Opposition to the Silicon Valley Principles

Here's a paper I did in response to the conference to draft the Silicon Valley Principles -- the aptly-named "rightscon".

1. My recommendation is to reject the Silicon Valley Principles completely as they are:

a) insufficiently grounded in a rights-based approach rooted in national and international rights-protecting institutions, namely courts and UN treaty bodies;

b) based on the UN business principles which aren’t binding, have faced their own controversies, and were decided for a different purpose, namely to regulate capitalist trans-national corporations by actors interested in social justice;

c) unnecessary, as there are perfectly good existing international covenants, norms and jurisprudence in UN treaty bodies on freedom of expression, as well as US Constitutional law and Supreme Court decisions to protect freedom of speech;

d) potentially damaging, as the effort to negotiate them in the UN multilateral setting in particular could lead to endless wrangles such as we’ve seen over the “defamation of religion” (or historically, the “new world information order” debates at UNESCO). Only recently has the “defamation of religion” controversy been settled at the UN Human Rights Council, ending the cover for states misusing “blasphemy laws” to control speech, with Resolution 16/18. This will not hold for long if “the Internet as a human right” begins to strain that essentially fragile consensus; 

e) the chief motivation for big Internet technology companies in Silicon Valley is unrelated to human rights, but reflects their own business interests. Indeed, their lobbyists deliberately confuse the issues, and undermine them in conscious efforts to misleadingly convert issues of corporate power, intellectual property rights and prosecution of crime into “freedom of expression issues”.

Essentially, the flaw at the heart of these principles is this: unlike groups such as Human Rights Watch which monitor existing international norms set by states and international institutions such as the UN treaty bodies, and call on states to abide by these existing norms, Silicon Valley is saying to us: “let us engineers decide for you”. This technologist-centric approach is endorsed as much by the nonprofit group Access, which promotes “Internet access as a human right” as it is by Vincent Cerf of Google, who repudiates the “human right to Internet connection” by citing the ostensibly good stewardship of technology companies.

 2. The chief threats to the Internet, as can be seen from the monitoring and reporting of groups like Reporters without Borders, Committee to Protect Journalists and Freedom House come from authoritarian governments that restrict free access to the Internet through blocking sites, monitoring users, intimidation, and even physical assaults as well as sentencing and imprisonment under restrictive laws about “defamation of the state” or “insulting the honor and dignity of the nation” or “extremism” or “threat to national security”. In most cases, legislative and technical barriers are caused by states, not by corporations, or if they do involve IT corporations, they are state-owned or state-controlled.

 A. To put it quite starkly: the chief problem of Internet freedom came when pro-Kremlin thugs brutally assault critical Russian blogger Oleg Kashin, putting him into a coma, or when Egyptian blogger Khaled Said was pulled from an Internet café and then beaten to death by secret police. It’s when Turkmenistan blocks all of Youtube or Tajikistan blocks Facebook or Kazakhstan blocks Live Journal.

It’s not when my son finds the connection slow when he tries to download pirated copies of the latest Lost episode or can’t get all his illegal music videos from Megaupload. We need to be crystal clear on these distinctions and place priorities and resources where they really belong, and not be gulled by Silicon Valley corporations into a helping their public relations campaign for their business needs, which involve the “liberation” of content and coercing the public into lawless realms only they control.

3. The movement for corporate responsibility in this country is very strong and experienced and has had significant successes with the garment and extractive industries in particular. Yet the same spirit of criticism is never available when it comes to the lords of cyberspace, multi-billion dollar companies like Google and Facebook and Twitter that control a good share of our time, our communications, our relationships, our work, our data.  

A. In the past, corporate responsibility movements initiated outside of companies in civil society and were inspired in particular by victims of pollution or exploitation. Not so this exercise, where the corporate executives themselves, and their fellow techno-utopian pioneers like John Perry Barlow (see his troubling “Manifesto in Cyberspace”) and software designer Mitch Kapor of Electronic Frontier Foundation are deciding the norms, not the average user (i.e. not power user) or other institutions in society. This effort takes a very soft touch to some of the severely troubling problems of these newly-powerful electronic entities – it is basically an effort to pre-empt what many would see as legitimate regulation of any criminal activity in society – in the same way that traditional broadcast media, movies, and video games are regulated and rated for maturity, or in the same way that traditionally law-enforcement gains lawful access to telephone communications to stop crime.

B. Furthermore, the corporate responsibility movements targeting the clothing or oil industries had international and national laws and means of both measurement and justiciability that led to their success. Air and water pollution can be measured; poor working conditions with long hours or no light or fire exits are all measurable and can be litigated. The measures of freedom of expression and societal tastes are harder to define even when they broadly comply with First Amendment or Article 19 norms. In fact, Silicon Valley essentially rejects the common-law approach of case law and precedent interpreted by constitutional courts or courts such as the European Court on Human Rights, and with their draconian TOS regimes, prefer the civil-law approach of the letter of the law and the powerful magistrate.

C. Case examples: Facebook may decide that for the sake of most of their customers in most countries, they will ban nudity, including even the baring of breasts by nursing mothers, while 4chan.org may not police nudity. Or Apple may bar the violent intifada ap, while CREDO may permit it. As private entities, these companies can’t be accused of “censorship” but are merely interpreting their own terms of service by their own lights in the enjoyment of their freedom of association. As non-state actors, they haven’t “violated” the First Amendment and are still compliant with Article 19. There isn’t a good case against them.

The story of Amazon refusing to store WikiLeaks cables is widely misrepresented as a “chilling effect on speech” by “the US government” when in fact, it was about Sen. Joseph Lieberman exercising the kind of oversight over corporations that any democratically-elected Congress person should be expected to enjoy (and which some Internet freedom fighters were only too happy to see exercised by Sen. Durbin when he called on Facebook to recognize pseudonymous accounts. Lieberman simply called on Amazon to observe their own terms of service, whereby you warrant that your content is your own when you upload it to Amazon servers. WikiLeaks content consists of stolen classified government cables, not their own property. Amazon was not under “government pressure” when it exercised good business judgement for the sake of its business and all of its customers by refusing to engage in suspected criminal activity for which a criminal investigation is underway. The same applies to MasterCard and PayPal who refused to accept payments to support WikiLeaks further incitement of hacking operations.

Meanwhile, owners of servers in Sealand or Switzerland decided to assume the liability for litigation of the storage and the WikiLeaks content remains viewable. In the world of the connected Internet, where a wide variety of actors freely decide what they wish to store on their servers by the lights of their TOS, consciences, and local law, it is impossible to talk about “chilling effects”. “Chilling effects” are caused by Azerbaijan jailing the “donkey bloggers,” not Apple refusing to engage in incitement to violence by offering the intifada ap.

4. There’s a notion that the public space for debate and the “virtual town hall” are now in the hands of Facebook, Twitter, Google+ and other platforms and therefore these companies have a higher threshold of responsibility to provide the equivalent of a First Amendment environment or can be entitled to refashion notions of free speech. This is a thrilling concept, and in fact consumer struggles have made some of these platforms such as Twitter enlarge the space for free speech (i.e. in the early days, a community manager of a competing social network tried and failed to launch a campaign to get Twitter to ban someone as a “stalker” who continually criticized her with First-Amendment protected speech, and a famous tech guru tried – and failed -- to get Twitter to insert track-block, i.e. so that blocked people who nevertheless continued to send messages to others with @ would not be blocked from their search results.)

A. But while some smaller tactical battles have been won, in fact, the courts have not agreed on the principle at stake. Internet free speech advocates for social networks and virtual worlds have often cited the pre-Internet landmark case of Marsh v. Alabama (1946), which involved a Supreme Court ruling that a member of the Jehovah's Witnesses must be permitted to distribute his leaflets on a town's sidewalk even though the property was owned by a private corporation.

Yet the Silicon Valley titans have been able to elude such an analogy with "corporate towns" in our time, such as with the 2009 case of Estavillo v. Sony, when a user sued the PS3 gaming network for expelling him on free-speech grounds. The judge said the network “does not serve a substantial portion of a municipality's functions, but rather serves solely as a forum for people to interact, subject to specific contractual terms."

4. These contractual terms – the terms of service – are precisely why Silicon Valley is not acceptable as a matter of principle as the promoter of rights. The TOS of social media sites are widely overbroad, abusive, and notoriously unenforced. They have been called “contracts of adhesion,” which means that you are forced to sign them in order to use the service and access your content, even if you disagree with the original TOS you signed or its (often numerous) updates. One judge even called the typical Silicon Valley TOS of Linden Lab’s Second Life “unconscionable.” Even when the corporate TOS contain terms that seem to limit these abusive gods of cyberspace, we are at the mercy of understaffed operations with wildly uneven discretionary practices to gain our minimal rights.

A. Corporations are not parliaments or independent judiciaries and feel absolutely no responsibility to behave as them – there is no due process in most social media TOS enforcement; there is no separation of powers; there are no checks and balances. Under many TOS agreements, you can be expelled for “any reason or no reason” on narrowly-defined or wildly arbitrary grounds. These realities are understood by anyone who has ever had their teenage daughter have her Facebook account suspended arbitrarily because she IM’d too quickly in group chat with her schoolmates and was seen by an automatic system as a spammer. Many already understand what is involved in trying to battle the outrageous arbitrariness of these services; Google Ad Sense is notorious for arbitrarily cancelling accounts and pocketing unpaid funds and providing no explanation and rejecting appeals. With these services, you have no right to face your accusers who have filed a complaint against you; you have no right to a fair trial with action of the law of discovery or right to call your own witnesses; you have no right to appeal.

Cyberspace is a lawless space by design and by code of the big IT firms – they are the last entities that should be drawing up manifestos of our rights. As veteran First Amendment lawyer Floyd Abrams asked plaintively of popular social media professor Clay Shirky at a forum about WikiLeaks and Anonymous at New York University last year, “Will you not recognize any sheriff in cyberspace?”

B. Sometimes people solve these many problems of arbitrary social media platforms – and the authoritarian governments who can exploit them -- by rolling a new alt or alternative account or creating an anonymous account, although that can get them into worse trouble especially with Google, where now all services, including those you’ve signed up with using your real name or a pseudonym are now linked all across platforms.

There have been cases where companies on the whim of a regime operative or sympathizer cancelled people’s account – that’s presumably the sort of ethics that this effort to make principles is supposed to address. But it is hard to expect adequate remedy when the entire climate for these companies’ operation of their businesses is one of uneven and incompetent discretionary decision-making; wild arbitrariness and unfairness and sheer inability to handle the deluge of customer service needs – not to mention deliberate violation of copyright and other laws as a business model.

C. Instead of imposing on the world a set of principles that in fact only benefit their business ideologies; instead of attempting to behave as a giant meta-state, the Silicon Valley companies would do well to clean up their own appalling TOS and abysmal record of protecting basic consumer rights right in their own settings and leave the definition and enforcement of human rights to democratically-elected states. There is a minimum request to them which is within their powers: not to turn over customer information to any government, including our own, without a lawful warrant or court order or demonstrable reason consistent with Article 19 (public order in a democratic state).

6.  Beware of technologists who talk about their products “empowering” you – that means they are establishing themselves as intermediaries between you and the exercise of your rights in hugely troubling ways – those who empower can also arbitrarily take away. Rather than seeing rights and their exercise as inherent in the individual, located in a sovereign state based on the rule of law, and secured by negotiated international law monitored by treaty bodies and regional courts, technologists are locating rights-fulfillment in their own mechanical domains. They have no business doing that.

The inventions of the car or the electric light or the telephone also brought great boons in our enjoyment of freedom of movement and education and expression and media and even became essential utilities for the articulation of these rights. But the titans of industries in those eras did not portray themselves as mediators or protectors or purveyors of our rights. By disturbing contrast, Big IT is always pretending that the Internet is special; that its own role is special; that they know best.

7. Silicon Valley is also not an honest broker on these controversial issues as we saw at the hysterical and wildly mendacious campaign against SOPA/PIPA, led by Electronic Frontier Foundation, leading tech blogs and of course Google.

A. As creator and manager of the Internet and Search, Google and its allies essentially run the tech blogosphere in particular, and can instantly mobilize quickly millions of techies through sites like Boing Boing or ReadWriteWeb or Redditt, where debate is always at extremes, only one “copyleftist” perspective prevails. and critics are pulverized with attacks or muted.

Outrageous claims were made by Tumblr and other large social sites that SOPA would enable their entire site to be turned off by the federal government over a single teenager’s blog with uploaded illegal content; false claims were made that no search warrants would be required or that companies would be force to filter content themselves in new ways. Few of the agitators had actually read the much-amended draft laws which in fact contained ample qualifications and restraints including determination that the piracy was *for commercial purposes* in sufficiently large and valued amounts and sufficiently repeated in time. Few noted the considerable remedies incorporated into the law which would utterly preclude anything like “all of Facebook” being shut down because financial hardship and technical non-feasibility were recognized as defenses. Search warrants would have to be maintained although everywhere, it was claimed they would not needed. No platform was ordered to override the previously-established “safe harbor” notion and engage in pre-filtering of content. It was as if no technologist of cyberspace could trust an organic law-enforcer with good will and the demonstrable need to make his case to a court of law.

B. Everywhere tech bloggers screeched that Congress was incompetent to pass complex laws on technology or that technologists weren’t involved, although in fact numerous inputs from engineers were taken into consideration and the CEO of Google Eric Schmidt himself testified at a hearing in Congress. Shrill, hysterical hate videos were replicated all over Youtube by ranting geeks who hadn’t read the law – a popular meme was that “Congress was too stupid” to manage legislation on technology, although Silicon Valley’s own Congress members such as Zoe Lofgren, a Democrat, as well as Daryl Issa, a California Republican, in fact opposed elements of the law and heeded the astro-turfed “masses” incited by Silicon Valley Internet publications.

It was hard for the trained lawyers amongv Congress people supporting the law to be heard above the manufactured din with their simple premise: that the companies themselves had terms of service forbidding the uploading of infringing copyright and didn’t always do so, yet if they acknowledged they should adhere to their own TOS, and therefore they should adhere to the exact same elements in the law itself. There were numerous specific thresholds and criteria mentioned in the bill as well as clear-cut remedies that would make it impossible for “all of Facebook” to be shut down or even a teenage Tumblr blog.

C. Most ominously, Silicon Valley crudely and brutally flexed its muscles – it basically said that if it didn’t get its way on SOPA/PIPA, without even waiting for a vote or hoping to litigate or amend laws they didn’t like, they would shut down the Internet itself. Wikipedia and other sites protested SOPA by simply going dark, forcing millions of teenagers doing their homework who relied on the site to ask angrily (because they had been deliberately misled into thinking so) “why the US government has turned off Wikipedia”.

This thuggish sort of blackmail began to give even some tech boosters like the New York Times’ David Pogue some pause and there have privately been expressed some reservations about how these campaigns were run.

D. The very notion that combating piracy could be converted into a FOEX issue comes from the idea that someone posting a link to Pirate Bay or somebody with a music criticism blog which in fact has “fair use” could in some hypothetical edge case face removal of their site. A widely flogged example of such a jazz site covered by the blog TechDirt in fact didn’t hold up to scrutiny – when I looked it up in the Wayback Machine, I could see week after week of infringing upload of copyrighted content. That the government wound up giving the owners this site back after holding it for a year isn’t proof of innocence but is more about the overload of cases – and the fact that absent legislation that could establish jurisprudence, each one of these instances is adjudicated on a case-by-case basis.

And that’s how Silicon Valley likes it. At the SOPA hearing, Google’s CEO admitted that his company received a whopping five million complaints of copyright theft in one year and removed a whopping 75 percent of it – one can surmise not that the rest didn’t have a case, but that they didn’t have good lawyers – the DMCA takedown regime is one that requires the user to chase the company.

And that’s the “California business model,” as lawyers have come to call it, exemplified by Youtube, which works like this: provide a service for free, encourage millions of free sign-ups, allow users to upload any content they wish, sell ads next to that content, and then play “catch me if you can” with intellectual property holders. Precisely because of a series of major lawsuits, Youtube now has automatic functions that crawl the site and flag or disable copyrighted content – but it can’t cope with the huge number as Google itself noted.

Yet despite the legitimate war of copyright holders on their violators, and the deliberate use of the “California business model” in a wide variety of social-networking platforms and mobile phone aps, Silicon Valley goes on protesting that anti-piracy efforts harm “innovation”. What they mean by “innovation” is in fact the unrestrained imperative to incorporate infringing content into their business models – to hijack content and sell ads with it. They are uninterested in the livelihoods destroyed or losses of income experienced by copyright holders, and always and everywhere are trying to portray them as giant “Hollywood” moguls or record company “middle men” although creators and authors come from a wide variety of classes and income levels and notably include many designers and coders in the BRICS countries who are less enthusiastic than affluent Americans about coercive “sharing” of their original content. The “innovations” of the Internet have nearly destroyed and heavily damaged the newspaper, music, book and movie industries and even government diplomacy (WikiLeaks) – yet they have not replaced the jobs they’ve destroyed with jobs in their new industries, which employ far less people and make a tiny fraction of new media moguls wealthy, not even the cities or states where they are headquartered in California (they run their revenue through Ireland and other havens to avoid taxation at home). This is what we want in charge of “corporate responsibility” on the Internet?

E. There’s a widespread disparaging belief among Silicon Valley enthusiasts that because of the “analog hole” – that is, that anything you can see online you can copy by any means – there is no reason to try to defend copyright and it is an “outdated” business model.

This masks the fact that the newspaper industries in fact have begun to recover using paid-content systems and the music and film industries still use digital-rights management and paid content devices. What’s outdated, really, is the distractive or even interruptive ad-click regime that is ignored or disabled by many users. Companies have done little to put their innovation and ingenuity to easy payment systems or wallets that would encourage paid content and maintenance of creators’ livelihoods. This is precisely because the very architecture of the Internet as conceived by Tim Berners-Lee was dependent on masking the cost of programmers and servers themselves by “liberating” content and making it free as a deliberate loss-leader, and also discouraging privatization and privacy. As Internet pioneer and critic Jaron Lanier has put it, “The Internet is this way because we [engineers] made it this way.” The engineers made it “this way” because of profoundly nihilistic, disruptive and utopian ideals that in fact mitigate against basic human rights. They can make it differently – but not if we cede cyberspace into their hands.

8. Immediately after their victory in the fight against SOPA, Twitter, Google, and the Electronic Frontier Foundation showed their true hand, and utterly discredited themselves as purported honest keepers of the flame of freedom of expression.

These companies had all falsely invoked an imagined and hugely exaggerated threat to freedom of expression with their anti-SOPA campaign, but within days, they put into effect a policy that in fact really was damaging to freedom of expression. Twitter decided to enable technology to censor Twitter country by country on the basis of governments’ complaints; Google followed suit soon after. The very people who were complaining about concocted government censorship in SOPA, such as Jillian York of Electronic Frontier Foundation or Alex Howard of O’Reilly Inc. or Zeynep Tufekci, a popular social media academic, now championed this actual censorship by these companies, even invoking the need to “follow the law in countries” – as if these were *just* laws. We were left with the stark realization that “freedom of expression” merely means technology platforms uber alles. This reversal in “freedom of expression” values was only condemned by Amnesty International -- and none of the new players in the “Internet freedom” game. This case is illustrative of why we must be wary of the new overlords of cyberspace who purport to advance our rights.

 

9. What, then, should we do to promote Internet freedom and cope with the many challenges of Internet policy?

 

1. The “multi-stake holder approach,” while a noble idea, ultimately becomes a stalking horse for Silicon Valley as its corporations and lobbyists such as EFF are the convener of private and public conversations and are selective about invitations and agendas. Twenty years of self-regulation by Big IT of the Internet have proved insufficient to protect legitimate copyright, crime-fighting, and child safety concerns. It isn’t a “chill on speech” or a “hobble to innovation” or “letting stupid people run things” to allow liberal representative democratic Congress and an independent judiciary to decide matters of law regarding the Internet where all of us must live our lives. Rather than fighting the legitimate institutions of a democratic civil society, Silicon Valley should become a good corporate citizen and strengthen the rule of law, starting with their own behavior.

1. The General Comment on the International Covenant on Civil and Political Rights recently passed by the UN Human Rights Committee addresses issue of libel, defamation, LGBT rights and due process that represent the real issues restraining free expression on the Internet and real responses by a legitimate body to cope with them. For example, rather than demanding a blanket halt to anti-piracy efforts or claiming they chill speech or “innovation,” the HRC speaks of the need to carefully enforce law by addressing the nature of the content, i.e. removing infringing content rather than shutting down all upload sites which may have legal content on them.

1. Focus should remain on authoritarian states that functionally block the Internet or use extrajudicial means or illegitimate prosecution to punish bloggers, journalists and other users from freely expressing themselves on the Internet, Advocates should not become distracted, or create moral equivalency with, issues such as “net neutrality” which has to do with the regulation of corporate practices and broadband access. They should keep a focus on the basics.

1. No new laws or norms or bodies are required at the national or international level to put freedom of speech into practice on the Internet – everything we have is sufficient and can only be deepened. Now that much of our lives are lived online or on smart phones, we must retire the notion that cyberspace is different or special or not subjects to human law and democratic institutions in the real world.