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The First Rule of Lawfare: Is Google’s Active Measures Campaign on Article 13 a Trial Run for Election Meddling by a US Non-State Actor?

October 28, 2018 Comments off

Well, I wake up in the morning
Fold my hands and pray for rain.
I got a head full of ideas
That are drivin’ me insane.
It’s a shame the way she makes me scrub the floor.
I ain’t gonna work on Maggie’s farm no more.

From Maggie’s Farm, written by Bob Dylan

Google on the Back Foot with the Copyright Directive

Google and Facebook recently suffered a lobbying debacle in Europe over the European Copyright Directive.  That legislation cuts back the European version of the what Americans call the DMCA safe harbor.  A triumph for artists, Google’s European loss was the worst lobbying defeat that Silicon Valley has been handed in a long time—at least since the SESTA legislation cut back another safe harbor in the U.S.  So it shouldn’t be surprising that YouTube’s CEO is trying to influence YouTubers to lobby on behalf of Big Tech—Google desperately needs some human shields, which is exactly what participating YouTubers would be.  Once again scrubbing the floor for the House of Google.

At its core, the Copyright Directive cuts back the ability of services like YouTube to profit from infringing activities on their platforms.   One would expect corporations profiting from that safe harbor to lobby against it, just like supporters lobbied for it.  But Google and Facebook went well beyond simply lobbying by attempting to sow discord and undermine democratic institutions.  

And they got caught—red handed.   They were caught conducting active measures such as spamming, bot farming and overt messaging campaigns calculated to undermine the legislative process in the European Parliament.  You can read about it in a number of leading European publications starting with investigations by both the Times of London and Frankfurter Allgemeine Zeitung.

 

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Google’s Article 13 Lobbying Campaign from Volker Rieck

 

Most importantly Google supporters like the Pirate Party promised—or more accurately “threatened”—that “constituents” would show up to protest, and very few did.  So Google’s active measures campaign lacked a human face—the key component that brought it down.

German MEP Helga Truepel explained why the plenary vote on the Copyright Directive was so lopsided against Google at a press conference :  “…[It was] due to this message spamming campaign. I talked to some of my colleagues here [and they] are totally pissed off, cause in the streets there were a maximum 500-800 people last Sunday [at Pirate Party protests]… and we were only deleting emails for weeks now.”

Plan B and the First Rule of Lawfare

Fast forward to today: Google needs a Plan B.  Desperately.

Google’s problem today is the Members of the European Parliament (and some members of the UK Parliament) are wise to their jive after the plenary vote.  My bet is that story is not yet concluded as it merits a criminal investigation.  Because when a corporate covert influence operation is discovered and attribution is certain, it’s hard to put that genie back in the bottle (just like Internet piracy).

But while Google desperately needs a Plan B to retain its safe harbor, publicly acknowledging its influence operation is politically awkward, bread crumbs or no.  Like fight club, the first rule of lawfare is that it does not exist.

Google and Facebook are struggling to find that Plan B as the EU lawmaking process continues with the “Trilogue”, the next step to the Copyright Directive becoming national law in the European Union.  Google seeks another way to overwhelm the system by finding human shields to mingle with the bots.  And that’s where YouTube CEO Susan Wojcicki comes in with her recent appeal to YouTubers to protest the Directive.

Ms. Wojcicki may want us to overlook that Google just got caught running active measures against a democratic institution to meddle in the legislative process on another continent.  But members of the European Parliament have not forgotten.  She may be able to pull the wool over YouTuber’s eyes, but it just makes her human shields look even more duped and her methods look especially more alarming—if not terrifying—in a post-Cambridge Analytica world.

Safe Harbors, Addiction and Human Shields

Don’t underestimate how important these safe harbors are to Google, Facebook and its fellow monopolists.  They were ready to be on the wrong side of child sex trafficking legislation to preserve their other safe harbor (Section 230 of the “Communications Decency Act”)—that surely strained Sheryl Sandberg’s performance as Wendy to Mark Zuckerberg’s “boy who wouldn’t grow up.”  These safe harbors are crucial to Google, Facebook and Twitter—because it protects them as they snort up the addictive content and reward (if not sell) views, likes, follows, and “engagement.”  

Remember—YouTube is not in the music business, or even in the content business at the end of the day.  Google and Facebook are in the addiction business.  

In particular the behavioral addiction business (see Irresistible by Dr. Adam Alter).  If you’re in the addiction business, safe harbors are very, very important.  Just ask the narcotraficantes.  And don’t forget—the U.S. Attorney for Rhode Island investigated Google for violations of the Controlled Substances Act that resulted in a $500,000,000 fine and a non-prosecution agreement (not to mention a shareholder lawsuit).

Straight Outta Minitrue

But I suspect it is the embarrassing lack of human shields cited by MEP Helga Truepel that drove Ms. Wojcicki to issue a meandering tl;dr blog post trying to convince “YouTube creators” to fall in with the company line on the Copyright Directive. 

Ms. Wojcicki manages to get through her entire appeal without coming clean about the point of the Copyright Directive—YouTube profits from piracy through the safe harbor that the Directive would cut back, especially Article 13.  (There’s way more to the Directive than Article 13, but that’s another story.)

She would have YouTubers sign up to the “sky is falling” claims that “the unintended consequences of Article 13 will put [the highly profitable YouTube] ecosystem at risk”.  Why?  Because “[i]t would be too risky for platforms to host content from smaller original content creators, because the platforms would now be directly liable for that content.”  

That is quite a leap—how is it that “smaller” YouTubers would be such a big problem?  After all of YouTube’s “advertiser friendly” changes that severely hurt the earning power of many YouTubers, does Ms. Wojcicki really think that YouTubers—a pretty clever bunch on the whole it must be said—are so gullible that they will miss the irony?  

And then she says this: “We are committed to working with the industry to find a better way.  This language could be finalized by the end of the year [in the Trilogue], so it’s important to speak up now.”

Given the breadth of the coalition supporting the Copyright Directive and opposing Google and Facebook, it’s not immediately clear who is “the industry.”  I can tell you that if she includes the music industry in that reference, I can save her some time.  

Nobody in “the industry” trusts Google, YouTube, Facebook or Ms. Wojcicki.  [Although the beachhead that Google scored with the MMA may make life interesting for publishers and songwriters wishing to protest against the hand that feeds the mechanical licensing collective.]  

And, frankly, I’d be surprised if many YouTubers trust her either.  Based on the vote supporting the Copyright Directive, there’s a wide swath of MEPs that have severe misgivings about all these Silicon Valley companies trying to run roughshod over Europeans.  And then there’s the two and probably soon to be three competition prosecutions against Google by the European Commission.  That’s a thing.

Ms. Wojcicki hasn’t learned (and I predict won’t ever learn) a simple truth that every record company and music publisher knows—don’t jack with the talent.  YouTube jacks with the talent frequently, so it’s unclear how the talent is going to react to this latest request that they take time out of their day to help YouTube.

It’s not a good look and it will come back to bite.  YouTube has been profiting from the safe harbor for its entire existence and wouldn’t know how to make an honest buck if their lives depended.

Is Election Meddling Next on Google’s Agenda?

Before Ms. Wojcicki tries to rally YouTubers as human shields to support Google’s billions on her bot farm, she needs to get her own house in order.

And members of the European Parliament need to get a grip on these active measures campaigns before Google goes beyond “lobbying” on an issue vote and moves on to meddling in campaign outcomes in a few months when the European Parliament stands for election.

In a post-Cambridge Analytica world, we all know it’s a short step from undermining opposition on a particular issue to undermining the election of a particular candidate.  And Google is just as capable of meddling as any state actor if not more so.

Google’s European Campaign Contributions on Article 13

August 24, 2018 Comments off

RITTER

They want what every first term administration wants…a second term.

From A Clear and Present Danger, written by Tom Clancy (novel), screenplay by Donald Stewart, Steven Saillian and John Milius.

MTP readers will recall that both the Times of London and Frankfurter Allgemeine Zeitung have confirmed the efforts by Google to influence the vote on copyright reform in the European Union.  We called for that investigation on MTP and were mocked for doing so by the usual suspects.

Getting mocked by the usual suspects is how you know you’re onto something big, by the way.

But we owe a big thanks to the really stellar investigative work of Volker Rieck and David Lowery that exposed how Google uses astroturf front groups to “push its views” and for which it no doubt pays well.

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There is, of course, a political dimension to this exposé that has not been examined thoroughly yet.  It’s an important dimenstion because the Members of the European Parliament must stand for election next year, less than a year away.  And the Member of the European Parliament who certainly appears to be as close to Google as 1 is to 2 is the lone Pirate Party representative.

The Pirate Party is a creature of proportional representation, an interesting practice in Europe (and other places) that allows political parties with very small constitutencies to field candidates and sometimes get elected to legislative bodies such as the European Parliament.  The Pirate Party has one European Parliament representative elected from Germany, which is interesting because Google has also dropped a pile of influence-peddling cash in Germany according to the Google Transparency Project.

First, Google’s academic influence program in Europe has gone beyond funding existing academic institutions, as it does in the United States, to helping create entirely new institutes and think-tanks in key countries like Germany, France and the United Kingdom. In those countries, executives from Google’s lobbying operation have helped conceive research groups and covered most, or all, of their budgets for years after launch.

Google policy executives have acted as liaisons to steer their research priorities and host public events with policymakers.

For example, Google has paid at least €9 million to help set up the Alexander von Humboldt Institute for Internet and Society (HIIG) at Berlin’s Humboldt University. The new group launched in 2011, after German policymakers voiced growing concerns over Google’s accumulated power.

The Institute has so far published more than 240 scholarly papers on internet policy issues, many on issues of central importance to Google’s bottom line. HIIG also runs a Google-funded journal, with which several Google-funded scholars are affiliated, to publish such research.

The Institute’s reach extends beyond Germany, or even Europe. HIIG previously managed, and still participates, in a global Network of Internet and Society Research Centers [Silicon Valley’s answer to the Confucious Institutes] to coordinate internet policy scholarship. Many are in emerging markets where Google is trying to expand its footprint, such as India and Brazil.

So it must be said that when Google was caught with its hand in the cookie jar on Article 13, that astroturf effort must be viewed as part of a larger Google policy laundering operation that may include influencing elections.  Certainly in a post-Cambridge Analytica world, one cannot simply ignore these dots and all are worthy of investigation for compliance with Europe’s campaign finance laws if nothing else.

For a minority political party representative of one in need of a message in the face of an imminent election, it simply cannot be ignored that garnering the finanical support of Google and Facebook’s astroturf operation for a campaign that directly or indirectly benefits a candidate may be welcome.

Getting Silicon Valley’s billions focused on motiviating the electorate around a particular issue of benefit to such a multinational bloc of monopolists might help motivate voters and guide them to the “right” candidate.  As one of the usual suspects noted:

When the European Commission announced its plans to modernize EU copyright law two years ago, the public barely paid attention. This changed significantly in recent months.

Which was perhaps one of the electoral objects of the astroturf exercise.

Considering that political campaigns in Europe are typically of quite limited duration compared to the US (sometimes as short as 25 days before polling day), coming up with a an issue campaign that a political candidate–especially an incumbent–can leverage to increase their profile has got to be golden–particularly if that campaign may not rise to the level of a restricted political contribution or electioneering has got to be disclosed.

If that issue campaign can draw funding and support from U.S. based multinational corporations like Google and Facebook leveraging their user networks and advertising clout, all the better for a vulnerable candidate.

Because in the end, what every incumbent wants is another term.  The Pirate Party already faces declining relevance and may lose the one seat they have in the European Parliament elections in a few months time.  Especially if the the Pirate Party already struggles to field a winner.  Faced with such an existential threat, who knows what compromises may get made and who knows what in-kind donations may surface.

Undisclosed compromises and in-kind donations.

Factiness EU Style: A Dedicated Group of Like Minded People Carpet Bombs The European Parliament

July 17, 2018 Comments off

ALEX

Viddy well, little brother. Viddy well.

from A Clockwork Orange, written by Stanley Kubrick based on the novel by Anthony Burgess

As we noted in Fair Copyright Canada and 100,000 Voters Who Don’t Exist back in 2009, the legitimate desire by governments to use the Internet to engage with the governed is to be admired.  But there have been incredible and probably illegal uses of the Internet to overwhelm elected officials with faux communications that reek of Google-style misinformation and central planning in the hive mind of the Googleplex.

We saw this again with the Article 13 vote in Europe last week with what clearly seems to be a Google-backed attack on the European Parliament for the purpose of policy intimidation.  That’s right–an American-based multinational corporation is trying to intimidate the very same European government that is currently investigating them for anticompetitive behavior and is staring down a multi-billion dollar fine.

Vindictive much?

Advocacy against Google’s interests on artist rights and copyright issues (not to mention human trafficking, advertising illegal drugs and counterfeit goods) can no longer be just about making a good argument to policy makers.  It has to anticipate that Google will pull these DDOS-type stunts capitalizing on what seems to be the element of surprise.

Except there shouldn’t be any surprise.

There is a real problem with policy-by-DDOS governing.  For example, Cass Sunstein, then the Administrator of the Obama Office of Management and Budget, issued a memo in 2010 to the heads of executive branch departments and regulatory agencies which dealt with the use of social media and web-based interactive technologies.

Specifically, the Sunstein memo warned that “[b]ecause, 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.”  Sunstein called for exercising caution with public consultations:

To engage the public, Federal agencies are expanding their use of social media and web- based interactive technologies. For example, agencies are increasingly using web-based technologies, such as blogs, wikis, and social networks, as a means of “publishing” solicitations for public comment and for conducting virtual public meetings.

The European Parliament would do well to take a page from Sunstein’s thinking and limit the amount of anonymous contact that anyone can have with MEPs when the European Parliament is suffering a DDOS-style attack.

But the most important thing for the European Commission to take into account is that a company that is the target of multiple investigations is using the very market place monopoly that caused the competition investigations to intimidate the European government into bending to its will on Article 13.  (That, of course, is the biggest difference between the Europeans and Article 13 and the Americans and SOPA–the US government had dropped the US antitrust investigation into Google and it had unparalleled access to the White House.  So the two are really nothing alike at all.)

The European Commission needs to launch a full-blown criminal investigation into exactly what happened on Article 13, particularly since there is another vote on the same subject coming in September.  Properly authorized law enforcement acting swiftly can set sufficient digital snares to track the next attack which surely is coming while they forensically try to figure out what happened.

Advocates need to understand that Google is a deadly force and this is the endless war.  Good arguments are clearly not enough anymore, particularly as long as the government and law enforcement do nothing to protect democratic values from bully boy tactics.

@helienne Lindvall on MMA Safe Harbor

July 16, 2018 Comments off

It must be said that Music Modernization Act safe harbor was released the same time as CISAC released an economic impact study of the DMCA safe harbor.  We think of DMCA as being worse because we’ve lived with it for decades–in decades how will we feel about the MMA safe harbor and is anyone feeling lucky?

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