Will the real Internet government please stand up?
This weekend, Google, Apple, and Amazon all took steps to remove the right wing conspiracy web site Parler from their services, steps that will cripple the social media site for some some period of time. In many ways, Parler had it coming to them. Amazon in particular alleged that Parler refused to take prompt action to remove abusive content that violated their terms of service.
In response, my right wing friends have gone nearly indiscriminately crazy, complaining that their 1st Amendment rights have been violated. Let’s review that amendment of the U.S. Constitution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Amendment I of the U.S. Constitution.
In other words, Congress cannot stop someone from speaking. But these companies are not Congress, nor an arm of the U.S. government. We could, however, say that they are a form of government, in as much as these companies, along with a small number of other ones, such as TikTok control societal discourse. What rules would govern them if they decided that moveon.org was also not to their liking? Could these services exclude content that criticizes them?
Parler is a relative newcomer. Much in the same way that Fox News has lost its conservative gleam to NewsMax, Facebook and Twitter lost their gleam when they started applying editorial control to posts. They did this because they gauged societal harm against whatever short term revenue they were collecting from the likes of Donald Trump. There was seemingly no reason they had to, at least in the United States. U.S. Law says this:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Meddle with this rule at your peril. If we shift the burden of policing to online services, social media sites as we know them will cease to be, GMail and Yahoo! mail would be imperiled, and Amazon could no longer offer customer reviews. If there is a middle ground to be found, then scale factors must be considered. Any middle ground may well increase the risks of starting up new services. If the price of entry for a new Facebook or Twitter competitor is fancy artificial intelligence systems and patents, then we may have done ourselves no service in the long run.
There are other consequences to Apple and Google removing Parler from their respective phone and tablet stores: I saw one conversation in which someone was describing to her friends how to turn off automatic software updates. Software updates are the means by which developers correct vulnerabilities they have created. By disabling those updates, people leave themselves vulnerable to attack.
Today Parler is losing its voice, arguably for very deserved reasons. Tomorrow, some other site might lose its access. Will those reasons be just as good and who will decide?
Until Republicans police their own and use honest arguments, they cannot be trusted.
Over the last forty years, Republicans have developed some very bad habits. False equivalencies, out and out lying (such as claiming that Saddam had weapons of mass destruction), hypocritical stances (such as denying Merrick Garland a hearing for a position on the Supreme Court), accepting of lies for political expediency, and accusing the opposition of the very sins they commit are only some of the tactics that Republican base has grown to accept through networks such as Fox News and numerous zany online hysteria sites.
After a Berkman study found study (among many others) demonstrated that right wing media does not hold itself to account, and that Facebook is far more right wing than Twitter, Facebook began to take steps to address false reports. This led to criticism of social networks by President Trump, and a business opportunity for other purveyors of falsehoods. That is because Republicans can no longer survive without the falsehoods. A few people have noticed this danger, one of them being the founder of the founding online editor of the Washington Examiner and NewsBusters, Matthew Sheffield. In his own words:
I eventually realized that most people who run right-dominated media outlets see it as their DUTY to be unfair and to favor Republicans because doing so would some how counteract perceived liberal bias.
While I was enmeshed in the conservative media tradition, I viewed lefty media thinkers like @jayrosen_nyu as arguing that journalism was supposed to be liberally biased. I was wrong. I realized later that I didn’t understand that journalism is supposed to portray reality.
Mr. Sheffield wasn’t the only one to notice this problem. Last week Charles Koch put it quite simply: “Boy, did we screw up!” He did so by funding the Tea Party that fed on propaganda, not journalism.
The news echo chamber in which right wing people live live is not a threat to democracy, but is a threat to good, sound government, and to the health and welfare of the public. Donald Trump’s lies about the Corona Virus are merely the logical conclusion of a concerted attack that began with Rush Limbaugh in the 1980s, intensified with Fox News, and has led to such hate sites as InfoWars. Although Senator McConnell is smart enough not to peddle conspiracies, he has no problem profiting from them. He therefore does nothing to correct them, putting party before country. And so what do we get? Failure to recognize the risks of climate change, improper preparation for what became a pandemic that has led to economic destruction and chaos, and breeding of bigotry and violence.
Moral equivalences to justify some of Donald Trump’s more egregious acts seem to be a favorite. Previously we heard how, because cages were built under the Obama administration to house children for periods of up to 72 hours when they had no other place to go, it was therefore okay for the Trump administration to target migrant families for separation.
The latest claim from my friends on the right, led by people such as Representative Steve Scalise, has been that Donald Trump has the same right to use the courts to make whatever challenges he will, just as Al Gore did when he lost to George Bush in 2001. It is true that Al Gore did use the courts to attempt require a recount in certain districts. In that case, Gore and his legal team made very specific claims, and had evidence to advance them. They were these:
(1) The rejection of 215 net votes for Gore identified in a manual count by the Palm Beach Canvassing Board as reflecting the clear intent of the voters;
(2) The rejection of 168 net votes for Gore, identified in the partial recount by the Miami-Dade County Canvassing Board.
(3) The receipt and certification after Thanksgiving of the election night returns from Nassau County, instead of the statutorily mandated machine recount tabulation, in violation of section 102.14, Florida Statutes, resulting in an additional 51 net votes for Bush.
(4) The rejection of an additional 3300 votes in Palm Beach County, most of which Democrat observers identified as votes for Gore but which were not included in the Canvassing Board’s certified results; and
(5) The refusal to review approximately 9000 Miami-Dade ballots, which the counting machine registered as non-votes and which have never been manually reviewed.
Each of these claims were specific, backed up by facts that were not in dispute, and raised substantial questions of procedure, as demonstrated by the ruling of the Florida Supreme Court. The point here is not to re-litigate an election that took place 20 years ago, but rather to highlight how Mr. Gore used the courts in good faith, even if he lost in the end.
In this case, the Trump campaign has put forward wild claims that have not been backed by evidence or law. While President Trump and his cronies have whined about fraud to the press and to the American people, when they have gone to court, their tune has been very different.
In Pennsylvania, Arizona, Michigan, and Nevada, when asked if they were arguing that fraud had occurred, the answer was “No”. In Michigan or Wisconsin, where the best they could come up with were what they called statistical irregularities. In 2016, those same “irregularities” occurred in districts Trump won, and yet there was no complaint at the time. That’s because there was no actual evidence or testimony of any wrong doing. Mr. Trump is a sore loser. He has thrown spaghetti at a wall to see what would stick. He and his clown, Rudolph Giuliani, have wasted the time of the courts, and have attempted to undermine the very institutions he swore to uphold. In computing we would call this a Denial of Service (DoS) attack, in which the resources of courts and opponents are wasted by suits filed in bad faith. In Williamsport, Pennsylvania, US District Judge Matthew W. Brann, a lifelong Republican, castigated Mr. Giuliani for his buffoonish arguments, writing:
… this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.
In Georgia, Trump and his fellow loons have attacked the Republican Secretary of State for having followed the law and performed his duties. One of his loons, Russell J. Ramsland Jr., filed an affidavit that raised concerns about alleged incidents that didn’t even take place in the state. They have attacked various government officials in Nevada as well.
In the meantime, Republican senators and governors largely sat silent, allowing this travesty to continue. With one exception, the only people who dared to stand up to Mr. Trump were those who were retiring, or those who had just been reelected. That required no courage or leadership whatsoever. These people have been swayed by Trump’s media madness, worrying that they might not get re-elected, or thinking they might develop a political advantage when Biden is sworn in. Winning, not their oaths to their country, is all that matters to them.
Some will say that Democrats are no better, that Democrats obstructed Mr. Trump from the moment he came into office. Maybe there is some truth to this, but at least in the Democrat’s case, they used legal means and the stark truth to support their positions. Not so with the Right Republicans in Congress, and enablers such as Senator Collins.
There can be no reconciliation, nor can their be trust in their role in government, until Republicans police their own, starting with taking responsibility for not having stood up to a liar and bully, who harmed a great many people.
For years, a primary goal of Republicans has been to reshape the judiciary. They have done so using every tool at their disposal, but one of those tools was not honesty. Not even considering President Obama’s nominee Merrick Garland on the basis that such nominations aren’t entertained during a presidential election year, and then ignoring that logic to confirm Amy Coney Barrett as a justice was a demonstration of both hypocrisy and Might Makes Right. With Republicans having precipitated this crisis; should the Democrats take control of the presidency, the House, and the Senate; as it appears they will; they would be perfectly justified in making use of that might to correct such an abuse.
What could they do? At a bare minimum, since Merrick Garland isn’t on the court and Neil Gorsuch is, the Congress could pass a law, increasing the size of the court to eleven. President Biden could then appoint two more people to re-establish a balance.
Others have argued for even more radical changes, including among others term limits and selection criteria by party; all of which are likely to be constitutionally problematic. Whatever power the Democrats will have next year, they will almost certainly not have the power to enact amendments. Indeed even to go so far as to increase the size of the court they will almost assuredly have to do away with the filibuster rule in the Senate.
Stepping Away From the Brink
If the Democrats take any of these actions, they will be perpetuating the use of the Supreme Court as an ideological football. There is one group of people who can stop this from happening: the court itself, specifically conservative justices. This can happen in one of a few ways, but the most obvious one would be for one or more conservative justices to retire. At a spry 72, Clarence Thomas may feel that his best years are in front of him, and that the Democrats wouldn’t dare tinker with the court’s composition. Justice Alito is 70, and may feel the same way. They should think again. While Joe Biden has indicated that he doesn’t want to get into such structural changes, he hasn’t rule them out.
Another alternative would be a clear pledge from conservative justices to maintain the status quo of their own accord. This would be a bitter pill to swallow, because it requires that one sublimate deeply held principles for the good of the institution. Indeed, one might ask, if one were to do this, why not retire from the court?
Even one conservative stepping down would be patriotic. It would allow the Senate to re-establish a comity that has been absent under Mitch McConnell, allowing things to get back to normal. It would also allow some rational discussion of what if any court reform would be necessary, such that it could take place in a bipartisan spirit. Whoever does this would be establishing a legacy that would likely far outlast any decision on the court.
When incoming – but not yet seated – national security advisor Michael Flynn opened separate negotiations with the Russians in late 2016, he was not the first American to interfere in American diplomacy. That dubious distinction falls to none other than Thomas Jefferson, who nearly landed America in a war with his interference. As vice president, he had no more of a role in government than vice presidents do today.
In the late 1790s, France was once again at war with England. President George Washington and later President John Adams sought to maintain neutrality between these two great European powers, if for no other reason, to avoid having one of them turn their guns on the young American country. With the passage of the Jay Treaty, America resolved a number of conflicts with England, to the great displeasure of the French Directorate. In retaliation, France started harassing American shipping, confiscating ships and detaining sailors. In the Spring of 1797, President Adams sent John Marshall, Charles Cotesworth Pinckney, and Elbridge Gerry to resolve the conflict.
Before they could leave, however, the French envoy Joseph Létombe met with then Vice President Thomas Jefferson. Jefferson served in that capacity because he was the runner-up to Adams in the presidential election. His views were diametrically opposed to those of Adams, who he viewed as sympathetic to England, whereas Jefferson himself as the former ambassador to France was partial to France. In his conversations with Létombe, Jefferson suggested that by dragging their feet in the negotiations, the French government would find more amenable negotiating partners in his own anti-federalist party.
Newly appointed French Foreign Minister Charles Maurice de Talleyrand took this advice to heart, refusing to officially receive any of them until they had paid a bribe and backed loans to the French to support their war against England. This became known as The XYZ Affair, so named for the code names of the three individuals who the corrupt Talleyrand sent to effect the extortion. Marshall’s report of the attempts at bribery inflamed Americans, and Telleyrand and the French were forced to end the attacks and seizures.
Around this time, one Doctor George Logan sailed as a private citizen to Paris and, while making clear that he did not represent the United States, attempted to negotiate directly with the French. The sly foreign minister saw this as an opportunity to get back at President Adams, and timed the resolution of the dispute between the two countries with Logan’s departure.
Jefferson’s earlier meddling and Logan’s naive approaches led Congress to enact what became known as the Logan Act of 1799, which says that no private citizen may engage in direct negotiations with agents of other governments in controversies between them and the United States. Two people have been prosecuted under this act, and nobody has been convicted. Arguably the act itself is unconstitutional because it would impinge on one’s right to free speech. Nevertheless, the interference was unwise, because it could have landed an unprepared America in a war with both England and France.
Vladimir Putin is every bit as sly and corrupt as Talleyrand was. It was foolish for Flynn to engage Putin’s emissaries to subvert the policy of the United States, and it was greedy and foolish of the Trump campaign to allow Putin to interfere with American democratic processes. Our Democracy is more important than any campaign. With President Trump arguing that Americans should not mail in ballots for fear of voter fraud, the larger offense is seeking foreign assistance to win an election. It has come at a steep cost. Americans drubbed out those in Congress who supported France. We should do the same with Republicans today.
In the technical community we like to say that the Internet is a network of networks, and that each network is independently operated and controlled. That may be true in some technical sense, but it far from the pragmatic truth.
Today’s New York Times contains an editorial that supports former Google CEO Eric Schmidt’s view that the Internet will balkanize into two – one centered around US/Western values and one around values of China, and indeed it goes farther, to state that there will be three large Internets, where Europe has its own center.
The fact is that this is the world in which we already live. It is well known that China already has its own Internet, in which all applications can be spied by the government. With the advent of the GDPR, those of us in Europe have been cut off from a number of non-European web sites because they refuse to comply with Europe’s privacy regulations. For example, I cannot read the Los Angeles Times from Switzerland. I get this lovely message:
Unfortunately, our website is currently unavailable in most European countries. We are engaged on the issue and committed to looking at options that support our full range of digital offerings to the EU market. We continue to identify technical compliance solutions that will provide all readers with our award-winning journalism.
And then there are other mini-Internets, such as that of Iran, in which they have attempted to establish their own borders, not only to preserve their culture, but also their security, at least in their view, thanks to such attacks as Stuxnet.
If China can make its own rules, and Europe can establish its own rules, and the U.S. has its own rules, and Iran has its own rules, can we really say that there is a single Internet today? And how many more Internets will there be tomorrow?
The trend is troubling.
We Internet geeks also like to highlight The Network Effect, in which the value of the network to each individual increases based on the number of network participants, an effect first observed with telephone networks. There is a risk that it can operate in reverse: each time the network bifurcates, its value to each participant decreases because of the loss of the participants who are now on separate networks.
Ironically, the capabilities found in China’s network may be very appealing to other countries such as Iran and Saudi Arabia, just as shared values around the needs of law enforcement had previously meant that a single set of lawful intercept capabilities exists in most telecommunications equipment. This latter example reflected shared societal values of the time.
If you believe that the Internet is a good thing on the whole, then a single Internet is therefore preferable to many bifurcated Internets. But that value is, at least for the moment, losing to the divergent views that we see reflected in the isolationist policies of the United States, the unilateral policies of Europe, BREXIT, and of course China. Unless and until the economic effects of the Reverse Network Effect are felt, there is no economic incentive for governments to change their direction.
But be careful. A new consensus may be forming that some might not like: a number of countries seemingly led by Australia are seeking ways to gain access to personal devices such as iPhones for purposes of law enforcement, with or without strong technical protections. Do you want to be on that Internet, and perhaps as importantly, will you have a choice? Perhaps there will eventually be one Internet, and we may not like it.
One thing is certain: I probably won’t be reading the LA Times any time soon.
My views do not necessarily represent those of my employer.