There’s a sound policymaking reason why the European Parliament should ignore the bombardment of email and social media messaging it has recently endured for copyright reform. That reason is well articulated in a 2010 memo by Professor Cass Sunstein (then Administrator of the White House Office of Information and Regulatory Affairs) when he cautioned the Obama Administration against relying on social media for making policy:
“Because, in general, the results of online rankings, ratings, and tagging (e.g., number of votes or top rank) are not statistically generalizable, they should not be used as the basis for policy or planning.”
In a post-Cambridge Analytica world where social media platforms not only are ubiquitous but also have earned the distrust of policy-makers and voters as well as parents, Sunstein’s nine-year old admonition is especially prescient-but he could have added “easy to fake.” This would apply to the new boiler rooms of fake Twitter accounts with distorted ratios of tweets to followers, or followed accounts to likes–such as the infamous Internet Research Agency.
Sunstein’s memo is both ominous and also relevant given developments at the European Parliament over the last few months. Big Tech’s interference lobbyists are fighting the last war against safe harbor reform using “fake grassroots” online campaigns against Members instead of legitimate advocacy.
Specifically, the reaction of multinational Big Tech legacy players to the European Parliament’s safe harbor reform effort demonstrates a toxic brew of corporations attacking Members. That’s a dark turn to Sunstein’s analysis. Crucially, it appears that bot farming techniques and mass email attacks verging on denial of service are weapons in Big Tech’s interference lobbying arsenal despite their hollow assurances to multiple governments about policing interference by state actors in national elections.
Think it can’t happen here? Think again.
Europe’s Safe Harbor Reform
Known formally as the “European Directive on Copyright in the Digital Single Market” or informally as “Article 13”, the EU legislation is intended to update the law and, among other things, substantially cuts back the legacy safe harbor privilege that is so valuable to Big Tech. (See Emmanuel Legrand’s excellent summary.) It’s understandable that they would–Facebook, Google, Twitch and others have based their trillion-dollar market caps on what otherwise would be called piracy–also known as the “value gap”.
Congress has yet to grapple with the US version of the DMCA safe harbor (referring generally to Section 512 of the Copyright Act), although the Copyright Office is beginning field hearings on the much needed overhaul. Originally conceived in 1998 as a way to afford a little latitude to reasonable people acting reasonably, Big Tech and its acolytes have distorted the DMCA “safe harbor” beyond recognition in the last twenty years and converted into an alibi.
In the last session, Congress took an important step by cutting back a different safe harbor in Section 230 of the Communications Decency Act with the SESTA-FOSTA package. SESTA-FOSTA eliminated a safe harbor for sex trafficking which seems uncontroversial-but caused a huge lobbying counterattack by Big Tech. If you caught any of the manipulated onslaught against SESTA-FOSTA, you have a taste of what the European Parliament is experiencing with their Copyright Directive.
There’s no question that Google and Facebook lobbyists interfered with the EU’s legislation–the companies threatened an MEP that they would interfere in the EU elections if they were challenged on Article 13:
German MEP Truepel gives a first hand confirmation of what happened. Further, in an official blog post that has become controversial because it struck a little close to home, the European Commission commented conclusively on the MEPs’ experience with Big Tech’s “fake grassroots” campaign and interference lobbying tactics:
[T]here is ample evidence from respected sources, here and here and perhaps here or here or indeed here that ‘Big Technology’ has even ‘created’ grassroots campaigns against the Copyright Directive in order to make it look and sound as if the EU is acting against the ‘will of the people’….
Do Google, Facebook or others really need to pay to persuade?
Are we in a world where ordinary people side with the fire breathing dragon against the knight with a blue and yellow shield?
The Fake Interference Campaign
Yes, Google and Facebook attempted to pass off a blistering email spam campaign targeting Members as a spontaneous grassroots uprising. Not just once, but three times on three separate votes in Parliament on the Copyright Directive-even after they had been caught faking and interfering by major news outlets.
The first “campaign” was around a committee vote that resulted in a win for Big Tech. Thanks to David Lowery and Volker Reick, the press called out the fakery in exposes by the Times of London and Frankfurter Allgemeine Zeitung among others. Big Tech attempted to counter that expose by organizing in-person protests after making online threats of the “we’ll show you we’re real” variety across Europe.
Far from setting Europe ablaze, some estimate that these protests drew fewer than a total of 500 across Europe in multiple locations. Pictures taken at these “protests” suggest that they were primarily organized by the Pirate Party, a fringe political party with one MEP that supports piracy and safe harbors as its name suggests.
Expose or no expose, the “fake grassroots” and spamming were repeated as the Copyright Directive went through successive procedural votes-which Big Tech lost miserably. Yet the multinationals keep running the same interference play and kept getting sacked.
Members and the European Commission Speak Out Against Interference
Members were not fooled. One example is an odd Tweetstorm against reform by suspicious accounts. Members were subjected to attempts to stimulate the documented “emotional contagion” that drives social media. A typical bot-like Twitter account against the Copyright Directive would have followers in low double digits or fewer but tens of thousands of tweets and a disproportionately high number of “likes” (in some cases over 100,000). That ratio suggests that the account was used to capitalize on the Twitter “ratioing” algorithm to drive the corporate message into user timelines. One wonders what did Twitter know and when did they know it?
In addition to the Tweetstorm, interference lobbyists ran a near-DDOS level email campaign that was actually counter-productive. When asked at a press conference why the vote tally switched from opposing the Copyright Directive in the first committee vote to overwhelmingly supporting it in the next plenary vote, German MEP Helga Truepel pulled no punches:
“I think it’s due to this message spamming campaign. I talked to some of my colleagues here [and they] are totally [angry]…”
The European Commission’s official blog echoes Sunstein:
So next time, when you get a sponsored message on your timeline, which says something like ‘the EU will kill the world wide web as we know it’, stop, pause and consider for a moment. Ask yourself: Cui Bono? Who really benefits from this message or this wider negative campaign?
We know the answer to that question. Google and Facebook became the biggest corporations in commercial history by manipulating legacy safe harbors in ways that neither Congress nor the EU intended. Despite assurances about policing interference by bad actors on their networks, the European experience suggests they are actively using similar interference techniques to protect their privilege.
Europe has shown the world that legacy Big Tech business models can be brought into the 21st Century through well thought-out legislation. But Congress would do well to arm itself against comparable “fake grassroots” interference campaigns in making policy for vital DMCA safe harbor reform to close the value gap.
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