an indecent proposal

For over 20 years, Internet businesses have grown under the protection of a special law that provides extraordinary privileges. This law has properly been hailed as a boon to innovation, and has become enshrined in some quarters as an indispensable pillar of free speech. However, no law regarding technology can survive the merciless rule of unintended consequences; what was once a necessary sanctuary has become a virtual menace to society. If you wonder how the United States has reached the brink of electing a deplorable villain as its leader, at least part of the answer rests with the Internet’s most generous law.

This law is Section 230 of the Communications Decency Act of 1996. The bulk of the act was a misguided attempt to regulate “indecent” content on the Internet, most of which was rightfully struck down by the Supreme Court in the name of the First Amendment. But Section 230 was a special provision inserted late in the legislative process, out of concern that nascent Internet businesses would drown in legal liability for statements made by others. Section 230 states:

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.

This is a shield from libel and defamation suits, an amazing advantage in the rise of the new media of the Internet. The impetus for this law came from a 1995 case where an Internet service provider was found liable for defamatory statements made by a user of its message board. The court’s reasoning included the fact that the Internet service had exercised some editorial control over some of the message board content; therefore the service could be treated as the publisher of all the content, just as a newspaper would be.

In 1995, this was a horrific decision made by technology-illiterate judges who had no understanding of the power and potential of the Internet. It would be nice to think that the Congressmen who inserted Section 230 into the CDA were blessed with extraordinary foresight into the future of technology. But no – actually they just wanted to be sure that Internet companies would be willing to help hide boobies.

Remember, the bulk of the CDA was an insane Sisyphean effort to stop the spread of pornography on the Internet. Internet providers were rightly concerned that they would never be able to stop all the boobies. They argued that the 1995 case showed that any failed attempt to censor boobies would be interpreted as editorial control, holding them liable for all the boobies that did get through. So these Congressman inserted Section 230 as a way of saying to companies “Hey, just try your best to censor boobies, you won’t be held liable as a publisher of the boobies that did get through.” Internet companies, even in 1995, were smarter than Congressmen. Although the CDA was about as effective at reducing pornography on the Internet as a cocktail umbrella in a hailstorm, Section 230 emerged from this fragile legislation as an enduring and invaluable shield against liability. Now you can’t sue Facebook for publishing information that is verifiably false and harmful. Lives can be destroyed on the sites we live on, and those sites will never be held responsible.

The EFF says Section 230 is “one of the most valuable tools for protecting freedom of expression and innovation on the Internet” and ACLU says that this law “defines Internet culture as we know it.” These eminent bastions of free speech have been tremendous warriors for a lot of good in our society, but like anyone else, they could not predict the future and they may cling too long to brittle ideas that are past their expiration date. When Section 230 was adopted, the Internet was the Wild West, the new American frontier for development. There were no dominant Internet companies. The law was written with Prodigy and CompuServe in mind; AOL was the up-and-comer, Yahoo was barely a year old. The media lifeblood of the nation were the three broadcast networks, the New York Times and the Washington Post, and the many local newspapers throughout the country. People who understood the Internet then were rightly concerned about legal liability crushing the industry in its infancy.

We live in a very different world today. Network effects make some large portions of the Internet into a winner-take-all game where the behemoths can quickly grow into billion-dollar enterprises, affecting billions of lives daily. Traditional media is dead and dying, a boon to experimentation and diversity, but a blow to authority and truth. Technologists were proud to disintermediate and destroy the old gatekeepers, but we engaged in this merry destruction without any thought to the vital purpose that the Fourth Estate served in our politics. And now we live in a nation where most days it seems like the only people who don’t believe the next president could be a racist, misogynist, fascist despot are the ones who believe she could be an acceptably corrupt continuation of a broken political system.

The gatekeepers are dead and most people only get their news from their friends and others in the same echo chamber on Facebook. Our public discourse is conducted on Twitter, where online harassment by anonymous, cowardly sexists and racists is treated as an acceptable form of free speech. And we are still, as we always are in technology, only at the beginning of our problems. I don’t know where this is going any better than lawmakers did in 1996; I don’t have a solution – but I do think we should take the thumb off the scales that favor Internet businesses.

A similar situation occurred with respect to state sales taxes. In a 1992 case, the Supreme court ruled that businesses with no physical presence in a state did not have to collect sales tax in that state. Amazon exploited this ruling, carefully building its business to avoid having to impose state sales taxes, giving it an advantage over local businesses. By 2012, Amazon saw the writing on the wall, and began “voluntarily” collecting sales tax in many more states than it had previously done. But by that time, the West had been won: Amazon was the dominant online retailer, and Main Street businesses had been all but destroyed. Amazon had the foresight to act ahead of the change in the laws, which is coming anyway. I fear our dominant Internet services lack the moral courage to act in the interests of our country.

Facebook and Twitter are our new public square, and although they are private businesses they should not be exempt from the laws and social requirements of other businesses that regularly gather large groups of people together. No shopping mall, for example, would allow the public posting of verifiably untrue, insane ramblings, not without damage to their business as well as legal liability. No sporting venue would allow its women to be spit on, its minorities to be subject to vile racist invective, without losing business and facing lawsuits. And yet we allow our most significant public gatherings online to be completely free of the obligations of being a publisher, obligations that supported the kind of media that have been vital to our proper functioning politics.

The internet destroyed vast portions of traditional media that depended on fact, truth and integrity. This hasn’t been solely a triumph of progress and free market principles, it has been a creative destruction assisted by a sweetheart deal with the government. Under this mantle of government protection, technology companies replaced essential elements of democracy with endless misinformation, lies and insanity. Free speech should allow much of this to be possible, but those who would build a business on irresponsible dissemination of speech should be subject to the same laws as the businesses that they destroyed. It’s time to take the training wheels off of Internet culture. Section 230 of the CDA should be repealed.

the webz for realz

The “real time web” is a phrase that’s coming dangerously close to buzzword heaven, to the point where formerly-Web-2.0-guys will start saying it’s a key feature of Web 3.0.  I’m not sure that the people who are so fond of the phrase are entirely clear on what it really means.

Some folks seem to say that “real time web” basically means everything more and faster.  It’s been a common tenet for at least a decade that the value in the Web is found in aggregating and analyzing information, and delivering the result to the right audiences.  Today we simply have more information, from more sources, and more techniques to analyze and filter the info flow.  Creation, collection, analysis, filtering and distribution of information happens so fast now that we can call it “real time” – but that’s just a fancy phrase for “really rilly fast.”  In this view, “real time web” is an inapt phrase if it’s meant to describe a new benefit – what we really have is just a new expression of an old (in Web terms) problem.

Another view is that the Real Time Web is not just a faster Web, but a new medium.  I don’t think I can articulate this view in brief, but the general idea is that fundamentally different sensory experiences are implicated by this new kind of personalized information that is delivered and filtered nearly concurrently with its creation.  This view is sexy sexy sexy:  it’s always so sexy to declare a new medium.  It’s so sexy that somehow the tone of new media declaration infuses the works of even the commentators whose words clearly describe nothing more than a faster Web.  When you read just about any writing that uses “real time web,” it seems that the author is striving to discuss new tools for new problems, rather than new tools for old problems, and would be aghast if it turned out that it’s actually just a discussion of old tools for old problems.

So is the real-time Web really just a faster Web, or is it a new medium, as different from the Web as the Web is from TV and radio?

That’s a deliberate question, since I think the fascination with ”’real-time”’ often represents a yearning for old media forms – especially broadcast media like TV and radio.  Ironically, people who have seen a lot of media evolution tend to race to declare every older medium dead, while they simultaneously pine for the familiar patterns of old media.

The idea of broadcasting – getting the same information out to many users at the same time – might be a familiar pattern that people are seeing when they think of the Real Time Web as a new medium.  Early Internet businesses like Pointcast and were simply about using the Web to get the same information to as many people as possible at (roughly) the same time.  But at this point, thinking of the Web as a broadcast medium requires perverse ignorance of the distinct characteristics that make the Web interesting as a new media format.

What is distinct about the Web versus other media is the extent to which information can be aggregated and analyzed, the low cost and ease of creation of content, the application of both computer algorithms and social means to filter and personalize delivery.  When people began to understand that, they stopped trying to broadcast and instead built businesses like Ebay and Amazon and Google – and it so happens that those businesses were built on aggregating and analyzing asynchronous information.

I guess I’m asking:  Is the asynchronicity of information creation, collection and analysis also an important distinct characteristic; and if so, does that mean that doing those things in real time makes the Web a different medium?

Another way to gauge the relative importance of the real-time concept:  Which would you rather have at your disposal, everything on the Web that is older than one hour, or everything that is more recent?  (Picking It Depends is not a choice.)

losers, killers, drugs, cars

What does it mean to say that TV lost to computers, as Paul Graham suggests?  Graham tries to explain why the Internet “won” in the battle of media convergence, but he begs the question of whether media “convergence” was a valid proposition in the first place, or what it was even supposed to mean.

Take a close look at any claim that one kind of media “lost to” or “killed” another.  Were they ever really in competition?  Sure, every kind of experience is a competitor for our limited time, but I’d call this “attention competition” rather than “replacement competition.”

I might choose to watch basketball rather than baseball in the limited time I watch sports, but basketball didn’t kill baseball:  although basketball had a later start and has grown more in recent decades, both sports businesses are larger than they have ever been before.  Things that compete for my attention do not kill each other, they just give me more choices.

In contrast, I use a safety razor to shave my face.  A safety razor is better than its predecessor, the straight razor, in every way – shaving is faster, cleaner, closer, easier, safer – except possibly price, which I am happy to pay for those benefits.  I am not the only person to make this choice, by and large the entire shaving market has.  Although some people stick to the straight razor for reasons of fashion, self-esteem, or violent secondary uses, the straight razor has been replaced by the safety razor to such a large extent that you can say the latter killed the former.  Losers and killers in the market can only exist among things that accomplish the same function.

A lot of media is entertainment, and “entertainment” is not a function, it’s a category.  Historically, there has been a huge amount of attention competition within the entertainment category, but much of this competition has only given us more choices in an expanding market for leisure.  Novels did not replace plays, radio did not replace books, movies did not replace radio, TV did not replace movies.  Most if not all of those businesses are larger in absolute terms than they’ve ever been, even though many are smaller in audience share.

On the other hand, vinyl albums nearly got replaced by 8-tracks and then cassette tapes, then all of these lost to CDs, and now CDs are losing to music downloads and streaming on computing devices.  All of those formats simply fulfill the function of delivering music, so here you really can say that a new format killed an old format, and various businesses were winners and losers along the way.

If you’re thinking that it’s not so simple, you’re right.  Let’s go back and examine the entertainment category again.  TV may not have completely replaced radio, but a certain kind of radio show no longer exists in any noticeable volume:  the radio drama, of the type that the Shadow knows.  Were these replaced by TV shows?  Probably.  And for that matter, books and their predecessor scrolls and tablets did replace cave drawings.  So how can you really tell when you have competitors for attention within a category, rather than replacement competitors in a race to be the best format for the same function?

I think one key is to ask whether the format gives rise to a distinct art form.  I don’t mean to make lofty judgments about art, but more mundane observations about senses and brain responses.  (I could say “neurosensory experience” rather than “art,” but that would be replacing pretension with didacticism.)  The novel engages the brain in conveying a narrative in a way that the brain is not engaged in hearing or watching essentially the same story.  Plays have a sensory experience in a way that is not captured in TV or movies.  But radio dramas never really attempted to deliver any experience that wasn’t the same experience done better by a TV drama, so when people began enjoying TV shows, that did kill radio shows.  There is arguably no distinct form of art tied to radio – music obviously can be delivered well in many formats – so it’s likely that radio will actually be killed by superior forms of distribution for audio content.

So does TV have a distinct art form?  Well, over the last few decades we have seen the rise of ever longer dramas that tell a story with character depth that have been quite distinct to TV (especially as opposed to movies or plays).  From Hill Street Blues to The Sopranos, viewers became accustomed to following character development and story lines over years rather than one-hour episodes.  This “long form passive story viewing” is distinct to TV – and even though you can watch these same TV shows on your computer, that doesn’t mean that the Internet ”’killed”’ TV.  It matters whether we are talking about the art form of TV, or the delivery vehicle of TV.

See, this my objection to Graham’s argument.  He says that “Facebook killed TV,” meaning that the social applications made possible by the interactivity of the Internet led to the downfall of TV.  But this mixes and matches the format and the substance; it is an inapt attempt to make a larger artistic and social commentary.  Social applications are an attention competitor for the long form passive story viewing that is on TV today, but neither will kill the other.  To say that TV loses to the computer is only saying that the screen in your house on which you watch TV shows will also be the screen that you use for Facebook – it’s a somewhat interesting comment, but not more interesting than cassettes beating 8-tracks.

My view here is complex and probably not stated very well, so I’ve come up with a simple question to ask when considering the losers and killers that others see:  Are we talking about drugs or cars?

Popular recreational drugs have distinct effects on the brain, and all are competitors for the attention of recreational drug users.  Some people prefer particular drugs, but in the overall drug market, meth doesn’t kill heroin doesn’t kill cocaine doesn’t kill weed – all of these have their audiences because each elicits a distinct effect on the brain.  (For some reason, only heroin seems to be a popular point of comparison for technology in general, Internet addiction, or porn on the Net.  I think comparisons should be more exact:  TV is heroin, social networking is coke, Internet porn is meth, and so on . . . but I don’t really have the time or social position to research this properly.)

Before safety razors and CDs, cars are the prototypical replacement choice – the advent of cars killed the horse-and-buggy, literally a superior delivery vehicle.  If it’s not this kind of outright replacement, then there shouldn’t be talk of losers and killers.