Charlie Demerjian the inquirer Tue, 30 Dec 2008 18:56:44 +0000

OS war's a-coming

He then proceeds to offer the following advice, which is also great advice for companies:

(1) abolish the practice of holding a single televised daily press briefing by the White House press secretary - instead, the presidential press secretary needs to orchestrate a great symphony of public information. More data and facts need to get out the door. Less spin and "message control."

Try this in your organization as well - let the experts comment on what they know best, explain to employees and customers your product and services with simplicity and immediacy. Quarterly CEO web casts are great but in this day and age they need to be supplemented with a robust diet of what is going on in the marketplace.

When you orchestrate a symphony of information with data, facts, stories from the trenches, you help all stakeholders see what is going on and make better decisions as supporting actors for the business.

(2) make the White House more like the West Wing - actually he recommends reality shows as a thought. More transparency will restore trust in government.

When I talk about transparency in business, I get the look, you know, that look that says, yeah, in your dreams - our competitors will copy us. There is no way they can do it better than you can. Here's why:

If you go ahead and copy what your competitors are doing without seeing what is behind their strategy, part of which is cultural, you will bomb. Aside from the fact that we know that trying to be something you are not is not such a good idea, your prospects already have your competitor in mind when they think of solving that particular problem. Go read Positioning by Al Ries & Jack Trout, it's a classic, it's still not being done by most.

(3) make sure other agencies of government and the other branches on Capitol Hill and the Supreme Court get equal time - get the media to focus on other places where critical work is happening in the name of the American people.

This means having many more competent communicators across the organization. I'm liking this one a lot as well. It may also mean that as a leader, you will need to connect that information, provide context and perspective, illuminate the issues and point to the actions.

What advice would you add for remaking the "bully pulpit"?

Bonus link: Steve Rubel points us to Obama's lessons for PR professionals and marketers - I would add for all business leaders.

Media are becoming democratized. Digital media tools, increasingly cheap and ubiquitous, have spawned a massive amount of creation at all levels, most notably from the ranks of the grassroots in contrast to traditional, one-to-many publications and broadcasts. The networks that made this possible have provided vast access to what people have created potentially a global audience for anyone's creation.

But the expanding and diversifying media ecosystem poses some difficult challenges alongside the unquestioned benefits. A key question: In this emergent global conversation, which has created a tsunami of information, what can we trust?

How we live, work, and govern ourselves in a digital age depends in significant ways on the answers. To get this right, we'll have to re-think, or at least re-apply, some older cultural norms in distinctly modern ways.

These norms are principles as much as practices, and they are now essential for consumers and creators alike. They add up to a twenty-first-century notion of what we once called media literacy, which has traditionally all but missed the emerging methods of participation that are becoming such a key element of digital media. (This is only one reason why we should seek a replacement for the expression media literacy because it connotes something that has become quaint to the point of near-irrelevance.)

Issues of Credibility

Trust and credibility are not new to the Digital Age. Journalists of the past have faced these questions again and again, and the Industrial Age rise of what people called objective journalism allegedly unbiased reporting clearly did not solve the problem.

We don't have to look very far, or very far back in history, to note some egregious cases. The New York Times' Jayson Blair saga, in which a young reporter spun interviews and other details from whole cloth, showed that even the best news organizations are vulnerable. Fox News still maintains a slogan of fair and balanced two falsehoods in three words. The Washington press corps, with dismayingly few exceptions, served as a stenographic lapdog for the government in the run-up to the Iraq War. And so on.

But the credibility problem of traditional media goes much deeper. Almost everyone who has ever been the subject of a news story can point to small and sometimes large errors of fact or nuance, or to quotes that, while accurately written down, are presented out of their original context in ways that change their intended meaning. Shallowness is a more common media failing than malice.

Traditional media boast processes, however, aimed both at preventing mistakes and when they inevitably occur setting the record straight.

The new media environment is rich with potential for excellence. But it is equally open to error, honest or otherwise, and persuasion morphs into manipulation more readily than ever.

Consider just five examples, two from the political world:

• The 2004 U.S. congressional elections were notable in many ways, not least the widespread adoption of blogging and other conversational tools by candidates, staffs, and supporters. But in South Dakota's U.S. Senate race, the campaign of Republican challenger John Thune paid two local political bloggers whose work influenced the state's major newspaper; not until after the election, which Thune won, was their paid role widely known.
• Venture capitalists have poured considerable funds into a startup called PayPerPost, a company that serves as a go-between for companies wishing to get bloggers to write about products and services. Although PayPerPost encourages bloggers to disclose this arrangement, the disclosure can be easily hidden or omitted entirely at the blogger's choice. This practice has drawn well-deserved contempt from those who favor transparency in media, and equally derisive rejoinders from paid bloggers who don't care what people think of what they do.
• Procter & Gamble and Wal-Mart, among other major companies, have been caught paying bloggers directly or indirectly to promote the firms or their products but without disclosing their corporate ties. The stealth marketing, also called buzz marketing, caused mini-uproars in the blogging community, but a frequently asked question was whether these campaigns were, as most believe, just the tip of an influence iceberg.
• President-Elect Barack Obama has been the target of mostly shadowy, though sometime overt, rumors. They range from the laughable to the truly slimy. What they have in common is a single factor: They were plainly designed to poison voters in swing states. They were equally plainly having an impact; a nontrivial percentage of Americans is not sure whether he is a Muslim. (Obama's staff created a special section on the campaign website aimed at countering the rumors.)
• On blogs and many other sites where conversation among the audience is part of the mix, we often encounter so-called sock puppets people posting under pseudonyms instead of their real names, and either promoting their own work or denigrating their opponents, sometimes in the crudest ways. As with the buzz marketing, it's widely believed that the ones getting caught are a small percentage of the ones misusing these online forums.

Craig Newmark, founder of the craigslist online advertising and community site, famously says that most people online are good and that a tiny percentage does the vast majority of the harm. He is undoubtedly correct.

In the traditional news world, even though we understood the prevalence of minor errors in stories, even by reputable journalists, we also understood that, by and large, the better media organizations get things pretty much right. The small mistakes undermine any notion of absolute trust, but we accept the overall value of the work.

In a world with seemingly infinite sources of information, this equation is harder to solve. But we can make a start by being better informed about what we read, hear and watch.

Supply Side: Watching the Watchers

One of most serious failings of traditional journalism has been its reluctance to focus critical attention on a powerful player in our society: journalism itself. The Fourth Estate rarely gives itself the same scrutiny it sometimes applies to the other major institutions. (I say sometimes because, as we've seen in recent years, journalists' most ardent scrutiny has been aimed at celebrities, not the governments, businesses, and other entities that have the most influence, often malignant, on our lives.)

A few small publications, notably the Columbia Journalism Review, have provided valuable coverage of the news business over the years. But these publications circulate mostly within the field, and can only look at a sliver of the pie.

To be fair, the news media do cover each other to some degree. But most of that coverage focuses on reporting related to corporate maneuvering and profiles of stars not bad to do but not sufficient to what the public needs. Only very occasionally do journalists for major media organizations drill in on each others' successes and failures as journalists. When they do it, they tend to do it well; it is unfortunate that they don't try more often.

The Internet has been a boon to media criticism in several key respects. First, bloggers and Web-only publications are providing some of the toughest and best work of this kind. Salon's Glenn Greenwald tends toward overwrought descriptive language, but he reports with enormous depth and is singularly persuasive in showing how American journalists have continually botched even basic duties when it comes, for example, to covering the debate over government electronic surveillance. In Los Angeles, blogger Patrick Frey (Patterico), a lawyer, relentlessly watches and critiques also sometimes with over-the-top language the Los Angeles Times' coverage, particularly political stories. Both of these writers make clear their political leanings, left for Greenwald and right for Frey; readers refract that information through their own lenses to make their own decisions.

These two writers are among legions of people who have taken up media criticism, not as their primary occupation but as a part of what they do in their daily lives. When they care about something, they care about the journalism covering that topic and now they have a way to discuss what they've seen.

Their work, however, is diffuse. The diffusion is a natural aspect of the Web's distributed nature.

Several sites, including one I'm co-founding (see endnote 1) seek to generate and collect some of the criticism. There are two of note. The admirable NewsTrust project (I am an advisor) asks people to rate articles from major media organizations and blogs across a variety of criteria that, we hope, adds up to quality. In the United Kingdom, the Media Standards Trust is doing brilliant work to promote better journalism, and its Journalisted project aims to create a database of journalists to encourage transparency and accountability.

The word accountability resonates. Apart from raw market mechanisms and the legal system's bludgeon of libel lawsuits both, sadly, are flawed as countermeasures to poor journalism we have had a largely unaccountable press. New media tools are pulling down some walls and helping to create the possibility of deeper nonlegal accountability. More thorough and robust media criticism, and a conversation around it, will serve us all better.

Demand Side: Democratization Means Participation

As noted previously, the democratization of media is well under way. This takes two major forms.

First, the tools of creation are increasingly in everyone's hands. The personal computer that I'm using to write this essay comes equipped with media creation and editing tools of such depth that I can't begin to learn all their capabilities. My phone boasts video recording and playback, still-camera mode, audio recording, text messaging, and GPS location, among other tools that make it a powerful media creation device.

Second, we can make what we create widely accessible. With traditional media, we produced something, usually manufactured, and then distributed it put it in trucks or broadcast it to receivers in a one-to-many mode. Today, we create media and make it accessible: People come and get it. This distinction is absolute crucial, because although there is plainly an element of distribution here, even in the traditional sense, the essential fact in a one-to-one or many-to-many world is availability.

This democratization gives people who have been mere consumers the ability to be creators. With few exceptions, we are all becoming the latter as well as the former, though to varying degrees.

Even more exciting, media democratization also turns creators into collaborators. We have only begun to explore the meaning, much less the potential, of this reality.

Media saturation requires us to become more active as consumers, in part to manage the flood of data pouring over us each day but also to make informed judgments about the significance of what we do see. When we create media that serves a public interest or journalistic role, we need to understand what it means to be journalistic, as well as how we can help make it better and more useful.

This adds up to a new kind of media literacy, based on key principles for both consumers and creators. They overlap to some degree, and they require an active, not passive, approach to media.

Principles of Media Consumption

Even those of us who are creating a variety of media are still and always will be more consumers than creators. For all of us in this category, the principles come mostly from common sense. Call them skepticism, judgment, understanding, and reporting. More specifically:

1. Be skeptical of absolutely everything. We can never take entirely for granted the absolute trustworthiness of what we read, see or hear from media of any kind. This is the case for information from traditional news organizations, blogs, online videos and every other form.

As noted previously, even the best journalists make factual mistakes, sometimes serious ones, and we don't always see the corrections. When small errors are endemic, rational people learn to have a small element of doubt about every assertion not backed up by unassailable evidence.

More worrisome in some ways are errors of omission, where journalists fail to ask the hard but necessary questions of people in power. Stenography for the powers-that-be, and the unfortunate tendency of assigning apparently equal weight to opposing viewpoints when one is right and the other is wrong, are not adequate substitutes for actual journalism; you don't need a quote from Hitler when you're doing a story about the Holocaust. The reader/listener/viewer needs to keep an eye out for such behavior.

2. Although skepticism is essential, don't be equally skeptical of everything. We all have an internal trust meter of sorts, largely based on education and experience. We need to bring to digital media the same kinds of parsing we learned in a less complex time when there were only a few primary sources of information.

We know, for example, that the tabloid newspaper next to the checkout stand at the supermarket is suspect. We have come to learn that the tabloid's front-page headline about Barack Obama's alien love child via a Martian mate is almost certainly false, despite the fact that the publication sells millions of copies each week. We know that popularity in the traditional media world is not a proxy for quality.

When we venture outside the market and pump some quarters into the vending machine that holds today's emNew York Times, we have a different expectation. Although we know that not everything in the Times is true, we have good reason to trust it more often than not considerably more.

Online, any website can look as professional as any other (another obviously flawed metric for quality). And any person in a conversation can sound as authentic or authoritative as any other. This creates obvious problems in the trust arena if people are too credulous.

Part of our development as human beings is the creation of what we might call an internal BS meter a sense of understanding when we're seeing or hearing nonsense and when we're hearing the truth, or something that we have reason to trust. Let's call it, then, a trust meter instead of a BS meter. Either way, I imagine it ranging, say, from +30 to 30. Using that scale, a news article in the New York Times or Wall Street Journal might start out in strongly positive territory, perhaps at +26 or +27 on the trust meter. (I can think of very few journalists who start at +30 on any topic.)

An anonymous comment on a random blog, by contrast, starts with negative credibility, say 26 or 27. Why on earth should we believe anything said by someone who's unwilling to stand behind his or her own words? In most cases, the answer is that we should not. The random, anonymous commenter on a random blog should have to work hard just to achieve zero credibility, much less move into positive territory.

Conversely, someone who uses his or her real name, and is verifiably that person, earns positive credibility from the start, though not as much as someone who's known to be an expert in a particular domain. A singular innovation at Amazon.com is the Real Name designation on reviews or books and other products; Amazon can verify because it has the user's credit card information, a major advantage for that company (disclosure: I own some Amazon stock). Almost invariably, people who use their real names in these reviews are more credible than those who use pseudonyms.

Pseudonyms are becoming an online staple, and they can have great value. But they need to have several characteristics, all pointing toward greater accountability. Content management systems have mechanisms designed to (a) require some light-touch registration, even if it's merely having a working email address; and (b) prevent more than one person from using the same pseudonym on a given site. This isn't as useful as a real name, but it does encourage somewhat better behavior, in part because it's easier to police.

Ultimately, conveners of online conversations need to provide better tools for the people having the conversations. These would include moderation systems that help bring the best commentary to the surface, ways for readers to avoid the postings of people they found offensive, and community-driven methods of identifying and banning abusers.

For all this, anonymity is essential to preserve. It protects whistleblowers and others for whom speech can be unfairly dangerous. But when people don't stand behind their words, a reader should always wonder why and make appropriate adjustments.

3. Go outside your personal comfort zone. The echo chamber effect our tendency as human beings to seek information that we're likely to agree with is well known. To be well informed, we need to seek out and pay attention to sources of information that will offer new perspectives and challenge our own assumptions. This is easier than ever before, due to the enormous amount of news and analysis available on the Internet.

The easiest way to move outside your comfort zone is simply to range widely. If you're an American, read Global Voices Online (I am an advisor), a project that aggregates blogging and other material from outside the North America. If you are a white American, stop by Black Planet and other sites offering news and community resources for and by African Americans. Follow links in blogs you normally read, especially when they take you to sources that disagree with the author.

Whatever your worldview, you can find educated, articulate people who see things differently based on the same general facts. Sometimes they'll have new facts that will persuade you that they were right; more often, no doubt, you'll hold to the view you started with but you may have more nuance on the matter.

I engage in a semi-annual exercise that started more than a decade ago, when I was writing for the San Jose Mercury News, Silicon Valley's daily newspaper. I kept a list in the back of a desk drawer, entitled, Things I Believe a 10-point list of topics about which I'd come to previous conclusions. They weren't moral or ethical in nature. Rather, they were issue-oriented, and about my job as a business and technology
columnist.

Every six months or so, I'd go down the list and systematically attack every proposition, looking for flaws in what I'd previously taken for granted.

For example, one longstanding item on my list was this: Microsoft is an abusive monopoly that threatens innovation, and government antitrust scrutiny is essential. From 1994 until I left the San Jose Mercury News in 2005, I continued to believe this was true, though a shade less so by the end of that period than at the beginning and during the software company's most brutal, predatory era. Conditions have changed. Given the rise of Google and other Web-based enterprises, I'm not as sure as I used to be.

Consider creating just such a list of givens that you will challenge on a regular basis. This is especially vital when it comes to political beliefs. My basic political grounding combines elements of liberal, conservative, and libertarian doctrine, and I vote according to a collection of issues, not by party. But I'm constantly reassessing.

Rush Limbaugh and other conservatives who believe in dictatorial government when it comes to security and personal liberty but have no patience for equal opportunities in life infuriate me. Yet I regularly read and listen to their arguments, and occasionally learn something useful.

Going outside your comfort zone has many benefits. One of the best is knowing that you can hold your own in a conversation with people who disagree with you. But the real value is being intellectually honest with yourself, through relentless curiosity and self-challenge. That's what learning is all about. You can't understand the world, or even a small part of it, if you don't stretch your mind.

4. Ask more questions. This principle goes by many names: research, reporting, homework, and many others. The more personal or important you consider the topic at hand, the more essential it becomes to follow up on the media that cover the topic.

The Web has already sparked a revolution in commerce, as potential buyers of products and services discover relatively easy ways to learn more before the sale. No one with common sense buys a car today based solely on an advertisement. We research on the Web and in other media, and arm ourselves for the confrontation with the dealer.

This extends widely. We generally recognize the folly of making any major decision about our lives based on something we read, hear, or see. But do we also recognize why we need to be more active in digging deeply ourselves to get the right answers? We need to keep reporting sometimes in major ways, but more often in small ones to ensure that we make good choices.

Near the end of the Cold War, President Reagan frequently used an expression, trust but verify, in his dealings with the Soviet Union. He didn't invent the saying, but it was appropriate for the times. It's just as rational an approach when evaluating the media we use today.

5. Understand and learn media techniques. In a media-saturated society, we need to know how digital media work. For one thing, we are all becoming media creators to some degree. Moreover, solid communications techniques are going to be critically important skills for social
and economic participation and this is no longer solely the reading and writing of the past.

Every journalism student I've taught has been required to create and operate a blog, not because blogging is the summit of media creation but because it is an ideal entry point into media creation. It can combine text, images, video, and other formats, using a variety of plug-in tools, and it is by nature conversational. And it is a Web-native form, natively digital media that adapts over time. This is a start, but only a start. Over a lifetime, people will pick up many kinds of newer media forms, or adapt older ones.

Media-creation skills are becoming part of the development process for many children in the developed world, less so for children in the developing world. In America and other economically advanced nations, teenagers and even younger children are digital natives.

Younger and older audiences may be less familiar with other kinds of media techniques. Learning how to snap a photo with a mobile phone is useful. But it's just as important to know what one might do with that picture, even more so to understand how that picture fits into a larger media ecosystem.

And it's absolutely essential to understand the ways people use media to persuade and manipulate how media creators push our logical and emotional buttons. Children and adults need to know marketers' persuasion and manipulation techniques, in part to avoid undue influence, whether the marketers are selling products, opinions, or political candidates.

In the process we all need to have a clear understanding of how journalism works. The craft and business are evolving, but they exert enormous influence over the way people live. In one sense, journalists are an example of a second-order effect of the marketers' trade, because sellers and persuaders use journalists to amplify messages. But journalists deserve (and themselves should wish for) greater scrutiny for its own sake to improve journalism and public understanding. Hence my earlier push for more and better media criticism.

Principles of Media Creation

All of the principles for consumers are part of the toolkit of every responsible journalist or information provider. So are the following. The first four are standard for journalists of all kinds, and are widely accepted inside of traditional news organizations. The fifth is somewhat new and considerably more controversial, and even more critical in a distributed media age.

1. Do your homework, and then do some more. You can't know everything, but good reporters try to learn as much as they can about a topic. It's better to know much more than you publish than to leave big holes in your story. The best reporters always want to make one more call, check with one more source.

I had a rule of thumb as a reporter. I tried to tell roughly 10 percent of what I knew in any story. That is, I was so overloaded with facts and information that I had to be extremely selective, not to hide things but to illuminate what really mattered.

Although the digital world gives us more reporting tools, none of them replace old-fashioned methods such as making phone calls, digging through paper records, and, of course, in-person interviews. Shoddy research, moreover, can happen online and offline. What matters is to keep reporting until you get the information that is critical, not just what is on the surface.

Publication in the online sphere is only the first step. Then you discover what I learned as a journalist covering technology in Silicon Valley: Your readers collectively know vastly more than you do. Learn from them, and revise your work accordingly.

2. Get it right, every time. Factual errors, especially ones that are easily avoidable, do more to undermine trust than almost any other failing.

Accuracy is the starting point for all solid journalism. Get your facts right, then check them again. Know where to look to verify claims or to separate fact from fiction. And never, ever, spell someone's name wrong.

In my first daily-newspaper job I spelled the name of a company wrong through an entire article, and didn't discover this until after publication. I abjectly apologized to the owner of the company, who took it with amazingly good humor, but the shame I felt was a longstanding lesson.

Smart journalists know there are no stupid questions. Sometimes there are lazy questions asking someone for information that you could have easily looked up. But if you don't understand something, you have no excuse for not asking for an explanation.

When I wrote about technology, I frequently called sources back after interviews to read them a sentence or paragraph of what I planned to write, so they could tell me whether I'd explained their technical work in plain English. Usually I had it right, but sometimes a source would correct me or offer a nuance. This made the journalism better, and made my sources trust me more.

3. Be fair to everyone. Whether you are trying to explain something from a neutral point of view or arguing from a specific side, fairness counts. You can't be perfectly fair, and people will see what you've said from their own perspectives, but making the effort is more than worth the difficulty.

First of all, it's the honorable approach. You want to people to deal with you in a fair way, especially when someone is criticizing what you've said or done. Do the same for them.

Second, it pays back in audience trust. The people who read or hear your work will feel cheated if you slant the facts or present opposing opinions disingenuously. Your reporting will be suspect once they realize and they eventually will what you've done.

How to be fair? Beyond the Golden Rule notion of treating people as you'd want to be treated, you can ensure that you offer a place for people to reply to what you (and your commenters) have posted. You can insist on civility in your own work, and in the comment postings; my rule for hosting community is that we will be civil with each other even if we disagree on the issues. Use the Web, especially the elemental unit called the hyperlink. Point to a variety of material other than your own, to support what you've said and to offer varying perspectives.

Most of all, fairness requires that you've heard what people are saying. Journalism is evolving from a lecture to a conversation, and the first rule of good conversation is to listen.

4. Think independently, especially of your own biases. Being independent can mean many things, but independence of thought may be most important. Creators of media, not just consumers, need to venture beyond their personal comfort zones.

Professional journalists claim independence. They are typically forbidden to have direct or indirect financial conflicts of interest. But conflicts of interest are not always so easy to define. Many prominent Washington journalists, for example, are so blatantly beholden to their sources, and to access to those sources, that they are not independent in any real way, and their journalism reflects it.

Independent thinking has many facets. Listening, of course, is the best way to start. But you can and should relentlessly question your own conclusions based on that listening. It's not enough to incorporate the views of opponents into what you write; if what they tell you is persuasive you have to consider shifting your conclusion, too.

5. Practice and demand transparency. This is essential not just for citizen journalists and other new- media creators but also for those in traditional media. The kind and extent of transparency may differ. For example, bloggers should reveal biases. Meanwhile, Big Media employees may have pledged individually not to have conflicts of interest, but that doesn't mean they work without bias. They should help their audiences understand what they do, and why.

Transparency in the traditional ranks has scarcely existed for most of the past century. There may be more opaque industries, but it is ludicrous for a craft that seeks openness in others to be so opaque itself. When we demand answers from others, we should look in the mirror and ask some of the same questions.

Scandal, for the most part, has forced open the doors to a degree. The Jayson Blair debacle at the emNew York Times led the newspaper to describe in lurid detail what had happened. It also led to the creation of a public editor post analogous to the position of ombudsman.

Bloggers, through their own relentless critiques, have made traditional-media transparency more common as well. However unfair bloggers' criticism may often be, it has also been a valuable addition to the media-criticism sphere.

Bloggers, too, need to adopt more transparency. Some, to be sure, reveal their biases. That gives readers a way to consider the writers' world views against the postings, and then make decisions about credibility. But a distinctly disturbing trend in some blog circles is the undisclosed or poorly disclosed conflict of interest. Pay-per-post schemes are high on the list of activities that deserve readers' condemnation; they also deserve a smaller audience.

Why this Matters

We are doing a poor job of ensuring that consumers and producers of media in a digital age are equipped for these tasks. This is a job for parents and schools. (Of course, a teacher who teaches critical thinking in much of the United States risks being attacked as a dangerous radical.) Do they have the resources including time that they need?

But this much is clear: If we really believe that democracy requires an educated populace, we're starting from a deficit. Are we ready to take the risk of being activist media users, for the right reasons? A lot rides on the answer.

Endnote

1 My new project, co-founded with Bill Gannon, a former journalist and editorial director at Yahoo, is called Media Critic. Our goals are to: (a) aggregate the best media criticism from all sources; (b) spark some excellent conversations about journalism, conversations that we hope will include journalists themselves; (c) generate valuable data that will lead to (and suggest) deeper research; and (d) provide a platform for people who want to dig deeper into journalistic methods and values. The not-for-profit project is starting with politics as a primary focus. Over time, however, it will expand into other arenas, both by topic and geography. We are hoping that the community of people interested in media criticism will join the conversation and help us develop the site and its practices.

Goddard v. Google, Inc., 2008 WL 5245490 (N.D. Cal. Dec. 17, 2008). My initial post when the complaint was filed. The Justia page.

Goddard sued Google because Google displayed third party AdWords ads for allegedly fraudulent mobile subscription services. On its face, this lawsuit appeared preempted by 47 USC 230 (consistent with other opinions granting 230 for third party ads, such as the recent Cisneros case), although the plaintiff included some allegations to try to get around 230. No such luck for them. This ruling kicks the lawsuit out on 230(c)(1) grounds with leave to amend (more on that in a moment).

I'm a big fan of Judge Fogel's opinions. He's a meticulous and thoughtful judge, and his opinions are always carefully constructed. In particular, this opinion is a terrific read for anyone who would like to see a cutting-edge 230 opinion. It discusses many of the major recent 230 cases (Roommates.com, Mazur, Doe v. MySpace, Craigslist, National Numismatic) and contextualizes them nicely. It's like a 230 year-in-review opinion. If you want a one-stop resource to see what's happened in 47 USC 230 jurisprudence in 2008, read this opinion.

Among other interesting aspects, this is the first opinion by a Ninth Circuit-bound district court judge that has a robust analysis of how Roommates.com applies to the case. (Roommates.com has been cited in a few other opinions, but usually in a very cursory fashion). Judge Fogel deftly wrestles with the multiple contradictory provisions of Roommates.com, noting that it is principally is a defendant-favorable ruling with only a thin layer of plaintiff-side opportunity. For example, Fogel reads the Roommates.com opinion very narrowly when he says "The [Roommates.com] court emphasized repeatedly that the website lost immunity only by forcing its users to provide the allegedly discriminatory information as a condition of access." The opinion did say that, but I'm not sure about the "only," and it said lots of other contradictory things as well.

The Unfair Competition Claim

The plaintiff argued that Google engaged in 17200 unfair competition by receiving funds from fraudulent ads. Though this may be a novel way of framing Google's involvement, it doesn't adequately mask the underlying argument that the defendant should lose 230 coverage because it received an economic benefit from third party tortious conduct--an argument that has been rejected many, many times before and doesn't fare any better here. The court reframes the argument as a premises liability argument and rejects it per Gentry and Doe v. MySpace.

Along the way, the court addresses the plaintiff's allegation in the complaint that Google helped draft the impermissible ad copy. The plaintiff didn't press this point after the complaint, and the court says (referencing its reading of Roommates.com) that "there is no suggestion in the current record that Google encouraged the [advertisers] to create the allegedly fraudulent content, or that the creation of such content was anything less than voluntary."

The court also addressed the plaintiff's argument that the claim was anchored in the federal anti-money laundering criminal statute and therefore should drop out of 230 per the exclusion for federal criminal law (230(e)(1)). The court correctly rejects this but doesn't cite precedent on this point, missing Doe v. Bates.

Breach of Contract/Negligence

The plaintiff's other main attack vector is that Google should be liable because it failed to enforce a provision in Google's AdWords contract with advertisers restricting fraudulent conduct. I've complained repeatedly about arguments trying to treat a vendor's contractual negative behavioral restriction as an affirmative representation by the vendor that such behavior won't occur on the website (my latest rant on this point). Fortunately, Judge Fogel has little difficulty rejecting this argument, correctly pointing to the Green v. AOL precedent involving the distribution of third party viruses in an AOL chatroom (the Noah v. AOL precedent would have been an appropriate additional citation).

To try to get around this, the plaintiff cites to the Mazur case, which said that eBay can be liable for its affirmative marketing representations even if they are rendered untrue by third party conduct. I've repeatedly expressed my concern that the Mazur case is a more scary ruling to defendants than Roommates.com, but this opinion slightly calms my fears. Judge Fogel correctly notes that Google never made affirmative marketing representations on this point and the negative behavioral restrictions in the AdWords contract weren't an affirmative marketing representation.

Google also argued that this line of claims are barred by 230(c)(2), the immunization for filtering decisions. Citing to National Numismatic v. eBay, Judge Fogel rejects the argument based on the statutory list of immunized harmful content, saying "the relevant portions of Google's Content Policy require that [advertisers] provide pricing and cancellation information regarding their services. These requirements relate to business norms of fair play and transparency and are beyond the scope of 230(c)(2)." I'm not sure the 230(c)(2) argument was Google's strongest, but I would have loved to see Judge Fogel unpack this discussion and the implicit assumptions a little more.

Aiding and Abetting

Finally, the court rejects the attempted 230 pleadaround that Google aided and abetted the advertisers, saying "there are no allegations here that Google developed the offending ads in any respect." (Cite to Roommates.com).

Leave to Amend

Given that this case was filed after the Roommates.com en banc opinion, and therefore the plaintiff had the chance to structure the complaint based on a reading of the latest Ninth Circuit standard, it would have made sense to dismiss this complaint without leave to amend. Instead, Judge Fogel gives the plaintiff another chance and articulates his reading of allegations that should survive 230 preemption:

there may be instances in which an internet content provider will be considered responsible' at least in part' for [posted third-party content] because every [posting] is a collaborative effort between the internet provider and the third-party content provider. Fair Housing Council, 521 F.3d at 1167. If Plaintiff could establish Google's involvement in creating or developing the AdWords, either in whole or in part, she might avoid the statutory immunity created by 230. In light of that possibility, Plaintiff will be given an opportunity to amend her complaint in order to allege such involvement.

Reading between the lines, the writing is on the wall for this lawsuit. The plaintiff can't win, and it would be a mistake for the plaintiff to refile. The judge even says as much in a footnote to this quote, saying "at present it appears unlikely that Plaintiff can" make the requisite allegations. Nonetheless, I'd be shocked if the plaintiff didn't refile. If they do, I hope Judge Fogel vigilantly polices the boundaries of Rule 11 for any allegations the plaintiffs make but can't back up--just like he did in the KinderStart v. Google case.

A Final Point

By my count, this is the third post-Roommates.com case where Roommates.com has been cited in favor of the defendant in kicking the case out of court. (The other two are Best Western v. Furber and GW Equity). In contrast, I am not aware of any case yet citing Roommates.com in favor of a plaintiff. It's obviously early, but at this point the limited evidence suggests that Roommates.com was not a watershed change to 230 jurisprudence. On that basis, Roommates.com may not be as bad a substantive ruling as we had initially feared.

To realize how neat a prospect this is, you have to know what problem it solves. Here's the Sunlight wiki where the idea is being hashed over:

Names of entities-- donors, members of congress, corporations, even governments are not called the same thing between documents or databases or even in the same document. For instance, in the case of the Federal Election Commission data files, donors can be called William Smith, Billy Smith, Billy Smith, JR. or a plethora of other names. Corporations go beyond this by having multiple names-- Lorne Michaels is not only the executive producer for Saturday Night Live, but the CEO of Broadway Video and an employee of NBC Studios, a subsidiary of General Electric.

The fact that Jim Jones and James Jones III are one and the same person is a challenge to transparency, because if we never come to know that they're both the same guy, the quality of the data that powers good government drops considerably. And so, the Labs are trying to whip up algorithms and filtering techniques that boil names down to their most basic and consistent form. Once they crack that nut, they can share that knowledge with the rest of us. In some cases, Sunlight has already solved some aspects of the problem. An API now publicly available pulls members of Congress's names from a central database, so that typing "Teddy Kennedy" into a Google spreadsheet, for example, automagically resolves to "Edward Kennedy." Think that's awesome? Me too, me too.

My bedtime book of late has been doctor and New Yorker writer Atul Gawande's rather good Better: A Surgeon's Notes on Performance. I'm reminded here about his core argument: the most transformational changes in modern medicine are some of the simplest acts -- cutting down on hospital infection rates by getting doctors to wash their hands between patients, for example. It's often the most basic things that can be the most powerful.

*Note: Our Andrew Rasiej and Micah Sifry are senior advisors to the Sunlight Foundation, but that has little bearing on this post.

The new Administration should "need to build on the groundswell of citizen participation in the presidential campaign and make people's everyday interactions with their government easier and more transparent," says the paper. But then comes the massive challenge:

It won't be an easy task. There are approximately 24,000 U.S. Government websites now online (but no one knows the exact number). Many websites tout organizational achievements instead of effectively delivering basic information and services. Many web managers don't have access to social media tools because of legal, security, privacy, and internal policy concerns. Many agencies focus more on technology and website infrastructure than improving conten