Oct
20

Zuckerberg's Noxious Hypocrisy

            Mark Zuckerberg can afford to be as irrational as he wants to be. The billions he’s made gives him what the magnificently rich call “f@#k you money.” That’s the sort of wealth that permits them to laugh at we lesser mortals, including the government.

            But that doesn’t mean we can’t call him out for spouting nonsense.

            Last week, the Facebook founder defiantly declared himself a defender of free speech.

            “I’m here today because I believe we must continue to stand for free speech,” Zuckerberg told his audience at Georgetown’s Gaston Hall in the nation’s capital. “People having the power to express themselves at scale is anew kind of force in the world – a Fifth Estate alongside the other power structures of society.”

            Why didn’t anyone laugh at the clownish declaration?

            Zuckerberg’s Fifth Estate is the digital equivalent of the mafia.

            No, strike that. Facebook and our new digital overlords have it even better than the mafia. They can shake us down with the backing and support of the government.

            Consider the following:

            Facebook enjoys the protection of Section 230 of the Communications Decency Act. That federal law exempts Facebook from liability for the third-party content it posts. In other words, so long as Facebook merely posts what others write, it cannot be sued for defamation or the infliction of emotional distress. Facebook can publish something it knows to be untrue without legal consequence, a privilege traditional publishers don’t enjoy.

            It The New York Times were to publish a piece it knew to be false, it could be sued by someone damaged by the falsehood. Not Facebook.

            Senator Elizabeth Warren is, of course, outraged. (She wears her outrage like an outsized scarf; our very own National Scold.) She had her campaign staff place an ad on Facebook. “Breaking News,” it reads. The ad declared that Mr. Zuckerberg and Facebook support the re-election of President Trump. Sen. Warren then goes on to state that, of course, the ad isn’t true.

            When Madam Scold demanded that Facebook remove the ad as an abhorrent example of “disinformation for profit,” Facebook refused.

            Why?

            The speech is political in character. Facebook believes in free speech, you see. It won’t engage in content-based restrictions on political speech.

            Tell that to Alex Jones and Infowars, who have been banned from Facebook and other social media platform. (Yes, I represent Alex Jones and Infowars.) It turns out that Jones and Infowars have been determined by Facebook censors to violate the company’s “community standards.”

            But what if Jones wants to support Madam Scold’s presidential nomination, an event, I concede, as unlikely as Warren learning to giggle. Isn’t that political speech?

            Of course, it is.

            Facebook wants to enjoy the benefits of immunity from suit by operation of federal law while at the same time arrogating to itself to determine what is and is not political. When it likes speech, or, more to the point, profits from speech, the speech is political. But disagree with Zuckerberg or his band of officious censors, and find yourself banned.

            How did we permit ourselves to be seduced by this nonsense?

            Facebook is a private company, not a branch of the government. It is not obligated to adhere to first amendment standards and is free to engage in content-based discrimination, a practice it engages in with self-conscious zeal. And we the people have no means to compel the company from disclosing its standards, or, to insist that it adhere to first amendment standards.

            The result is an habituation to censorship that poses a true and present danger to the first amendment.

            Our courts have long protected political speech, holding in case after case that political speech is at the core of what the first amendment protects. But what of hate speech? I heard an appellate court judge just the other day say that social media creates a new judicial imperative to police speech. How easy would it be for courts to say, following Facebook’s lead, that some speech is so lacking in redeeming scientific, artistic, literary value and political value that it is not entitled to protection? Aren’t we on the cusp of concluding that there is speech, call it hate speech, that is unworthy of first amendment protection?

            Facebook has made such a declaration. Zukcerberg’s arrogant declaration that social media is the Fifth Estate seeks to give the internet behemoths a constitutional role and significance that is truly shocking. It is an overreach of historic proportions. It should be met with national scorn and outrage.

            Amend Section 230 of the Communications Decency Act, I say. Don’t give Facebook impunity to profit by application of secret algorithm to our speech and communications while at the same time giving it impunity to impose its values, its community standards, on the rest of us in a manner that is secret and wholly unaccountable.

            If Facebook wants knowingly to publish falsehood, then let it run the gauntlet of civil litigation. In the meantime, if it seeks to enjoy a publicly conferred immunity from suit, then do not permit it to decide what can and cannot be published on its site. Alex Jones has plenty to say about politics. Somehow what he says offends Facebook censors. So much the worse for these censors.

           You can put all the lipstick you want on Facebook’s piggishness. At the end of the day the pig still has a name: Mark Zuckerbrg. I’ll defend to the death his right to say “Oink,” but I’ll never be able to shake the scent of his hypocrisy.

 


Oct
14

Edward Snowden -- Citizen-Traitor

                I pre-ordered Edward Snowden’s Permanent Record, his autobiographical memoir of how he came to be – well, what did he become?  Is he a traitor? Or a hero? Such is the confusing character of our times that I could see, prior to diving into the book, a case for both perspectives.

               Considered from the perspective of Shoshana Zuboff’s The Age of Surveillance Capitalism he is certainly prophetic, if not a hero. Ms. Zuboff lays bare a brave new world of digital surveillance, with Apple, Facebook, Google and the like becoming digital overlords. Is it any surprise that the Government would sign on to total knowledge in the name of security?

               Possessed of superior computing skills and innate curiosity, Mr. Snowden  found himself, in his twenties, with one of the nation’s highest security clearances, able to dip at will into the belly of the national security beast to learn a truth that should shock: the Government aspires to know everything about us, our every keystroke and browse of the internet stored in massive servers, our lives available to curious security officers whensoever they will. Surely this isn’t what the founder’s had in mind at the time the fourth amendment first limited the Government’s ability to search?

              Call Mr. Snowden a hero, then, at least when it comes to the threat we pose to ourselves.

              But shift the lens somewhat, and consider Mr. Snowden from the perspective offered by John Carlin’s Dawn of the Code War. Mr. Carlin, a former senior prosecutor in the Justice Department, describes the challenges of prosecuting and combatting what amounts to digital terrorism and crime. Yes, the digital age has made all sorts of information about us available to our Government. But that  information is also available to organized crime – there is, I think, a difference between the government and organized crime – and to foreign powers that do not mean us well, Russia, China, Iran and North Korea, to name the big four. How well are we prepared to meet the threat that comes from outside our borders, or form those who regard the rule of law as a mere challenge to overcome? Doesn’t revealing the confidential security structure we use to defend ourselves assist our enemies?

               Call Mr. Snowden a traitor, then, at least when it comes to the threat others pose to us.

               Candidly, Edward Snowden is both a hero and a traitor. The digital age has poured new wine into the old skins of our law and social relations. The result is that old structures don’t contain the new reality. Things are bursting at the seams all around us, and we lurch like drunkards from one extreme to the other, somehow looking for new ideals and models to replace the old.

                The most surprising thing about Mr. Snowden’s revelations in Permanent Record is just how ordinary, likable and even boring he is. I had expected some disaffected soul, ruminating on what the world owes him, nursing imaginary slights or dark, narcissistic fantasies. (Can you really listen to Julian Assange, for example, without imagining what a little more milk of human kindness might have nourished?)

                That’s not Mr. Snowden. He’s a descendent of pilgrims, with a long family history of military service. He seems to have grown up among loving parents; there was an abundance of love, if not material things. He tells a revealing story about his father, one that left me marveling at the power of paternal love.

                Pere Snowden was a Coast Guard career officer with a specialty in electronics. When personal computers first hit the market, he bought a Commodore 64. He sat alone learning to use it, and playing  games. Young Edward “spied” on his father from a window overlooking the living room. When his father discovered him, there was no punishment for staying up too late. His father swept him into his arms, plopped him down on his lap, and gave the boy the run of the computer. Thus was born a passion to understand computing.  Mr. Snowden grew up surrounded by love; he appears not to have known fear until later in life, when he came to fear his own government.

             Mr. Snowden worked in the NSA and the CIA, leveraging self-taught computer skills and certificates from Microsoft into a career as a senior consultant for private contractors managing the intelligence community’s hardware. He notes the irony that young folks with little or no life experience, but superior computing skills, are entrusted with the nation’s most vital secrets.

            And herein lies the riddle of Edward Snowden, the Citizen-Traitor. He genuinely believed in the Constitution. He reports carrying a pocket-size copy of it and reading it endlessly. His reading seduced him. Isn’t he one of the people referred to in the preamble? Don’t the words mean what they say? What about the fourth amendment guarantee against unreasonable searches and seizures? Mr. Snowden feels betrayed, suddenly. He decides to take matters into his own hands.

           He has, we all have, the power to do that, of course. But we can’t do so with impunity. The grand clauses of the Constitution – “due process,” freedom from “unreasonable searches and seizures” – these are battleground terms, the meaning of which is labored over in courts throughout the land and are then decided, in ways that bind lawyers, at least, by the Supreme Court. The Constitution is a document written in code. Lawyers and judges decode it.

          Perhaps it shouldn’t be that way. Perhaps Mr. Snowden is right to feel betrayed. There is a crisis of legitimacy in the land. Big government and big data terrify. But more terrifying, I suspect, is a world without the meliorating influence of institutions designed to protect visions of the public good. I am a happy anarchist up until the time that a Chinese intelligence agent crashes the power grid – then I want protection.

          The republic is frayed. We struggle for a vision of the public good. Mr. Snowden is both public enemy number one and citizen one. In the contested terrain of the digital world it is hard these days to distinguish friend from foe. Mr. Snowden’s memoir reminds us why the effort to do so is more urgent than ever.   

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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