By William H. Freivogel
The title of the conference in Mountain View, Calif., was Legal Frontiers in Digital Media, convened appropriately at the Computer History Museum in the heart of Silicon Valley. But every few hours during its sessions last week, the crown jewels of legacy media, The New York Times and the Washington Post, published bulletins with new disclosures about President Trump.
- Trump told Russians that firing ‘nut job’ Comey eased pressure from investigation — Times
- FBI investigates close Trump White House adviser as person of interest as the Russia investigation ramps up — Post
- Comey practiced how to keep Trump at bay during meetings, worried president wouldn’t respect legal and ethical boundaries — Post
- Comey to testify publicly — Times and Post
Sure, these bulletins came into the conference on phone apps. No one waited for the next day’s newspaper. But it was impossible to miss the anachronism of legacy newspapers driving the nation’s biggest story the way the Times drove the Pentagon Papers and the Post drove Watergate almost half a century ago.
However, this time everything was in hyperdrive, with bulletins arriving on cell phone screens a few minutes or hours apart. Instead of the day-long news cycle, there was a new deadline every second. Sometimes the Times would have a bulletin and an hour later the Post would match it or top it. Or the Post would have the disclosure and the Times would match it.
This doesn’t mean media are going back to the old days. But it is a reminder of how important it is for legacy news organizations to find ways to sustain the big, professional news staffs that have connections with top government officials and can bring in scoops. For the time being, the jump in digital subscribers at the Times and the infusion of Jeff Bezos’ money at the Post have reinforced the power of those newsrooms.
Still, today’s media bear only a passing resemblance to the media of the Watergate days. Presenters at the Legal Frontiers conference weren’t lawyers for the Times or the Post, but from Google, Twitter and Facebook.
And the legal and moral questions they addressed were uniquely 21st century issues.
- If a person has a gun to his head on Facebook Live or Periscope, what should the internet companies do? Cut the feed to protect viewers from the trauma or keep the feed going in hopes users can talk him down? “We leave livestreams up as long as we thing there is a chance of engagement,” says Facebook’s Monika Bickert.
- When should hateful posts be taken down because they are calls for terrorist acts and when are they merely extreme commentary on the state of the world worthy of continued publication and debate?
- Should a website called ModelMayhem — “where professional models meet model photographers” — be responsible for sex predators using the site to pose as photographers to lure young children to Florida for sexual exploitation?
- When is Backpage responsible for sex trafficking resulting from its classified ads?
- What should Twitter and Facebook do about the silos of truly fake news centered around InfoWars and Breitbart? Brittan Heller of the Anti-Defamation League said its year-long study from 2015 to 2016 found the universe of online accounts spreading fake news and attacking journalists was relatively small and self-described as supporting white nationalism, America and Trump.
- Should a U.S. contractor shot by ISIS in Jordan be able to collect damages from Twitter, which had to know that ISIS fighters were instigating violence against Americans with their tweets?
- Must U.S. law enforcement officials go through difficult international channels to get information for a terrorism investigation when that information is probably in a computer in Mountain View?
- Are European countries conducting a war on U.S. technology companies such as Google and Facebook by trying to enforce European values on U.S. firms — values like the “right to be forgotten” and laws against hate speech. How should the U.S. platforms react when European rulings or laws collide with First Amendment values?
The clash between the dominant European view of privacy and America’s First Amendment values is one between different views of democracy, said Jonathan Kanter, a Washington antitrust D.C. lawyer.
“From the perspective of Europeans it is a desire to protect democracy not damage it…. There is a disconnect between us and Europe on privacy and speech. Privacy is the essence of freedom in Europe. Europe is concerned about private companies (such as Google) making decisions, but we feel competition is essential to democracy.”
Robert Post, the retiring dean of the Yale Law School, agrees that democracy is at stake. “If each person could control information about them in the public sphere, we could not have a democracy,” he said.
Representatives of Twitter and Facebook described elaborate outreach efforts they have made to counteract hate speech with positive speech. These included organizing 80 civil society groups in Germany to promote positive speech. In the U.S., Facebook is working with university faculties to train students on how to use Facebook to counter extremism in their communities.
Post said Google should be treated like a newspaper, not as some private entity outside the public sphere. He quoted the famous French philosopher Alexis De Tocqueville, who wrote in “Democracy in America,” that “nothing but a newspaper can drop the same thought into a thousand minds at the same moment.”
Last week, that 19th century wisdom never seemed truer as the two great U.S. newspapers of the 20th century delivered breaking stories every few hours over their 21st century platforms. Each disclosure dropped into the minds of millions of Americans and each will have an impact on the way voters and their elected representatives view the days ahead in this troubled democracy.