The Pundit: The Four Most Significant Threats to Our Freedom and Democracy and How to Stop Them

(February 2016)

Misuse of technology is threatening our freedom every day, but the issue is rarely even mentioned in the mainstream media. Particular issues are highlighted periodically but the big picture is rarely examined or discussed.The one exception is the privacy issue. The fact that Google, Facebook, NSA et al. routinely collect our private information is fairly well discussed and known, but the big picture and the other significant threats are being ignored.

A synergy of four trends is destroying our freedom:
1.The end of anonymous communication on the internet
2.Privatization of censorship
3.Discrimination in employment and education for expressing unpopular opinions or revealing lifestyle choices
4.The strengthening of barriers to decision-maker accountability


The latest Electronic Frontier Foundation's Effector newsletter reminded me that there is yet another significant threat to our freedom that I had previously overlooked in this article: "companies hiding terms in form contracts designed to rob customers of their rights"

"...Whether it’s a restrictive terms-of-service agreement waiving a customer’s right to modify the software on her phone or a dentist’s contract forbidding his patient from leaving a negative review, the principle is the same: contracts should not be used to waive consumers’ rights. This is especially true when consumers don’t have a meaningful opportunity to negotiate contract terms.

We’ve been following the disturbing trend of vendors burying clauses in their contracts that bar customers from leaving reviews of their products and services. When these cases have gone to trial, courts have reliably sided with the customer; unfortunately, that hasn’t stopped the practice. For every high-profile story of a customer fighting back against this unfair business practice, there are many more stories we’ll never hear: stories of customers who simply gave up under a company’s pressure to pay a fine or delete a review. Because legal gray areas are fertile ground for legal bullying, the law should make it clear that customers have every right to speak their mind, even if a company’s form contract says otherwise..."

(Excerpt from written testimony submitted by the EFF to the Maryland House of Delegates Economic Matters Committee in support of a bill (MD H.B. 131) seeking to end the practice in Maryland. Maryland Bill Would Protect Consumers’ Free Speech from Bad Contracts (H.B. 131), Effector)

The End of Anonymous Communication

Thanks to all the trolls and spammers that have been vandalizing internet forums for the last couple of decades, nearly all opportunities for participating in an online discussion or commenting on an article or product now require some form of “signing in” so that anonymous comments are prohibited. Most disturbingly, the latest quickly growing trend is to require signing in via a Facebook, Google, Twitter, Apple or Microsoft account to comment or discuss on a website.

To make the significance of this practice crystal clear: Many sites now require that every individual provide notification to a large internet advertiser that they are participating in a particular online discussion or comment forum. Facebook, Google, Twitter, Apple or Microsoft is then permitted to share that piece of information with anyone willing to pay for it (advertisers) or demand it (governments).

Facebook’s moves to eliminate the use of aliases on its site aroused anger from transgender activists who complained that using their real name threatened their safety and jobs. Facebook responded by allowing some exceptions for transgender people. The problem is that transgender people are not the only ones whose Facebook or other social media posts are likely to be used to harm them if their real identity is revealed. The people at risk include political and human rights activists (especially outside the USA), people whose political opinions are considered too far out of the mainstream, journalists and others exposing corruption and other bad behavior by people in power, LGBT people and other sexual “deviants.”

As non-governmental entities, Facebook and all other USA-based websites have a First Amendment protected right to make their own editorial decisions. I do not advocate eliminating that right. The public has made its preferences clear. Most people want censored (AKA “moderated”) forums for communicating, and they support bans on anonymity. The problem is that these sites are becoming the only game in town.

This is a problem because, without the ability to communicate anonymously or pseudonymously, people are being punished for their expressions of opinion or revelation of their lifestyle choices. In the USA, the most severe form of punishment is usually loss of one’s job and ability to obtain another job.

Privatization of Censorship

The next major problem is that nearly all of the public forums for internet discussion are curated or censored -- the preferred euphemism is “moderated.” In many cases, this censorship appears to be necessary to keep the trolls and spammers from achieving critical mass and destroying the usefulness of the forum.

The quality of the censorship is quite varied, ranging from draconian to benevolent. There is one disturbingly universal tendency that can be observed among even the most benevolent censorship regimes: hostility towards, or outright prohibitions on, criticism of the web site's owners, the site’s policies and the moderator’s actions.

I experienced this personally when I was permanently banned from the discussion forum for the crime of appearing to criticize a moderator’s decisions and actions in a subforum labeled “Feedback/Suggestions.” The fact that I was actually only criticizing a forum policy (which was not prohibited) and not a moderator’s actions (prohibited) didn’t matter to the moderators that banned me. They were too stupid to understand the difference or didn’t care. Like the leaders of nearly all organizations tend to do, criticism was taken as an attack that must be suppressed.

In many cases, online censorship of discussion and comment forums is automated and ridiculous. Netflix does not allow the use of the words “Netflix” or “laid” in their movie reviews. Censorship software can not understand the subtleties of context as an intelligent human can. For example, the word “nigger’ is censored in many forums regardless of whether the context is, for example, the title of a song.

Approaches to addressing the issues of hate speech, sexism, harassment, bullying and extremism that do not value freedom of expression sufficiently are common outside of the USA and are quickly spreading to our country (ie. college speech codes).

Residents of the United States are now quite accustomed and comfortable with censorship, thanks to their decades of passive acceptance and/or active support of government-censored broadcast television and radio.*2 Ironically, the cable television industry and the internet thrived because so many Americans and people wanted access to uncensored, more "adult” content.

Happily for those who do not support freedom of expression for all, now that all of the most popular forums for expression of opinion are controlled by large corporations, repealing or gutting the First Amendment is no longer necessary to control what people are allowed to say in public.

“Concerned about terrorists using the Web to recruit and spread extremist ideology, a delegation of top Obama administration officials met with Silicon Valley executives Friday [January 8, 2016] to brainstorm ways to counter militants’ use of technology and social media platforms…Both Democrats and Republicans lashed out at tech companies that offer encrypted communication tools and called on social media companies to do more to rid their services of extremists.” How US Government Wants Silicon Valley Tech Leaders to Fight ISIS, January 8, 2016 Christian Science Monitor

It is very disturbing that governments can pressure web content creators to suppress the expression of disliked opinions, even opinions that are posted from outside of the their own nation. It is especially sad that the relatively liberal Obama administration is promoting emulation of the oppressive practices of China.

History shows that implementation of the proposed campaign against terrorist advocacy and recruitment will inevitably be randomly enforced, confusing, a major hassle and an infringement on the rights of everyone with a political opinion. (Imagine posting on the internet being as full of unpredictable hassles as commercial air travel.) Most of us are aware that many people have been wrongly inconvenienced and/or prevented from traveling due to the inaccurate, poorly maintained, capricious and shadowy "no-fly” list.

If the public and free speech advocates don’t succeed in stopping this plan, don’t be surprised to be told that you can’t post on Facebook (just an example) because your name, or a name similar to yours, is on a secret list of suspected terrorists. Don’t expect an open, easy or fair process for getting your name removed from that list, especially without giving up all that remains of your privacy.

Today’s news and history also show that the preferred smokescreen of despots and censors everywhere is an exaggerated fear of “terrorism.” Will it be considered "terrorism” to point out that one of our nation’s enemies has some valid points or grievances on its side? Will criticizing the build-up for the next war or the conduct of an existing war be considered “terrorism?” Will criticizing hateful depictions or characterizations of an unpopular group (ie. Muslims) be considered “terrorism?” You can find many examples of the use of the “anti-terrorism” justification for censorship intended to clamp down on political dissent from all over the world.

The good news is that as a result of the January 8, 2016 meeting, “The flying rhetoric sparked the tech industry to urge policymakers not to make rash decisions that may change the free and open Internet. They pushed back on calls to downgrade encryption technologies meant to protect consumers from criminal hackers and ensure privacy so law enforcement could more easily monitor terrorists and criminals, and bristled against calls to mandate social media sites report terrorist activity to federal authorities that might jeopardize free speech.” (same source as above) The question is whether the industry will be able to unify and hold that position in the face of pressure from both governments and the significant portion of the public that supports censorship.

There are no anonymous, uncensored alternatives to Facebook, Twitter et al. available on the internet that are useful for reaching a wide audience. Even creating your own website requires a registration process that makes information about the site owner’s identity and location available to everyone. I have made some attempts to use Tor and other techniques and have experienced that posting on an internet forum pseudonymously or anonymously can be extremely difficult.

Discrimination in Employment and Education for Expressing Unpopular Opinions or Revealing Lifestyle Choices

“Bikini photo on Facebook gets SC cop fired”

“Racy Instagram pictures almost get teacher fired”

“North Charleston officer fired over Confederate flag boxers”

“Utah man fired after posting anti-cop comment online”

“Hospital security guard fired after Nyquil Facebook post”

(These are just a few of the many examples of employment discrimination for expressing unpopular opinions or revealing lifestyle choices that I found with a quick Google search)

“With the advent of social media and the Internet, stupid people have found whole new ways to embarrass themselves— or worse, in some cases. It is easy to forget about privacy settings and the fact that anyone following you can screen cap a post or a photo and share it with anyone they want, no matter how strict your settings. Many people have learned this lesson the hard way by sharing lifestyle choices or complaints about their jobs on Twitter, Instagram or Facebook only to find themselves unemployed shortly thereafter. Sure, some bosses aren’t social media-savvy and will never get wind of you whining about your Friday night shift on Facebook. But why take the chance? …

In what many might call an unfair situation, teacher Ashley Payne posted a photo on Facebook of herself holding a glass of wine and a mug of beer. She was vacationing around Europe when the photo was taken and her privacy settings were on “high”, but apparently, that wasn’t enough. A nosy parent found it and showed members of the school board, also noting Payne’s use of “the B word” on her page, ultimately resulting in Payne being forced to resign….” 8 Insane Social Media Posts That Got People Fired, (Apparently the writer thinks it is stupid to think that one has a right to express oneself honestly in public and still hold a job.)

In the USA, we are not likely to be imprisoned or fined for criticizing a politician, but that doesn’t mean that we can’t be punished for expressing our opinions or revealing information about our lifestyle. Since pseudonymous or anonymous expression of lifestyle or opinion in public is virtually impossible, we are all vulnerable to discrimination in employment and in education. We are vulnerable even if a discrimination-inducing fact, photo or opinion is from the distant past, taken out of context or is attributed to the wrong person.

Despite the fact that discriminating against government employees for their political opinion is usually illegal, government employees, especially teachers, are among the most vulnerable to workplace discrimination. With only a few exceptions in some states and cities, there are no legal protections for people who expression or reveal their lifestyle choices*1 equivalent to the Bill of Right’s protections for expression of ideas.

This is not governmental censorship when only private employers are involved, but we can not claim to be a free society if expressing your opinion or lifestyle can get you fired from your job. Depending on where you live, coming out as gay can still get you fired. Ironically, in another state, possibly even in the next city, expressing a negative opinion about homosexuality can get you fired. We’re not a free country.

You don’t have to be an employee to be discriminated against for public expression of opinion or life style:

“As the parent of a high school student, I was curious about what universities were viewing and how they were weighing whatever they found," said Christine Badowski Koenig…[Koenig]conducted research on the subject, surveying 144 colleges and universities within 150 miles of Chicago, including all Big Ten universities. Of those, 43 schools replied.

From her survey, 67 percent of the schools admitted to Googling a prospective student, and 86 percent admitted to researching students' social media sites. Why? To protect their school, its reputation, and to avoid potential bad apples from spoiling their brand, among other reasons. "For the most part, universities do not have written policies, and many admissions officers make the decision to check an applicant based on gut instinct or random searches, Koenig said….

…Koenig said colleges send marketing materials to students and to high school counseling offices. Those materials often encourage students to connect online with the school, such as these innocent taglines: "Let's be social" or "Become a fan."

"Once a student 'friends' the school, privacy settings are moot and schools can view anything, everything, the student has ever put on their Facebook page, including personal posts and the list of other universities they have friended," Koenig said.

In her thesis paper, she writes, "Unfortunately, advising teens to clean up their Facebook pages or delete their Instagram or Twitter accounts before applying for school doesn't seem appropriate advice because in the social media age, absence also becomes questionable.”
Do colleges look at prospective students' social media?, Jerry Davich, Chicago Tribune

The phrase “absence also becomes questionable” means that keeping those photos of yourself holding a red cup (thought to be evidence of attending a keg party) off your Facebook page is not good enough for today’s ambitious high school students. They also have to create a persona online that will make their preferred college like them. If you don’t have the right lifestyle or worldview to compliment your chosen college’s branding, you can be legally denied an education at that school.

If this practice continues, expect to see ambitious and/or privileged high school students running around like politicians shortly before election day, staging scenarios to impress colleges, with a photographer or videographer following them around to document the entire farce.

The Strengthening of Barriers to Decision-Maker Accountability

Exacerbating all these tendencies is the trend of using technology and other techniques to keep people from reaching decision makers. Governmental and big business policy makers generally have no legal obligation to be responsive to the public. You will not find contact information for the real decision makers on a corporate website, they do not answer their phones, and for the most part they do not respond to correspondence with anything other than a form letter. For an example, try sending a complaint or comment to Netflix. For that matter, try reaching any genuine decision maker in government or big business.

Through decades of legislation, regulation and case law, the legal entity known as the corporation has been skillfully and intentionally crafted to minimize decision maker's risk of being held responsible for their actions. With only a few small exceptions for the most blatant forms of corruption, politicians have almost completely immunized themselves from all risk of being held legally responsible for their decisions, no matter how much harm they cause.

The standard practice is to insure that the staff person available to communicate with a dissatisfied customer or constituent is not sufficiently informed and/or empowered to effectively address the issue. The people with the actual power and ability to fix problems or address complaints about policy decisions are protected with anonymity, legal immunity and technology in addition to a phalanx of deceptionists, junior staff, voice mail trees, and marketing specialists.

Thanks to the Bill of Rights, censorship (except for over-the-air broadcasting) is illegal without due process and a right to a jury trial for the accused. With the new and growing regime of privatized censorship by anonymous decision makers, there is no right to due process or method for redress when bans or censorship happens on the corporate internet forums that are the dominant form of public expression for most people.

Unfortunately that right to due process is also not required for firing an employee (including many government workers) for his or her lifestyle or First Amendment activities.

The Solutions

1. The easiest method for addressing these issues is to complain, protest and boycott social media and other discussion forums that censor and prohibit anonymous posting. Yes, I mean Facebook and similar sites. Just stop using them. Send your friends e-mails instead.

2. Corporate-owned, advertisement-funded social media and discussion websites will never become genuine free-speech forums. We need to establish non-governmental, non-profit alternatives.

3. We need to raise public awareness and establish a consensus that it is unethical and harmful to discriminate, fire or discipline an employee or student for his or her expression of opinion or lifestyle outside of the workplace or school.

Firing someone for being a nude model, a conservative, a radical, a gun owner, BDSM enthusiast, heavy drinker, or a bigot outside of the work place needs to be considered as sleazy and wrong as it is to fire someone for religious beliefs, race or ethnicity.

4. The most important step is to legally establish freedom-of-expression rights outside the workplace for nearly all employees. (Narrow exceptions may be necessary and reasonable for some employees, such as top level-executives, marketing and equal-opportunity compliance staff.)

I want to see a sign like this in every workplace:

"Federal law prohibits discrimination and harassment and affords equal employment opportunities to employees and applicants without regard to race, color, religion, sex, national origin, age, disability, genetic information, or the employee’s behavior while off-duty and away from the work place.

The First Amendment protects all forms of artistic, cultural, religious and political expression without regard to the views expressed or the form of the expression.

Employees have a right to privacy and freedom when they are not scheduled to work.

When off-duty and away from the workplace, employees have the right to the following without being subjected to workplace discrimination:
• All First Amendment-protected expression
• Participation in any legal activity
• Expression or revelation of personal lifestyle choices"

5. We also need to legally prohibit publicly funded colleges from using students' lifestyle or opinions as a basis for denying them an education. Protests and boycotts should be used to pressure privately funded colleges to do the same. Students and parents should refuse to attend colleges or other educational institutions that discriminate based on expression or revelation of personal lifestyle choices or First Amendment-protected activity.


Without taking these steps, we will have a toothless government that purports to protect our free expression and privacy rights with the reality of a society intentionally structured to make those rights hypothetical, unenforceable and moot. Without public resistance, society will unconsciously and passively continue to give corporations most of the power previously held by the people through their representational government.

*1 I am hesitant to use the terms “lifestyle choices” or “lifestyles preferences” because those terms are usually associated with bigotry towards gays and other sexual minorities. (The implication is that gays choose to be gay, no one is born that way, and people have no right to choose to engage in “immoral” behavior.) Unfortunately I can not come up with a better term for my meaning, which includes all aspects of people’s lives. In this article the term refers not only to people’s sex life but also their hobbies, activities, group affiliations, family life etc. as intended by the established definition of the word lifestyle: “a particular way of living : the way a person lives or a group of people live.” (Websters online)

*2 Yes, suppressing specific “profane” words and free discussion or depiction of sexuality is unconstitutional censorship, even if the six white male Catholics on the Supreme Court won’t accept that fact.

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