Do We Need An Internet Bill of Rights (IBOR)

or

Would A Landmark (e.g. ‘ Schenck v. United States’) Legal Case Fix Privacy And Censorship On the Internet?

by:  Peter Huxley

But my thinking has changed a little. I thought about who would be writing it.

I am not *against* an Internet Bill of Rights; if it were proposed – seriously – I’d support it, if it were anything like what AT&T has suggested.

But do we want/need a second Bill of Rights to detract from the first, or would a landmark case or two – together with market forces – straighten out the Facebook data sharing, privacy shenanigans, and censorship? Perhaps another Millennium Digital Copyright Act, or other, straightforward, *Act*.

I have concerns: a) that we won’t get it right (it could go wrong in any number of ways; it’s not Jefferson and Franklin in DC anymore), and b) that it will dilute the original Bill of Rights.

Alternately, case law simply fleshes-out and qualifies more foundational liberties. We don’t have a ‘due process’ issue on the Internet. Gun ownership, online, isn’t an issue. It’s really only a couple areas. An IBOR is killing a fly with a sledgehammer. If you say, we don’t have to deal with gun ownership or due process. To that, I would reply that it should not be called a ‘Bill of Rights’.

Free speech and privacy are already in our Bill of Rights. They’re pretty air-tight. And the existing arguments that we should have privacy and free speech – but do not – are hurting both the Deep State and Facebook, even if we don’t have legal remedy. The current Bill of Rights *works*, we’re just in uncharted territory.

  1. Do we need a *new* one, or do we need a couple of solid Supreme Court rulings, a simple Act that says, “Terms of use have to be simple, you can’t censor opposing viewpoints, and you can’t share data without a clear opt-in?”.

Frankly I don’t want Maxine Waters and Nancy Pelosi or Diane Fienstein anywhere *near* anything relating to my rights. I don’t want aging Senators and Congressmen creating binding law, or declaring a social network a ‘utility’.

Case law, or an Act, can be an extension of current civil liberties laws, working with specific *instances*, rather than broad principles that are already codified, and written by geniuses that come by once every couple thousand years.

Yeah, thinking more deeply on this, I think an IBOR could be hijacked and go south, and – frankly – ruin the Internet.

As for data being moved or sold, I prefer to leave that in Terms of Use and have informed citizens decide if they want that, as they are.

  1. “But presently, Facebook can censor certain viewpoints.”

Yes, they can. And a landmark case, like Schenk vs. US, or Brown vs. Board of Ed. (limiting free speech, or ending separate but equal) would do the trick. Or, as Europe implemented: the General Data Protection Regulation.

Boom. One judge or Act. Much simpler. Binding.

Sorry, I’m not a *part time* libertarian. I don’t like laws. I don’t like a cluster of laws. I don’t like a cluster of laws written by dumb people. I don’t like a cluster of laws written by dumb people who don’t understand the Internet.

I don’t want Facebook arbitrarily declared to exist in the same category as my power company (a ‘utility’), it is redundant, and I don’t trust the people in DC to get this right.

I believe in the market. I believe in informed citizens. I believe in crowdsourcing. And if those don’t do the trick, I am all about targeted, specific, clean, minimal laws (case law or Acts) to address infractions or legal gray areas as they arise.

This whole Cambridge Analytica fiasco is going to educate us, and is well-timed, with discussion about censorship, and an Internet Bill of Rights. With all the legal cases about to drop, including Congressional hearings, in the next year, we’ll figure out – together – what makes sense and what is fair.

That said, Mark Zuckerberg is a piece of $h!t. He stole the idea for Facebook from the Winklevoss twins (even if there is now evidence that a) the concept for a GUI social network dates back to the 1970’s, and b) that Deep State played a role, perhaps as early investors or source code providers).

A PRIMER ON THE FACEBOOK ILLUSION OF PRIVACY

In 2010 or so, Facebook made its privacy settings more granular; the thinking was: if people can *control* it, and we put it in the Terms of Use, then we’re off the hook. Realistically, only a handful of people cared what Facebook was doing to violate their privacy, or cared enough to inform themselves on how to adjust their privacy settings.

So, that was when you could adjust who saw pictures, posts, and there were a few major categories (friends, friends except acquaintances, public) for each.

From there, it becomes a shit-show. The default setting became what your *last post* was. So if, at any time, you posted something public, that would be the default setting. I don’t know all the iterations of their privacy settings, but presently, there’s a ‘friends+’, which is friends and friends of friends. This means, basically, if you have a large number of friends, there’s a decent chance that your ‘private’ posts can be viewed; if one of your 500 friends knows person X (a friend of a friend), they can see what you’ve posted.

Alternately, if you choose just ‘friends’, then if you tag someone, they can’t see it.

This all gets more confusing when you get to the ‘share’ button. That used to be on pretty much everything. Then it was on anything with an embedded link (not an original post).

People have been saying the ‘share’ button will reappear if your settings are ‘looser’, but my share button has become scarce, and my privacy settings have not changed.

To wit: Facebook doesn’t care about your privacy. They have made it very complicated, and want to punish you for having privacy, or for having non-establishment views. It would be very easy to lock-down everything to in-network visibility. But they want to *attract* connections and engagements by showcasing content – whether you want it private, or not.

Your wall, your posts, your albums, your photos – should have ONE SETTING. Why would you want photos public but posts to be ‘friends only’? And why would you want the last setting for your wall posts to be the new default? Why would you want a complex privacy experience, anyhow?

They don’t care if a prospective client or employer knows you are a Trump supporter. In some lines of business (and regions), that can hurt you. They don’t care if friends can’t share.

Mark Zuckerberg famously called his users “Dumb f–ers.” Next to Google, Facebook has done more to damage online privacy than any other company. And he did this from the beginning. You could sign into Facebook with your email address, and he would – officiously – email all your contacts and say you were on Facebook.

That set the precedent for LinkedIn trying to get your estranged ex-girlfriend in your professional network. How weird and unwelcome is that? We’ve all had it happen.

But ultimately, we – the users – are to blame. We were so jazzed at something cleaner and more dynamic than Myspace, and we jumped on it.

The Cambridge Analytica case is going to be seminal, and could open Facebook up to class action lawsuits. We all know that Facebook tries to make sense of your preferences and behavior to target ads. That’s their revenue model. And advertising is part of the sales cycle, and generally not an issue. In recent years, they began tracking mobile and off-application (activity through your browser – not even on the Facebook website) behaviors.

What we didn’t know is that that data was going *off-prem* or sent to others – big data companies, people like the 2012 DNC to harvest the *entire* OpenGraph (what they call the sum-total of all user data).

If that’s the case – and it appears to be so – it’s going to shut them down. That may be in the Terms of Use, but is awfully Big Brother and creepy. Usually, when data is sold or provided for *any* reason, it does not contain PII or Personal Identifying Information; it is in the aggregate. And that’s a huge difference. Basically, it’s the ability to say, “85% of Ted Nugent fans like Infowars.”, but not know the individual names of those people.

And they *must* have been working with PII, since that is the only way to *target* ads and content in a political campaign.

PRINCIPLES ENDURE DESPITE THE TECHNOLOGY

if you’re in your (private) network, how is that different than conversations around your dinner table? How is that different than what you do in your bedroom? Isn’t that why we all have curtains and locks on our homes. Even gorilla paddocks have rocks and leaves and trees and caves for them to escape the prying eyes of the public. They’ve done studies where people lived in a kind of panopticon – without privacy; it drives you mad. You lose morale, sleep, and it elevates those watching and degrades those being watched. Humans *need* privacy.

Beside privacy, censorship is the other big challenge for Facebook.

I have said, we don’t need an Internet Bill of Rights; the actual Bill of Rights deals with principles, and extends across all platforms and technologies.

People are discussing monopolies; I don’t know how that’s relevant. First of all, it’s non-essential. We’re talking about whether you can restrict speech on the grounds that it is ‘private property’ when a website is advertised as a ‘public forum’. I don’t care whether that ‘forum’ has a monopoly, or is a ‘public utility’, or not. If Facebook had a 5% market share, and wasn’t a monopoly, I’d feel the same way.

A related issue is whether Facebook is, in fact, private – not just because of being heralded as a ‘public forum’, but because while the source code and platform is ‘private’, all its value comes from content, and Facebook creates *none* of that. The public does.

DEAD SOCIAL NETWORK WALKIN’

I don’t think Facebook will survive, in its current form, for 24 months. They have censorship problems, stock devaluation problems, privacy problems, and lawsuits from shareholders, and potential class action lawsuits from users over censorship and more likely sharing user data (privacy, again). They have pissed off users, shareholders, and DC – not least because they unwittingly helped Trump win the presidency in the Great Meme War of 2016. They have no friends.

Also: their leader is weak, and his actions are not defensible. He is and always was contemptuous of users. Facebook has been functioning something like a SuperPAC, helping the Left, but not the right, or independents, or libertarians. Zuck perjured himself in 2016 saying they don’t censor certain viewpoints. And they may even get him for insider trading (selling off his stock ahead of a crash he knew about).

I grant, from the start, Zuck was between a rock and a hard place. He’d been successful with his social network, but the Deep State wanted some. And he gave it to them. And advertising companies wanted to target ads. And he gave it to them (gladly).

Julian Assange said that Facebook was a surveillance tool pretending to be a social network.

Whatever comes from Facebook’s woes (and they aren’t alone: Google faces much of the same, potentially), there are a few simple truths :

1) Humans need privacy;
2) Free speech is vital to a free society;
3) We need to sort out what happens when a ‘public forum’ is ‘privately owned’, online;
4) If privacy is complicated to configure, it isn’t privacy;
5) From now until forever, we cannot have an expectation of privacy from private companies. It’s on us; we need to watchdog.

We need a government that’s not ‘in’ on the data-sharing.

I understand nobody wants to read all the Terms of Use for the Next Big Thing. They’re 20 pages long and shocking. And we don’t want to be left out because we founds something objectionable and declined to use, say, Facebook.

At the end of the day, the *market* is going to handle (dismantle) Facebook. Again, we already have a Bill of Rights. We already have intellectual property laws saying anything you produce – even if it is on Facebook – is *yours*.

This is a case of commonsense privacy violations hiding in technical jargon in a Terms of Use, or a complicated way to adjust privacy; it is a lazy market.

 

*We are stuck with Facebook* despite these infractions, because everybody else was on it, and because Myspace sucked. I think if we had simpler Terms of Use, more awake citizens, and non-shitty CEO’s, we’d probably be fine. A better company (Gab) comes along and win, in the end – whether it is because of a dynamic wall (how Facebook beat Myspace), or simpler privacy settings.

While I think *the market* would eventually sort out and deal with Facebook, I welcome a landmark legal case where they determine whether Facebook a digital company leveraging user content for value is ‘public’ or private. I would welcome a landmark legal case finding that tracking Personal Identifying Information data, or sending data out of a given application’s custody, are not allowed. Europe recently enacted the GDPR – dealing with just this.

Do we run the risk of a Citizens v. United if we leave it to a judge? Sure. But I don’t want a social network (which will die in a year or so) declared ‘a utility’. I don’t think that’s necessary. Why let the Highway Department manage our driveways, as well? Not a good idea.

Currently, when someone says “Facebook is censoring conservative/libertarian speech.”, and someone else replies, “It’s their company – they can do what they want.”, that argument sounds Orwellian, and actually works *against* the person saying it, and Facebook. The few SJW’s who have abandoned the liberal tenet of civil rights are far outweighed by the masses who ask, “Why are *ideas*, which were commonsense 20 years ago, so scary to the New Left? – and also – what *are* these ideas?”

And Infowars or ZeroHedge grows. That is what has happened. The Market chose what it wanted. And that’s why we’re seeing this shit-storm forming around Facebook. The market is handling it.

Facebook can’t have it both ways: where they invite and capture everybody, and then punish people they don’t like and help people they do.

We are in a new space; between public and private, between the voluntary use of a product and a utility (e.g. an oil monopoly) – communicating at the speed of light with virtual networks of people who are geographically disparate.

It’s *new*.

Still, the principles of free speech and privacy – being principles – don’t much care about the iteration of the liberty in question: we should be able to speak to whomever we like, say anything that doesn’t incite imminent physical harm, and expect privacy.

I would be fine with a couple major legal cases settling these issues in the coming years, and – upon consideration – think this is a better course than a complete IBOR, which will only need to be revised in another 20 years with the next communication paradigm shift.

Written by Peter Huxley for American Digital News