative, open Net and digital devices give way to more “sterile, tethered devices” and closed networks. The future that he hopes to “stop” is one in which Apple, TiVo, Facebook, and Google — the central villains in his drama — are supposedly ceded too much authority over our daily lives because of a combination of (a) their wicked ways and (b) our ignorant ones.

First, let’s talk about those corporate wicked ways. Jonathan waxes nostalgic about a mythical time not long ago when technologies were supposedly far more “open and generative” than they are now. In Jonathan’s revisionist history of the digital olden times, we are told that the early PC era was somehow the model for openness and generativity.  That’s damn peculiar to an old-timer like me because all I remember from those days is the tall stacks of proprietary programs sitting on my desk + a keyboard and other peripherals that were all hard-wired to the monitor + a guy named Bill Gates who was typically likened to the Darth Vader of openness.  In Zittrain’s retelling of things, however, those Digital Dark Ages have suddenly become the good ol’ days!  The real threat to openness and digital freedom, however, is now right before us.. or just over our head it seems. It’s up there in the cloud, he tells us. The freedom that “tinkerers and hackers” once enjoyed in those glorious good ‘ol days “is at risk in the cloud, where the vendor of a platform has much more control over whether and how to let others write new software,” Zittrain says.

Excuse me? Why would it be the case that generativity is now somehow more at risk today than it was in the era where we had to wake up every morning and wait for a C:\ prompt before loading an operating system or $50 spreadsheet software via three different 5.25 floppy disks?  [Seriously, does anybody else besides me remember how much those days sucked?]  Well, it turns out that the answer to that question goes back to the ignorant ways of the digital hoi polloi that I mentioned above.  You see, we are all sheep who just don’t know what’s good for us. Or here’s how Jonathan puts it, albeit spinning it in such a way to make his elitist pronouncements somewhat easier to swallow:

The market is churning through these issues. […] But the dynamics here are complicated. When we vest our activities and identities in one place in the cloud, it takes a lot of dissatisfaction for us to move. And many software developers who once would have been writing whatever they wanted for PCs are simply developing less adventurous, less subversive, less game-changing code under the watchful eyes of Facebook and Apple.

Ooooo.. spooky!  Beware ye naive Netizens, for “the watchful eyes of Facebook and Apple” are upon you!

No, seriously, what the hell does all that mean and what the heck is the problem here? By no conceivable stretch of the imagination can one paint a portrait of the Digital Dark Ages for me that makes that era look better than the Digital Renaissance we are now living through. There’s never been a better time to be tinkerers, hackers, or just regular citizen-consumers in cyberspace.

So, what gives?  Why is it that two smart guys like Lessig and Zittrain always seem to fear to worst even in the midst of a cornucopia of cyber-choices?  It comes back to the hyper-pessimism and remarkable short-sightedness of the Lessig-Zittrain worldview. In terms of their myopia, here’s how I put it in that recent debate with Lessig:

Lessig failed to appreciate that markets are evolutionary and dynamic, and when those markets are built upon code, the pace and nature of change becomes unrelenting and utterly unpredictable. …  a largely unfettered cyberspace has left digital denizens better off in terms of the information they can access as well as the goods and services from which they can choose. Oh, and did I mention it’s all pretty much free-of-charge? Say what you want about our cyber-existence, but you can’t argue with the price!

But there’s something else which drives their reasoning, and for lack of a softer term I will just label it what I think it really is: Elitism. At the end of the day, if we are to believe the scary tales that Zittrain and Lessig try to weave in their work we have to accept the notion that neither companies not consumers can really be trusted to make sensible decisions.  Basically, cyber-companies are only out to screw us and we’re just too stupid to realize it. Luckily for us, however, the fine folks up at Berkman know what’s best for us and, guess what, it’s not Facebook, Apple, TiVo, or Google!  These companies are apparently guilty of the heinous crime of giving consumers too much of what they want, and we can’t allow that because “it takes a lot of dissatisfaction for us to move.”  Or as Jonathan noted in an earlier essay:

I think we can get locked into these platforms as we (rightly, unfortunately) fear the wildness of the open Internet and general purpose PC, and as we shift and accumulate more and more of our data and relationships there. After the markets coalesce to these tamer gated communities, governments can later come along and insist that these platforms be tuned towards surveillance and control far more successfully than the wilder Internet that preceded them.

In other words, we’re lazy fools. Or perhaps maybe — just maybe — we’re reasonably happy with the choices we have been given and don’t have a good reason to flee some of our current favorite providers. My God, could it be that markets work!  No, no, no, Zittrain tells us, for these “tamer gated communities” (tamer than what?) have lulled us into a sleep as they concoct a plan to “tame” the Net, quash software innovation, and then invite the government in to take all our info or property.

So, we’re right back at Lessig’s AOL horror story from 1999, except now it’s Facebook, Apple, and Google staring in the role of our corporate captors — again, even though they offer us constantly improving services and constantly falling prices (and are completely free of charge in the case of Facebook and Google).  Regardless, the fear of lock-in and what Lessig and Zittrain refer to as the “regulability” of some of these services and platforms, leads them to argue that something ominous lurks around every cyber-corner.  Consequently, just as Lessig counseled a fair degree of government oversight and intervention back in ’99 to deal with the AOL era (non-)problem of walled gardens, a decade later, Zittrain is ready to call in the code cops to correct for our foolish allegiances to the latest crop of popular software providers or media platforms:

If the market settles into a handful of gated cloud communities whose proprietors control the availability of new code, the time may come to ensure that their platforms do not discriminate. Such a demand could take many forms, from an outright regulatory requirement to a more subtle set of incentives — tax breaks or liability relief — that nudge companies to maintain the kind of openness that earlier allowed them a level playing field on which they could lure users from competing, mighty incumbents. We’ve only just begun to measure this problem, even as we fly directly into the cloud. That’s not a reason to turn around. But we must make sure the cloud does not hinder the creation of revolutionary software that, like the Web itself, can seem esoteric at first but utterly necessary later.

Sorry, but where is the evidence warranting this sort of techno-pessimism?  I just can’t buy into the story that Zittrain spins: That some folks in the cloud are currently “hinder[ing] the creation of revolutionary software” or that one day soon we’ll all wake up and find our digital lives and property completely controlled by cloud-based companies and we will be utterly without recourse.  Honestly, is Google locking you down? Did someone make you sign up for all their free services? Any reason you can’t use a second e-mail service or a different search provider?  Likewise, did Steve Jobs force you to buy an iPod or an iPhone?  I would think we should be celebrating the fact that in just one year’s time there has been 1.5 Billion downloads of over 65,000 free and paid apps by consumers in 77 countries.  I call that progress — and I don’t even own an iPhone!  Again, nothing is stopping consumers from exercising their right to choose from many other products besides Apple, Google, and Facebook, just as I have.

Now, do companies make mistakes? Of course they do. All the time, in fact. Amazon’s bone-headed book deletion this week is the latest exhibit. But people learn from these things. And companies do as well. Things evolve. Companies correct their mistakes or people bolt. AOL lost 20 million paying customers and billions in market share in the span of just a few years. Time Warner is still cursing the day they made that deal and has now spun it off entirely. Last time I checked, the old AOL model wasn’t a favorite among most web vendors. Moreover, does anyone really think there’s a future for Amazon if they make it a habit of deleting digital books on people’s Kindles?  Frankly, if you want more competition in the digital book market, you should be inviting Amazon to play such silly reindeer games. It would be the best incentive ever for people to switch! But the fact remains, that’s the exception to the rule. Locking down customers or playing games with their digital goodies isn’t a viable long-term business model that I see many firms adopting these days. And if they do, they are screwing themselves.

This same principle applies to Facebook and the fear that they will hold onto customers or their data.  When they get too heavy-handed, people respond. Does anyone remember the Beacon incident or the flare-up of Facebook’s changing Terms of Service?  People got pissed, and the company listened. That’s a healthy sign that consumers have real power in the social networking market.  Moreover, how hard is it to escape from Facebook Land? It’s not a maximum security data prison. I went there for all of about a day, found it wasn’t for me, and then deleted everything and set up camp over at LinkedIn instead.  (Yes, that’s right, I do NOT have a Facebook account.  Somehow the sky hasn’t fallen on me.  People still find me just fine.)

So what about those solutions that Zittrain recommends for these new non-problems? In Future of the Net, he was surprisingly short on specific solutions. But in today’s NYT editorial he gets a bit more concrete with that suggestion “the time may come to ensure that their platforms do not discriminate,” possibly through regulation or other Sunstein-ian “nudges.” Here we have the truly frightening prospect of a handful of faceless bureaucrats becoming Facebook’s overlords.  I’m not even sure what it means to have the government “ensure they do not discriminate,” but I really don’t want to find out.  For Google it’s a lot easier to figure out what Zittrain’s medicine will taste like: Can you say “Right of Reply Mandates & a Fairness Doctrine for the Internet?”  Frank Pasquale and Oren Bracha can and they’ve already sketched the blueprint for what a new Federal Search Commission might look like to address “search bias.” [See Berin’s critique here. ]  And for Apple, non-discrimination at the device level would take the form of forced commoditization of the iPhone.  They’d be required to give it to any carrier that wanted it on government-approved terms and the iPhone Store would be regulated like grain elevator and subjected to common carrier rules.  You know, because that model worked soooo well in other contexts.  And then, just for good measure, we would layer on a bunch of restrictions on all these companies in the form of online advertising regulations.  We can’t have the mindless sheep of the Internet being subjected to more targeted ads, after all!   To be clear, Zittrain hasn’t recommended these specific regulatory remedies yet, but this is where his logic is taking us. The old regulatory playbook will become the new regulatory playbook.

OK, now that I have been so snarky and dismissive of most of what Jonathan says in his editorial today and in his book, let me close by noting where I (partially) agree with him and Lessig. Are some digital technologies “regulable” such that our government could coerce them to divulge data or personal information?  Yes, this is true.  But here’s how I addressed that concern in my recent Cato Unbound debate with Lessig:

[cyber-libertarians] are in league with Lessig [and Zittrain] when it comes to the forcible surrender of personal information or technological capabilities to government officials. When the Department of Justice comes knocking on Google’s door asking for records of our search histories to see who’s looking for online porn (or anything else), that’s a problem. The “deputization of the middleman” has long been a legitimate fear because, with the threat of liability hanging over their necks, online intermediaries could be coerced into giving the state information that leads to fines, imprisonment, censorship, or some other type of government harassment. However, this is a problem we should handle by putting more constraints on our government(s), not by imposing more regulations on code or coders. While, as a general principle, I think it wise for companies to minimize the amount of data they collect about consumers or websurfers, we need not force that by law. And we should certainly hold companies to high standards when it comes to data security and breach. But, again, the way to deal with the “regulability” threat that Lessig and Zittrain raise is to tightly limit the powers of government to access private information through intermediaries in the first place. Most obviously, we could start by tightening up the Electronic Communications Privacy Act and other laws that limit government data access. More subtly, we must continue to defend Section 230 of the Communications Decency Act, which shields intermediaries from liability for information posted or published by users of their systems, because (among many things) such liability would make online intermediaries more susceptible to the kind of back-room coercion that concerns Lessig. If we’re going to be legislating about the Internet, we need more laws like that, not those of the “middleman deputization” model.

But that is the extent of my agreement with Lessig and Zittrain. All this techno-pessimism emanating out of Berkman and their books is largely unwarranted.  I suppose one could argue that they are just sounding alarms in the hope of preemptively checking bone-headed corporate moves, but the problem is that they increasingly back up their pessimism with large doses of heavy-handed political prescriptions to keep the Net “healthy.”  Instead, they’ll just poison the wonderfully free waters of cyberspace with the same regulatory nonsense that has strangled traditional media markets for decades. And unless your idea of cyber-nirvana resembles the broadcast marketplace, you have to think that won’t benefit consumers one bit.

Signed,

An Unrepentant Techno-Optimist

Facebook sparked a major user uprising when it amended its terms of service earlier this month to grant the social networking site greater licensing rights over user-submitted content. The implications of Facebook’s amended Terms of Use were originally uncovered by The Consumerist this past Sunday in a story entitled, “Facebook’s New Terms Of Service: ‘We Can Do Anything We Want With Your Content. Forever.'” The title pretty much sums up what the controversy was all about: under Facebook’s amended Terms of Use, even after a user deletes his Facebook account, Facebook would retain its license to distribute nearly all types of user-submitted content including photos and videos.

Predictably, news of Facebook’s expanded licensing rights made many users angry, with several Facebook groups against Terms of Use modifications popping up, attracting thousands of members overnight. As is often the case with juicy reports like this one, news of the Facebook fiasco spread throughout the blogosphere rapidly, eventually making its way to major tech sites and even the main page of CNN.com. By yesterday afternoon, a snapshot of Mark Zuckerberg‘s face was plastered on Fox News Channel, next to an excerpt of an entry he posted to Facebook’s blog in defense of the social networking site’s new terms.

Facebook’s explanation of its new terms seemed reasonable enough: even after a user quits Facebook, material that user has posted on friends’ walls and other messages the user has sent to others may remain available. Facebook also noted that its perpetual license only allowed the site to use material in accordance with departed users’ privacy settings (presumably at the time of their departure). Under the new terms, therefore, Facebook would still be required to respect albums marked as private–and ensure they stay that way.

But the seemingly stark contrast between Facebook’s attempts to justify the changes to its terms of use and, well, the actual language of terms themselves left many observers dissatisfied. In theory, if a user who had a Facebook photo album open to her entire network were to delete her account, Facebook would retain license to make those photos available to members of her network in perpetuity. And depending on how you parse the amended terms, Facebook could even use your profile pic in ads for the social network long after you terminated your Facebook account.

Would Facebook actually do any of these things? Probably not. As Zuckerberg pointed out, Facebook “wouldn’t share your information in a way you wouldn’t want.”  Taking this a step further, I think that even if Facebook saw a chance to earn a quick buck or two by selling departed users’ images, such a move would undoubtedly spur user backlash orders of magnitude more severe than anything the site has experienced before. Instead of thousands of users in arms, there’d be millions, and a mass exodus of users would be a very real possibility. Despite Facebook’s awesome success in the social networking arena, there are lots of robust alternatives to Facebook out there that would love nothing more than to provide a home to disaffected Facebook users. Facebook’s execs know all of this, which is why I highly doubt the site would ever commit any of the violations that some have speculated might be possible under the new terms.

Of course, none of these assurances–however comforting they may be–would hold up in court. Even though Facebook probably wouldn’t ever misuse its license to user content, it could under its new terms. That fact alone is unsettling to many users.

All these concerns were rendered largely moot this morning when Facebook announced that it had decided to revert to a previous version of its Terms of Use, thereby nullifying the changes responsible for the uprising. Facebook’s move isn’t especially surprising, nor is it unprecedented. Back in late 2007, Facebook unveiled an advertising service called Beacon that tracked the buying habits of Facebook users for advertising purposes. Beacon allowed your friends to see your purchasing habits, sparking privacy concerns and media scrutiny. After a few weeks, Facebook gave in to pressure and began allowing users to opt-out of Beacon entirely by changing their privacy settings.

The peaceful resolution of the latest Facebook fiasco further hammers home an argument that many of us TLFers have made time and time again: especially on the Web, companies have little choice but to listen to their users, and firms often find that they can’t get away with unsavory practices that might have flown under the radar in another era without spurring user backlash and, worse still, bad PR. As Bob Garfield aptly put it, when disputes between consumers and businesses arise in age of the Internet and the blogosphere, ” the Herd Will Be Heard.”

If Facebook had not relented, there’s a chance government would’ve gotten involved. Yesterday, the Electronic Privacy Information Center had announced it was “readying a complaint” against Facebook with the Federal Trade Commission. And even if that complaint hadn’t gone anywhere, chances are some member of Congress would have seen it fit to “investigate” social networking practices and send Facebook a detailed questionnaire about its content licensing policies.

But as the user uprising and Facebook’s quick reaction illustrate, markets are perfectly capable of resolving many kinds of disputes quickly and efficiently. Regulators are the dinosaurs of the digital era. Even if the FTC had acted on EPIC’s planned complaint, any regulatory ruling probably would not have emerged until long after the fiasco had been resolved–either by Facebook relenting, or by users ditching Facebook for a competing social network.

We’ll never know what would have happened had Facebook held firm, but if history is any guide, keeping regulators at bay may well have been a wise move on Facebook’s part.

Important article in the New York Times yesterday in which Brian Stelter wondered if, in the wake of the Lori Drew verdict this week, “Is lying about one’s identity on the Internet now a crime?” It’s still unclear if the case will have such profound ramifications, but it has many quite worried. Stelter quotes occasional TLF contributor Andrew Grossman, who is Senior Legal Policy Analyst at the Heritage Foundation. Andrew penned an outstanding paper on the case for Heritage in mid-September: “The MySpace Suicide: A Case Study in Overcriminalization.” He summarized the paper and the important issues at stake in the case in this post for the TLF: “Go to Jail for Online Anonymity: The End of Internet Freedom?”  Make sure you read them. I wholeheartedly agree with the concerns Andrew outlines in those essays.

You’ll also want to check out Orin Kerr’s analysis of the case over at the Volohk Consipiracy as well as his tounge-and-cheek piece today about changing the blog’s Terms of Service in light of the decision. I’ve been more focused recently on the threat posed to online anonymity by mandatory online age verification, but this case could have equally important ramifications.