Saturday, July 02, 2022

Who’s Going to Protect Reproductive Rights Online?

Chicago protests, June 24. (photo: Timothy Karr)

Co-authored with Nora Benavidez for Tech Policy Press

Following the Supreme Court’s decision overturning Roe v. Wade13 states have or will soon have laws that criminalize abortion, and at least five more are ready to follow. Those trying to determine how and where they can obtain reproductive healthcare face added layers of complexity when they use the internet and their smartphones to learn more. Law enforcement can now weaponize online data to investigate, harass and take legal action against people seeking abortions.

Despite the severity of the situation, social media platforms and other tech companies are failing to grapple with how the Supreme Court ruling should alter their content-moderation and user-privacy guidelines. Few could muster a coherent response when reporters from MIT Technology Review asked for clarity. 

We can already tell from recent reporting that they’re making a mess of it. Companies including Meta and Google have overcorrected for the Dobbs v. Jackson Women’s Health decision in ways that could further jeopardize the health and liberty of millions of people. 

Before they do more harm, online platforms and internet service providers must change how they collect data about their users and ensure that they’re not sharing information that puts abortion seekers at risk. Congress, the Federal Trade Commission (FTC), and tech companies themselves each have power to safeguard the rights of those seeking reproductive health services. 

Privacy and the Digital Dragnet

This situation was decades in the making. Authorities can access pretty much anything we do online and via our smartphones. And there’s little that social-media platforms and other technology companies can do if police with a legal warrant or court order seek the user information these businesses have collected.

Google, for example, received more than 20,000 U.S. location data warrants between 2018 and 2020. This included dragnet orders demanding data about everyone who was near a particular location. In the hands of law enforcement seeking to charge abortion seekers, this would give them the power to locate a person at an abortion-services provider’s address at a given time. Google, which produces the Android operating system for hundreds of millions of mobile devices, says that as a matter of company policy it is required to respond to legal warrants.

There’s an additional risk to people who search for reproductive health-care information, such as how to order “abortion pills” via any of the online providers of this medicine. Internet service providers can keep records of the websites their users visit. When you send a text via SMS, your phone company stores copies of all those texts. These can be turned over under a warrant.

AT&T, for example, received 77,996 criminal subpoenas for user information from federal, state and local authorities in just the last six months of 2021. Like other companies that hold user data, AT&T says it is required under the law to provide customer data in response to court orders, subpoenas, lawful-discovery requests and other legal requirements.

What Congress Can Do

The absence of clear federal data privacy laws is a major concern. Layer over that the patchwork of state-level prohibitions on abortion and things become far more confusing for people seeking reliable abortion information online. The glut of websites and social-media posts featuring inaccurate medical and legal advice makes matters even worse. The platforms’ own rules for addressing these issues remain murky and are inconsistently enforced. 

One fairly straightforward solution is for these companies to stop collecting data about what their users are doing online, and where they’re going offline. Platforms, search companies and internet service providers must change their data-collection and retention practices so that they no longer gather or store individualized search and browsing histories and unnecessary customer-location information. 

To that end, Congress is considering several privacy bills that limit the data companies can collect. Various pieces of legislation currently on the table would reduce or prohibit the collection, retention and use of sexual health information, while others protect healthcare, genetic, biometric and geolocation data more generally, or even ban any use of such data in a way that violates people’s civil rights. But online entities still would be able to use such data with individuals’ consent, in order to respond to the requests that users make for information on these crucial topics.

Free Press Action is part of a large coalition of civil and digital rights groups fighting to minimize the personal information platforms and data brokers can collect and limit how they can use it. Another strong legislative proposal is the Fourth Amendment Is Not For Sale Act, which closes a loophole that currently allows these brokers to sell our data to police without a warrant.

While none of these proposals are a perfect fix for this complex and crucial set of issues, these bills are meaningful measures that — if passed — could begin to ensure that tech companies are doing more to safeguard the privacy necessary for protecting reproductive rights.

What the FTC Can Do

The FTC is charged with oversight of unfair or deceptive practices related to the harvesting, sharing or sale of personal data, including health-related information.

For months now the agency has been teasing plans to begin a rulemaking proceeding to rein in the misuse of online data by social-media companies and other data brokers. In May, the Senate confirmed the agency’s fifth commissioner, Alvaro Bedoya, an experienced privacy advocate who has supported agency action alongside FTC Chairwoman Lina Khan and Commissioner Rebecca Kelly Slaughter. 

The agency has put a proceeding on its summer calendar and has the majority it needs to establish clear rules against abusive data practices that undermine reproductive rights and access to health care. Through an open and participatory rulemaking, the FTC can build a record of the harms related to the trafficking of personal and geolocation information and establish guardrails against unfair and deceptive extractive data practices. Such a rule would help mitigate these harmful data practices embedded in every sector of society, which we know to especially harm historically disadvantaged communities.

What Platforms Can Do

Legislation and FTC rules together won’t fix everything. People researching reproductive health-care options are seeking information on social-media platforms. With state-level abortion restrictions, sharing this kind of information in those states presents a significant content-moderation challenge.

Recent research finds that content from less reliable sources referencing abortion has more than doubled since the Dobbs ruling was leaked in May. Platforms have yet to apply the sorts of user-warning labels to abortion misinformation that they’ve applied (albeit in a haphazard fashion) to inaccurate posts about COVID-19 treatments and elections.

We’ve already seen risk-averse social-media companies overreact to abortion-related content. Meta, for example, technically has a gun-sale ban on its platforms. Yet it allows users to violate that policy 10 times before penalizing them. Meanwhile, just in the last week Facebook and Instagram have removed individual posts about sales of abortion pills. It seems likely that these companies will also ban ads for abortion services in states that have outlawed abortions.

If they’re forced to do so, they and other online advertisers must also refuse to accept advertising dollars from entities seeking to mislead people seeking abortions (for example: by posing as clinics that provide these services or spreading disinformation).

Social-media platforms have an ethical responsibility to invest in moderators who are specifically trained to spot such harmful content. These companies must ensure that people seeking abortions aren’t targeted for abuse or exposed to disinformation.

The difference between 2022 and 1973, when Roe v. Wade was decided, is that we now live in an era in which data about what we do, with whom and where, is in the hands of tech companies and data brokers that are willing to sell this information to the highest bidder — or hand it over to federal, state and local authorities.

As tech companies wield increasing power over everyone’s digital rights, they must collect and archive less user data and establish clear standards for sharing potentially lifesaving reproductive health-care information. The Supreme Court’s abortion decision makes the need for comprehensive action more urgent than ever. Congress, the FTC and tech companies must do what is necessary to protect reproductive rights.

Nora Benavidez is the senior counsel and director of digital justice and civil rights at Free Press Action, where Timothy Karr is the senior director of strategy and communications.

Friday, March 25, 2022

The Future of Local News Is Noncommercial

(Originally published by Columbia Journalism Review)

IN FEBRUARY, Sen. Amy Klobuchar of Minnesota reintroduced the Journalism Competition and Preservation Act, which is designed to make Silicon Valley’s billionaires pay for the harms they’ve inflicted on the news industry.

“What does Big Tech’s dominance over the news mean for Americans?” Klobuchar asked during a recent hearing on the legislation. Her answer: “Less revenue for local news, fewer journalists to do in-depth high-quality reporting, more exposure to misinformation and fewer reliable sources.”

The decline of local news is a tale often told against the rise of Silicon Valley. But equating the shuttering of local newspapers with the flourishing ad business at companies like Google and Meta (formerly Facebook) doesn’t get the story entirely right.

The news-business model itself — rooted in the belief that journalism must live or die by the dictates of the marketplace — is a primary reason that tens of thousands of newsroom jobs have been lost.

It’s easy to see why some blame journalism’s demise on the rise of digital platforms. Between 2008 and 2020, more than a thousand newspapers ceased printing, and the number of newspaper newsroom employees shrank by more than half. But while these numbers are alarming, they reveal only a part of the problem. Free Press found that more than 40 percent of the jobs lost in the newspaper industry since 1990 occurred prior to 2008 and the boom years for online advertising.

In other words, local dailies were shedding jobs long before a few tech platforms reported ad revenues in the tens of billions of dollars. It’s a trend that points to a deeper problem with the business of local news — and to the need for solutions that don’t merely make Big Tech subsidize old ways of producing journalism.

Solving the right problem

To be sure, the popular adoption of the internet and the way the platforms changed how we consume information undermined the local-news economy. But we can’t ignore the ways that conglomerate and hedge-fund media ownership subjects news production to the predatory demands of profit and growth. Decades of mergers and acquisitions also saddled consolidated media companies with sizable debts that their top executives chose to service not by cutting their own salaries but by downsizing local newsrooms.

We need to reinvent the news economy from one that serves a few owners to one that serves the needs of democracy — including holding leaders accountable, challenging disinformation, and exposing corruption — while supporting the jobs and content communities need.

No amount of tinkering with free-market mechanics can restore the business fundamentals that sustained local news in the twentieth century. This peak era for daily newspapers was due in large part to their unique ability to bundle local information with daily advertisements targeted to local audiences. This newsprint formula no longer functions in a media world where connections are instantaneous and attention is the main commodity.

To make matters worse, this digital marketplace down-ranks the kinds of journalism that inspire people to participate in community affairs, support local charities, or speak out against injustice. Researchers at MIT found that information that prioritizes sensationalism over accuracy is most effective at keeping eyes glued to your app or website. As such, platforms have a built-in commercial incentive to engage users with “low value” content that holds viewers’ attention — and not the often costly news reporting that bolsters civic participation and holds local officials to account.

It’s not clear how the Journalism Competition and Preservation Act will alter that basic equation or create a sustainable news model for the thousands of communities across the country where people have little to no access to credible and comprehensive local-news sources.

The legislation would give broadcasters, publishers, and other news producers an “antitrust exemption” to collectively negotiate for payments from powerful online platforms. Its primary beneficiaries would likely be national and international news conglomerates, the companies least in need of a bailout. When Australia implemented a similar rule — encouraging payment negotiations between news businesses and the platforms that sometimes feature or link to their content — the country’s largest media outlets were the first in line for payouts from Google and Facebook.

Rupert Murdoch’s News Corp is getting tens of millions of dollars a year from these arrangements, writes Nieman Lab’s Joshua Benton. “Meanwhile, the small fr[ies] in Australia media are getting bupkis.”

It’s no surprise, then, that the lobbyists representing consolidated media groups like News Corp, predatory hedge funds like Alden Global Capital, and consolidated broadcasters like Sinclair Broadcast Group are among the most vocal supporters of Klobuchar’s US legislation.

If news outlets are to survive over the long term, it won’t be because we’ve grafted their operations to digital enterprises that are more efficient at connecting advertisers to consumers — but less capable of separating fiction from fact, or disinformation from reporting that fosters democratic participation.

Doubling public funding is a start

Far too many of the bills circulating in Congress, including Klobuchar’s legislation, are designed to benefit existing media giants — many of the very same commercial operations that have gutted local newsrooms and profited from runaway media consolidation.

Clearly there’s a better way forward. Congress would better spend its time on bills that treat journalism as a public good. This is done by allocating public funds to support local innovations in noncommercial media.

The US hovers near the bottom of the list of advanced democracies when it comes to per-capita spending on federal funding for public-interest media. We spend about $1.50 per capita each year, while per-capita spending by Japan exceeds $50; per-capita spending in Germany and Sweden is more than $100. The concept of such funding for public broadcasting routinely receives high levels of bipartisan support in the United States.

As a start, Free Press has called for a doubling of public funds for noncommercial news and information. This kind of congressional commitment would recognize that propping up private industry alone won’t create a viable model for local journalism.

Dramatically increased public investment in locally engaged reporting would help support the wide array of new nonprofit outlets that are focused on meeting the information needs of communities that commercial media too often ignores.

To get there, Free Press has proposed a new tax on digital advertising to fund the kinds of innovative news production that’s now needed. A tax of 2 percent would generate more than $2 billion annually, enough to support new distribution models, especially those that don’t rely on data harvesting and targeted ads for revenue.

In New Jersey, Free Press helped conceive and create the New Jersey Civic Information Consortium, an independent nonprofit funded by a state-budget appropriation. The consortium, including representatives from public colleges and universities across the state, supports inventive local-news projects like the Newark News and Story Collaborative and the Bloomfield Information Project, which train local residents to report the news from their own perspectives.

This New Jersey experiment, which received overwhelming bipartisan support, could be replicated by other states to help put journalists on local beats from Key West to Anchorage.

It’s been encouraging to see the recent growth in other not-for-profit news models, especially those that amplify the voices of people of color. State and federal funding could also help spur the sort of attempts at hybrid commercial-noncommercial media that are being explored by dailies in Philadelphia, Salt Lake City, Seattle, and elsewhere.

These and other good ideas have been testing new strategies for news production. But they can’t fill the massive gaps left by the collapse of for-profit newspapers. One thing is certain: legislation that sends tax dollars to hedge funds or keeps an antiquated commercial model on life support isn’t the solution.

Lawmakers should provide comprehensive funding for noncommercial news instead of wedding a sputtering business to a Silicon Valley attention engine that can’t possibly foster the sort of journalism that is vital to civic health.