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Netopia Will Be Televised

Friday, March 26th, 2021

Netopia goes television – that’s right, in the spirit of democratized media, Netopia goes to video. In a series of interviews, your humble editor will meet key people in digital policy and discuss the hottest topics. First out is MEP Alex Agius Saliba (S&D) who has made a name for himself in European Parliament as rapporteur for the Digital Services Act. I asked him about freedom of speech, innovation, competition, the reach of EU policy on a global network and many other things. Some of the answers may surprise you!

Check out the video here. For your reading pleasure and convenience, we have provided a transcript of the interview as well. Enjoy!

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EU must protect its fundamental values online

Thursday, March 25th, 2021

In our first spotlight video interview, Netopia editor Per Strömbäck meets Alex Agius Saliba, member of European parliament representing Malta in the S&D-group. MEP Saliba is one of the most prominent persons in European digital policy, not least as rapporteur on the Digital Services Act for the IMCO committee in 2020.

Netopia had the chance to ask MEP Saliba’s views on the reach of European policy on the global internet, how to promote innovation, freedom of speech online and other hot topics.

This is the first Netopia spotlight interview, more to come – watch this space!

[transcript]
What brings you to digital policy?

I think that digital and especially social media platforms today have become so important and so prevalent in our lives, they have become the new public utilities, and if you look at the legislation when it comes to the digital framework, strengthening our digital single market we have fallen behind for a number of years.

So I have always had a lot of interest in information technology law, especially issues dealing with eCommerce and also competition law and how competition interacts with the digital industries.

Therefore, this was my natural choice to focus on this in the European Parliament, especially in the internal market committee on digital issues (IMCO).

It’s a field whereby a lot of work is needed at the EU level and I believe that this is the right time to do so.

What is the domain and reach of European policy. We’re talking about the Internet it’s a global network. It’s a global market, it’s dominated by, often actors far outside of Europe. What is the reach of the European policy?

It has a lot of reach: first of all, I think what we are doing today with the big discussions in the DSA and also DMA I think this will have a reach not only in the European continent, but it will have also a reach and impact in other continents.

We have a reach as European legislators for one reason, because ultimately when you are talking about digital you are not talking about a vacuum.

Just one thing you’re talking about fundamental rights, fundamental rights of privacy, you’re talking about fundamental rights which are so important.

Consumer rights and other user rights so digital rights per se are interlinked with core European values core European values which we must and should not let only big tech companies to regulate the digital infrastructure, and digital regulatory framework by themselves; basically conditioning the rules upon which they have to work and function. Ultimately we, as European regulators have to be ambitious, courageous enough to take bold steps, so that ultimately we take back control of the digital ecosystem. It’s not about an issue about punishing.

It’s not about small versus big. It’s an issue about if you want to target directly our users, our consumers, our market…big tech companies being big, small, medium sized. They have to play by our own rules.

So this is a fundamental point and I think and I believe that is why we should act and act fast. We have already lost a lot of time.

In this sphere it’s a total shame for me as European regulator that we are in a situation whereby creative legislators and creative European court to interpret a 20-year old legislation.

The e-Commerce directive was enacted way before a number of these big tech giants and platforms which have become unavoidable trading partners for European industries and have become unavoidable for European citizens. This is the reality.

And this ecosystem is being tackled through and by a 20-year old piece of legislation which has some elements which are still relevant, but I think there are a
lot of legal loopholes that we have to fill and this is so important to take back control of the digital ecosystem.

What are some of the policies that you would like to put in place to deal with the problems you point to?

First of all, some of the most pertinent issues that I have been very focused upon are very consumer-oriented and I always take a very consumer-orientated approach because I believe in consumer rights. And I don’t believe that there should be first- and second-class consumer rights.

First class for offline and second-class consumer rights for the online system.

That is not fair. Today our consumers have become digital consumers and it’s really important for us to take actions accordingly and not treat digital consumers as second class consumers. And also, if we want to help our industry, our innovators.

We have; for example, a very flourishing app developer [scene] in the European Union. The biggest issues that these innovators, start-ups are facing is issues of scale-up and if we want to become the leaders, we have to take back control, by moving forward a number of the fundamental principles such as those principles which I totally endorse under the DMA
basically, defining who gatekeepers are… having a systemic role in the ecosystem and also, imposing a list to achieve a better equilibrium in the ecosystem to take back control by
moving forward the “Know Your Business Customer” provisions to ultimately do away with issues of…. I have nothing against internet anonymity because
internet anonymity is a fundamental importance,  and is a fundamental right for users. But anonymity for business transactions.
This is something which has to be solved,  and this can be solved by the verification element that we want to insert under the traditional Article 5 of the eCommerce Directive
So strengthening information that ultimately is being provided. And also by moving forward others principals, such as principals which are so important when it comes to the business model that these big tech companies and digital platforms are using…. the business model of advertising.

There are a lot of issues when it comes to targeted advertising. We are an assembly group have moved a very interesting campaign: “The Enzo Campaign” aimed to raise more awareness
and do away, ultimately, with targeted advertising. And this is also a priority for my political family. But also, other issues, for example, giving an  extra-territorial element to
the eCommerce/DSA initiative, ultimately enforcing the principle which the Commission took also from our report of what is it illegal offline, should also be considered to be illegal online
and ultimately those sellers who are targeting directly through online marketplaces, but not only, those sellers who are targeting directly our users, our consumers, our market, they have to play by our own rules.

And we do away with the competitive disadvantage of third-country sellers and European producers and distributors who have to abide by stringent EU [rules], especially when it comes to Health and Safety requirements and ultimately third-country sellers do away with all these requirements and have the competitive edge over industries and over our SME companies in the EU who have to abide by all the rules to enter in the Single Market, but also other important issues for me are issues of the Notice and Action” system, which is againof fundamental importance. Maybe users were not so aware about the importance of having a harmonized “Notice and Action” system, they became aware of this big legal loophole, when they saw the recent Capitol Hill incidents when they saw the Parlor being taken-off by a number of platforms when they were basically challenging decisions that were taken unilaterally by big tech companies, and again that is why I could believe that it is the right time to do such reforms, because there is the political push and there is the political visibility and ultimately citizens and users also No, what is happening more transparency out there and also make these want to know to what is happening, have more transparency and also make these companies function in an ecosystem and in a regulatory framework and not play only by the by their own rules. I think these are the main issues that I want to see tackled through the DSA and DMA initiatives.

It’s the Digital Services Act (DSA) and the Digital Markets Act, the DMA, and currently as they we speak they been proposed by the European Commission and they’re being negotiated now.
First do you see these two as parts of the same thing or can they also be handled separately, can you have one without the other?

No. I think both of them are important single market instruments and one is dependent on the other.

It’s impossible to move forward what we are proposing under the DSA and create this equilibrium and sort this big imbalance we have if we don’t have the DMA instrument whereby we will be filling in the blanks which traditional competition traditional ex post competition law cannot fill by itself. So one works in-tandem and in-hand with the other and we cannot discuss the DSA, without in parallel also having a strong DMA. I think they are both very ambitious texts. If you tell me are the ambitious enough? I will tell you I wish the Commission was more ambitious, in a number of areas, especially when it comes to online marketplaces … when it comes to issues such as recommender systems and then transparency in these systems and not only focus on big tech when it comes to advertising and recommender systems.

I think we have to take a more holistic approach, but if you look at the proposals, I think that the point of departure in this is that we cannot view them as a silver bullet to solve all the issues that we have in the ecosystem.

If we take that approach and try to do a lot of patchwork, even internally, although we try to do away with patchwork initiatives in different member states, but if we try to do a patchwork exercise whereby we have these two legislation and try to overload them with a lot of initiatives to try to solve all the issues we will definitely fail, so I think it’s a good to start to try to take back control but ultimately  they are good proposals and something which we can work on during these next months and definitely they will be tough negotiations between the Parliament, Council and Commission.

Maybe if we look at one particular piece, the so called Good Samaritan clause which provides immunity to intermediaries when they take action, some say this will put the terms and conditions in the community standards of the services and platforms above national law what what do you say to this argument?

I’m going to be totally blunt about this. I was always blunt when it comes to Good Samaritan issues I am not in favour of replicating the US Good Samaritan system .. even with a soft touch approach implemented at European level so this is an issue which was very hotly debated also under the compromise of the proposal which I was leading, and in the IMCO committee and a considerable number of MEPs who want to go in that direction especially in some political groups, such as EPP and the Renew group but at the same time we as an assembly group and myself as a person who directly on the DSA and I will continue to work on a number of amendments that I wish to move forward
in the next months and weeks ahead the negotiations we will have in the internal market committee, but I am not one of those of in favour of copying a failed systema system which is already heavily critized in the US and replicated under EU law.

It’s not my first pick and it’s not my first reference to have a Good Samaritan system being soft, a softer system than US or hiding due diligence any other name. I believe that the issues that and cannot be so simply by self-regulation.
They have to be sorted by a clear set of rules

The other half of the immunity for for intermediaries which is the Safe Harbour provisions which are part of the eCommerce directive since many years in Europe….How do you see these rules could be developed, do you think there should be some kind of vetting process to achieve immunity?

I think the Commission in its proposal was very clear when it comes to Article 12 to Article 14/15 of the eCommerce Directive, 12 to 15 and the 15, on touching up the Safe Harbour provisions.

I was very skeptical about even this exercise and I have asked many times different members of the Commission including the Executive Vice President because where you have also application exercise and the copy-pasting exercise you always open up the Pandora’s box for an number of amendments and tweaks to the original principles is that we have are of fundamental importance to the flourishing and functioning of our Digital Single Market and digital services online. So we have to be very very very cautious if we touch-up on those fundamental principles, they can destroy the whole ecosystem so we have to be cautious in that regard. So I think in that respect the eCommerce Directive was very future proof.

So I think, and I firmly believe that we can still work within the Safe Harbour provisions that we have but ultimately there needs to be more clarity and the courts have provided a lot of this clarity “when it comes to the “active” or “passive” status, when it comes to a number of other principles to define when and how exactly an action will help you to lose your liability shield so I think that as legislation we have to basically translate in clear tense so that we do away with the
uncertainty that is present out there by a number of players who tell you that although they are comfortable with the with the liability shields It’s not always very clear. But I think that the guidance is there from the European Court of Justice and I think we as regulators have to frame our provisions and our regulatory provisions around when one is “active” and when one is not, but ultimately I don’t believe that we can, and we should, alter the liability shield provision that we have under the eCommerce Directive and I think this is the message also of the Commission and I agree with that.

Hopefully there won’t be, in the replicating exercise and in the copy and paste exercise from the eCommerce to the new legislation there won’t be attempts to try to alter these principles.

Do you see that there is a threat to freedom of speech with increased regulation?

Do you think this is the domain of the State or should the governments of the world including the European Union, stay away the internet for freedom of speech reasons? 

I think the biggest threat would be if we leave everything as is. If we leave everything as is, the threat is prevalent as we speak without clear EU regulation, and I think the biggest threat would be to leave private companies to regulate speech by themselves and see what fits and what fits not. I don’t with 99% of what Trump says but ultimately I don’t think that big tech companies should be the regulators to regulate on online speech.

So having a system which brings more clarity which basically sets out a framework, for these big tech giants to act and also take decisions on fundamental rights and fundamental freedoms.

I think that is why I open my remarks by saying that we have to take the back control of the ecosystem.

It’s a situation whereby the EU should and must protect its fundamental values, including fundamental rights which are so important by having a system which sets a number of standards, regulatory standards for big tech company to work with, and not work around their own rules.

I think that is the biggest threat to our democracies.

What about innovation?
Do you see that there is a risk that regulation might stifle innovation and put your European companies at a disadvantage in the global competition, compared to other territories which might have less regulation?

I think that the biggest issue that we, and I’m going to focus on the DMA. When it comes to to the stability of our market is the issues that we have with gatekeepers.

So I think that the biggest risk for innovation and I believe, and I’m always a big supporter of innovators and startups in this field, who do so much more if we give them a fairly level playing field to be able to scale up in the digital ecosystem. I think that regulation in this regard will not stifle innovation, ultimately it will help smaller players to innovate more to be more competitive in the ecosystem, because ultimately with the system we have today whereby big tech companies are controlling the ecosystem.

They are putting aside, and putting away, and we have seen numerous cases whereby traditional competition law by itself couldn’t handle complex digital issues that the system will help to bring more innovation, because with more competition comes more innovation and more consumer choice, so ultimately having more control for big data companies will not stifle innovation but will make innovation flourish more because there would be more opportunities for smaller and medium sized companies  to compete out there in the ecosystem.

[transcript ends]

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Digital Myth: Copyright Stands in the Way of the Digital Revolution

Wednesday, July 8th, 2020

The Internet was built on copyright content; it’s the foundation of the digital economy.

There are enough myths about copyright and internet to fill a book on its own, but let me bring up a few of them. The basic myth is that copyright does in some way or other limit the progress of technology. I’ve seen and heard many variations of this idea, but let me tell you the one that took the prize. The critics of copyright can be accused of many sins, but never of a lack of imagination. At a conference in Geneva, organised by none other than the World Intellectual Property Organisation – an arm of the United Nations – one panelist suggested that copyright might stand in the way of the colonization of Mars. Not even meant as a joke! He explained that if we make it to Mars and somebody were to spray synthetic DNA liquid on the ground to claim a piece of the planet as their own, that could create problems for further exploration. How this has anything to do with copyright escapes me. If you, dear reader, find it hard to believe, rest assured that the video from the panel can be found on the WIPO website.

Technology can of course be developed in different ways and there is nothing to say that internet technology could not support copyright just as well

No, copyright does not stand in the way of progress; instead it makes possible much of the content that users desire, creating a demand for things like broadband subscriptions, hardware and streaming services. To the extent that content stands in the way of ‘innovation’, it is because the innovators would prefer not to pay for it, but perhaps it should be part of the package with incubators providing office space and hardware and staff working for stock options rather than salaries. Except in that case, the content owners should get a stake in the business too! Technology can of course be developed in different ways and there is nothing to say that internet technology could not support copyright just as well, only there’s no incentive on the part of those who run the internet platforms and broadband cables. Why should they? They get all the benefits of consumer demand without having to share any revenue. Some say that music or film or other content is now a commodity that has no real value. But the truth is that the value is still there in the form of consumer demand, only the revenue ends up in the pockets of those who did not pay for the content to begin with. This creates an odd catch-22, where the revenue from the old analogue distribution methods (say, cinema or print books) subsidize the digital services that fail to create enough revenue to make the pivot to true digital possible for most types of content. That’s right, it is the failure of the digital markets that stands in the way of the digital leap, not copyright.

Another claim is that the creators don’t really benefit from copyright, only the intermediaries. That is at best a smokescreen; creators are better off with as many options as possible and that of course includes copyright. If a creator does not want to use the copyright system, they are perfectly entitled to give away their work for free or to monetize it, whatever they like. Perhaps in the old days when analogue distribution was in the hands of mighty gatekeepers there was more grounds for such a view, but today anyone can access a potentially global audience for a dime (getting their attention is a different job, though). In the digital age, the film studios, book publishers and music labels are more like investors and marketing partners to the creators. The gatekeepers are still there though, but more often in the shape of internet platforms, app stores and social media algorithms. Of course an author can still suffer from an unfair publishing contract, but in most cases the real tug of war is between those who invest in content, sharing risk, and those who distribute it and, at best, share some of their actual revenue with the creators and investors. In a way, it’s the same old conflict between the creators and the distributors as in the analogue age, but with a different cast in the role of the distributors this time around. In newspeak: disintermediation is really re-inter-mediation. When Apple launched the App Store, game developers, fed up with game publishers as they were, rejoiced; a friend of mine called the iPhone ‘the Jesus phone’, only to find a few years later that the disintermediation of the publishers brought a new and stronger gatekeeper into the App Store: as more developers jumped on the opportunity, the platform became crowded with almost 100,000 new games per year, making attention, not content, the new scarcity so the owner of the platform could pick who got heard in the noise, like a bouncer at a hot nightclub spotting the cool kids in the crowd. Re-intermediation was a fact.

Another sub-myth is that the entertainment industry is ‘conservative’ and does not really want to change. That may have been true in the 1990s but today it’s underestimating the basic powers of the market economy. If the entertainment industry could make more money with different business models, it would change. It’s not a matter of emotion. This accusation of conservatism is often used as a segway to proposals on copyright reform, which is code for having to pay less for content. But it may be rather the infrastructure of copyright which needs an update: license databases, micro-licensing, automated licensing, new contract models and other innovations can facilitate licensing, generate revenue and make content more accessible to various services. Except if free content is what you really want, that doesn’t help.

Sometimes rich superstars are raised as a case in point against copyright, but it’s difficult to see how that is a problem. It’s not like anyone else makes less because most successful artists make a lot, and certainly those who make the least would not make more if the right to the financial yield of their creative output was taken away or somehow diminished. In fact, in some cases, successful artists subsidize the work of less successful ones. Take Bruce Springsteen, who has released his albums on Columbia Records since the 1970s. He could easily change label or set up his own, so we can safely assume he’s happy with Columbia. I haven’t seen Springsteen’s royalty statements, but it’s easy to guess that he gets a better cut than the average artist. But even if he gets 50%, the other half of the money stays with Columbia, which will use it to cover various costs, staff, overheads, interest, dividends to shareholders and so on, but not an insignificant part of that money also pays for the studio time and marketing of new artists. Labels are often painted as greedy capitalists and successful artists as a problematic effect of copyright. But you can also think of it as a form of Robin Hood principle: take from the rich, give to the poor.

A long time ago, I was a partner at a game developer studio. We had a contract with a publisher to make a game (Rock Manager, PAN Vision, 2001). It took lots of long hours over three years and much frustration over how the publisher would interfere with our design decisions. We wanted to include drug abuse, but our publisher was afraid to alienate the family audience so our pixel rock stars were limited to alcohol as they were burning out not fading away. In the darkest moments, we bought lottery tickets hoping to win big so we could pay back the advance and walk away. In the end, the game was released in 14 languages. However frustrating the experience of having to deal with the games publisher might have been, the magic word here is advance. They paid us enough money up front to pay the bills for three years. We did not receive the money as the publisher made it, but years before! If the game didn’t sell the publisher would take the hit, not us. So we creators may have invested our best ideas and our blood, sweat and tears, but copyright made the financial investment possible. Keep that in mind when someone ventures, for example, that digital intermediaries sometimes share the ad revenue. Sure, but do they take financial risk? Do they invest?

Some will say the copyright period is too long, but the longer the term and the better the protection (and larger the territory in most cases), the bigger the value of that particular property. That means bigger investment is possible and more money goes to the creators. The biggest problem in the world is not really that those who create art make too much money. In fact, the opposite is true: anyone bold or ill-advised enough to try and make a living from their art will face great challenges. Most will drop out. Others sacrifice their financial security, sometimes family or friends, even their health to create music, literature, television, games or something else. Only a few make it big. We should be grateful that enough people think it’s worth the price or the world would be poorer for it. We can’t all work in insurance or shipping or government, some have to give us art. We should make their lives easier and copyright is part of the answer.

Some will raise developing countries as a case against copyright (or intellectual property on the whole). Because their economies are smaller, copyright stands in the way of the development sometimes, even portrayed as a tool for neocolonialism. But copyright can be licensed by territory and the same content can have very different price points in different places depending on the local demand and purchase power. With intellectual property, developing economies can also grow and attract investment that would have been unavailable otherwise.

Finally, let me say something about pirates. By no means is piracy the only threat to creative content online, but if it were ever a grass-roots movement, it is now clearly a field for organised crime. When police raided Sweden’s no. 1 illegal streaming service Swefilmer, it uncovered close to €1.5 million generated from ad revenue and donations. In a way, this has always been for profit. In 2009, The Pirate Bay was sold for more than €5 million, except the deal fell through when the buyer couldn’t raise the money. Today, VPN subscriptions are a popular way to monetize piracy. Sure, there are legitimate uses for VPN, but if your service is called Ipredator you can be pretty sure subscribers pay so they don’t have to pay for content. There is no reason to see pirates as some kind of internet rebels; it’s a for-profit, illegal business that pays better than a lot of other crime, poses only a small risk of getting caught and doesn’t attract long prison sentences either.

Pirate apologists love to say that pirate distribution can be a great way to attract attention to your work, and that is certainly true in some cases, but that decision is for the creator to make, not the consumer. If it weren’t for copyright, that movie, song, game or book you want to download wouldn’t have existed in the first place.

It’s probably true that it’s impossible to stop piracy altogether. But that’s no reason not to try and reduce it.

Copyright does not stand in the way of any technology, but technology could do a better job supporting copyright.

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Digital Myth: It’s About the User Experience

Wednesday, July 8th, 2020

It’s not all about the user experience, also not for those who say so.

You know there is something missing when you read the line ‘We collect personal data to give you the best possible user experience’. A more truthful account would be something like ‘We collect personal data generated not only from your use of our service but pretty much everything we can harvest from your device, to some extent to improve your experience but really mainly because the more data we have about you the more we can monetize, primarily by selling adverts that tend to chase you from one website to the next for days’. It’s like in hotel rooms – who actually believes the management cares about the environment and doesn’t just want to save on laundry?

But what if it were all about the user experience? What if the user experience is the only thing that matters? Would you prefer a single company controlling all the information in the world, giving you the perfect, just-in-time, personalised user experience every time? Or would you rather take less-perfected services from various companies, none of which have all your information? Let’s just say there are other values in life and online than the user experience.

A close relative of the user experience myth is the algorithm myth, as in ‘we don’t have any responsibility for the result; it’s all in the algorithm’

A close relative of the user experience myth is the algorithm myth, as in ‘we don’t have any responsibility for the result; it’s all in the algorithm’. Yes, except you wrote it, you fed it with data and trained it, you tweaked it and keep updating it to deliver … ahem … ‘a better user experience’. It’s like in the comedy show Little Britain where a hospital receptionist takes the most obnoxious stances possible with patients – like signing up a five-year-old for double hip replacement surgery – because the ‘computer says no’. If anyone blames the algorithm, they’re playing dumb in the hope that you won’t call their bluff. Don’t buy that!

A variation of this myth is ‘The Almighty Algorithm’, as in we can’t be responsible for the output of the algorithm. Except you can. While it may be complicated, an algorithm is a set of instructions for how a computer should handle particular situations. My kids have a Lego robot called Bullen. It has a simple graphic programming interface. It’s easy to tell Bullen to, for example, first move forward 30 centimetres then stop and turn 180 degrees when I press the Start button. Every time my eight-year-old presses the Start button Bullen will carry out these exact instructions. It’s predictable and we know what’s going to happen, because we told Bullen what to do – or wrote the algorithm. Algorithms for news ranking, search, dating or financial services are obviously much more complicated than Bullen’s, but basically the same. The owners of those algorithms constantly tweak and alter them for various reasons – improved profits, better function, better security, sometimes even better ‘user experience’. If you don’t like the output of the algorithm, you change it and try again. Then repeat, until it produces the results you want. When someone says the algorithm is too complicated, they may want you to think something like ‘the Lord moves in mysterious ways’, but really they’re just saying they don’t want or can’t be bothered to do what you ask them to.

One great example of how algorithms can be biased was provided by journalist and author Andreas Ekström in a TED talk called ‘The Myth of Unbiased Search Results’. He takes two examples of internet hacktivism in Google image searches: first, one in which racists tagged photos of monkeys with Michelle Obama in order to make the search engine return monkey pictures along with real images of the first lady. To its credit, Google intervened and tweaked the algorithm and image tags so Michelle Obama picture searches would be accurate. But similarly, in the second example, hacktivists tagged images of dog droppings with the name of Norwegian mass murderer Anders Behring Breivik (who, in 2011, killed 77 people, many of them teenagers, in a terrorist attack on a government building and a left-wing youth summer camp). In this case, Google did not intervene. It is easy to agree with Google’s judgement, but don’t tell us the search results are unbiased or that you don’t know what the algorithm does.

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Good Samaritan Paradox Paradox

Friday, June 12th, 2020

The classic example of the good Samaritan-paradox is if you intervene at a traffic accident, by moving a victim away from traffic in order to avoid them being run-over by other cars, you should not be prosecuted for damaged caused by the act of moving them. It makes sense, right? The law should not stop people from doing the right thing. Now this law has entered digitaly policy. A recent example is from the European Parliament Internal Market Committee-report The functioning of the Internal Market for Digital Services: responsibilities and duties of care of providers of Digital Services:

6.2. Good Samaritan Paradox

One point of criticism to exclude active role hosting providers from the liability privilege of Article 14 E-Commerce Directive is the so-called “Good Samaritan Paradox”. The “Good Samaritan Paradox” is meant to describe the following: Article 14 E-Commerce Directive with its model provider being neutral and passive may disincentivise the hosting provider from taking precautions against infringements due to its fear of losing safe harbor protection.

Does this sound familiar? If yes, it is because we’ve heard it before. Big Tech loves to say it has no legal mandate to intervene against illegal content. In the next breath, they give the solution: if only the EU could have similar rules as the US: good Samaritan clause as in Section 230 of the Communications Decency Act, nothing could stop them from keeping their services clean.

CDA230 works both as “a sword and a shield” explains Canadian foreign trade expert Hugh Stephens. The “shield” being the intermediary liability privilege often called “safe harbour”: service providers are not liable for what users do (which has created an ocean of nosebleeds, but let’s save that for now). The “sword” is the good Samaritan clause, service providers are protected from consequence if they take action against user content. Such as fact check-labels on tweets. Or take down of nazi videos. You get the picture.

According to Big Tech, EU law only has the shield, not the sword. If only they could also have the sword…

Except, even in the US, where that sword is available, there’s not a lot of sword-wielding going on. Twitter’s fact-check labels are the exception (and very likely legal as freedom of speech anyway, nevermind good Samaritan). Rather, CDA230 is used as an excuse to not take action, for example against sex-traffickers (sorry not sorry for using the same example as in the last post). Or as Hugh Stephens puts it:

It’s not about the law, it’s about the platforms’ lack of will.

Unfortunately it is the shield aspect of the legislation that has been most often invoked by internet platforms, allowing them to ignore all sorts of abusive material on their sites on the basis that they are merely passive bulletin boards, and not responsible for content posted by others. Thus hate speech, content promoting terrorism and violence, revenge porn, sex trafficking, and so on has been allowed to proliferate on the internet with no legal recourse against the platforms providing access to the material. In some cases, platforms have had no incentive to remove access to objectionable material because they have been able to monetize it by attracting consumer eyeballs and thus advertisers. 

That’s the Good Samaritan Paradox Paradox – the US example shows that even if EU law would embrace the Good Samaritan, the internet would be no better off. It’s not about the law, it’s about the platforms’ lack of will.

Back to the IMCO report, turns out the platforms already have the mandate to take action against illegal content without risk of liability anyway:

/../ it is not the “active role” to identify infringements which leads to the hosting provider losing the liability privilege of Article 14 E-Commerce Directive. Rather, it is the active role to promote, present or organise the content. With such an understanding of “active role” no “Good Samaritan Paradox” will emerge from the Article

Good Samaritan Paradox Paradox Paradox, anyone?

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EDRi’s Paper and the Two Faces of the Internet Debate

Monday, April 27th, 2020

The conversation about the internet has two completely different understandings of technology and society clashing.

On the one hand is the now nostalgic idea that the internet is a de-centralised technology that if left alone will deliver great things like freedom to the oppressed, economic growth, jobs and a voice to each of us. Democratisation is a key word. The threat is all the bad people who want to control the internet for their own purposes: dictators, lawyers, platforms, entertainment industry, Luddites to name a few. This type of thinking is sometimes labelled “internet exceptionalism”.

On the other hand, we have the view that the internet is part of society and works in concert with the rest of the world, adding to it and taking away from it, amplifying some things, playing down others, disrupting some economies, reinforcing existing hierarchies in others. This thinking is where democracy comes from institutions rather than the absence of them. We can call this idea “internet secularism”.

“We are just a technology company”

Now, the confusion is that these two tend to be mixed up. When Silicon Valley companies are confronted with criticism for anything from abuse of dominant position to providing the tools for genocide propaganda, they will often say something like “first of all, we are a technology company”. As in “we only make the tool and that’s great and we can’t really control what it’s used for”. That fits the Internet exceptionalism-concept. Except Big Tech is not making hammers or anything like that, instead they provide sophisticated services with complex algorithms controlling user behavior and maximizing profits. Which smells much more like internet secularism (stock price first, freedom to the oppressed later).

This can also go the other way, for example when governments internet secularism to established companies, demanding they comply with consumer law or age ratings or something else, thereby conveniently ignoring the creativity of less serious actors who simply move illegal operations to some less strict jurisdiction.

EDRi’s Position Paper on Digital Services Act

One place where these two views are butting heads at the moment is in EU legislation (to be fair, the head-butting has been going on for a decade or so with no sign of slowing down). The most recent addition is the internet activist group EDRi’s position paper on the upcoming Digital Services Act.

EDRi is an organization that wants to “defend rights and freedoms in the digital environment”. It plants itself firmly in the exceptionalism camp (surprise!). The paper is not without merits though, it fiercely criticizes the dominant platforms on lack of transparency, privacy short-comings and “broken” business models. It makes suggestions on how transparency and legal certainty can be improved. It has concrete proposals of how these can be executed. All from a departure point that looks more nostalgic than anything, like here:

The internet was originally built as a decentralised network with maximum resilience against shutdown and censorship. /…/ The social and economic benefits of this architecture were considerable: low costs of innovation, flexible ways to adapt and reuse existing technology for new services, and the freedom of choice for every participant in the network.

That paragraph reads like a definition of internet exceptionalism. Everything was great until the bad guys started messing with it. The problem with this departure point is that it leads to the conclusion that regulation is a threat and the way to deal with problems is to empower users. This is what EDRi’s paper says about opening up social media platforms:

This would allow users to freely choose which social media community they would like to be part of – for example depending on their content moderation preferences and privacy needs – while still being able to connect with and talk to all of their social media friends and contacts.

Sounds great, but not all users have profound knowledge of these things. Maybe that used to be different back in say… the early 90s, when all users where “power users”. With Billions of internet users (if that is even a relevant term anymore), the knowledge will inevitably vary. Another blind spot in that thinking: are “content moderation preferences and privacy needs” really a question only for the users of a service? What about those outside the service whose data or content may be distributed on it? What if the individual user accepts a trade-off of personal data to free content, but the combined effect has a negative impact on society (health data could be one example)? How about if users want a space to spread racist hate speech, building up a momentum for genocide? Is that really only up to those users?

Internet exceptionalism is the red thread in EDRi’s paper and this limited perspective regrettably makes it less useful. Its merit is that it points to the problems of the centralized platform economy and the dangers of expanding its intermediary privileges. To find the answers, we must look elsewhere.

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Movie Pirates Sailing on the Corona Stream

Thursday, March 26th, 2020

The corona virus pandemic makes us rely more on digital communications to work from home, to make our everyday lives work in lockdown and to keep ourselves entertained. This puts a strain on internet capacity. Policy-makers ask internet movie services to reduce bandwidth usage in response. Disney Plus has postponed its launch in France in addition to reducing bitrates. Apple TV has reduced the quality of its streams. The legitimate services take responsibility.

In contrast, the illegal services smell the morning coffee and they don’t care about bandwidth (or any other responsibilities for that matter). Notorious torrent-streamer Popcorn Time launched a new version, even naming it “Love in the Time of Corona”. Can the contrast between solid businesses and parasites be made any clearer? Granted, torrents may be a more bandwidth frugal technology than streaming but that is pure coincidence. There is nothing benign in pirate services. They are for-profit operations with no consideration for the legitimate owners of the content, let alone government concerns about infrastructure integrity nor the security of users in many cases.

These days, it’s not possible to talk about unauthorized video content online without mentioning Youtube. It is a strange beast, because it has loads of perfectly legitimate content. (It also has problems with neo-nazi videos and ISIS propaganda, but let’s leave that for now.) Youtube distributes plenty of unauthorized videos, uploaded by the users. The proportion is impossible to know, but Youtube provides some tools to combat illegal distribution, most famously something called Content-ID which lets the legitimate owner upload a video and the tool then looks for copies on the platform. Youtube says this is ambitious. Rights-owners have the impression Youtube does as little as possible. This writer asks why Youtube so effectively can police porn but not infringing videos. Regardless of your position, the pirates are clever in by-passing Content-ID – putting the video in a frame or mirrored, playing it back a little bit slower or quicker than normal, playing it in reverse (yes, if you have a player that can again reverse it!), removing a few frames here and there and so on. But most people will regard Youtube as a legitimate platform if asked. There is no information whether Youtube will throttle bitrates in order to protect the internet.

If policy-makers are concerned with bandwidth, perhaps now is a good time to also look at the illegal services? And not only because of the bandwidth of course.

It appears that the new Popcorn Time version may not live up to the promises. Many users complain about functionality and prefer the previous iteration. But hey, Love in the Time of Corona is a good name. Have to give them credit for that.

In the end, it may not be movies that are the last straw to break the proverbial bandwidth camel’s back. According to Netopia’s sources in the telecom industry, the network is designed more for download capacity than upload traffic. With all the office workers doing video conferencing from home in order to keep business going, the upload capacity is strained in a way that has never been seen before. Of course this also applies to torrents. Netopia certainly does not want to stop office workers from keeping in touch. But policy-makers would be well advised to turn more stones in their honest effort to keep the digital communication alive in the time of corona.

Transparency: Film industry organisations are among Netopia’s supporters and this writer also advises the film industry on digital matters.

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Broken Incentives for Platforms Open for Weaponized Virus Disinformation

Friday, March 20th, 2020

As we struggle to make something useful of our time spent in virus lockdown, the internet’s role in our lives becomes ever more apparent.

We depend on it to work from home, at least if we’re in office jobs. It is how we stay updated with information on the virus spread and instructions on which precautions we should take. If we need healthcare, we contact the system via apps, webpages or at least telephone. We use social media to keep in touch with our friends and relatives and to volunteer to shop groceries for the risk groups. Not least, how would we make time pass without music services, streaming movies and video games? Online media is a savior. The virus outbreak shows the internet’s best sides.

Sadly, the virus outbreak also shows the worst sides of online. Rather than spreading correct information, self-proclaimed experts take to social media to criticize the authorities’ recommendations and decisions, looking for a hidden agenda when there is none. As the EEAS (EU cyber watchdog) showed in a report yesterday, there are number of trending stories.

FALSE NARRATIVES

1. The coronavirus is a biological weapon deployed alternatively by China, the US, the UK or even Russia (with the aim of destroying the EU and NATO)

2. The EU is not ready to provide urgent support to its Member States – instead, they have to rely on external support (e.g., Italy), with China mentioned most often as the source of such assistance.

3. The coronavirus is a hoax, it does not exist

Cures: claims that natural remedies exist to cure the virus, which are often combined with anti-vaccination narratives.

Once celebrated as a bringer of freedom of speech and democracy (remember the Arab Spring anyone?)

Some of these are actively promoted and weaponised for geopolitical purposes by Russia or China, but also non-State actors such as Daesh/ISIS take the opportunity to spread disinformation.

It is a sad situation that social media propagates this disinformation. Once celebrated as a bringer of freedom of speech and democracy (remember the Arab Spring anyone?), social media is becoming a real threat to precisely democracy and freedom of speech. Yes, the platforms have taken some steps, but they are far from enough.

EU EAST STRATCOM STATEMENT

/…/evidence indicates that platforms are continuing to host false and harmful ads that for example propagate “numerical codes” as a cure for COVID-19 or misrepresent quarantine as the first step in imposing NATO rule over Europe. This suggests that platforms have difficulties adhering to their own published standards and public commitments on preventing the proliferation of dangerous coronavirus-related disinformation, despite allocating significant resources to this task. As a result, this raises concerns that the problem is not merely the prevalence of harmful speech online but rather a system of broken incentives which prevents internet platforms from adequately protecting the public interest. Moreover, the scope, impact, and success of the actions that platforms are taking is hard to assess independently, especially considering the restrictions on privacy-compliant access to public interest data for researchers.

There it is. Don’t take it from Netopia (though we’ve been saying this for ten years now), take it from the EU’s cyber watchdog. Can we have more of the good and less of the bad? Platforms hold the keys, but their track record is not impressive.

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The Good, the Bad and the Ugly: von der Leyen’s Digital Strategy

Wednesday, February 26th, 2020

The Italian movie director Sergio Leone invented the genre Spaghetti Western, bringing Hollywood actors such as Clint Eastwood to Italy to shoot Wild West-movies about sheriffs and cowboys, re-creating an America that never existed*. The phenomenon comes to mind when I look at the EU Commission’s digital strategy – it looks like it wants to re-create a Silicon Valley that never existed. (I cannot resist; the “Spaghetti-Silicon Valley”!)

For certain, there are many things to like in the strategy, presented by President von der Leyen’s in an opinion piece published in member state media last week. But there are also some fundamental problems with the approach. Let’s take a page from Leone and look at the Good, the Bad and the Ugly (il buono, il brutto, il cattivo):

THE GOOD – IL BUONO

The President makes several points about European values and Netopia can only agree that Europe holds the keys to some of the most important issues online: privacy, fair competition, diversity, freedom of expression, worker’s rights, just to mention a few (not saying this matches UvdL’s list exactly!). Netopia also likes the approach of active institutions and not ruling out legislation. The internet naïvist idea that the online world is best left without government only means it will be ruled by the strongest rather than some radically re-invented democracy. The merits of “tech sovereignty” – the capability for Europe to make its own choices – can be debated in a global world (Netopia would prefer European global leadership) but as an ambition for a digital strategy it can be useful. The word diversity is also welcome, the internet once promised diversity but now looks more monolithic for every passing day. Maybe the EU can bring the idea of diversity back? 

President von der Leyen’s opinion also recognizes the importance of data. Not all data is created equal and much of the 85% that remains unused according to the op-ed may actually be useless. It is true, however that data is power. It used to be that whoever has the biggest computer runs the world, but computing is not the bottleneck anymore so whoever has the most (and best!) data is the winner. The president suggests safe data pools under European regulation in order to store and share data in a trusted environment. Netopia files this under “interesting ideas”.

THE BAD – IL BRUTTO

The president’s opinion talks about giving European “start-uppers” the same opportunities as those in Silicon Valley. A tall order, if taken literally: the multitude of talent, the proximity of platform HQs, the academic and business research, the data, the atmosphere, the competition and gold rush-mentality – those are things that can’t really be replicated somewhere else. Unique success factors to Northern California. China’s Big Tech use a quite different set of success factors: enormous home market, protection from competition, integration with government policy including huge contracts and so on. California and China share one edge: access to cheap public money. In China, it is generous loans from the state-controlled banks. On Sand Hill Road, the venture capital firms used federal pension funds (four public dollars to each private) for loan guarantees to bankroll their bets. It’s good that the EU Commission wants to fund research on AI and 5G and so on, but it’s nothing like what the competition does. Rather than providing same opportunities, Europe’s vision could be to provide quite different but better opportunities. The op-ed already mentions diversity, add creativity and culture and we’re on to something. It is no coincidence that Europe’s best digital companies are content creators.

Let me point to one more pitfall, again about data. Making data available to all is a great line, but that will not suffice. Information needs to be edited, refined, packaged, marketed and delivered to the user in the best possible way in order to be used. Passive data is not very helpful, it is the application and the commercialization of data that brings value. Those processes require much more than access, for example protection of the investment that goes into making the data useful (yes, I’m talking about copyright).

THE UGLY – IL CATTIVO

Digital technology has been around for four decades or more. Still policy-makers talk about the “digital transformation” as something that is coming. President von der Leyen is no exception. Here is an idea: what if the words “digitalization” and “digital transformation” were deleted from the glossary? What if we were to stop thinking and talking about it as some unified phenomenon? What if we banned categories such as “tech-optimist”, “tech-sceptic” and “tech-pessimist”. (I know, I know, this blog is certainly part of that problem!) Would we then look at policy options were digital technology is one of many strategies, not a goal unto itself but a means to other ends? Let’s say we want productivity increase, for a more competitive manufacturing industry for example. Many options come to mind: educating workers, automation of processes, integrating value chains, better sourcing of components and raw materials and so on (obviously this writer knows nothing about manufacturing, this is a thought-experiment!). Some of those options would involve digital technology. Others would be about standards, public institutions, trade agreements and a million other things. Talking about digital transformation begs the question. Perhaps it would be better to not talk in those terms at all?

Will the global battle for tech sovereignty look like a Mexican stand-off in the cemetery, tuned to an Ennio Morricone-soundtrack? Europe needs to bring its best gunslinging game.

*) There is a beautiful exhibition on Leone at Rome’s Ara Pacis-museum until May 5th http://www.arapacis.it/en/node/1005903

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Dark Fiber – the Answer to Passive Aggressive Intermediaries

Wednesday, February 5th, 2020

Is there such a thing as a passive intermediary on the internet? Can you talk about “dumb pipe” anymore? Has there ever been such a thing anyway?

There used to be a time when “network neutrality” was the gold standard. Telecoms would pride themselves of on not interfering with the data. “Traffic shaping” was an ugly word. Then came ban on roaming, cheap subscriptions, 4G, 5G, new players, integration of infrastructure, services and content and so on. Network neutrality became regarded as a naïve vision, far from the needs of self-driving cars and telesurgery. With the lines blurring, some argue that today nobody’s passive any longer (so therefore all should be regarded as passive… strange logic.)

But look close enough and you may find that there are some true neutrals still around in the wild. These are the real passive providers: Say it now and say it loud, I’m passive and I’m proud!

Stokab

Stokab is the fiber infrastructure provider in my hometown Stockholm. It is owned by the city and provides what it calls “Dark Fiber” – a passive fiber connection between two addresses on the network. Nothing more, nothing less. Stokab does nothing with the traffic, only provides the capacity. According to its website, more than 100 clients use Stokab to provide services to their customers. Stokab doesn’t care what they do with it, it only provides the infrastructure. Dark fiber, a smarter way to say dumb pipe!

Open Fiber

“To travel all at the same speed” is the motto of Italy’s Open Fiber. That sounds a lot like network neutrality, no? Open Fiber is a “wholesale-only” operator which is rolling out an “ultra-broadband” optical fiber network to all Italian regions. This is how it describes its business:

We have chosen a “wholesale only” business model to guarantee access to all interested operators, under the same conditions, and to provide users with a wide array of choice.

If that is not passive, I don’t know what is!

So far, Netopia has found two truly passive providers in Europe. Let us know if you know of more! The era of passive intermediaries is not over. In fact, it may have just begun.

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