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from the authoritarian-nonsense dept

We've been writing a number of pieces lately about how incredibly dangerous China's internet censorship has been during COVID-19, from silencing medical professionals to hiding research results tod trying to ignore Taiwan's success in fighting COVID-19, it's shown a pretty clear pattern that Chinese internet censorship is literally killing people. This is not to say that the US government's response has been much better -- it's obviously been a disaster, but at least we have more free speech online and in the press, which is enabling all sorts of useful information to spread.

But you might not know that if you read this odd piece in the Atlantic by Jack Goldsmith and Andrew Keane Woods arguing that China has the right approach to handling free speech online during a pandemic, and the US has not. While the overall piece is, perhaps, a bit more thoughtful than the headline and tagline, it has moments that simply defy any sense of what's happening in the world.

In the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong. Significant monitoring and speech control are inevitable components of a mature and flourishing internet, and governments must play a large role in these practices to ensure that the internet is compatible with a societys norms and values.

Again, this defies all evidence of what we've seen to date.

The piece, bizarrely, conflates pervasive digital surveillance with open free speech online:

Two events were wake-up calls. The first was Edward Snowdens revelations in 2013 about the astonishing extent of secret U.S. government monitoring of digital networks at home and abroad. The U.S. governments domestic surveillance is legally constrained, especially compared with what authoritarian states do. But this is much less true of private actors. Snowdens documents gave us a glimpse of the scale of surveillance of our lives by U.S. tech platforms, and made plain how the government accessed privately collected data to serve its national-security needs.

And that's got literally nothing to do with America's approach to free speech online.

The "second" wake up call does relate to speech, but perhaps not in the way the authors mean:

The second wake-up call was Russias interference in the 2016 election. As Barack Obama noted, the most consequential misinformation campaign in modern history was not particularly sophisticatedthis was not some elaborate, complicated espionage scheme. Russia used a simple phishing attack and a blunt and relatively limited social-media strategy to disrupt the legitimacy of the 2016 election and wreak still-ongoing havoc on the American political system. The episode showed how easily a foreign adversary could exploit the United States deep reliance on relatively unregulated digital networks. It also highlighted how legal limitations grounded in the First Amendment (freedom of speech and press) and the Fourth Amendment (privacy) make it hard for the U.S. government to identify, prevent, and respond to malicious cyber operations from abroad.

Yes, the Russians conducted a misinformation campaign -- but it still remains unclear how effective that was beyond at the margins (and, to be fair, in a close election, the margins can be meaningful). But that's hardly a reason to throw out the 1st Amendment. The 1st Amendment has also allowed there to be widespread discussion and debate about all of this, and has helped to get companies better situated to deal with and respond to disinformation campaigns. It has also allowed tons of people to be on the digital frontlines pointing out mis- and dis-information and working on responding to it to limit its impact. There will always be some and there will always be attempts to exploit it, but the idea that China's approach is better seems totally counterfactual to reality (or what plenty of people who have suffered from Chinese internet censorship will tell you).

Incredibly, the authors blame Section 230 for "the free for all" online... but then when they talk about the companies trying to combat disinfo just two paragraphs later, they somehow miraculously leave out the fact that it's Section 230 and the 1st Amendment that allow them to moderate the content on the platform:

Ten years ago, speech on the American Internet was a free-for-all. There was relatively little monitoring and censorshippublic or privateof what people posted, said, or did on Facebook, YouTube, and other sites. In part, this was due to the legal immunity that platforms enjoyed under Section 230 of the Communications Decency Act. And in part it was because the socially disruptive effects of digital networksvarious forms of weaponized speech and misinformationhad not yet emerged. As the networks became filled with bullying, harassment, child sexual exploitation, revenge porn, disinformation campaigns, digitally manipulated videos, and other forms of harmful content, private platforms faced growing pressure from governments and users to fix the problems.

[....]

After the 2016 election debacle, for example, the tech platforms took aggressive but still imperfect steps to fend off foreign adversaries. YouTube has an aggressive policy of removing what it deems to be deceptive practices and foreign-influence operations related to elections. It also makes judgments about and gives priority to what it calls authoritative voices. Facebook has deployed a multipronged strategy that includes removing fake accounts and eliminating or demoting inauthentic behavior. Twitter has a similar censorship policy aimed at platform manipulation originating from bad-faith actors located in countries outside of the US.

It's the American approach to free speech that makes this even possible.

Then the article argues that misinformation in the age of COVID-19 is something... new. And that it's so serious that perhaps we should change how we think about free speech:

What is different about speech regulation related to COVID-19 is the context: The problem is huge and the stakes are very high. But when the crisis is gone, there is no unregulated normal to return to. We liveand for several years, we have been livingin a world of serious and growing harms resulting from digital speech. Governments will not stop worrying about these harms. And private platforms will continue to expand their definition of offensive content, and will use algorithms to regulate it ever more closely. The general trend toward more speech control will not abate.

Note that they seem to be conflating a few things here. There is the US government's approach to speech (bound by the 1st Amendment, there are very few areas where speech may be limited), and there are internet companies' approaches to hosting speech upon their private platforms. And while those platforms are becoming more aggressive in cracking down on misinformation, there remain plenty of other platforms online that are chock full of misinformation as well. But that's got little to do with our laws (beyond the fact that, as noted above, the 1st Amendment enables platforms to decide for themselves how to handle these things).

But it seems odd for an article that suggests a governmental approach to stifling speech is a good idea literally days after the US President suggesting injecting disinfectant into people as a way to deal with COVID-19. It's not the internet that is the cause of misinformation, guys. And saying that government should crack down on misinformation isn't going to work when it's the head of state spouting off the misinformation, which is then broadcast live by TV networks.

The article then tries to tie free speech to surveillance, but I'm unclear why or how those two things are as connected as the article suggests they are. You can have one without the other -- yet the article continues to assume that if you want free speech, then you must have mass surveillance along with it. It uses the examples of Clearview AI and Ring as examples of greater surveillance, but those have little to nothing to do with the American approach to free speech.

The article all too glibly insists that private company data tracking is the "functional equivalent" of the infamous social score now used in China, without recognizing a number of fundamental differences -- with the largest being the fact that the social score in China is a government program and is used in all sorts of nefarious ways. Yes, the article argues that thanks to COVID-19 it's likely that the US government and companies will be more closely tied, but gives no reason to support that conclusion as inevitable:

Apple and google have told critics that their partnership will end once the pandemic subsides. Facebook has said that its aggressive censorship practices will cease when the crisis does. But when COVID-19 is behind us, we will still live in a world where private firms vacuum up huge amounts of personal data and collaborate with government officials who want access to that data. We will continue to opt in to private digital surveillance because of the benefits and conveniences that result. Firms and governments will continue to use the masses of collected data for various private and social ends.

The harms from digital speech will also continue to grow, as will speech controls on these networks. And invariably, government involvement will grow. At the moment, the private sector is making most of the important decisions, though often under government pressure. But as Zuckerberg has pleaded, the firms may not be able to regulate speech legitimately without heavier government guidance and involvement. It is also unclear whether, for example, the companies can adequately contain foreign misinformation and prevent digital tampering with voting mechanisms without more government surveillance.

The First and Fourth Amendments as currently interpreted, and the American aversion to excessive government-private-sector collaboration, have stood as barriers to greater government involvement. Americans understanding of these laws, and the cultural norms they spawned, will be tested as the social costs of a relatively open internet multiply.

COVID-19 is a window into these future struggles.

Perhaps. It will certainly be interesting to see where the future heads, but the idea that COVID-19 inevitably means that the US will be less speech protective in the future is far from the only possible path forward. And the idea that China somehow has the right idea has little support anywhere. The authors may be correct that the government will try to expand surveillance and limit speech, but that's been happening for years. COVID-19 changes little in that regard.

Filed Under: andrew keane woods, authoritarianism, censorship, content moderation, covid-19, free speech, freedom, internet, jack goldsmith, moderation, pandemic, surveillance

Read more:
How Can Anyone Argue With A Straight Face That China's Approach To Speech Online Is Better Than The US's During A Pandemic - Techdirt