Freedom = Censorship?

Saturday, July 14, 2012 by MediaCitizen

by Tim Karr

 

Think you have the right to speak freely via cellphones, websites and social media? Well, the companies that provide you with access to the Internet don’t.

The framers drafted the First Amendment as a check on government authority — not corporate power. But whether we’re texting friends, sharing photos on Facebook, or posting updates on Twitter, we’re connecting with each other and the Internet via privately controlled networks.

 And the owners of these networks are now twisting the intent of the First Amendment to claim the right to control everyone's online information.

Right before the Fourth of July, Verizon filed a brief with the U.S. Court of Appeals for the D.C. Circuit that expressed this intent in no uncertain terms. The brief was part of the telecom company’s bid to overturn the Federal Communications Commission’s Net Neutrality rules, which prohibit carriers from blocking or discriminating against Internet users’ content.

In the brief, Verizon argues that the First Amendment gives the company the right to serve as the Internet’s editor-in-chief.

The First Amendment “protects those transmitting the speech of others, and those who ‘exercise editorial discretion’ in selecting which speech to transmit and how to transmit it,” the company’s attorneys wrote. “In performing these functions, broadband providers possess ‘editorial discretion.’ Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others.”

By “content” Verizon means all digital communications that cross its wires, from photographs of your cousin’s backyard barbeque to YouTube videos of human rights violations in Syria.

Verizon filed its brief quietly just before the July Fourth holiday, but it has caught the attention of the Internet freedom community like a skunk under the back porch.

This is not the first time Internet Service Providers (ISPs) have suggested that they have a First Amendment right to stifle speech online. AT&T argued in 2010 that its role is similar to that of an editor who selects content and speaks — and that it is not merely a conduit for the communications of others.

This defense of corporate censorship is no idle threat but a pretext for a full-scale takeover of the Internet — a move that first requires killing off any consumer protections that stand in the way.

We live in a time when growing numbers of people watch television programs, listen to music, create videos and share photographs via Internet connections provided by private entities.

A 2011 report from European Digital Rights states that ISPs and other technology companies are fast becoming the information cops of the world. The report paints a picture of an emerging “censorship ecosystem” fueled by private entities that often work hand in glove with governments.

This collusion serves both corporate and political interests. ISPs are seeking new authority to interfere with user traffic, including limiting access to the content of competitors like Netflix or shutting down the accounts of users they charge with sharing too much media. Governments are demanding that access providers help them filter and police the Internet — and that they do so under a veil of secrecy.

The most dangerous threats to free speech today lie at this intersection between corporate and political power. While businesses might do many things better than governments, our government is at least by definition directly accountable to the American people. So when Verizon claims the right to decide who gets free speech on the Internet, it’s making this claim as a benevolent despot, not as a representative democracy.

The framers of the U.S. Constitution could not have foreseen a time in which technology allowed more than a billion people to communicate via mobile phones connected to the World Wide Web. Nor could they have envisioned a world in which companies like Verizon, AT&T and Comcast wield more authority over our free speech than a British monarch.

And yet the First Amendment has survived to this day in defense of democracy’s most consequential right. People on both the left and right value freedom of speech. Just days after Verizon filed its brief, a diverse coalition of more than 1,000 groups and Internet dignitaries joined together behind a Declaration of Internet Freedom that establishes freedom of expression as its first principle.

But popular consensus behind free speech on the Internet is running headlong into media giants like Verizon that want to suppress open Internet culture.

Any claim that the First Amendment protects corporations — and not people — is absurd. And it shows just how far some companies are willing to go to control 21st century communications.

American Businesses Kill 14 Workers Every Day as the Corporate Media Yawn

Now -- in the wake of a slew of highly publicized and preventable disasters -- is the time to demand action, before more workers die.
By Tom O'Connor
June 20, 2010

It’s been a very bad couple of months for worker safety: Seven dead in Anacortes, Washington, following the explosion of the Tesoro refinery. Six dead in Middletown, Connecticut, in the Kleen Energy power plant explosion. Twenty-nine dead in West Virginia’s Upper Big Branch mine disaster. And 11 dead in the Gulf of Mexico oil rig collapse (a fact almost completely overlooked in media coverage of the spill’s environmental consequences).

But behind the headlines on the latest disaster is a far quieter but equally disturbing story of daily carnage. In the same week as the human-created disaster in the Massey mine in West Virginia, local media outlets around the country carried dozens of stories with headlines like “Man Killed in Trench Collapse” or “Fall from Roof Fatal.”

The toll of these routine incidents—14 deaths a day from injuries alone—is obscured because most occur one death at a time.

Month after month, year after year, workers die in trench collapses and falls from roofs. OSHA cites the employer, slaps it with a modest fine (a median penalty of only $3,675 per death in 2007), and points out that simple methods exist to prevent such tragic loss of life. Yet some employers continue to ignore the hazards and workers continue to lose their lives due to this criminal neglect.

Like the high-profile workplace disasters, the vast majority of deaths on the job are entirely preventable. The problem is not a technical one of chemical concentrations, safe machinery, and ventilation, but a political one—simply put, our national system for enforcing health and safety regulations in the workplace is broken.

We know how to prevent trenches from collapsing—by using trench boxes to shore them up. We know how to prevent falls from roofs from becoming fatal—by properly using safety harnesses. We know how to prevent coal mine explosions by minimizing the build-up of coal dust and monitoring methane concentrations. But employers routinely refuse to use these established precautions, and OSHA does not force them to.

WHY NO ENFORCEMENT

First, it’s a problem of resources: OSHA’s budget for enforcement is pitifully inadequate, a situation that has worsened since deregulation began in the Reagan era. In the late 1970s, OSHA had one inspector per 30,000 covered workers; today it’s one per 60,000.

Second, obstacles to any new workplace safety rules, put in place by deregulation ideologues in Congress, have effectively brought the OSHA regulatory process to a complete standstill. As the Center for Progressive Reform puts it, “In the nearly 40 years since its enactment, the OSHA Act has been exposed as a virtually useless tool for establishing occupational health and safety standards.” In the last 13 years, OSHA has issued exactly one new health standard establishing the maximum safe exposure to a chemical, and that under the duress of a court order.

Third, OSHA’s promise that all workers have the right to speak up about unsafe or unhealthy conditions without retaliation has proven to be a cruel joke to those who have risked their jobs by calling OSHA. The agency’s whistleblower protection program is so ineffective that worker advocates cannot in good conscience advise a non-union worker to file an OSHA complaint if he or she wants to keep the job.

The Massey mine explosion demonstrated clearly that the combination of de-unionization, lack of enforcement of safety regulations, minimal penalties for violations, and lack of whistleblower protections is lethal. As several current and former Massey workers noted, the mine was a time bomb waiting to explode, but in a non-union mine, it was keep your mouth shut or lose your job.

HOW TO FIX IT

The solutions to this sorry state of affairs are not complex:

1) Congress should amend the OSH Act and the Mine Safety and Health (MSH) Act to protect whistleblowers and to require serious monetary and criminal penalties for egregious violators whose willful neglect of safety results in workers’ deaths.

Under current law, even the most egregious case of employer neglect can result in no more than a misdemeanor, punishable by a maximum six months in jail. Civil penalties also lag far behind those for violations of other federal law.

New OSHA chief David Michaels noted in a recent Congressional hearing that when a Delaware refinery worker was killed in a sulfuric acid explosion, OSHA assessed a fine of $175,000, while the same incident resulted in EPA fines of $10 million for violations of the Clean Water Act.

2) Congress should dramatically increase the budget for OSHA enforcement.

3) OSHA should fundamentally rework its system for regulating hazards. It should issue a broad “Health and Safety Program Standard” and cite employers under the “General Duty Clause” for unsafe conditions.

These measures would require employers to develop worksite-specific health and safety programs and allow OSHA to enforce the employer’s duty to provide a safe workplace—without having to navigate the endless bureaucratic obstacles to issuing safety or health standards on a one-by-one basis.

4) Congress should close the loophole in the MSH Act that allows companies like Massey to avoid paying fines by contesting most MSHA citations, effectively shutting down the penalty system. Massey contested 3,601 citations in 2009, creating a logjam that prevents MSHA from collecting on assessed penalties.

5) Congress should enact labor law reform so that workers who want to join a union and speak up about unsafe conditions are able to do so.

FIST-POUNDING

But these changes won’t come about because Congress simply decides to do so. Despite much fist-pounding by senators at recent hearings on the mine disaster, they will likely soon forget about worker safety and move on to the next crisis.

A bill introduced in 2009 would go a long way toward strengthening OSHA’s ability to protect workers. The Protecting America’s Workers Act would increase maximum civil and criminal penalties, expand protections for whistleblowers, and extend OSHA protections to public employees, many of whom are now excluded.

Unfortunately, a timid Democratic-controlled Senate Labor Committee appears unwilling to move the bill without Republican support. (Can someone explain to me why it’s not a good idea to force Republicans to cast a vote against worker safety after the recent disasters?)

So perhaps we can expect little from Congress—unless the labor movement and its allies turn up the heat on our representatives. Now—in the wake of a slew of highly publicized and preventable disasters—is the time to demand action, before more workers die.

Corporate Censors Flex Their Muscles

The New Morality Police

By DAVID ROSEN

A couple of weeks so ago, Jason Goldberg, founder and CEO of the soon-to-be-launched website, fabulis.com, woke to a shocking situation: Citibank had blocked his corporate bank account. As Goldberg posted on his blog, the bank’s action was done without prior notice and was imposed because of the site’s apparent “objectionable content.” And the content? Fabulis is to be a social networking and lifestyle service targeted to gay men.

A few days later, and after much indignant buzz on the web about the bank’s arbitrary action, Goldberg got a call from Citibank’s Bill Brown. According to Goldberg, “Bill runs all the New York branches. Bill seems like a good and smart guy. He is sincerely apologetic that an individual made a bad judgment call about our site.” Fabulis’ account was reinstated.

In all likelihood the blocking of Fabulis’ account was the result of a “bad judgment call.” As Goldberg reports, “Bill [Brown] will use this as an education and training opportunity.” One can only wonder what corporate “education and training” means at Citibank. The problem, sadly, seems more systemic: How is it that an individual bank employee (or small group) can block an account? What criteria and procedures does the bank use to determine “objectionable content”? These issues seem not to have been discussed between Goldberg and Brown.

Whether Citibank’s action was due to the action of a single employee or a decision by its top management, it speaks to the apparent increase in the censorship of online content now being imposed by corporate America. The struggle over censorship, over the content Americas can experience, dates from the nation’s founding. In 1711, the Massachusetts Bay Colony introduced regulations prohibiting the “Composing, Writing, Printing, Publishing, of Any Filthy Obscene or Prophane Song, Pamphlet, Libel or Mock-Sermon, in Imitation or in Mimicking of Preaching, or any other part of Divine Worship.”

Today, the battle over censorship, over the limits of acceptable content, is being fought on two fronts. The first is the formal or legal front; it involves the contestation over FCC “decency” standards (e.g., CBS’s fine for the over-the-air broadcast display of Janet Jackson’s nipple) and Court decisions (e.g., U.S. v. librarians over Internet porn).

The second front is more informal, non-legal and involves corporations selectively restricting what they offer the public. It often involves more subtle forms of censorship ranging from corporate identity or branding issues, product “quality” or technical standards, to market control factors and to unstated political or religious values. Both fronts need to be challenged with equal vigor; nevertheless, there appears to be an increase among the latter front, corporate censorship.

* * *

The battle between the Dixie Chicks and the country music establishment is the paradigmatic example of corporate censorship, both its imposition and its undoing. The Chicks appeared at a now-famous London concert in 2003 as the U.S. illegal invasion of Iraq loomed. One of the “chicks,” Natalie Maines, told the anti-war audience, "Just so you know, we're ashamed that the President of the United States is from Texas."

Reports of Maines’ statement spread rapidly and the group faced a vicious backlash. It came from not only the pro-war right wing and the media establishment, but the country music industry as well. The Chicks found that radio stations (especially the reactionary Clear Channel network) refused to play their music, retailers refused to carry their albums, their live shows were cancelled and they suffered a plunge in record sales. They also received death threats.

As support for Bush’s imperialist folly eroded, anti-war sentiment became popular, acceptable among the political elite and corporate media. Those who long opposed the war were transformed from traitors to patriots. In 2007, the Dixie Chicks were rehabilitated, receiving five Grammy awards.

More recent examples of corporate censorship are equally political, but in a more arbitrary fashion. The Fabulis experience is illustrative. Clearly, the Citibank decision-maker(s) didn’t know their customer nor who backed his latest venture. Goldberg was a co-founder of Jobster, also started and ran socialmedian.com, which was sold to Xing in 2008. He’s a player in the web-entrepreneur ballgame. His latest venture is backed by the “Washington Post,” Mayfield Fund’s Allen Morgan and Burson-Marsteller’s Don Baer.

The experience of Goldberg’s Fabulis may well be an exception. However, Apple’s actions speak to a different form of censorship. The “New York Times” recently blew the whistle of Apple’s restrictions of applications it will run on its iPhone. Among those blocked are “SlideHer,” a videogame depicting a scantily-clad women, and “Sexy Scratch Off,” a lottery-type game depicting a woman wearing a scratch-off dress and revealing undergarments.

Apple’s iPhone supports an estimated 150,000 “apps” through its App Store and draws the line over what it considers “objectionable content.” Philip Schiller, Apple’s head of worldwide product marketing, argues that developers have been submitting “an increasing number of apps containing very objectionable content.” He added: “It came to the point where we were getting customer complaints from women who found the content getting too degrading and objectionable, as well as parents who were upset with what their kids were able to see.”

What all this huffing-&-puffing fails to acknowledge is that Apple offers the “Sports Illustrated” soft-core porn swimsuit issue. As Schiller acknowledged, “The difference is this is a well-known company with previously published material available broadly in a well-accepted format.” At Apple, as at many media companies, corporate interests determine decency standards.

Apple’s blockage of a variety of other “objectionable content” received less media attention. As first reported on the invaluable site, BoingBoing, Apple initially blocked episodes of the South Park cartoon series. South Park announced: "We first announced our iPhone App back in October [2008], after we submitted the Application to Apple for approval. After a couple of attempts to get the application approved, we are sad to say that our app has been rejected." Apple also banned Infurious Comics' “Murderdone.” Weirdly contradictory, it is now forgotten that while Apple’s banned the juvenilia app “iBoobs,” it permitted “iJiggles” and “Wobble,” although with “Wobble,” references to "boobs" and "booty" were removed.

Apple’s arbitrary censorship practices involve more than popular entertainment. It initially blocked Project Gutenberg's “The Kama Sutra of Vatsayana,” the ancient Sanskrit text (without illustrations) on sexual pleasures. Unacknowledged by Apple, the Kama Sutra was already available through other iPhone apps. A similar pattern is evident in its restricted e-publication of David Corney’s novel, “Knife Music.” Apple blocked it because of its apparent excessive use of the word "fuck.”

American First Amendment protections (and restrictions!) cover public media not private media. Thus, Janet Jackson’s exposure of her nipple on the CBS over-the-air broadcast of the Super Bowl was a contestation between the limits of expression and notions of public decency. It involved the FCC and, ultimately, the federal Courts. However, Apple’s iPhone is a proprietary mobile communications platform; its refusal to offer Project Gutenberg's “The Kama Sutra,” like Clear Channel’s refusal to play the Dixie Chicks, does not involve First Amendment issues but the arbitrary imposition of corporate standards of morality.

Apple is not alone in using its corporate muscle to censor what it determines to be “objectionable content.” Wal-Mart has long prided itself on censoring materials it considered to violate its “family values” policy. Censorship applies to books and music, extending to not only music lyrics but also album cover artwork. But what is “objectionable” is purely arbitrary, as Wal-Mart’s own policies indicate. “Wal-Mart does not display album or song titles that contain profanity,” its online music policy states. “However, Wal-Mart may carry some recordings that some customers might find offensive, indecent or objectionable.” Some?, which ones? and who decides?

Amazon was recently outed for delisting non-pornographic gay literature, including James Baldwin’s “Giovanni's Room,” Annie Proulx’s “Brokeback Mountain” and Gore Vidal’s "The City and the Pillar." After being exposed, Amazon quickly claimed it was a technical error with no anti-gay censorship intended. Curiously, Chronicle Books’ “Playboy: The Complete Centerfolds," with photos of some 600 nude women, was never affected.

CVS, the nationwide drugstore chain, has found itself at the center of a series of local censorship confrontations. In Milwaukee, it faced community objections over its decision to no longer permit the in-store stocking of the “Shepherd Express,” a local weekly. In New York, it ran into flack at its Chelsea store over the content of two Christian-themed books that called homosexuality a “cancer,” sinful and “detestable” to God. When outraged residents informed the local paper, “Chelsea Now,” and the story was picked up by the “Times,” CVS removed the two books. A CVS spokesman, Michael DeAngelis, stated, “We are committed to building an environment of inclusion and acceptance that values diversity across all areas of our business.”

AT&T has faced repeated charges of arbitrary censorship among a host of corporate misdeeds. In 2007, it faced a firestorm of controversy when the lyrics of Pearl Jam were “accidentally” edited during the webcast of a Lollapalooza concert. Lead singer Eddie Vedder had revised the lyrics of the song "Daughter" to include anti-Bush sentiments and they were bleeped out. In addition, the revised lyrics to Pink Floyd's "Another Brick in the Wall" ("George Bush, leave this world alone; George Bush find yourself another home.") mysteriously disappeared from the webcast. AT&T quickly retreated, offering an apology that a programming partner had “accidentally” edited the webcast.

Last year, AT&T took a direct hand in locking access to parts of 4chan.org. 4chan is an anonymous Internet message board community that is known for its irreverence, mischief and lewdness. Specifically, AT&T blocked the img.4chan.org sub-domain used by the /b/ message board. Many web activists initially faulted AT&T for apparent censorship. AT&T claimed the blocking was a response to what is technically known as a DDoS (denial-of-service) attack and service was restored once the attack was thwarted.

* * *

Corporate facilitators are gaining increasing power to determine the appropriateness of media content. Facilitators are the middle-vendors who distribute media communications between the content producer and the (adult) audience or consumer. Such vendors include cable operators, telecommunication companies and retail chains. They are the pipeline between what is said and who gets to hear it.

The matrix of facilitators who control media distribution include AT&T and Amazon, Apple and CVS, Wal-Mart and Citibank. They exert an often-invisible stranglehold over freedom of expression. Once Americans step beyond the formal boundaries of “public” communications, be it by a newspaper, radio or broadcast television, First Amendment protections do not apply.

Corporations are anti-democratic organizations in two respects. They arbitrarily determine the content they choose to distribute, whether they function as a quasi-monopoly (like Wal-Mart) or a public carrier (like Apple). In addition, they formally restrict the rights of their employees to speak their mind.

The Supreme Court recently granted corporations greater First Amendment rights to participate in the electoral process. One can only wonder when the Court will extend similar rights to facilitate free expression through the respective distribution pipelines that these corporations control.

Why does Apple (and not the proverbial “marketplace”) determine the apps it runs? Apple’s iPhone’s use of the public airways in essentially no way different then a broadcast TV channel. Why is it not governed by the same common-carriage requirements? Wal-Mart takes full advantage of the public highway system to get customers to its doors. Why do the public’s freedoms of choice not extend into the store itself?

The deep suspicion of corporate censorship shared by web activists, civil libertarians and the public itself is well taken. To overcome such suspicion, the arbitrary, non-transparent and anti-democratic control that corporation facilitators have over content distribution must stop. If corporations are rewarded with greater influence (if not control) over the political process, they should at least be required to cease all attempts to control what free people can say or hear or see.