F-T: Don’t sue over tweets :: The Future of the Internet

F-T: Don’t sue over tweets

November 26th, 2012 | by jz | Published in Future of the Internet, news, twitter | 7 Comments

I just published a short piece in the F-T in the wake of legal threats against users who tweeted or retweeted a link to a BBC report of child abuse that turned out to be wrong. Here’s the full text –

Those who didn’t see the false child abuse accusations against Lord Alistair McAlpine on an ill-considered BBC documentary may have instead heard about them through social media. This week, London’s Metropolitan Police suggested they might file charges against those Twitter users who sullied the reputation of the retired Conservative politician by knowingly repeating the lie that he was a child abuser. But the police may be less fearsome to the average BBC-linking tweeter than Lord McAlpine himself.

His attorneys say they have identified 1,000 original libellous tweets and 9,000 more retweets. Under the UK’s plaintiff-friendly libel law, the conventional wisdom holds that even a simple retweet which simply echoes others’ content could be actionable, whether or not the user thought it to be false. In addition to a £185,000 settlement with the BBC, Lord McAlpine’s lawyers are inviting implicated tweeters with fewer than 500 followers to make a donation to charity, and those with more followers to agree to bespoke settlements. Such invitations are declined at one’s peril — at least for those who live in the UK or any other place with an agreement to enforce UK civil judgments.

Such a broad-based attack on individuals is unwise and uncalled for, even as the injury that inspires it is mortifying. The problem is that what appears to be a trivial, momentary action — retweeting something of interest — can now create or magnify a falsehood as powerfully as if it had aired on national television. If a television station can be held responsible for what it broadcasts, why not the individuals whose collective megaphone rivals that of the BBC?

The answer is that television stations can and should have fact checking and legal departments as part of the cost of responsible business. Individuals cannot be held to a similar practice, and a series of uneven threats that stills the speech of only the most lawyer-sensitive will unduly undermine the huge value of a service such as Twitter. There may be call to go after the most egregious malicious actors — those who intentionally seek to sow untrue and damaging information about a specific person — but the very identification of 10,000 uncoordinated tweets and retweets suggests something other than bad faith by all. Traditional media can remain vibrant precisely by upholding a higher standard and helping social media to sift truth from falsehood.

Nor would charging Twitter itself with the broadcaster or newspaper editor’s policing function help. Trying to force Twitter to prescreen material would likely result in the service simply refusing to display any tweets to users located in the UK. Expecting it to monitor all tweets to block a tiny proportion of bad ones is unrealistic. As US Justice Felix Frankfurter warned in 1956, striking down a Michigan law that forbade bookstores from selling immoral books, we should not burn the house to roast the pig.

It is dicey enough to attempt automated processes to take down identical copies of copyrighted music and movies on services like YouTube, where robots scan 100 years of video every day looking for alleged infringements. To seek to pressure intermediaries to judge the murkier areas of truth and falsehood, and then squelch tweets as they emerge, would require a level of intrusion that even China has not managed. Italy found out as much when, in 2010, prosecutors obtained a criminal conviction against top Google executives for allowing someone to upload a YouTube video depicting the bullying of an autistic boy. The video was a needle in the haystack that comprises 72 hours of footage uploaded every minute, and the convictions for not finding and dealing with it quickly enough satisfied no one with an interest in the dispute. Google had removed the video within two hours of being alerted to it by authorities, and the verdict remains under appeal.

There are ways to improve the status quo. Microblogging will look different 10 years from now. Services such as Twitter can, and will, hone ways for people not only to retract what they have said, but to relay a follow-up message through all those who repeated it. Those who willfully initiate a devastating lie can often be identified and shamed, and those who unwittingly repeat it can, if the technology makes it simple to do, assist in undoing its damage.

Lord McAlpine’s situation bears some resemblance to the unhappy 2005 discovery by RFK press aide John Siegenthaler that his Wikipedia entry had billed him, absurdly, as a conspirator in RFK’s assassination. Mr Siegenthaler lamented the site’s fact-checking and toyed with litigation against the initially-anonymous editor who created his entry.

The editor, who was eventually unmasked, apologised and resigned from his day job. Mr Siegenthaler urged the employer to show mercy. Meanwhile, Wikipedia tightened its rules and practices for the creation and editing of new articles, especially biographies of living persons, and over time it has tweaked its software to be able to undo many instances of vandalism with only one click. Wikipedia has chosen to do so despite enjoying broad immunity under US law for what happened.

Technologies that greatly empower people to communicate with one another are transformative enough to cause injury. Their sharp edges can best be sanded by enlisting people of good faith to help correct the wrongs they may have inadvertently amplified. We should rarely invoke litigation or prosecution, which can chill legitimate speech and cantonise the internet, as material will be withheld selectively from regulation-heavy jurisdictions.

The internet can help us to understand and own the ethical dimensions of what we do online, and to make morally informed, rather than legally compelled, choices about the information we absorb and refract onward.

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It’s so much fun to be a journalist | Prof Chris Daly's Blog says:

November 26th, 2012 at 11:33 am (#)

[...] UPDATE: Here is a different view, from Jonathan Zittrain. It ran in the Financial Times, but I can’t find a free way to read [...]
Ether for Authors: Circling the Collective | Publishing Perspectives says:

November 26th, 2012 at 8:47 pm (#)

[...] to Table of Contents about to write a counter to @zittrain defense of free speech on Twitter futureoftheinternet.org/f-t-dont-sue-o… I suspect he thinks all laws are “unwise”. — Andrew Keen (@ajkeen) November 26, [...]
Seth Finkelstein says:

November 27th, 2012 at 4:43 am (#)

Jonathan, hard cases make bad law, and I certainly agree that mass lawsuits against thousands of people are “unwise and uncalled for”. But relying on morality is only going to lead to hand-wringing at best, and an extremely cruel implication of victim-blaming at worst (i.e. if the moral action is to redress an injustice, it’s much easier for someone to find some rationalization that injustice wasn’t done, so no action is required – and maybe the person who suffered deserves it somehow, which feels even more satisfying for justifying inaction).

I’m unhappy to play the role of “that guy”, pointing out all the horrible libel implications of Section 230, or mobbing. It does not benefit me, especially among the social-media business backscratching. But the logic here is flawed – “by enlisting people of good faith …”. That’s ineffective preaching. There’s all sorts of massive systematic incentives for bad faith, sensationalism, even outright lying, and so on. An *effective* overall response to bona-fide libel would have take this into account. That means legal mechanisms may need to compel large corporations and involved individuals to do things they don’t want to do.

While prescreening everything is absurd, that extreme shouldn’t be taken to be a dispositive argument against any sort of take-down system and retraction requirement. I know there’s many of issues here – but there’s similar issues with copyright. People who have infringement claims are NOT fobbed off with reliance on “good faith”. Currently, one has far more power against trivial copyright infringements than devastating defamation. And that strikes me as the best refutation of the sufficiency of “own the ethical dimensions of what we do online”.
When We Treat Twitter Like a Public Square, Can Private Lawsuits Still Regulate Harmful Speech? | Article 3 says:

November 27th, 2012 at 5:59 am (#)

[...] not identified, and thus his claim in libel against them would fail.” Under the UK’s libel law, even a simple retweet could be actionable, whether or not the user thought it was false. This is where there is a distinction between the UK and the United States — In America, [...]
jz says:

November 27th, 2012 at 10:37 am (#)

See this article I wrote about 15 years ago (!) for some more thoughts. I don’t think we’re actually that far apart.
Gregory Kohs says:

November 27th, 2012 at 1:31 pm (#)

I would like to hear what Zittrain would say about Wikipedia’s “flagged revisions” or “pending changes” feature.

The software add-on was developed by paid Wikimedia Foundation coders, taking several months to make it functional. What is does is essentially put any new edits to an article in a “holding pen” (not shown to the average visitor to Wikipedia) where the edit is kept until it can be “approved” by a longer-term, “trusted” editor of Wikipedia.

This functionality has been in place for years on the German Wikipedia; but on the English Wikipedia, it still has not been implemented, because the “people of good faith” who run wild on Wikipedia have repeatedly rejected its implementation. They would rather have every article at risk of libelous commentary, because they believe in the power of the crowd to prevent long-term damage.

Just about every week, we see another news headline showing how Wikipedia has been abused to defame someone, so I think we can see that “good faith” isn’t working very effectively.
John Lilburne says:

November 27th, 2012 at 2:37 pm (#)

I think you are most mistaken about social media ever being able to sift truth from falsehood. That isn’t what people on social media sites do. They react, like, retweet, and amplify the most blatant nonsense. Should those that bullied the kid in Canada until she killed herself be exonerated simply because they were acting without thought on a social media site?
http://www.huffingtonpost.com/2012/10/11/amanda-todd-suicide-bullying_n_1959909.html

How about those that stirred up by inflammatory blog posts and articles on digg and elsewhere, send death threats and drive people from their homes?
http://thomashawk.com/2008/08/simon-blint-director-of-visitor.html

An internet mob is a frightening thing, many of the participants have little restraint, and have no regard to the truth of what they are responding to.

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The Future of the Internet: Five Years Later

In 2008, The Future of the Internet called attention to a “sea change” in the way consumer devices interact with the Internet. “The future is not one of generative PCs attached to a generative network,” the book warns; “it is instead one of sterile appliances tethered to a network of control.” In response to the security threats posed by malicious third-party code, increasing numbers of users will likely gravitate towards gadgets “tethered” by continuous communication between product and vendor. And this proliferation of tethered computing—the “appliancization” of PCs—will deal a serious blow to the principles of generativity and free expression that drove the early Internet.

Since the publication of The Future of the Internet, the ethos of strict appliancization has taken a new turn. In 2011, Professor Zittrain wrote an update on the book’s message: “at the time of the book’s drafting, the alternatives seemed stark: the “sterile” iPhone that ran only Apple’s software on the one hand, and the chaotic PC that ran anything ending in .exe on the other. The iPhone’s openness to outside code beginning in ’08 changed all that. It became what I call “contingently generative” — it runs outside code after approval (and then until it doesn’t).” This trend towards contingently generative models continues into the present day, and represents a shift similar in many respects to the one The Future of the Internet predicted.

Jon Brodkin and Peter Bright’s Ars Technica op-ed on the Microsoft Metro app store offers some valuable commentary on a big development in this “sea change.” The article recognizes that “Microsoft is imitating Apple in one very bad way, by limiting the distribution of Metro applications to a Microsoft-controlled app store… by bringing Windows to tablets, Microsoft could strike a blow for openness in a market dominated by a closed system. Instead, Microsoft is bringing the same restrictions found on iPads to both Windows tablets and PCs.” As forecasted by The Future of the Internet, devices that only run approved code are gaining popularity. Metro, the curated user interface that has found its way onto Microsoft’s tablets and PCs (in the case of the PCs, alongside a fully-functional desktop mode capable of side-loading non-Windows Store applications), won’t run applications from outside the Windows Store. Moreover, the apps available through the Store are subject to a bevy of restrictions on content. With these restrictions on installable applications come the restrictions on generativity that The Future of the Internet anticipated: “lock down the device, and network censorship and control can be extraordinarily reinforced.” And, as the Ars Technica piece observes, the Windows Store’s rules would exclude critically-acclaimed content like the video game Elder Scrolls: Skyrim, simply for its PEGI 18/ESRB M rating. It isn’t hard to extrapolate, as Brodkin and Bright do, that these rules could give rise to debacles similar to Apple’s (repealed) ban of a satire app developed by a Pulitzer Prize winner.

Though the Windows Store’s restrictions resemble Apple’s policies in many ways, there is a crucial difference: Metro-running Windows 8 products are designed as PC replacements, rather than sui generis devices like the iPad. And since Windows desktops have long been preferred gaming platforms, the theoretical exclusion of content like Skyrim from the Windows Store makes Windows 8’s emphasis on the Metro interface particularly jarring.

With Metro, Microsoft has made a decisive move towards contingent generativity. Brodkin and Bright note that “there are security benefits to a closed app store model, particularly for less tech-savvy users who may not understand all the dangers on the Web. There are also, arguably, convenience benefits; end-users can be reasonably confident that the apps they download will work correctly and be at least marginally useful…But while these security and convenience benefits might be enough to justify the existence of a curated app store, they don’t justify the decision to make that store the only option for all users. Informed users should be allowed to install applications from wherever they want.” Brodkin and Bright prefer a system like Gatekeeper, a fixture in newer versions of Apple’s OS X, from Mountain Lion forward. Gatekeeper gives users the choice to restrict their operating system to App Store apps and outside apps that have been signed with Apple-issued Developer IDs, or open up the device to all programs, whether or not they’ve been vetted by Apple. The “Future of the Internet” Blog is fairly enthusiastic about Gatekeeper: about a year ago, a post here suggested that “the middle ground of allowing non-App Store signed code may represent the best of both worlds.” But we were quick to warn that Gatekeeper strikes a tenuous balance: “one small tweak — lose that Control-click for sideloading — and OS X could fully merge with iOS, both in functionality and in security methods.” Metro’s riff on content control could be just that sort of tweak—especially given recent speculation that Microsoft may dump desktop mode in Windows 9, leaving only Metro.

Moreover, a contingently generative business model like the Windows Store’s carries some ethical implications that, while not damning, are certainly worth examining. Distribution systems like the Windows Store, Apple’s App Store, and the Android Market receive 30% of the sales revenue from applications sold in their stores (in the Windows Store, this cut drops to 20% after an app reaches $25,000 USD in revenue). Further restrictions on side-loading in new operating systems would drive a great deal of business towards big companies’ proprietary marketplaces—and with that traffic would come big payouts. With the uptick in store traffic that tighter gatekeeping would engender, it’s easy to imagine the equilibrium of Mac’s OS X Gatekeeper being forsaken for more restrictive, and more lucrative, operating systems. To analogize, a la The Future of the Internet: when the company that makes your computer requires you to install programs through their official store, it isn’t so different from the company that makes your toaster forcing you to buy from their bakery—and taking a cut out of every bread purchase you make.

Even though Windows 8 PC users can still make use of a fully-functioning desktop operating system, Microsoft’s failure to include a side-loading option for the heavily-emphasized Metro interface—particularly in devices marketed as PC replacements—is a step in the wrong direction. It’s also an indication that the seas are changing in the way The Future of the Internet predicted. Given that Android’s more open approach to outside applications [1] still leaves the Android Market increasingly economically viable, Ars Technica is right to voice its disappointment in xenophobic operating systems like iOS and Metro.

- Ben Sobel, Kendra Albert, and JZ

[1] Though the Google Play approach to openness is far from perfect! Ad-Blocking apps were recently pulled from the Play Store, in a move that will come to illustrate just how viable it is to distribute a side-loaded Android app without any help from the Play Store.

Rock star RA wanted

I’m seeking a full-time one-year rock star research associate to engage with a variety of projects and classes, with a broad opportunity to immerse in cyberlaw and Internet topics. Blurb below, with more information on how to apply at <http://cyber.law.harvard.edu/getinvolved/jzra>. …JZ

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Professor Jonathan Zittrain of Harvard Law School, the Harvard Kennedy School of Government, the Harvard School of Engineering and Applied Sciences, and the Berkman Center for Internet & Society, seeks a full-time research associate in Cambridge, MA for a period of one year, beginning no sooner than June 1, 2013.

This position requires the ability to absorb large amounts of written and other media materials from various sources (including but not restricted to: original sources, scholarly articles, news articles/blogs, interviews, databases) in a short amount of time, critically analyze that material and render it forward. This could take the form of prep materials for panels, conferences and presentations; article outlines; fact checking materials; original article or paper drafts; slide decks or other digested forms. The research assistant should be prepared to help prepare materials for class sessions and syllabi, lead discussions and work with project managers to accomplish research-related goals.

Research is often self-directed with little outside guidance beyond broad outlines and themes (though occasional targeted research assignment for a specific fact or image can be expected, and feedback is provided), so the ability to quickly critically appraise sources and identify interesting, relevant and original paths is essential. Wide-ranging interests and the ability to work on almost any issue or topic that arises is a plus, as is an ability to ramp up quickly on unfamiliar fields or topic areas. Excellent writing and editorial skills with an attention to detail are also required.

This job is an ideal opportunity for those interested in future graduate school or law school studies, whether currently admitted or still applying to such programs.

Over the course of the year, a motivated individual will sharpen and focus his or her research agenda and make valuable contributions (in his or her own name) to the field of cyberlaw and beyond, while being exposed to interesting thinkers in academia, industry, and government. A research associate in this position will work very closely with Professor Jonathan Zittrain and his team, assisting in a variety of research areas, e.g. ubiquitous human computing, mesh networking, and cybersecurity, as well as on topics around access to knowledge and open scholarly publishing under the auspices of the Harvard Law School Library.

The position will not start before June 1, 2013. As with all Berkman staff positions, this is a term position, ending June 30, 2014.

Taking More than Candy from a Baby

Update – 10/17/2012: The parties involved in the lawsuit – Speak for Yourself and SCS/PRC reached a settlement, allowing the app to remain in the Android and iOS app stores. More at the Nieder family blog.

Original Post:

Generativity hasn’t had a poster child — until now.

Meet Maya, a four-year-old child who could lose her ability to speak with the elimination of an app from the iOS App Store.

As detailed in the Nieder family’s original blog post on the subject, Maya uses Speak for Yourself (SfY), an iPad app that serves as an “augmentative and alternative communication” (AAC) device. Before finding SfY, Maya had tried multiple AAC devices, but hadn’t found one that worked for her. Read more »

“Unabomber manifesto tied to tech news headlines”

When you see the headline “Powerful ‘Flame’ cyberweapon tied to popular Angry Birds game,” does it cause you to think that there is actually some connnection between the recently discovered malware Flame and Angry Birds? That would be entirely reasonable, but wrong. Read more »

War and Nookd

In 2009, Amazon staff panicked when they came to believe that they’d allowed copies of George Orwell’s classic 1984 to be sold through the Kindle store without properly clearing copyright permissions. They reacted by eliminating copies of 1984 not only from the Kindle Store, but from the Kindles of individual purchasers. Those reading the text suddenly found it gone from their Kindles, along with any highlights or annotations they’d made. In place of the text Amazon refunded the $.99 purchase price. Outrage (and noting of irony) ensued, and Amazon promised to never to pull books again.

Today another incident casts into relief the contingent nature of electronic books — how readily they are not only deleted or censored, but altered. A company called Superior Formatting Publishing offers a $.99 version of the now-public-domain War and Peace through Barnes and Noble’s Nook store — the lowest price version to be found there. Read more »

About Jonathan Zittrain

Jonathan Zittrain is Professor of Law at Harvard Law School and co-founder of the Berkman Center for Internet and Society at Harvard Law School

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