Microsoft Joins the Censors

The Left has enlisted Big Tech to help suppress conservative activism and conservative ideas. We are seeing this on a number of fronts, one of the more recent (March 1) being Microsoft. Microsoft announced a new Service Agreement effective May 1 that applies to the company’s “consumer products, websites, and services.” Those include the Office suite, Xbox and Skype, among others.

The new Service Agreement includes a Code of Conduct:

a. By agreeing to these Terms, you’re agreeing that, when using the Services, you will follow these rules:

i. Don’t do anything illegal.

ii. Don’t engage in any activity that exploits, harms, or threatens to harm children.

iii. Don’t send spam. Spam is unwanted or unsolicited bulk email, postings, contact requests, SMS (text messages), or instant messages.

iv. Don’t publicly display or use the Services to share inappropriate content or material (involving, for example, nudity, bestiality, pornography, offensive language, graphic violence, or criminal activity).

v. Don’t engage in activity that is fraudulent, false or misleading (e.g., asking for money under false pretenses, impersonating someone else, manipulating the Services to increase play count, or affect rankings, ratings, or comments).

vi. Don’t circumvent any restrictions on access to or availability of the Services.

vii. Don’t engage in activity that is harmful to you, the Services, or others (e.g., transmitting viruses, stalking, posting terrorist content, communicating hate speech, or advocating violence against others).

viii. Don’t infringe upon the rights of others (e.g., unauthorized sharing of copyrighted music or other copyrighted material, resale or other distribution of Bing maps, or photographs).

ix. Don’t engage in activity that violates the privacy of others.

x. Don’t help others break these rules.

Some elements of this Code are uncontroversial, while others obviously are subject to abuse. “Inappropriate content or material” could cover just about anything. I would put pretty much the entire contents of the New York Times in that category. “Offensive language” is similarly broad. Offensive to whom? David Hogg? Or me? I think we know how Microsoft’s censors will answer that question.

Likewise, Microsoft’s ban on “false or misleading” content sounds like an attack on “fake news,” but again, I might consider much of what the Washington Post publishes as false or misleading. I don’t think that is what Microsoft has in mind, however. And does Microsoft seriously intend to police conversation on Skype to ensure that no one says anything that is false or misleading? Good luck with that.

Similarly with the ban on “hate speech,” a concept beloved by the Left but otherwise undefined. One thing you can be sure of is that nothing anyone says about a conservative, or about President Trump or any member of his administration, can be hate speech. Beyond that, it’s open season.

And finally: Microsoft says it may enforce laws against unauthorized sharing of copyrighted material and improper distribution of photographs, among other things. On its face, that may seem reasonable. But the extent to which copyrighted material can be quoted under the doctrine of fair use is up for grabs, with little guidance in the case law. People like us quote copyrighted material all the time.

Similarly, photographs and other images are promiscuously disseminated on the internet. Google Images, by far the main source of photos and other images, has recently added a disclaimer to each image that it displays: “Images may be subject to copyright.” Good luck with that! Probably a large majority of uses of Google Images, of which there must be billions annually, at least arguably violate someone’s copyright. This is an area of the law that is in flux, where the boundaries are unknown. The opportunity for selective enforcement is obvious.

Microsoft proposes to enforce these rules through its access to your “Content,” as defined in the Code.

The problem, of course, is that Microsoft’s censors inevitably will be liberals. Liberals will decide what is “offensive,” or “inappropriate,” or “false or misleading,” or “hate speech,” or a violation of copyright laws, the parameters of which, in the relevant context, no one knows. You can see where this is going.

Happily, Microsoft doesn’t have a large presence on the internet. (My impression is that just about all the money Microsoft earns comes from Windows, Word, Excel and Power Point licenses paid for by companies. Pretty much everything else Microsoft has tried has been a failure.) But the trend is consistent: the Big Tech firms are lining up behind the Left to enforce a less-than-free speech regime that draws on the insanity we see on today’s college campuses.

Nothing about this is good. The question is what to do about it. Some, like Glenn Reynolds, say the Big Tech companies should be broken up under the antitrust laws. Others advocate diversity, in the form of spontaneously-arising conservative or neutral tech companies. Maybe the courts will intervene, at some point, to treat Big Tech companies as utilities. My own preference is for diversity, but network effects have inexorably driven online services toward monopoly. (In another universe, maybe MySpace could have been a conservative alternative.) For the foreseeable future, conservatives will need to be alert to efforts by the Left to use friendly tech companies to tilt the playing field in favor of the Left.

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