How should social media be regulated?

Carefully and with precision

Blah blah blah social media. Yadda yadda yadda algorithms. Won’t somebody please think of the children, especially the ones who still work in the news media?

Is it time for us to care about social media? Is it time for us to take it seriously? Has the moment of social media regulation arrived?

Or is this all too little and too late?

Last week we discussed Europe’s ambitions to regulate artificial intelligence, and while we welcome the policy debate, we’re also growing tired of said debates remaining immature and in their infancy.

Our friend Fenwick co-authored an op-ed that tried to connect the EU’s developments with what’s going on in Canada. In doing so also noting that our policy debates in this area remain superficial at best.

AI is now firmly part of how society is governed, and the EU approach is a clear interventionist legal framework meant to address AI’s complexity, unpredictability and autonomous behaviour. Their approach bans certain applications of AI, notably most uses of facial recognition in public space, stipulates high-risk activities and then calls for better codes of conduct and assessment tools for low- or moderate-risk uses.

The prohibitions on AI are welcome and sensible. For many Canadians worried about AI after watching the hit docudrama The Social Dilemma, the EU’s prohibition on AI intended to manipulate people’s behaviour or exploit their vulnerabilities will sound eminently sensible.

High-risk uses must also meet obligations for oversight, documentation and explainability. AI’s use in the workplacein education and government all are designated high-risk, casting critical attention to applications of AI in these areas in Canada. Even low-risk applications have to be more transparent if the system interacts with the public.

By contrast, Canada’s approach to AI regulation resembles a house of cards. At the federal level, Canada has haltingly implemented risk assessments for AI use by the federal government. Reforms to the privacy law propose limits on algorithmic decision making. We are also waiting for a reaction to the Office of the Privacy Commissioner of Canada’s draft regulation on AI, a program the budget did not mention. The budget does deliver on the government’s promise of a data commissioner tasked with protecting the integrity of Canadians’ data.

Although the data commissioner as currently proposed is set up to fail, as it has the impossible task of removing bias, which is impossible.

Rather the closing sentence of the above op-ed pretty much sums up most North American industrial policy:

By continuing to fund AI without developing better governance of it, Canada is letting the industry write its own rules.

Here in Canada, excitement, fear, and all around wankery has exploded like the wild leeks rising in my forest at the prospect that the Canadian government is going to be regulating social and even digital media?!

As with AI, there’s reason to believe that the industry will once again be writing its own rules, however the issue here is which industry? The foreign digital platforms? Or the domestic digital news media?

Here in Canada the digital news media, which exist in large part due to both government subsidy and their inheritance as legacy media, essentially control the public policy discourse.

They not only report on what they believe is news worthy, framing policy debates based on their expectations, but policy makers and researchers like Fenwick turn to outlets like the Globe and Mail to share their own ideas. In Fen’s defence, this is what his employer expects. It’s part of the path to tenure and secure employment. However it skews and corrupts the larger debate, especially ones regarding how social and digital media should be regulated.

Debates that should involve far more participation from the public.

As I watched Canadian Heritage Minister Steven Guilbeault yesterday close the Action Summit to Combat Online Hate, I was left with whiplash as I thought back to those early days. Today’s Liberal government is unrecognizable by comparison as it today stands the most anti-Internet government in Canadian history:

  • As it moves to create the Great Canadian Internet Firewall, net neutrality is out and mandated Internet blocking is in.

  • Freedom of expression and due process is out, quick takedowns without independent review and increased liability are in.

  • Innovation and new business models are out, CRTC regulation is in.

  • Privacy reform is out, Internet taxation is in.

  • Prioritizing consumer Internet access and affordability is out, reduced competition through mergers are in.

  • And perhaps most troublingly, consultation and transparency are out, secrecy is in.

This is not hyperbole. The Action Summit is a case in point. I was part of the planning committee and I am proud that the event produced two days of thoughtful discussion and debate, where both the importance and complexity of addressing online hate brought a myriad of perspectives, including from the major Internet platforms. There was none of that nuance in Guilbeault’s words, who spoke of the evil associated with the “web behemoths” and promised that his legislation would target content and Internet sites and services anywhere in the world provided it was accessible to Canadians. The obvious implications – much discussed in Internet circles in Ottawa – is that the government plans to introduce mandated content blocking to keep such content out of Canada as a so-called “last resort”. When combined with a copyright “consultation” launched this week that also raises Internet blocking, Guilbeault’s vision is to require Internet providers to install blocking capabilities, create new regulators and content adjudicators to issue blocking orders, dispense with net neutrality, and build a Canadian Internet firewall.

If that wasn’t enough, his forthcoming bill will also mandate content removals within 24 hours with significant penalties for failure to do so. The approach trades due process for speed, effectively reducing independent oversight and incentivizing content removal by Internet platforms. Just about everyone thinks this is a bad idea, but Guilbeault insists that “it is in the mandate letter.” In other words, consultations don’t matter, expertise doesn’t matter, the experience elsewhere doesn’t matter. Instead, a mandate letter trumps all. If this occurred under Stephen Harper’s watch, the criticism would be unrelenting.

That is a fair point. The Liberals seem to be getting a free pass on this one, when Professor Geist is right to use the hyperbolic language. As well as note the complete lack of public participation in this policy process:

In fact, one of the reasons that the government finds itself committed to dangerous policy is that it did not conduct a public consultation on its forthcoming online harms bill. Guilbeault was forced yesterday to admit that the public has not been consulted, which he tried to justify by claiming that it could participate in the committee review or in the development of implementation guidelines once the bill becomes law. This alone should be disqualifying as no government should introduce censorship legislation that mandates website blocking, eradicates net neutrality, harms freedom of expression, and dispenses with due process without having ever consulted Canadians on the issue.

Further, this is the same minister whose Bill C-10 (the Internet regulation broadcast bill) by-passed the usual House of Commons debate, eliminates committee review on government policy directions, and will be the subject of a clause-by-clause review following an embarrassingly superficial series of hearings. It is also the same minister who has launched two copyright consultations with short timelines that ignore the most extensive review and consultation on copyright in a decade. And it is a minister who pays for Facebook advertising, but threatens to mandate payments for news links, yet again without a public consultation. In fact, this week his department wrote to academics (myself included) with a questionnaire on the issue that granted only two weeks to respond. It is consultation theatre, not consultation.

Consultation theatre is the de factor policy process that makes the sausage that is contemporary legislation. I suspect there is a public perception that these sausages are made by lobbyists and not legislators.

The Broadcasting Act blunder series wraps up after a month of posts, two op-eds, and a podcast with a short summary of the case against Bill C-10.  Notwithstanding some of the rhetoric, the debate is not whether the cultural sector should be supported (it should) or whether foreign Internet streaming services should contribute to the Canadian economy (they should). Rather, the issue is whether Bill C-10 is the best way to accomplish those policy goals.

Having spent a month dissecting the bill, it will come as no surprise that I believe the bill is deeply flawed. My concerns involve six main issues: Canadian Heritage Minister Steven Guilbeault’s inaccurate descriptions of the bill and its impact, the negative effects on longstanding Canadian broadcast policy, the extensive regulatory approach, the uncertainty that comes from leaving key issues to the CRTC or a secretive policy direction, the questionable data underlying the policy, and its outlier approach compared to peer countries.

What is particularly weird in this instance is the cloak and dagger and just dumb shit that is part of the current process.

Notwithstanding the possible side discussion on whether broadcasting still exists as a concept or whether it has been replaced by narrowcasting or just livestreams.

Especially given that one of the biggest desired outcomes of this policy process has already come true:

However these are also moments where the weak mind turns to conspiracy, when generally speaking a more reasonable explanation is incompetence.

Combined with a desire to be seen as doing something. Anything. To tame that wild and wooly Internet.

We’re less worried about such a proposal as it would not apply to those of us with high enough literacy to transcend such regulations.

Yet lost in all of this is the real concern, the real power, the real reason why people are concerned about this whole social media shit.

Facebook’s presentation of its ranking as merely computational helps Facebook to make it appear ‘objective’ and removes the impression it relies on human decision making. But behind what they call “product,” “science” and “engineering” stands a multi-layered online ecosystem that consists of human and nonhuman systems working to filter and order various elements so that we engage longer on the platform according to its definition of sociality. Importantly, it helps conceal the economic rationale that influences every step of this complex procedure. 

Which is why politics (or more aptly political economy) is so crucial:

Take for example this TikTok video, that both showcases the company’s new automatic closed captioning, and the political nature of such a system:

(If you don’t want to bother clicking on the link and watching the video it demonstrates that the system does not recognize the word Tiananmen Square).

Of course a whole other scenario is to recognize that social media as media is not as relevant as social media as bank, or more specifically, as broker of power and attention.

What do you think? #metaviews

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