Germany, the saying goes, is The Only Country That Ever Learned Anything.

It came at a steep price.

But today Germany is perhaps more vigilant than any other country on two fronts in particular: the demonizing of vulnerable minorities—especially outsiders—and the danger of hate speech.

For that reason, Angela Merkel and the BRD led the way in welcoming Syrian refugees fleeing that wartorn country, even as the United States has turned its collective back both on those suffering human beings and our own principles.

It is also for that reason that Germany—again unlike the US—has some hard limits on freedom of speech, rejecting the absolutist view in favor of policing particularly extreme and incendiary expression. (Specifically banned: the display of Nazi iconography, including the swastika and the Bellamy salute.)

So it is fascinating and ironic that the Federal Republic of Germany recently saw the confluence of these two issues in a landmark court case involving a Syrian refugee named Anas Modamani who sued Facebook over its abetting of hate speech and the spread of fake news. The story is told in a superb new short documentary called Anas vs. the Giant by filmmakers Adrienne Collatos and Karen K.H. Sim, which premiered at SXSW in 2019. (You can watch it here.)

Anas’s story is a seminal one for our times: a David and Goliath tale of one brave individual—an immigrant and refugee no less—standing up to the toxic alliance of right wing hate groups and Big Tech. But it is also a story that goes to crucial questions about freedom of speech in an age when technology has dramatically altered every aspect of that debate, and in the process, put the very foundations of democracy at risk.

YOU BELIEVE WHAT YOU WANT TO BELIEVE

Anas Modamani fled the violence in Syria in 2015 at the age of seventeen. In September of that year, German Chancellor Angela Merkel visited the refugee camp in Berlin where he was living and Anas took a selfie with her. Teenager that he was, he posted it to his Facebook page.

Initially, the photo brought him some renown and good fortune. But in March 2016, right wing trolls seized on Anas’s six-month-old picture and used it to allege that he was the terrorist behind the bombing of the Brussels airport that month. (He was later linked, equally falsely, to the attack on a Berlin Christmas market in December of that year.)

Anas was not remotely associated with either crime; he had been viciously smeared by alt-right provocateurs. But neither was he the real target of their campaign. Apart from sheer sadism, what did a bunch of neo-Nazis care about ruining the life of one Syrian refugee? Their real aim, naturally, was to suggest that Merkel was cozy with terrorists and soft on radical extremism.

Anas immediately reported the posts and asked Facebook to take the photo down. Facebook refused, arguing that it didn’t violate its “community standards.”

The image—in various doctored forms—soon spread like wildfire around the Internet, garnering millions of views. (The original poster, no surprise, was a Russian account.) Soon the far-right German political party AfD—Alternative für Deutschland—gleefully joined in.

Fearing for his life as the picture continued to go more and more viral, Anas went into hiding. Through the Austrian NGO Mimikama, which polices fake news online, he was eventually put in touch with Chan-jo Jun, a German attorney who specializes in social media and users’ rights.

Together they sued Facebook in the German court system.

D IS FOR DEFENSE

Facebook’s defense was an ever-changing game of three-card monte in which all the cards were counterfeit.

First it claimed that it didn’t have the technical ability to take down the photo. That, any FB user will tell you, is risible. When I can have a conversation with a friend about, say, doughnuts—not even on an electronic device—and then come home to find my social media feed deluged with ads for doughnuts, you can’t tell me that Facebook can’t find a given photograph.

“Eventually Facebook said it would remove the photo from being visible in Germany,” Adrienne Collatos explains, “and at one point they did do that. But you could still mimic the VPN of a different country and see the posts. Basically all they offered was a Band-Aid.”

When Anas and Chan-jo sued for redress, Facebook challenged the authority of the German legal system to hear the case. “Their defense was, ‘We’re an American company, our headquarters are in Ireland, we don’t speak German, so we can’t answer your questions,” says Karen Sim. (Facebook was represented by one of the biggest law firms in the world, White & Case.) “They tried everything from radio silence, to dirty tricks, to attempts to intimidate, to ploys like ‘Oh, maybe we’ll give you a settlement,’—all to try to get Anas to drop the case. It was just insane.”

Team Zuckerberg did not even formally respond to the charges until minutes before courtroom arguments began, when its lawyers wired a 60-page written rebuttal in an attempt to make Chan-jo look unprepared in front of the three-judge German panel. Even that was devious, Collatos says. “It would have been too obvious to send the form at 11:30 am the day of the trial, which is when Chan-jo got it. Instead, White & Case sent it at 9:00 pm the Friday night prior, so that the court wouldn’t discover it and forward it until the last minute, and they could essentially blame it on the judges.”

Things didn’t get better once arguments began. “Facebook’s German lawyers didn’t conceal their anti-immigrant sentiment. They did a lot of posturing in the courtroom, like saying to Anas and Chan-jo both, ‘Oh, we don’t know how to pronounce your name.’”

One of the most gutting scenes in Collatos & Sim’s film comes when a member of Anas’s legal team explains that the judges don’t use Facebook themselves and don’t even understand what the lawyers were talking about.

They ruled against Anas.

“WE WERE ONLY FOLLOWING THE ALGORITHM”

Facebook’s standard claim is that it is not responsible for the content that its users post. This default dodge hinges on the notion that it’s not a publisher in the conventional sense, but merely a platform. Suing it would be like suing Verizon when someone tells a lie over the phone.

That position is utterly dishonest, of course, as Facebook most certainly regulates speech as it sees fit. I’m sure everyone reading these words knows someone who’s done time in “Facebook jail,” or at the very least had posts rejected, sometimes for something as mild as the use of profanity. I have. So Facebook’s decision not to stop—or even spank—the right wing trolls making statements that would have been actionable acts of libel in any other medium, not to mention putting the life of at least one human being at risk, doesn’t obtain.

But for the sake of argument, let’s accept that self-characterization.

OK, Facebook: If you’re like the phone company, then you’re a public utility, and a monopoly to boot, and we’re going to treat you like one and regulate you.

It’s true no one HAS to be on Facebook….but you don’t HAVE to have a phone or use electricity or gas or water either. (Approximately a third of the planet uses The Beast That Zuckerberg Built or one of its products at least once a month.)

“I think approaching it from the antitrust level is very interesting,” says Sim. “Yes, you can opt not to be on Facebook. But social media has become like electricity. Practically speaking, can you really not be on it, or on Instagram, or not engage with Amazon? If everybody needs you, you shouldn’t be allowed to hold us hostage and say, ‘We’re going to feed you QAnon conspiracy theories until your head explodes…..or doesn’t explode, and you vote for Trump.’”

“And it’s not like Facebook has a competitor that could say, ‘Come over to us, we don’t tolerate this sort of behavior.’ Right now there’s no incentive for Mark Zuckerberg to be better in any way that will benefit his consumers.”

(Business opportunity here, MySpace!)

THE CUSTOMER IS ALWAYS RIGHT (WING)

In October 2019, Aaron Sorkin, the Oscar- and Emmy-winning screenwriter of The Social Network, published a scathing “Open Letter to Mark Zuckerberg” in the New York Times.

Mark:

In 2010, I wrote “The Social Network” and I know you wish I hadn’t.

I didn’t push back on your public accusation that the movie was a lie because I’d had my say in the theaters…..(but) It was hard not to feel the irony while I was reading excerpts from your recent speech at Georgetown University, in which you defended—on free speech grounds—Facebook’s practice of posting demonstrably false ads from political candidates….

hile you were testifying before a congressional committee two weeks ago, Representative Alexandria Ocasio-Cortez asked you the following: “Do you see a potential problem here with a complete lack of fact-checking on political advertisements?” Then, when she pushed you further, asking you if Facebook would or would not take down lies, you answered, “Congresswoman, in most cases, in a democracy, I believe people should be able to see for themselves what politicians they may or may not vote for are saying and judge their character for themselves.”

Now you tell me. If I’d known you felt that way, I’d have had the Winklevoss twins invent Facebook.

The fact of the matter is, Facebook doesn’t want to police hate speech because it makes money off it. Its insistence that it’s merely a neutral “bulletin board” is obliterated when one understands that it actively prioritizes and abets the spread of the most incendiary material.

Collatos: “One of the biggest problems with social media in general is that it feeds off extremism. I don’t consider myself an extremist, but if I’m going to engage with something on social media, it’s probably because something made me extremely angry or extremely unhappy.”

Facebook’s business model is driven by traffic, and right wing fanatics comprise a not insignificant, lucrative revenue stream. Even people pushing back against the right wing constitute clicks that put money in Mark’s pocket. “Facebook and its ilk want interaction,” Collatos adds. “They sell ads, so they want your eyeballs, and they can guarantee that they’re getting those eyeballs if people are super angry and choosing to like, or comment, or reshare.”

“Facebook’s whole way of doing things has also really undermined traditional news sources’ ability to make money—especially print news—which has caused those traditional sources to radicalize their headlines as well. That’s an old practice, obviously, but it’s somewhat interconnected. The attitude is ‘We need to get those eyeballs, and wrest them away from these other websites when and if we can.’”

“Ad tech—advertising technology—is essentially the business model running underneath everything online,” Collatos explains. “It was really created and proliferated because of Google, who started out saying, ‘We’re going to inventory all the information out there and make it accessible at your fingertips.’ But what they did to monetize it was to analyze the searches that you’re doing and get you into these tiny personal groups and then sell that information to advertisers for a ton of money.”

“But there’s some research that kind of debunks the efficacy of ad tech, so if that’s true, then the whole model is broken and no one’s benefiting. Obviously Google’s users aren’t benefiting, but also the people buying the ads are not really getting the product that they think they’re getting.”

“It’s like all advertising, in some ways,” says Sim. “You never really know if it’s working. Who knows if this Coke ad on TV is the thing that got you to buy Coca-Cola, or if it was some billboard, or the taste testing, or whatever? It’s such a blunt instrument. Tech companies tell their customers, ‘We have the ability to get you 50 million clicks in an hour.’ But the eyeballs they’re getting could be click farms, they could be trolls, they could be bots, so there’s no distinguishing. A click is a click, and everybody’s gaming the system.”

ALT-WRONG

At a time when free speech is under attack all over the world, and the press is being demonized as the “enemy of the people,” it’s especially ironic that forces like Facebook that are facilitating hate speech—and rightly ought to be regulated—are hiding being a free speech defense, one which allowed neo-Nazis to attack Angela Merkel (and Anas) on the model of their ideological forbearers.

And of course it’s not just lunatic fringe extremists spreading lies and hate on social media; it’s people like Donald Trump and Vladimir Putin too, who have weaponized the technology as a new means of authoritarian control, undermining some of the fundamental precepts of liberal democracy.

We see the effect in the AfD’s campaign to smear Merkel. Previously a marginal force at best, the party’s popularity had soared as a result of migrant crisis, part of a wave of right wing extremism—don’t call it “populism”—sweeping the globe. In 2017, a year after the Anas scandal, AfD became the first far-right party to be represented in the German parliament since World War II. Prior to that election, it had never held even one seat in the Bundestag. Today it has 94 out of a total of 709, and is the third largest party in the country.

Sim: “The argument always in the US is that you want to let the Nazis to march down the main street, because you want to know that they exist. In Germany, it’s illegal to do that, but it doesn’t prevent those groups from arising. You still have this neo-Nazi movement, but it’s totally underground.”

One might question which is worse: a society where racist thugs are subterranean and hard to identify, or one where they feel emboldened to show their faces and run for office?

In Germany, those far-right forces are now migrating from the former category to the latter. Since taking their seats, AfD members of the Bundestag have behaved like trolls, often disrupting parliamentary sessions in a way chillingly reminiscent of a certain other German political party that will go unnamed here. And its vile ethos has found purchase elsewhere in German society. Recently the Merkel government disbanded a company of KSK, (Kommando Spezialkräfte), its most elite special operations unit, after it was revealed that it was riddled with far-right extremists. While that scandal is especially disturbing in Germany, to Berlin’s credit, it did take swift action to address it. It’s impossible to imagine Donald Trump doing the same if a similar situation were revealed in an elite US unit.

On the contrary: he does the opposite, encouraging right wing fanatics and pardoning war criminals.

INVASION OF THE SOUL SNATCHERS

With the German legal system refusing to come to his aid, Anas was left without any real options for combating the slander tarring him as a murderer, short of endless legal appeals in his adopted country, or pursuit of the case in other nations like the US, both of which required resources that an indigent teenage refugee did not have. Instead, he has been forced to live with the results of that slander to this day.

So how long can an image live on the Internet? Consider the story of a Swedish woman named Lena Forsen.

In 1972, when a group of (almost exclusively male) software engineers at USC were developing what became the JPEG format, they tested their compression algorithm by feeding into their computer a Playboy centerfold for which Lena had posed. The resulting digital image—cropped at the shoulders—became the industry standard, permanently embedded in the Internet, and shared bazillions of times. (Trivia: It is also the centerfold presented to Woody Allen’s Rip Van Winkle-like character in Sleeper, suggesting it will endure at least until 2173.)

No one asked Lena Forsen—now a 67-year old grandmother living in Stockholm—her permission.

It wasn’t the first case of revenge porn, but it opened the door to it, and was a harbinger of what would happen to Anas Modamani and many others in a far darker version of that kind of appropriation and re-purposing. It’s also a testament to the durability of the Internet, where everything lives forever, whether it’s soft porn from the ‘70s or fake news tarring someone as a terrorist. (The story is well told in the documentary short Losing Lena, whose website is part of a campaign to obliterate the misappropriated image.)

We’ve all heard the old folktale about lost Amazonian tribes shunning photography as “stealing the soul.”

Wait till they hear about Mark Zuckerberg.

WHAT’S “BOOKFACE”?

In 2006 or so, my wife Ferne and I went to speak to a film class at my alma mater, Lafayette College, and to look at some undergraduate work. One of the students got up in front of the class to show her short documentary, which she said was “about how people are obsessed with Facebook.”

Ferne and I looked at one another, baffled. “What the hell is ‘The Facebook?’” we asked each other. Even after the film was over we still didn’t have a clue.

That was the first time either of us had ever heard of the thing. Who, those fourteen short years ago, imagined that this frivolous online time-waster that people mostly used to post pictures of cats would become an all-consuming cancer that would eat the soul of global democracy? Only the same seers who foresaw that a D-list game show host and serial con man would become President of the United States and bring a 250-year-old republic to the brink of extinction.

Tech/anti-tech guru Jaron Lanier, author of Ten Arguments for Deleting Your Social Media Accounts Right Now (2018), has speculated that ‘“Facebook might have won already, which would mean the end of democracy in this century.”

It’s possible that we can’t quite get out of this system of paranoia and tribalism for profit—it’s just too powerful and it’ll tear everything apart, leaving us with a world of oligarchs and autocrats who aren’t able to deal with real problems like pandemics and climate change and whatnot.”

By way of example, Lanier points to COVID-19, suggesting that “the sway of media is more powerful than the experience of reality—that people can be watching hundreds of thousands die from this virus and yet believe it’s a hoax at the same time, and integrate those two things. That’s the food for evil.”

But my own ignorance about social media is one thing; that of someone who controls your fate is far more terrifying…..like a judge, or a Congressman.

When Mark Zuckerberg testified before Congress in 2018, members of that august body—most of them far older than the average American—asked him things like, “Why does my email go into the spam folder?” as if he was the world’s highest paid IT guy. Karen Sim says that Zuckerberg’s recent testimony went a little better, as some of the Congressmembers were better informed this time around. But there are still many many elected officials who don’t use social media or understand the most basic things about it, even as they are charged with regulating it—or not.

Adrienne Collatos: “From what we can tell, Congress seems to be moving towards regulation, because antitrust is a language that they do understand, and they know how to legislate. So that’s encouraging. It isn’t just this idea of algorithm and ad tech targeting, which is so beyond their understanding.”

That is encouraging indeed, because until it is forced to do so, Facebook is unlikely to self-police. On the contrary, as Anas’s experience showed, the company has been VERY reluctant to accept any responsibility for anything, or to take down even the most grotesque, false, or dangerous posts…..so much that it was big news when—finally—it pushed back against Donald Trump when he recently offered the patent lie that children are immune to the coronavirus.

It’s one of the few Trumpian lies that have not been allowed to take root and fester online, as Zuck and Don seem to share the same attitude toward truth and moral responsibility.

Last week, a Facebook post by a militia group called the “Kenosha Guard” called for armed volunteers to confront Black Lives Matter protestors in Wisconsin, in a listing for “Armed Citizens to Protect Our Lives and Property.” Facebook received 455 separate complaints reporting the post and asking that it be taken down, but the company refused, again arguing that it did not violate its “community standards.” Four different Facebook adjudicators all came to that same conclusion.

But after the 17-year-old right wing vigilante Kyle Rittenhouse subsequently murdered two BLM protestors and wounded a third with an AR-15 in Kenosha, Zuckerberg was forced to make an apology and acknowledge that Facebook should have removed the post. Even then, he was tone deaf enough—or arrogant enough—to describe his company’s failure as “largely an operational mistake.” (“My bad.”)

Of course this was far from the first time that social media had been implicated in fomenting acts of violence. I’m not a betting man, but if I were, I’d wager it won’t be the last.

YOU ARE THE PRODUCT

“There are two schools of thought,” says Sim, speaking of efforts to regulate social media and the power of Big Tech. “One is that the laws are already in place, they’re just not being applied correctly. That school views Facebook more as a publisher than just a neutral platform, however you define those things. The other school is that we need a whole new set of laws because this is the new frontier.”

As my own Facebook friends will attest, I myself scorned all social media before January 2017, out of a combination of contrarianism, Ludditism, and old age, which kept me busy yelling at the neighbor kids to get the hell off my yard. But Trump’s rise made me feel the need to commune with like-minded souls. I went into Facebook fully embracing exactly what is said to be wrong with social media: shouting into the echo chamber, which for all its obvious faults, is also a way of organizing, sharing information, and just plain venting. But it’s a tool—or more precisely, a weapon—that both sides can use.

Jaron Lanier has said that “(Social media) is worse than cigarettes in that cigarettes don’t degrade you. They kill you, but you’re still you.” Writing in GQ, Zach Baron summarizes some of Lanier’s main precepts:

That anytime you are provided with a service, like Facebook, for free, you are in fact the product being sold. That social media companies are basically giant behavior-modification systems that use algorithms to relentlessly increase “engagement,” largely by evoking bad feelings in the people who use them. That these companies in turn sell the ability to modify your behavior to “advertisers,” who sometimes come in the old form of people who want to persuade you to buy soap but who now just as often come in the form of malevolent actors who want to use their influence over you to, say, depress voter turnout or radicalize white supremacists. That in exchange for likes and retweets and public photos of your kids, you are basically signing up to be a data serf for companies that can make money only by addicting and then manipulating you. That because of all this, and for the good of society, you should do everything in your power to quit.

But there is hope, beginning with the dawning recognition of these dangers…..and in some cases turning social media’s own power against it.

“One of the things I love about Anas and Chan-jo’s story,” says Sim, “is that here we are in the midst of this terrible anti-immigrant moment, and yet they are immigrants who are using the very tools of the society that hates them to fight that society and fight for what’s right and to make a life there. It gives you some hope. But it’s a huge effort. And that’s Chan-jo’s life.”

The founders of Western democracy, steeped in the ideals of the Enlightenment, could not possibly have conceived of the challenges posed by the Information Revolution. Whether it’s by means of antitrust legislation or a revised view of privacy rights or something else, we need a new paradigm for a new age. If that democracy is to survive, 20th century concepts of freedom of speech—which are in reality 19th century and even 18th centuries concepts—have to adapt or become handmaidens of tyranny.

Feel free to share on the web.

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Photo: Fabrizio Bensch/Reuters. Syrian refugee Anas Modamani taking a selfie with German chancellor Angela Merkel in Berlin in 2015.

Further reading:

Ramona Diaz on the Persecution of Maria Ressa – August 7, 2020

“The Modern World Starts Here”—The Birth of Silicon Valley – March 30, 2018