The authors of the Constitution were brilliant. Sure, they did not get it perfect, but they did it in 87 days with no computers. Nowadays we can’t draft a dog license bill in a year. James Madison is considered the author of the Bill of Rights but he was not satisfied with the final document so he pushed for the bill of rights to include “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Apparently, Justice Samuel Alito was unaware of the Ninth Amendment when he ruled that there was no right to abortion in the Constitution.
For now, though let’s look at the First Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press …” What did they mean by press? The process and equipment used to disseminate news and opinions in 1789. They knew from experience that free speech and its corollary a free press were essential to democracy. To have freedom of the press, you had to have a press. Printing improved and papers went from a few pages to dozens. They went from a hundred copies a day to millions. Then radio came along and since many radio stations were owned by newspapers it was a logical conclusion that broadcasting was just an extension of the press; for the most part radio stuck to the rules of responsible journalism, verify before publishing. Broadcasting grew exponentially, but with the addition of television the tail began to wave the dog. Broadcast media have largely abandoned print.
Now social media has intruded. A system controlled by people, has been replaced with a system controlled by computer algorithms. The First Amendment continues: or the right of the people, as do half the other parts of the Bill Of Rights. It is clear from these examples that it is people not machines that have rights, and for certain limited purposes corporations have some similarities to people.
Now what about algorithms, corporations have officers. Radio and TV have editors, but algorithms answer to nobody. They make strange changes, as anyone who has used text messaging has experienced. Sometimes changes occur after the user hit’s send. The AI algorithms make editorial changes to posts that the user might not approve, make new links or create nonsense messages we call hallucinations.
TikTok in particular has an algorithm written by a Chinese company. Their social media algorithms are not like the ones we learned in high school of a few words: Parentheses, exponents, multiply or divide, add or subtract. Social media algorithms consist of millions of lines of impenetrable code. Chinese spooks could have installed a disguised back door that lets them study or even edit from afar. Selling TikTok may change ownership but will it remove every back door? India had a better idea. They set up their own similar app. Then India outlawed TikTok.
Our founders revolted against a king who had unlimited power. How would they feel about an algorithm having unlimited power? We protect systems like water, telephone and computers with what we call an air-gap so that contamination from outside or another part of the system cannot infect the entire system. An air-gap is a feature that lets one’s system communicate with another, but only one way, like a two-way mirror that lets you see out but does not let others see in. In our plumbing there is a physical air-gap between incoming water and outgoing waste water. Military systems are air-gap isolated from public systems.
Both print and broadcast media make a distinction between reportage, humor and opinion, but social media algorithms do not. They could if management wanted to. The free press still obeys the same laws, like OSHA, as everyone else. Social media needs an air-gap to humanize it; perhaps human editors, maybe someday AI will be trustable. In the meanwhile; a time delay could reduce the unfair instant advantage algorithms have over all other forms of communication.
Ken Obenski is a forensic engineer, now safety and freedom advocate in South Kona. He writes a biweekly column for West Hawaii Today. Feedback encouraged at obenskik@gmail.com.