This is the second in a three-part series that explores the public affairs challenges facing technology companies in a daunting new world filled with hostile foreign powers, unsettling labor, employment, and intellectual property issues, and unprecedented concerns over freedom of speech and privacy.
Facebook. Google. Twitter. DreamHost. Disqus. GoDaddy.
The list of technology companies that find themselves embroiled in controversies that cut to the heart of American democracy gets thicker by the day.
The sector that spawned so much ingenuity has suddenly become the battleground over the future of representative government, not to mention Americans’ inalienable right to the freedoms of speech, assembly, privacy, and — last but certainly not least — our national security.
Mark Zuckerberg, meet the ghost of James Madison. Oh, and that guy in the corner masterminding fake advertisements, hacking secrets, and sowing chaos? That’s Vladimir Putin. He heads up one of those hostile foreign powers that Madison and the other Framers used to fret about.
With the latest revelations that Russia’s cyber malice extended to the furtive placement of Facebook ads and Twitter messaging, coupled with abhorrent anti-immigrant rhetoric, Silicon Valley firms need to acknowledge that they’re trapped in an ugly bout with Putin and his hacker-thugs. Round #1, the 2016 presidential campaign, clearly went to Russia. The damage from Putin’s low blows won’t be known until special counsel Robert Mueller and the congressional intelligence panels complete their investigations, but so far, the tale of the tape has been disquieting.
It’s clear from this week’s disclosures that Mueller is zeroing in on Russia’s manipulation of tech services; he’s putting Silicon Valley in the center of the ring. It’s also clear, as Director of National Intelligence Dan Coats has acknowledged, that Russia and Putin aren’t backing down from the fight. Instead, they’re donning ever-more lethal gloves.
This subterfuge didn’t happen by accident. It’s the latest manifestation of a no-holds-barred KGB (FSB) strategy that Russia adopted over a quarter-century ago to pummel Western institutions and first tried on Russian satellite countries to work out the kinks. This deliberate and systematic interference in the affairs of nations, with its stated intent to trigger a loss of faith in democratic institutions is, in the eyes of many, an act of war, or certainly the modern-day equivalent to the Cuban Missile Crisis. The existence of democracy in the U.S. is not a partisan enterprise, but one long settled by generations of blood and treasure. President Trump, tragically, does a grave disservice to the American people when he dismisses Russian interference in our democracy as a “hoax” or “fake news.”
It’s also not an accident that neo-Nazis, Klansmen, and other hate groups have been using tech platforms and social media to organize rallies and enlist new members. In the wake of Charlottesville, we’ve learned that white supremacists no longer stalk the fringes of American society; they’ve gone “mainstream,” brazenly tapping popular Web hosting forums and digital media.
Combined with Russia’s nefarious meddling, it raises troubling questions about the U.S. technology community’s “complicity” – however unintended – in abetting hateful and dangerous behavior. The age of Internet libertarianism as the high road has met with real consequence. Just what is Silicon Valley’s responsibility to “protect” its customers and the public, preserve civil society, and buoy America’s national security?
First Amendment scholar and litigator Chip Babcock of Jackson Walker argues that, “The technology companies, which provide a platform for all manner of speakers, are not the place to start efforts to regulate election fraud. Congress can, and should, investigate the actors who illegally attempt to influence our elections. But trying to regulate the platform as opposed to identifying and punishing the perpetrators is surely misguided.”
“Efforts to illegally influence elections by intimidation, vote buying, disinformation, ballot stuffing, and miscounting ballots have been with us for a long time. The trick is to identify the persons responsible and prosecute them – or if there are insufficient laws, pass new legislation. But the technology companies that provide the means to reach a large number of the voters with speech — good and bad — is far down the list of people to attack. Any regulation of the means of distribution will surely harm legitimate and helpful speech, even if it also catches improper speech in its net. The history of the First Amendment is to tolerate even false and improper speech for fear of chilling legitimate messages. As Judge Learned Hand famously wrote, ‘the First Amendment presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many, this is, and always will be folly, but we have staked upon it our all.’”
“Hand’s wisdom is true even if the tongues are Russian,” Babcock says.
Robert Corn-Revere, a partner at Davis Wright Tremaine, who specializes in First Amendment, communications, and information technology law, observes that, “The wonder of the Internet, that every individual can speak to a global audience, also explains what many see as the primary danger — that the wrong people also get a platform for presenting dangerous views.”
“But what is the solution to that problem? A century of First Amendment jurisprudence teaches that giving the government the power to approve or disapprove speakers is too dangerous and the opposite of what the Framers of the Constitution envisioned. Who would you trust to make those decisions? The current Administration? Private companies that host social media platforms have the right to use their own editorial standards and to create communities based on those standards, but as experience in Europe has shown, those standards become censorial when the government can force companies to enforce those standards.”
The challenges facing Silicon Valley today are not dissimilar to those facing television news divisions in the 1950s. Once television became America’s dominant news medium, new “rules” to ensure the integrity of broadcast journalism had to be adopted. Today, comparable standards for civil communications need to be embraced by digital and social media providers without impinging on First Amendment freedoms. It’s a narrow tightrope.
Zuckerberg and Facebook, to their credit, have begun to seize a larger leadership role on these issues. Instead of shying away from the Russian and hate group controversies, Zuckerberg has taken ownership over them, admitting certain missteps, vowing to strengthen Facebook’s accountability and transparency, and seeking partnerships with private and public advocates. The risk for Zuckerberg and Facebook, in particular, is if last week’s successful “open kimono” strategy on Capitol Hill proves not to have been open enough. If more Russian bots are found, tracing back to the 2016 election, Zuckerberg will likely find himself in the unenviable Lucy Ricardo conundrum, with “some explaining to do.”
If the U.S. wants to surmount the greatest national security threat since Kennedy stared down Khrushchev, then Facebook’s template needs to be expanded. It won’t be easy, but Silicon Valley must work closely with government leaders and technology experts to institute extraordinary measures that strengthen national security without compromising individual freedoms.
If we continue to lose rounds in the fight against diabolical hacking — the 2018 mid-term elections and the 2020 presidential campaign are up next — America’s experiment in democracy is in grave danger.
We would do well to heed the admonition of the late science fiction writer Ray Bradbury, “I was not predicting the future — I was trying to prevent it."
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Richard Levick, Esq., @richardlevick, is Chairman and CEO of LEVICK. He is a frequent television, radio, online, and print commentator.
